Niagara Wind & Solar, Inc

To whom it may concern,Niagara Wind & Solar, Inc. (hereinafter NW&S) received the complaint packet regarding [redacted]  (herein after called [redacted]) wind turbine installation. There are many facts stated by [redacted] that are erroneous in his letter. We signed a contract (see...

attached) with [redacted], signed by [redacted], on the 18th of March, 2015 to install a 100 kW [redacted] (hereinafter [redacted]) wind turbine on his farm location on  *. The purchase price was $460,000.00. We wrote grant applications to New York State Energy Research & Development Corporation (NYSERDA) Small Wind Program and to the United States  Department of Agriculture (USDA) REAP Grant Program. In order to apply for the NYSERDA grant we had to have a building permit secured from the local jurisdiction having authority and a signed and executed contract between * the developer, and *., the customer.  Under NYSERDA program rules we use the NYSERDA Small Wind Explorer to determine the turbine kWh  annual output based on the site location and conditions. This annual kWh production is then used to calculate the  NYSERDA grant amount. We use this estimated grant amount to figure the total project cost basis and payment schedule. Under program rules this estimated grant amount is subject to further scrutiny and adjustment by NYSERDA prior to issuing a contract for funding. Our signed and executed contract under Article 2 states the following: Article 2. Project Timeliness and Grant Amounts  The work to be performed under this Contract shall commence as soon as possible after the execution of this agreement but at no time earlier than such  time as may be allowed by NYSERDA via a grant pursuant to PON 2439. The anticipated grant amount from NYSERDA is $183,600.00. This incentive amount is calculated from the AWS TruePower website and is subject to review and adjustment by NYSERDA at application. The installer will also make application under the USDA REAP (Rural Energy for America Program) on behalf of the Owner for an amount of $115,000.00. If the application is successful, the Owner shall receive the funds directly from USDA after final commissioning and inspection by USDA. Any adjustment or non-award of incentives and grant amounts will not alter the contract price or the progress payments.  In the [redacted] case, NYSERDA readjusted the award amount down to $179,299.00. This left a difference of $4,301.00 that would be required to be paid by [redacted] per Article 2 terms. This amount was added to the finalpayment amount $34,400.00 bringing the final payment to $38,701.00. On November 6, 2015, [redacted], wind turbine project manager for [redacted], requested dummy invoices showing the progress payments from NW&S. He stated that this was necessary for cash flow forecasting by .  [redacted] to make sure they had the money on hand when due. These invoices, issued the same day, clearly showed the final payment due of $38,701.00 (see attached email).The USDA REAP grant application required [redacted] to attest that they had the funds available to complete the project and [redacted] willingness to make up the shortfall from NYSERDA (see attached letter dated June 29, 2015). This project was awarded a grant from USDA for $115,000.00 to be paid at the end of the project when NW&S filed the final paperwork stating that everyone is paid in full. There was an additional Federal Investment Tax Credit on this project in the amount of $138,000.00. This brought the final out of pocket cost of the install for [redacted] to $27,701.00. [redacted] making a statement that we are demanding an additional payment now at the end of the project is a false statement as evidenced by the above information. He was well aware of the grant difference when he executed the USDA documents in June, 2015, 18 months before the final payment was due. Regarding the final payment to [redacted] for the components they supplied to [redacted] project I have attached an email from*, Director of Global Commercial Finance and Treasury for [redacted] showing that NW&S  paid [redacted] in full for the [redacted] project by the end of December, 2016. This was to fulfill the payment requirements for the IRS Section 48 Investment Tax Credit.  [redacted] statement that the project was delayed by the vendor, NW&S, is patently false. We discussed with [redacted] the project schedule many times to keep him informed of our progress. In order to apply for the USDA grant we needed the NYSERDA grant awarded. In order to get the NYSERDA grant we needed the building permit. [redacted] signed the contract on March 18, 2015. Our office assembled the necessary construction documents and designs and submitted for a building permit with the Town of *on March 31, 2015. In the lengthy review process by the Town we had to submit additional information and secure a determination letter from New York State Department of Agriculture & Markets (NYSDAM) that [redacted] was indeed a farm under NYSDAM Article 25AA, Section 301, definitions. We also had to secure FAA approval for that location to install the turbine due to the close proximity of *Airport. The final approval and issuance of the building permit was on June 15, 2015. With the building permit in hand we then applied to NYSERDA for the small wind grant. NYSERDA reviewed the application and approved it by issuing a purchase order dated July 28, 2015. With the NYSERDA grant award and the building permit we submitted the application to the USDA REAP grant program. The USDAissued an award notice of a successful application on October 13, 2015. At this point discussions were entered into with [redacted] about the interconnection to the grid of the turbine. A National Grid (hereinafter NatGrid) original service request was submitted December 30, 2015. The NatGrid Electrical Service Request (ESR) number was received January 28, 2016 and was discussed with Rick *of NatGrid. The ESR was put on hold until the Distributed Generation net meter application was completed. We sent the required net meter application forms to [redacted] for [redacted]’s signature January 28, 2016 and received the signed forms by fax on February 12, 2016. The DG net meter application was submitted on February 13, 2016. A conditional acceptance letter for the net meter was received from NatGrid on July 14, 2016. The ESR proposal was sent by NatGrid dated August 19, 2016 via mail. We received it August 31, 2016and immediately forwarded it to [redacted] for review and approval. The cost of the new service was $20,320.11. When we asked [redacted] to split the cost of the new service, we were told that [redacted] said that the contract states we are responsible for the interconnection and he would not pay any amount toward the new service costs. We paid NatGrid the $20,320.11 for the new service on Sept 21, 2016. They received and processed it on October 11,2016. We installed the service gear and pulled the conductors from the pole to the switchgear. The wire size was designed for a service load of 2 – 100 kW turbines. At the time of service electrical inspection, [redacted] told ourinspector and *from Meter & Test, NatGrid *, that the new service was for the farm and that the conductors should be sized for the future use of a full farm load of 400 amperes. This resulted in a rejection of the conductors and required us to upsize to a full 400 ampere conductor. This resulted in an additional cost to NW&S of over $4,000.00. [redacted] refused to pay for half of the farm service because it was for the turbine interconnect and then his agent interfered in our process and authorized an upgrade to the service for future farm use. This caused a 10 day delay in this project and was unnecessary as the service size was approved by NatGrid for the two turbine interconnect.The turbine civil work was completed in a timely fashion and the turbine was erected on December 5, 2016. Commissioning took place on December 6, 2016. Final electrical inspection was performed and signed off and the [redacted] commissioning was finished and signed off on December 9, 2016. The final commissioning letter was issued by [redacted] on December 19, 2016 with a warranty start date of December 9, 2016. The turbine was shut down and left not running waiting for the net met change out. If we had left the turbine running with the existing service meter in place, [redacted] would have been charged for all the power the turbine produced at the full retail rate under that service class tariff. This was explained to [redacted] and he stated he understood the reasoning for the turbine shutdown. NatGrid issued the final acceptance letter on December 19, 2016 which allows the turbine to start producing power once the net meter is swapped out on the new service. [redacted] texted us to state that NatGrid had swapped out the meters on January 4, 2017 and on the same day [redacted] was instructed to close the service disconnect for the turbine which then began producing power.  [redacted] proceeded to contact *at the USDA *, NY office to try and bypass NW&S and get the funds released. Tom advised them that they need to work through *at NW&S to get the final documentation submitted for payment and forwarded their email to [redacted].  [redacted] was presented with the final invoice dated December 14, 2016 for $38,701.00 as per contract terms after the net meter change out was completed. This invoice, as with all of our invoices on this project, was due upon receipt. [redacted] texted [redacted] for an explanation for the difference in the amount and she responded with an explanation immediately and he stated he understood. We made multiple text inquiries about the status of the payment and were given varying responses. [redacted] then went to their office and talked to [redacted] who stated she didn’t have the payment ready at the time and asked [redacted] to sign the final payment document and submit it to the USDA and once the funds were received we would get paid. [redacted] told her that for NW&S to that would be committing fraud with a US agency and we refused to get involved in that type of behavior. [redacted] explained that the USDA would not release the $115,000.00 grant funds to [redacted] until we were paid in full and we submitted the required project closeout papers. She told [redacted] that we have to sign a USDA document that stated all the vendors have been paid and that NW&S was paid in full.  [redacted] informed [redacted] via text (see attached text stream) on January 28 that the payment would be ready in one week and that [redacted] was not involved in the payment. One week and multiple inquiries later, we had no communication from [redacted]. So we requested [redacted] to suspend the monitoring for the [redacted] turbine on February 6 and informed the customer via email. When the turbine faulted out under the suspended monitoring   agreement, [redacted] called [redacted] directly to attempt to bypass NW&S. When [redacted] redirected her to NW&S, [redacted] informed her that NW&S will resume monitoring as soon as the final payment was received. [redacted] stated that they didn’t havethe money to pay us and asked us to turn on the system. [redacted] in another call to me asked for payment terms on the final invoice payment. I stated that she already had payment terms in that there were 7 payments over the life of the contract. She never volunteered what her payment terms would be. I stated that I would call the USDA and see if they could pay NW&S and [redacted] together and how long before the USDA would not honor the grant payment. I also stated that [redacted] signed a document on June 29, 2015 with the USDA (part of the REAP grant application paperwork) that he attests that he had all the funds available to complete the project. The same document states that he is aware of the lower grant amount from NYSERDA and that he is willing and able to make up the difference in funding (see attached USDA letter). I said by not paying us he may be committing fraud to a US agency. The call was made to the USDA and the split payment was refused. They stated that [redacted] needs to get the project closed out for payment from the USDA as soon as possible.  In all this time for the month of January while we were trying to get paid, the turbine continued to produce power for [redacted]. The attached power profile from Northern Power monitoring shows the amount of power being produced. [redacted] has received several National Grid power bills for that turbine account that clearly shows that turbine was making power. [redacted] issued a letter on February 17, 2017 to NYSERDA proclaiming his many false complaints. This letter was copied to numerous entities and people across the state. Additionally he filed a Revdex.com complaint against NW&S. This is the first Revdex.com complaint ever filed against me or any of my businesses in over 44 years of doing business in NYS. To say that I was upset is an understatement, particularly when we went over and above the contract requirements to get this project completed.  In all the time this project was under way the total project control was by [redacted]. We were advised not to talk to [redacted] or anyone else at the office/farm over the course of the project and in fact the only time I met with him was at contract signing and on the day of the installation. At no other time was he available for us to talk to. If there had been an issue with payment, all [redacted] had to do was pick up a phone, call me and ask to meet to discuss the situation. Needless to say he never called. Instead all we got was the obfuscation by the secretary Helen, and by Lee. In fact [redacted] told us several times, when presenting invoices to him, after the project was under way “I hope you get your money”. On February 27, 2017 we received a letter (see attached) from an attorney, Tim [redacted] demanding remedy on numerous points and threatening legal action. I discussed the letter with Tim via telephone and explained the facts. He asked me to respond back to him and he would try to get this settled. I replied via email (see attached) and provided a sheet showing the payments and how the additional monies were owed and why. I also stated what NW&S would require to close the project out. Tim received the email and called the next morning to ask if the turbine was indeed grid connected. I stated that it was and he said he would get back to me after trying to settle the matter. [redacted] sent me a copy of our invoice on February 25 (received 2/29) disputing the final payment and that the turbine has never run properly (see attached).On March 8, 2017 [redacted] received an email (see attached) from [redacted] finally admitting that he owed the $38,701.00. Apparently this was a result of our email to Tim showing that he in fact did owe the money. We never heard from Tim again and on March 9, a contact was made to us from Andrew [redacted] another attorney that [redacted] hired to handle this issue. We discussed, via phone, the issues and I copied him on the email I sent Tim earlier. He stated he would get back to us. In further discussions with Andrew on March 10, we said as a good faith effort to try and resolve this that we would go to the site on Monday, March 13 in the afternoon and clear any faults and get the turbine running. On March 13, Andrew replied with [redacted] terms for payment (see attached). There was no mention of any of the requirements we previously put forth for resolution. I replied via email (see attached) that afternoon and reiterated our terms and conditions. There is to date no confirmation that [redacted] made a payment to Andrew for escrow nor any other settlement resolution of my terms. When our technicians left the site on Monday they neglected to notify [redacted] to turn on the monitoring for this site. Consequently, the turbine shut back down after they were gone, on a monitoring fault. We received a fax from [redacted] (see attached) stating the turbine was not running. We called [redacted] and they reinstituted monitoring and the turbine is currently running (see attached [redacted] monitoring email). We intend to shut the system down for failure on [redacted]’s part to initiate the transfer of payment to their attorney. The real issue here, beyond all the smoke that [redacted] and Company are putting out, is that [redacted] does not and never intend to pay the final payment to NW&S. As was asked by the USDA why didn’t [redacted] use the USDA contract payment as collateral to borrow the final payment to NW&S. It appears in my mind that if the USDA payment wasn’t hanging on our closeout paperwork we would never get the final payment. This has been the issue right from the start of this in December and further evidenced by [redacted] asking for payment terms on the final  payment due, going direct to [redacted], and to the USDA to bypass NW&S. We feel at this point that we need to secure our position and will be moving forward to place a lien on theproperty for the amount owed. We have not at this point engaged counsel but feel that we are left no choice but to pursue both recovery of the payment due and further recovery from defamation damages as a result of  egregious behavior by [redacted] Farms, Inc., [redacted] personally and [redacted] as project manager. I strongly feel that [redacted] has defamed the character of NW&S, myself, [redacted] and staff by writing and distributing a letter to all the entities and people without the common courtesy of a phone call directly to me. Our request to you is to have this reviewed by upper management at the Revdex.com. Thank you.  Regards, Thomas E. [redacted]PresidentAdditional response with updated info:To whom it may concern,Since we filed the original answer with you to this complaint, [redacted] has mailed additional letters which we submit as additional evidence to refute this claim. The NYSERDA letter was dated March 8, 2017 and still disputes the additional payment above the final contract payment (see attached NYSERDA letter dated March 8). On that same day [redacted] wrote that letter, he emailed [redacted] to say he had a check for the full amount due including the disputed underpayment by NYSERDA (see attached email to [redacted] dated March 8). Does he or doesn’t he acknowledge the amount of the final payment?We don’t know because between all the dialog, emails and correspondence betweenthe 2 attorneys, Chuck, NYSERDA, the Governor, others and NW&S, we keep getting conflicting emails and letters. In same email to [redacted], we dispute the claim made by [redacted] that turbine has a fault that needs to be continuously reset.The previous submitted power profile shows that this is untrue. Additionally, we think that [redacted] does not understand what a fault is. This is due to a lack of access to [redacted] and control of [redacted] by others to prevent access by NW&S personnel to explain the operation of the turbine. The turbine is monitored under a 5 year, 24 hour a day monitoring program purchased with the turbine. When a fault occurs the technician at Northern Power works online to ascertain the type of fault or alarm and then proceeds to clear it. This only works when monitoring is in place. In [redacted]’s case, when he failed to make the final payment in a timely fashion we suspended monitoring and at the next fault condition the turbine shut down. This was done February 8, 2017. I have attached the page from Northern Power O&M manual explaining the various alarms, faults and warning conditions that Northern monitors (over 138 items). This is done to protect the turbine, the turbine operating system and to protect the owner’s investment. From the original date of commissioning until National Grid switched out the service meter for a net meter the turbine was in the off state. This was to prevent [redacted] from getting a bill from National Grid for power produced and fed into the grid. This was explained satisfactory to [redacted] as he concurred with us. From January 4, 2017 thru February 7, 2017 the turbine performed as expected and produced power as expected until we turned it off for lack of payment. In [redacted] letter to NW&S dated March 10 he claims that the turbine faulted out prior to the time the final payment was due.This again is a false statement by [redacted]. The attached invoice clearly shows that this payment, as with all the payments on this project, are due immediately upon presentation of our invoice (see previously submitted NW&S final invoice). This payment was due December 19, 2016 when NW&S and [redacted] received the letter of final acceptance by National Grid. This is per the signed and executed contract between [redacted] and NW&S. [redacted] March 10 letter to NW&S made a threat of legal action if we did not respond within 48 hours to his letter. I attached the letter and the envelope it was mailed in to show the post date is March 13 and we received it on March 15. This was mailed whilewe were on site on Monday and after negotiations with Andrew. The 48 hour time window he threatened us with expired before the letter even left his hands… Seems like [redacted] needs to get on the same page with his lawyers and his staff. On March 10, 2017 we had a discussion and email exchange with Andrew [redacted]’s attorney #2, wherein NW&S stated that we were willing to clear any faults in the turbine and get it running again. In response, Andrew stated that Chuck would deposit the money into Andrew’s trust account and that we need to leave the turbine running for 30 days. As of Friday afternoon, March 17, 2017 the turbine is still running and there has been no deposit of any funds into the trust account by [redacted]. This again shows me that [redacted] does not have the funds to pay this final invoice. We made this gesture in good faith and wait to hear what [redacted] next response and smoke screen will be. In fact we have heard nothing further from [redacted], et al, until contacted by NYSERDA today regarding [redacted] latest missive. At this point we intend to keep the turbine running but will move to secure our position. We state for the record that [redacted] and [redacted] has filed an invalid claim against Niagara Wind & Solar, Inc.  We request to have this reviewed by upper management at the Revdex.com and deem this claim invalid. Thank you.Regards, Thomas E. [redacted] President