TOWN OF REHOBOTH SURETY AGREEMENT FOR A BOND

Transcription

1 TOWN OF REHOBOTH SURETY AGREEMENT FOR A BOND This Surety Agreement is entered into this day of, 2014 by and between the Town of Rehobot, a Massachusetts municipal corporation, acting through its planning board, with an address of 148 Peck Street, Rehoboth, MA (hereinafter, the Town or Board ); Blue Wave Capital, LLC, a Massachusetts Limited Liability Corporation with an address of 75 Arlington Street, Boston, MA [hereinafter "Owner"]; and, a corporation duly organized and existing under the laws of the state of, licensed and registered to do business in the Commonwealth of Massachusetts, and with a usual place of business and address of, [hereinafter "Surety"]. PREAMBLE WHEREAS, on January 8, 2014, based on the Owner's application, and after duly noticed public hearing(s), the Board approved a certain Large Scale Ground Mounted Solar Voltaic Permit allowing the construction of a solar energy facility on a property described as 116 Barney Avenue in Rehoboth, MA, as shown on plans entitled Proposed Site Development, BlueWave Capital, 116 Barney Avenue, Rehoboth, MA, by Field Engineering Co., Inc., dated August 22, 2013, as revised through December 18, 2013; WHEREAS, the above described Permit requires that the solar facility be decommissioned and removed at the end of its useful life or in the event that it becomes abandoned. WHEREAS, the above described permit requires surety in a form deemed acceptable to the Board to cover the cost of removal in the event that the town must remove the installation and remediate the landscaping, in an amount and form determined to be reasonable by the Planning Board, not to exceed more than 125% of the cost of removal. WHEREAS, the Planning Board has determined that the required amount of surety for removal of the solar facility and restoration of the property is $. WHEREAS, the Owner has decided to secure the above described obligations by means of a SURETY BOND in the penal sum of $ ; WHEREAS, the Board has determined that this form of the surety bond is sufficient to provide security in the event that the Owner does not properly decommission and remove the solar facility and restore the property, as aforesaid;

2 NOW THEREFOR, for and in consideration of the mutual promises set forth below, and after good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: SECTION 1. INCORPORATION OF PREAMBLE The Preamble shall be incorporated into and become an enforceable part of this surety agreement. SECTION 2. EFFECTIVE DATE This surety agreement shall be effective upon its execution by all parties hereto SECTION 3. OBLIGATIONS, DUTIES, AND RIGHTS OF THE PLANNING BOARD a. Upon removal and decommissioning of the solar facility, as required under the Permit, the Owner shall inform the Board accordingly, in writing. Upon the Board s determination that the Owner has decommissioned and removed the solar facility and restored the property as required under the Permit, the Board shall release the Owner and Surety from this surety agreement and shall issue a certificate of completion and release that shall be executed by a majority of the members of the Board. A determination that the removal and restoration has been satisfactorily completed shall be in the sole discretion of the Board. The Owner and its agents and consultants shall fully comply with all reasonable requests for inspections and information by the Board and its agents. b. If the Owner fails to complete the required removal of the solar facility and restoration of the property, the Board shall be entitled to all bond proceeds secured hereunder, and shall apply said proceeds, for the benefit of the Town to complete the removal process. Any portion of the bond that is not applied as set forth above, may be retained by the Town as liquidated damages for failure to perform under this agreement, provided that, upon request and in the sole discretion of the Board, partial releases may be granted. In the event that the Board elects to obtain such bond proceeds, in whole or in part, as described in this paragraph, it shall notify the Surety and the Owner accordingly, in writing and, within fourteen (14) days of such writing, the bond proceeds shall be paid to the Town. SECTION 4. OBLIGATIONS, DUTIES, AND RIGHTS OF THE OWNER AND SURETY a. The Surety, or Owner on behalf of the surety, shall deliver a surety bond with the treasurer of the Town of Rehoboth, in the aforementioned amount of $ s for the purpose of securing the required removal of the solar facility and restoration of the property, as aforesaid.

3 b. The Surety agrees to and is obligated to notify the Board of any lapse in the bond. Failure of the security company to provide such notice or any lapse of the surety bond shall result in automatic rescission of approval of the solar facility. Any issuance of a new bond by the Surety shall require execution of a new surety agreement. c. The Owner and Surety agree and understand that the Board will not release the surety bond in full, unless another method of security is provided, until the removal and restoration has been satisfactorily completed as determined by the Board. d. The Owner shall at all times provide the Board forthwith (no more than 14 days after transfer of title) with the name of the current owner or owners of the solar facility. The Owner agrees and understands that failure to comply with this provision could result in rescission of approval of the above described permit. SECTION 5. BINDING EFFECT This surety agreement, and any amendments thereto, shall be binding on the Owner, the Owner's agents and representatives, and any successors to the Owner's title, interest, and rights in the parcel of land constituting this subdivision, including executors, administrators, devisees, heirs, successors and assigns of the Owner. This surety agreement shall also be binding on the Surety, its agents, representatives, successors, and assigns. The liability of the Owner and Surety to the Town of Rehoboth shall be joint and several. SECTION 6. USE OF TERMINOLOGY Use of the terms "Owner" and "Surety" in this surety agreement is for convenience only and should not be considered as a limitation on those parties who may be subject to and bound by the provisions of this surety agreement and any amendments thereon. Use of the term "planning board or Board" in this covenant is for convenience only and may include agents or representatives of the planning board. SECTION 7. APPOINTMENT OF AN AGENT If someone other than the Owner will represent the owner, the Owner must designate such representative below. Name of representative: Address of representative: Tel. #: Days Evenings Relationship of representative to Owner: In executing this surety agreement, I hereby authorize the person or persons named above to represent my interest before the planning board with respect to the subdivision that is the subject of this surety agreement. SECTION 8. AMENDMENTS

4 This surety agreement may be amended, in writing, by agreement of all of the parties to this agreement. SECTION 9. GOVERNING LAW This surety agreement, and any amendments thereto, shall be governed by the laws of the Commonwealth of Massachusetts and shall be enforceable only in a Massachusetts Court of competent jurisdiction. SECTION 10. SEVERABILITY If a court of competent jurisdiction determines that any provision of this surety agreement is unenforceable, such determination shall not affect the remaining provisions, which shall remain in full force and effect. IN WITNESS WHEREOF, I, the Owner, hereby certify under the pains and penalties of perjury that the information contained in this surety agreement is true and complete; and we, the parties to this surety agreement, set our hands and seals to this agreement on the date(s) written below. OWNER Signature of Owner Witness By: Its: Duly authorized Then personally appeared before me the above named, owner, or person duly authorized to execute this surety agreement on behalf of the owner, and acknowledged the execution of the foregoing instrument to be his/her free act and deed for the purposes provided therein. SURETY Signature of Surety Company Rep. Witness By: Its:

5 Duly authorized Then personally appeared before me the above named, representative of the surety, who is a person duly authorized to execute this surety agreement on behalf of the surety, and acknowledged the execution of the foregoing instrument to be his/her free act and deed for the purposes provided therein. PLANNING BOARD Then personally appeared before me the above named and acknowledged the execution of the foregoing instrument to be their free acts and deeds for the purposes provided therein.