HomeMy WebLinkAbout09516ORDINANCE NO. 9516
AN ORDINANCE APPROVING A SOLAR LEASE AND
EASEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A
COLORADO MUNICIPAL CORPORATION AND GRID
ALTERNATIVES COLORADO, INC., A DELAWARE NONPROFIT
CORPORATION, RELATING TO THE LEASE OF UNIMPROVED
LAND FOR THE DEVELOPMENT OF A COMMUNITY SOLAR
GARDEN AND AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Solar Lease and Easement Agreement (“Agreement”) between the City of Pueblo,
a Colorado municipal corporation and Grid Alternatives Colorado, Inc., a Delaware nonprofit
corporation, dated August 26, 2019, a copy of which is attached hereto, having been approved
as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and
deliver said Agreement in the name of the City and the City Clerk is directed to affix the seal of
the City thereto and attest same.
SECTION 2.
The officers and staff of the City are authorized and directed to perform any and all acts
consistent with this Ordinance and the attached Agreement which are necessary or desirable to
implement the transactions described therein.
SECTION 3.
This Ordinance shall become effective on the date of final action by the Mayor and City
Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on August 12, 2019 .
Final adoption of Ordinance by City Council on August 26, 2019 .
President of City Council
Action by the Mayor:
☒
Approved on August 28, 2019 .
□
Disapproved on based on the following objections:
Mayor
Action by City Council After Disapproval by the Mayor:
□
Council did not act to override the Mayor's veto.
□
Ordinance re-adopted on a vote of , on
□
Council action on _______ failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item # R-11
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: August 12, 2019
TO: President Dennis E. Flores and Members of City Council
CC: Mayor Nicholas A. Gradisar
VIA: Brenda Armijo, City Clerk
FROM: Daniel C. Kogovsek, City Attorney
SUBJECT: AN ORDINANCE APPROVING A SOLAR LEASE AND EASEMENT
AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL
CORPORATION AND GRID ALTERNATIVES COLORADO, INC., A DELAWARE
NONPROFIT CORPORATION RELATING TO THE LEASE OF UNIMPROVED
LAND FOR THE DEVELOPMENT OF A COMMUNITY SOLAR GARDEN AND
AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT
SUMMARY:
Attached is a proposed Ordinance approving and authorizing the Mayor to sign a Solar Lease
and Easement Agreement with Grid Alternatives Colorado, Inc. (“Grid”).
PREVIOUS COUNCIL ACTION:
Not applicable to this Ordinance.
BACKGROUND:
On March 26, 2018, by Resolution No. 13934, City Council approved the purchase of an
unimproved 34.32-acre parcel of land located near the intersection of Troy Avenue and U.S.
Highway 50. The City purchased the vacant land for its appraised value of $192,500.
In 2018, Black Hills Energy (“BHE”) solicited bids from developers to construct a 2.5 MW
community solar array. On October 19, 2018, BHE selected Grid as the successful bidder to
construct a community solar garden.
Grid is proposing to construct a 2 MW single-axis tracking, ground-mount photovoltaic system on
the eastern portion of the City owned parcel. The solar installation will connect with the BHE
distribution system with a pad mounted transformer.
FINANCIAL IMPLICATIONS:
Under the attached agreement, the City will lease to Grid a ten (10) acre parcel for twenty (20)
years following installation of the photovoltaic solar panels. Grid has the option of extending the
lease term for an additional ten (10) years for a total term of thirty (30) years from the date on
which the solar array comes online.
During the term of the lease, Grid agrees to pay the City rent of one dollar per acre per year for
total annual payment of ten dollars ($10). However, during the term of the agreement, Grid agrees
to enter into master community solar subscription agreements with the Housing Authority of the
City of Pueblo; multi-family affordable housing units and low-income qualified single-family
residential customers who will have the ability to participate by subscribing and receiving credits
on their BHE electric utility bills. Grid also agrees that the installation contractor will implement a
job training program for low income Pueblo residents during the construction period.
Under the attached proposed agreement, Grid also agrees, at its own expense, to construct a cul-
de-sac at the terminus of Bonnadell Street, which will be constructed to provide a vehicle turn
around and fire access to the U.S. Veteran’s Affairs Department building which is located near
the solar farm array.
BOARD/COMMISSION RECOMMENDATION:
The governing board of the Housing Authority of the City of Pueblo recommends approval of this
Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
If this Ordinance is not approved, the City property will remain unimproved and the Pueblo
Housing Authority and low-income electric utility customers will not have the opportunity to reduce
their energy bills.
RECOMMENDATION:
Approve the Ordinance.
Attachments: Proposed Ordinance and proposed Solar Lease and Easement Agreement
SOLAR LEASE AND EASEMENT AGREEMENT
THIS SOLAR LEASE AND EASEMENT AGREEMENT(this"Agreement") is made,dated and
effective as of August 26, 2019 (the "Effective Date"), by and between the City of Pueblo, a Colorado
municipal corporation, (together with its successors, assigns and heirs, comprising "Owner"), and Grid
Alternatives Colorado, Inc,a Delaware nonprofit corporation(together with its transferees, successors and
assigns, "Grantee"), and in connection herewith, Owner and Grantee agree, covenant and contract as set
forth in this Agreement. Owner and Grantee are sometimes referred to in this Agreement as a"Party" or
collectively as the"Parties".
1. Lease; Easement. For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by Owner and Grantee, upon the terms and conditions set forth in this
Agreement, Owner hereby leases, demises, lets and warrants to Grantee, and Grantee hereby leases, hires
and takes from Owner,an exclusive lease to the certain real property in order to(including an easement for
purposes of) converting, maintaining and capturing the flux of solar energy over, across and through, the
surface estate of that certain real property, including, without limitation, the air space thereon, located in
Pueblo County, (the "County"), State of Colorado consisting of approximately [written out acres] (xx)
acres,as more particularly described in Exhibit A attached hereto and incorporated herein(the"Property")
for the purposes set forth below.
1.1 Purposes of the Lease/Easement. This Agreement is solely and exclusively for solar
energy purposes (as such term is broadly defined, including ancillary rights related thereto and necessary
for the development and operation of Solar Facilities (as defined below)), and not for any other purpose,
and Grantee shall have the exclusive right to develop and use the Property for solar energy purposes and to
derive all revenue therefrom, including, without limitation, the following activities (collectively, "Site
Activities"):
(a) Converting solar energy into electrical energy,and collecting and transmitting
the electrical energy so converted;
(b) Determining the feasibility of solar energy conversion and other power
generation on the Property or on adjacent lands, including studies of solar energy emitted upon, over and
across the Property and other meteorological data, environmental, biological and cultural studies, surveys
and extracting soil samples;
(c) Constructing, laying down, installing, using, replacing, relocating,
reconstructing and removing from time to time, and monitoring, maintaining, repairing and operating the
following only for the benefit of the Project or Projects (as defined below) (i) solar energy generating
equipment of any kind (including, without limitation, any other associated equipment or structures)
(collectively, "Solar Generating Equipment"); (ii) overhead and underground electrical distribution,
collection, transmission and communications lines, electric combiners, inverters, transformers and
substations,energy storage facilities, and telecommunications equipment; (iii)new and existing roads and
crane pads;(iv)meteorological measurement equipment;(v)control buildings,maintenance yards,laydown
yards, operations and maintenance facilities and buildings; and (vi) any other improvements that Grantee
reasonably determines are necessary, useful or appropriate for the Project (all of the above, including the
Solar Generating Equipment,collectively"Solar Facilities"). The term"Project",for the purposes of this
Agreement, means an integrated solar energy generation system, consisting of Solar Facilities, that is
constructed and operated on the Property, and/or adjacent lands (owned or controlled by Owner), by
Grantee, or a third party authorized by Grantee. Grantee may determine whether any particular group of
Solar Facilities constitutes a single Project or multiple Projects for purposes of this Agreement, and in the
case of multiple Projects, which portion of the Property shall be included within each Project;
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(d) Allowing Grantee's licensees, permittees and invitees to access the Property
including without limitation conducting site tours to demonstrate the generation of electricity from solar
power for educational and commercial purposes;
(e) Dismantling, demolishing, and removing any improvement, structure,
embankment, impediment, berm, wall, fence or other object, on or that intrudes(or could intrude)onto the
Property that could obstruct,interfere with or impair the Project,as Grantee determines in its sole discretion;
provided,however,that Grantee shall receive written permission from any current subsurface estate holder
or mineral rights owner or lessee prior to dismantling, demolishing, or removing any improvement,
structure,or other object installed or used by such entity or its predecessor in interest.
(f) Excavating,grading, leveling or otherwise modifying portions of the Property
as necessary or desirable in connection with the Project, including without limitation trimming or cutting
down trees, shrubs or any other landscaping and vegetation on the Property;
(g) Gating or otherwise securing any access roads on or to the Property,provided
that Grantee shall work with Owner to ensure Owner's commercially reasonable access to same consistent
with industry standard practices; and
(h) Undertaking any other activities, whether accomplished by Grantee or a third
party authorized by Grantee, that Grantee reasonably determines are necessary, useful or appropriate to
accomplish any of the foregoing.
Grantee shall not be permitted to use the Property for uses other than solar energy
purposes or as otherwise expressly set forth in this Agreement.
1.2 Other Uses. During the Term when Grantee construction is or is about to occur,Owner
agrees to provide Grantee with current information concerning the status and location of all other land uses
occurring on the Property (including, without limitation, agricultural use, industrial use and oil and gas
exploration and production activities). Subject to Section 1.5, any leases or renewals and or extensions of
existing leases, options to lease, seismic operations, or any other agreement made by Owner with a third
party regarding property owned by Owner and adjacent to the Property (including any of the foregoing
related to water, oil, gas or other minerals) shall contain language that states that such third party shall not
disturb, interfere with,preclude, or destroy Grantee's rights hereunder. For the avoidance of doubt,during
the Term of this Agreement, Owner shall not grant any real property rights to any other person or entity
related to the Property.
1.3 Design and Placement of Solar Facilities. Grantee shall have sole and absolute
discretion as to the location of Solar Facilities on the Property and the extent of construction activity
required in connection with such Solar Facilities. Prior to Grantee's installation of the Solar Facilities,
however, Grantee shall consult with Owner as to the location of such Solar Facilities for informational
purposes only. Owner acknowledges that a portion of the Solar Facilities to be constructed by Grantee on
the Property may include buried and/or above ground electrical and communications lines among Solar
Generating Equipment, and from the Solar Facilities to electrical substations and other points of
interconnection on the power grid serving the Solar Facilities.
1.4 Repowering. Owner acknowledges that power generation technologies are improving
at a rapid rate and that Grantee may(but shall not be obligated to)from time to time replace or repair Solar
Generating Equipment on the Property with newer(and potentially smaller or larger) models and types of
Solar Generating Equipment.
1.5 Subsurface Estate and Mineral Rights. Grantee acknowledges that Owner does not
own the mineral rights or the subsurface estate associated with the Property. Owner shall provide to Grantee
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information reasonably available to it regarding the name and contact information for any mineral rights
holders or subsurface estate owners or lessees, but shall not be in default under this Agreement for failure
to provide such information. Grantee shall be responsible for negotiating any surface use agreements or
other necessary arrangements with the mineral rights holders and subsurface estate owners and lessees.
2. Grant of Additional Easements
2.1 Owner hereby grants, conveys and warrants to Grantee the following additional
easements upon, over,across and under the Property and all other property that is adjacent to,or relatively
nearby,the Property,and is owned or controlled by Owner, as of the Effective Date:
(a) Non-Obstruct. An exclusive easement to capture, use and convert the
unobstructed flux of solar energy over and across the Property from all angles and from sunrise to sunset at
the Property during each day of the Term;
(b) Interference. An exclusive easement for electromagnetic, audio, visual,view,
light, noise, vibration, electrical, radio interference, or other effects attributable to the Solar Generating
Equipment,the Project or any Site Activities;
(c) Access Easement. A non-exclusive easement for ingress to and egress from
the Project or Projects (whether located on the Property, on adjacent property owned or controlled by
Owner) over and across the Property by means of roads and lanes thereon if existing or later constructed
by Owner, or otherwise by such route or routes as Grantee may construct from time to time.
(d) Other Easements. All other easements reasonably necessary to accomplish the
activities permitted by this Agreement, including without limitation those activities described in
Section 1.1.
3. Term. The term of this Agreement shall commence on the Effective Date and continue for
the following described periods(collectively,the"Term"):
3.1 Development Term. This Agreement shall be for an initial term (the "Development
Term") commencing on the Effective Date and continuing until the earlier to occur of: (a) the date on
which Grantee begins selling electrical energy, other than test energy, generated by the Solar Generating
Equipment located on the Property to a third-party power purchaser (as declared by Grantee, the
"Operations Date"),or(b)the date under an effective power purchase agreement for the Project by which
the Grantee is required to begin selling electrical energy, including any extensions or cure periods.
3.2 Operations Term. Upon the expiration of the Development Term, the term of this
Agreement shall automatically extend for an additional term of twenty(20)years(the"Operations Term").
If the Operations Term does not commence within two (2) years of the Effective Date of this
Agreement, or such later date as Owner or Grantee shall mutually agree, Owner, at its sole option,
may terminate this Agreement and Owner and Grantee shall thereafter be released and discharged
from all obligations hereunder.
3.2 Extended Term. Provided that Grantee has not fully surrendered or terminated this
Agreement,then on or before the expiration of the Operations Term,Grantee may, at its option,extend the
term of this Agreement for additional period(s) of five (5) years up to a total term of 30 years from the
Operations Date (the"Extended Term(s)"). Grantee may exercise its option to extend this Agreement for
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the Extended Term by giving Owner written notice thereof on or before the date that is one hundred and
eighty(180)days prior to the expiration of the Operations Term.
3.3 Decommissioning Term. Upon the expiration of the Extended Term (or the
Operations Term if Grantee has not elected to extend the term of the Agreement),or upon notice by Grantee
of an early termination,the limited term for Grantee to decommission the Project pursuant to Section 14.3
shall commence (the "Decommissioning Term"). The Decommissioning Term shall expire upon the
Grantee's completion of all obligations specified in Section 14.3.
4. Payments to Owner. In consideration of the rights granted hereunder, Grantee will pay
Owner the amounts set forth in Exhibit B attached hereto. Exhibit B shall not be recorded without the
specific prior written consent of Grantee.
5. Ownership of Solar Facilities;Not a Fixture. Owner shall have no ownership,lien,security
or other interest in any Solar Facilities installed on the Property, or any profits derived therefrom, and
Grantee may remove any or all Solar Facilities at any time. Except for those payments described in this
Agreement, including Exhibit B, Owner shall not be entitled to any other payments or benefits accrued by
or from the Project, including, without limitation, renewable energy credits, environmental credits or tax
credits. The Project, Solar Facilities and the Solar Generating Equipment are not fixtures, and Owner may
not sell, lease, assign, mortgage, pledge or otherwise alienate or encumber them or Grantee's easement or
leasehold rights hereunder.
6. Taxes.Grantee shall pay all taxes,assessments,or other governmental charges,general and
specific, including possessory interest real estate taxes ("Taxes"), that shall or may during the Term be
imposed on,or arise in connection with the Property itself and the Solar Facilities installed on the Property
("Grantee Taxes').Owner shall take reasonable steps to update County tax records to ensure that Grantee
receives tax assessments and bills associated with the Property and the Solar Facilities installed on the
Property. Grantee shall pay the Grantee Taxes for which it is responsible as set forth above directly to the
applicable taxing authorities prior to the date such Grantee Taxes become delinquent. If any such Grantee
Taxes are due and payable and Grantee fails to fulfill its obligations under this Section 6, then the Owner
may,but shall not be obligated to,pay the taxing authorities the entire amount due on the tax bill, including
any interest and/or penalties and obtain reimbursement for such amount paid on behalf of Grantee plus
interest(computed from the date of payment)at a rate equal to the sum of: (i)two percent(2%)per annum;
plus, (ii) the prime lending rate as from time to time may be published by The Wall Street Journal under
the "Money Rates" section; provided, that in no event shall such total interest exceed the maximum rate
permitted by applicable law.
7. Indemnity/Liability
7.1. Grantee (the "Indemnifying Party") shall defend, indemnify and hold harmless
the Owner and such other Party's Related Persons(as defined below)(each,an "Indemnified Party")from
and against any and all third party (excluding Related Persons) claims, litigation, actions, proceedings,
losses, damages, liabilities, obligations, costs and expenses, including reasonable attorneys', investigators'
and consulting fees, court costs and litigation expenses (collectively, "Claims") suffered or incurred by
such Indemnified Party, arising from the negligence or intentional misconduct of the Indemnifying Party.
Notwithstanding the foregoing to the contrary,Grantee may elect,upon written notice,to control any or all
aspects of the defense of any legal action covered by the prior sentence when Grantee is the Indemnifying
Party.
7.2. In no event shall either Party be liable to the other Party to the extent any Claim is
caused by, arising from or contributed by the negligence or intentional misconduct of such other Party or
any Related Person thereof.
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7.3.In no event, whether as a result of breach of contract, warranty, indemnity, tort
(including negligence), strict liability or otherwise, shall either Party be liable to the other Party for loss of
profit or revenues, loss of business opportunities or for any other special,consequential, incidental,indirect
or exemplary damages.
7.4.In no event shall Grantee or its Related Persons be liable to Owner for property damage
or personal injuries to Owner or its Related Persons attributable to risks of known and unknown dangers
associated with normal day-to-day operation of electrical generating facilities.
7.5.To the fullest extent permitted by Law, Grantee shall indemnify,defend(with counsel
reasonably acceptable to Owner) and hold harmless Owner and Owner's Related Persons against any and
all Claims, to the extent resulting from or arising out of any Hazardous Material added to or brought onto
the Property,or any environmental condition created or exacerbated,by Grantee or any of Grantee's Related
Persons.
7.6.As used herein the term "Related Person" shall mean any affiliates, contractors,
lessees, and sublessees of a Party, and each of their respective, principals, officers, employees, servants,
agents, representatives, subcontractors, licensees, invitees, and/or guests.
7.7.This Section 7 shall survive the expiration or earlier termination of this Agreement.
7. Grantee's Representations, Warranties, and Covenants. Grantee hereby represents,
warrants,and covenants to Owner that:
8.1 Grantee's Authority. Grantee has the unrestricted right and authority to execute this
Agreement. Each person signing this Agreement on behalf of Grantee is authorized to do so. Upon
execution by all Parties hereto,this Agreement shall constitute a valid and binding agreement enforceable
against Grantee in accordance with its terms.
8.2 Minimal Impacts. Grantee agrees to conduct its Site Activities and to locate and
operate its Solar Facilities in such a way as to reasonably minimize impacts to Owner's activities on real
property adjacent to the Property as they exist on the Effective Date, to the extent practical, without
materially and negatively impacting the Solar Facilities. If Owner's Property is fenced, all access roads
constructed by Grantee on the Property shall be gated by Grantee at Grantee's expense, and Owner shall be
furnished with keys or other ability to open and close such gates.
8.3 Insurance. Grantee shall, at its expense, be responsible for assuring that insurance
coverages, as would be customary and reasonable for similarly situated companies performing the work
carried out by Grantee at such time, are maintained, including, without limitation, adequate coverage to
cover any personal injuries or accidents that could reasonably be expected as a direct result of the Site
Activities conducted by Grantee or its Related Persons on the Property. Owner shall be named as an
additional insured on all of Grantee's insurance certificates related to the Property. Grantee's insurance
related to the Property shall be considered primary to Owner's insurance for the Property for any insurable
event during the term of the Agreement. The customary and reasonable insurance coverages are shown in
the sample insurance certificate in Exhibit C. Grantee hereby releases Owner and Owner's Related
Persons from any and all claims and demands for loss, damages, expense or injury to any person
or to personal property occurring on the Property. Grantee shall obtain from its respective insurers
waivers of all rights of subrogation against Owner and Grantee shall indemnify Owner and
Owner's Related Persons against any loss or expense, including reasonable attorneys' fees,
resulting from the failure to obtain such waivers of subrogation.
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8.4 Requirements of Governmental Agencies. Grantee,at its expense, shall comply in
all material respects with valid laws, ordinances, statutes, orders, and regulations of any governmental
agency applicable to Property and the Solar Facilities.
8.5 Construction Liens. Grantee shall keep the Property free and clear of all liens and
claims of liens for labor and services performed on, and materials, supplies, or equipment furnished to, the
Property in connection with Grantee's use of the Property pursuant to this Agreement; provided, however,
that if Grantee wishes to contest any such lien, Grantee shall within sixty(60)days after it receives written
notice of the filing of such lien,provide a bond to Owner for the amount of such lien.
8.6 Hazardous Materials. Neither Grantee nor its Related Persons shall violate any
federal,state,or local law,ordinance,or regulation relating to the generation,manufacture,production,use,
storage,release,discharge,disposal,transportation or presence of asbestos-containing materials,petroleum,
explosives or any other substance, material, or waste which is now or hereafter classified as hazardous or
toxic, or which is regulated under current or future federal, state, or local laws or regulations, on or under
the Property(each,a"Hazardous Material"). Grantee shall promptly notify Owner if any violation occurs.
8.7 Affordable Solar Power and Solar Jobs. During the Term of this Agreement,
Grantee shall operate the Property as a Community Solar Garden array under the Colorado Public Utilities
Commission and Black Hills Energy rules and ensure that the desired community benefit of the project is
delivered on by entering into a master community solar subscription agreement with the Housing Authority
of the City of Pueblo. Furthermore, the Grantee agrees to work with the housing authority and installation
contractor to develop and implement a job training program for Pueblo residents during the construction
period.
8.8 Road Improvements. During the Development Term of this Agreement, Grantee
agrees, at its own expense, to furnish and provide all labor, materials, permits, tools and equipment to
construct a cul-de-sac at the terminus of Bonnadell Street, which will be constructed to provide a vehicle
turn around and fire access to the U.S. Veterans Affairs Department building, in compliance with all
applicable laws,codes and regulations, including the City of Pueblo's road performance standards.
8.9 Compliance with Planning and Zoning Commission Decision. Grantee agrees
accomplish the recommended actions and to comply with the conditions specified in the decision of the
City of Pueblo Planning and Zoning Commission approving the Development Plan of the BHE Community
Solar Garden in Case No. DPR-19-01.
8.10 Other Title Matters. This Agreement and Grantee's use of the Property are subject
to the easements, right-of-way, covenants, conditions, restrictions, reservations and limitations appearing
of record, and applicable zoning and land use laws, ordinances, codes, and regulations governing and
regulating the Property and its use.
8.11 Net Lease. It is the intent of the parties hereto that this Agreement be a"net"lease
with Owner incurring no obligation, monetary or otherwise, for any expense of any nature associated with
the use and operation of the Property and any component part thereof by Beneficiary
8.12 Condition of Premises. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY BUT SUBJECT TO THE REPRESENTATIONS,WARRANTIES,
COVENANTS AND OTHER PROVISIONS EXPRESSLY STATED IN THIS AGREEMENT
(INCLUDING ARTICLE 9), IT IS UNDERSTOOD AND AGREED THAT OWNER IS NOT MAKING
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AND HAS NOT AT ANY TIME, MADE ANY WARRANTY OR REPRESENTATION OF ANY KIND
OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING,
BUT NOT LIMITED TO, ANY WARRANTY OR REPRESENTATION AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN THE
COVENANT OF QUIET POSSESSION SET FORTH IN SECTION 1 HEREOF),ZONING, PHYSICAL
OR ENVIRONMENTAL CONDITIONS, UTILITIES, GOVERNMENTAL APPROVALS,
COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY
OR COMPLETENESS OF ANY DOCUMENT OR OTHER INFORMATION PROVIDED TO
GRANTEE BY ANY OTHER PERSON, OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY.
8.13 AS IS,WHERE IS. Subject to the representations,warranties,covenants and other
provisions expressly stated in this agreement(including article 9),The taking of possession of the Property
by Grantee shall be conclusive evidence that the Grantee accepts the Property in its then present condition
"As Is, Where Is, With All Faults"and that the Property is in good and satisfactory condition at the time of
the Development Term of this Agreement.
9. Owner's Representations, Warranties, and Covenants. Owner hereby represents,warrants, and
covenants as follows:
9.1 Owner's Authority. Owner is the sole fee simple owner of the Property and has the
unrestricted right and authority to execute this Agreement and to grant to Grantee the rights granted
hereunder. Each person signing this Agreement on behalf of Owner is authorized to do so. Upon execution
by all Parties hereto, this Agreement shall constitute a valid and binding agreement enforceable against
Owner in accordance with its terms.
9.2 No Interference. Except as specified in Section 1.5,Owner's activities and any grant
of rights Owner makes to any person or entity, shall not, currently or prospectively, disturb or interfere
with:the construction, installation,maintenance,or operation of the Solar Facilities,whether located on the
Property or elsewhere; access over the Property to such Solar Facilities; any Site Activities; or the
undertaking of any other activities permitted hereunder. Without limiting the generality of the foregoing,
except as specified in Section 1.5, Owner shall not erect any structures, plants or other equipment, or enter
into any third party agreements or amend or extend any existing agreements ("Third Party Agreements")
or undertake any other activities (an "Owner Action" or collectively the "Owner Actions") that may: (i)
interfere with Grantee's right to install Solar Facilities on any portion of the Property,(ii)potentially cast a
shadow onto the Solar Facilities, (iii) cause a decrease in the output or efficiency of any Solar Facilities,
(iv) interrupt the flux of Solar Energy upon, across and over any portion of the Property used or to be used
by the Solar Facilities, or (v) otherwise interfere with Grantee's operations on the Property (each an
"Interference"). Prior to undertaking an Owner Action,that may cause an Interference,Owner shall consult
with Grantee to confirm that such Owner Action will not cause any Interference. If Grantee reasonably
determines the Owner Action could cause an Interference, then Owner shall not be permitted to undertake
such Owner Action. Owner shall not disturb or permit the disturbance of the subsurface such that may
impact in any way the structural integrity or the operations and maintenance of the Solar Facilities. Grantee
shall have the right to trim existing trees to maintain approximately their same height and width as exists
as of the date hereof for the purpose of not interfering with the flux of Solar Energy from any angle upon,
across and over the Property.
9.3 Liens and Third Party Agreements. Except as specified in Section 1.5, Owner
represents there are no encumbrances, restrictions, leases, easements, licenses, rights of way, mortgages,
deeds of trust, liens, or security interests (each an "Encumbrance") encumbering all or any portion of the
Property that could interfere with Grantee's operations on the Property, including without limitation
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mechanic's liens, except for those disclosed in the real property records of the County, or as otherwise
disclosed by Owner in writing to Grantee on or prior to the Effective Date. Owner shall fully cooperate
and assist Grantee in removing or limiting any Encumbrances, whether recorded or unrecorded. Owner
shall obtain documentation from such third party to protect Grantee's rights as Grantee may deem
reasonably necessary. Such documentation includes without limitation subordination and non-disturbance
agreements for liens,and non-interference agreement for other third party rights on the property,and in any
case with each document to contain those terms and conditions reasonably required by Grantee to protect
its rights hereunder. In addition, Owner agrees to discharge or bond over any monetary liens that arise
against the Property, such as mechanic's liens,that are not caused by Grantee or the Site Activities,within
thirty(30)days of receipt of written notice of the same, such bond to be in an amount reasonably requested
by Grantee. Owner's obligations set forth in this Section 9.3 shall in no way be construed as to limit
Owner's other obligations hereunder with respect to third party agreements, such as those set forth in
Section 9.2.Owner shall promptly notify in writing its lenders or any other party holding a mortgage,deed
of trust or other security interest in the Property of this Agreement and Grantee's rights herein, and shall as
party of such notice, request that such lender, trustee or security interest holder simultaneously send any
notice of Owner's default to Owner and Grantee. Regardless, Owner agrees to promptly provide Grantee
with a copy of any default notices that Owner receives from any of its lenders or other party holding a
mortgage, deed of trust or security interest in the Property.
9.4 Requirements of Governmental Agencies. Owner shall assist and fully cooperate
with Grantee, at no out-of-pocket expense to Owner, in complying with or obtaining any land use permits
and approvals, building permits, environmental impact reviews, tax abatements or any other permits and
approvals reasonably necessary for the financing,construction,installation,monitoring,repair,replacement
relocation, maintenance, operation or removal of Solar Facilities, including, without limitation, execution
of applications and documents reasonably necessary for such approvals and permits, and participating in
any appeals or regulatory proceedings respecting the Solar Facilities. Grantee shall reimburse Owner for
reasonable attorney's fees incurred in connection with activities undertaken pursuant to this Section 9.4.To
the extent permitted by law, Owner hereby waives enforcement of any applicable setback requirements
respecting the Solar Facilities to be placed on or near the Property that are reasonably necessary, in
Grantee's sole and absolute discretion, to carry out Grantee's power-generating activities on or near the
Premises; provided that the Solar Facilities will be setback approximately 20 feet from the eastern property
line of the Property.
(a) Hazardous Materials. Neither Party nor its respective Related Persons
shall violate any federal, state or local law, ordinance or regulation relating to the generation, manufacture,
production,use, storage,release,discharge,disposal,transportation or presence of any Hazardous Material.
Each Party shall promptly notify the other Party if it knows or has reason to know that such violation has
occurred. To the best of Owner's knowledge, (i) no underground tanks are now located or at any time in
the past have been located on the Property or any portion thereof, (ii) no Hazardous Material has been
generated, manufactured, transported, produced, used, treated, stored, released, disposed of or otherwise
deposited in or on or allowed to emanate from the Property or any portion thereof other than as permitted
by applicable law and(iii)there are no Hazardous Materials in, on or emanating from the Property or any
portion thereof which may support a claim or cause of action under any applicable law. Owner certifies it
has never received any notice or other communication from any governmental authority alleging that the
Property is or was in violation of any applicable law.
(b) Litigation. No litigation is pending, and, to the best of Owner's knowledge,
no actions, claims or other legal or administrative proceedings are pending, threatened or anticipated with
respect to, or which could affect, the Property. If Owner learns that any such litigation, action, claim or
proceeding is threatened or has been instituted,Owner shall promptly deliver notice thereof to Grantee and
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provide Grantee with periodic updates of the status of said litigation, action, claim or proceeding that is
ongoing.
9.5 Title Insurance and Financing. Owner agrees that Owner shall execute and deliver to
Grantee any documents reasonably required by the title insurance company and/or a financing party within
five(5)business days after presentation of said documents by Grantee;provided,however, in no event shall
such documents materially increase any obligation or materially decrease any right of Owner hereunder.
Owner shall have no obligation to initiate the process to obtain title insurance on behalf of the Grantee nor
pay any title insurance premiums or related costs.
10. Notice of Transfers. Owner shall give Grantee at least thirty(30)days written notice prior
to any transfer of all or any portion of the Property identifying the transferee, the portion of Owner's
property to be transferred and the proposed date of Transfer.
11. Assignment.
11.1 Collateral Assignments. Grantee shall have the absolute right in its sole and
exclusive discretion,without obtaining the consent of Owner,to finance,mortgage,encumber,hypothecate,
pledge or transfer to one or more Mortgagees any and all of the rights granted hereunder, including the
easements granted in Section 2, and/or any or all rights or interests of Grantee in the Property or in any or
all of the Solar Facilities.
11.2 Non-Collateral Assignments. Grantee shall have the right, without the prior
consent of Owner, to sell, convey, lease, assign or transfer (including granting co-easements, separate
easements, subeasements) any or all of its rights hereunder in and to any or all of the Property provided
such transfer is to either(a)an affiliate,(b)any entity that has equal or superior creditworthiness to Grantee,
or(c)to any entity that will also own the Solar Facilities. Grantee shall be relieved of all of its obligations
arising under this Agreement, as to all or such portion of its interests in the Property transferred, from and
after the effective date of such transfer, provided such rights and obligations have been assumed by such
transferee.
11.3 Acquisition of Interest. The acquisition of all interests, or any portion of interest,
in Grantee by another person shall not require the consent of Owner or constitute a breach of any provision
of this Agreement and Owner shall recognize the person as Grantee's proper successor.
11.4 Transfer by Owner. The burdens of this Agreement and other rights contained
herein shall run with and against the Property and shall be a charge and burden thereon for the duration of
this Agreement and shall be binding upon and against Owner and its successors and assigns. Owner shall
notify Grantee in writing of any sale, assignment or transfer of any of Owner's interest in the Property, or
any part thereof. Until such notice is received, Grantee shall have no duty to any successor Owner, and
Grantee shall not be in default under this Agreement if it continues to make all payments to the original
Owner before notice of sale, assignment or transfer is received. Owner agrees it will not assign the rights
to payments due to Owner under this Agreement except to a successor owner of the Property, and in no
case shall Owner sever or attempt to sever the Property's solar energy rights or interests from the Property's
fee title or otherwise convey, assign or transfer or attempt to convey, assign or transfer this Agreement,
except to a successor owner of the Property. Owner may transfer Owner's interest in the Property, in part
or in whole to any third party; provided, however, as a condition to such transfer, such transferee must
assume in writing the obligations of Owner hereunder with respect to the interest so transferred, and agree
to take their interest in the Property subject to the rights of Grantee under this Agreement and the obligations
of Owner.
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12. Default and Remedies.
12.1 If a Party defaults in or otherwise fails to perform an obligation under this
Agreement, the non-defaulting Party shall not have the right to exercise any remedies hereunder if the
default is cured by the defaulting Party within sixty (60) days of receiving written notice of such default
specifying in detail the default and the requested remedy (a "Notice of Default"); provided, that if the
nature of the default requires, in the exercise of commercially reasonable diligence, more than sixty (60)
days to cure, the non-defaulting Party shall not have the right to exercise any remedies hereunder as long
as the defaulting Party commences performance of the cure within sixty(60) days of receipt of Notice of
Default and thereafter completes such cure with commercially reasonable diligence. Further, if the Parties
have a good faith dispute as to whether a payment is due hereunder,the alleged defaulting Party may deposit
the amount in controversy (not including claimed consequential, special, exemplary or punitive damages)
into escrow with any reputable third party escrowee,or may interplead the same,which amount shall remain
undistributed and shall not accrue interest penalties, and no default shall be deemed to have occurred, until
final decision by a court of competent jurisdiction or upon agreement by the Parties. No such deposit shall
constitute a waiver of the defaulting Party's right to institute legal action for recovery of such amounts.
12.2 Remedies. Except as qualified by Section 13 regarding Mortgagee Protections,
should a default remain uncured beyond the applicable cure periods,the non-defaulting Party shall have the
right to exercise any and all remedies available to it at law or in equity, all of which remedies shall be
cumulative, including the right to enforce this Agreement by injunction, specific performance or other
equitable relief. Notwithstanding anything in this Agreement to the contrary or any rights or remedies
Owner might have at law or in equity, if any of Grantee's Solar Facilities are then located on the Property
and Grantee fails to perform any of its non-monetary obligations hereunder beyond applicable cure periods,
then Owner shall have the right to exercise any and all remedies available to it at law or in equity including
bringing an action to terminate or cancel this Agreement.
13. Mortgagee Protection. In the event that any mortgage, deed of trust, financing statement, or
other security interest in this Agreement or in any Solar Facilities, or any portion thereof(a"Mortgage"),
is entered into by Grantee then any person who is the mortgagee, grantee or beneficiary of a Mortgage (a
"Mortgagee") shall, for so long as its Mortgage is in existence and until the lien thereof has been
extinguished, be entitled to the protections set forth in this Section 13. Grantee shall send written notice to
Owner of the name and address of any such Mortgagee; provided that failure of Grantee to give notice of
any such Mortgagee shall not constitute a default under this Agreement and shall not invalidate such
Mortgage.
13.1 Mortgagee's Right to Possession, Right to Acquire and Right to Assign. A
Mortgagee shall have the absolute right: (i)to assign its security interest;(ii)to enforce its lien and acquire
title to the leasehold and/or easement estate by any lawful means;(iii)to take possession of and operate the
Solar Facilities or any portion thereof, to exercise all of Grantee's rights hereunder, and to perform all
obligations to be performed by Grantee hereunder, or to cause a receiver to be appointed to do so; and(iv)
to acquire the leasehold and/or easement estate by foreclosure or by an assignment in lieu of foreclosure
and thereafter to assign or transfer the leasehold and/or easement estate to a third party. Owner's consent
shall not be required for the acquisition of the encumbered leasehold, easement or subeasement estate by a
third party who acquires the same by foreclosure or assignment in lieu of foreclosure.
13.2 Notice of Default; Opportunity to Cure. As a precondition to exercising any rights
or remedies as a result of any alleged default by Grantee, Owner shall give written notice of the default to
each Mortgagee or other person who provides debt or equity financing for the development, construction,
ownership, operation or maintenance of the Solar Facilities (including, without limitation, any back-
leverage financing provided to any direct or indirect owner of equity interests in Grantee or any tax equity
investment in the Solar Facilities) (collectively, "Financing Parties") concurrently with delivery of such
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notice to Grantee, specifying in detail the alleged event of default and the required remedy; provided that
Grantee shall notify Owner in writing of the name and address of such Financing Party. In the event Owner
gives such a written Notice of Default,the following provisions shall apply:
(a) A "monetary default" means failure to pay when due any fee, payment,
real property taxes,insurance premiums or other monetary obligation of Grantee under this Agreement; any
other event of default by Grantee is a"non-monetary default."
(b) The Financing Party shall have the same period after receipt of Notice of
Default to remedy the default, or cause the same to be remedied, as is given to Grantee after Grantee's
receipt of Notice of Default,plus,in each instance,the following additional time periods:(i)sixty(60)days,
for a total of one hundred twenty (120) days after receipt of the Notice of Default in the event of any
monetary default; and (ii) sixty(60) days, for a total of one hundred twenty(120) days after receipt of the
Notice of Default in the event of any non-monetary default, provided that such one hundred twenty (120)
day period shall be extended for the time reasonably required to complete such cure, including the time
required for the Financing Party to perfect its right to cure such non-monetary default by obtaining
possession of the Property (including possession by a receiver) or by instituting foreclosure proceedings,
provided the Financing Party acts with reasonable and continuous diligence. The Financing Party shall
have the absolute right to substitute itself for Grantee and perform the duties of Grantee hereunder for
purposes of curing such defaults. Owner expressly consents to such substitution, agrees to accept such
performance, and authorizes the Financing Party(or its employees, agents, representatives or contractors)
to enter upon the Property to complete such performance with all the rights, privileges and obligations of
the original Grantee hereunder. Owner shall not,and shall have no right to,terminate this Agreement prior
to expiration of the cure periods available to a Financing Party as set forth above.
(c) During any period of possession of the Property by a Financing Party (or
a receiver requested by such Financing Party) and/or during the pendency of any foreclosure proceedings
instituted by a Financing Party,the Financing Party shall pay or cause to be paid all other monetary charges
payable by Grantee hereunder which have accrued and are unpaid at the commencement of said period and
those which accrue thereafter during said period. Following acquisition of Grantee's leasehold and
easement estate by a Financing Party or its assignee or designee as a result of either foreclosure or
acceptance of an assignment in lieu of foreclosure, or by a purchaser at a foreclosure sale, this Agreement
shall continue in full force and effect and the Financing Party or party acquiring title to Grantee's leasehold
and easement estate shall, as promptly as reasonably possible,commence the cure of all defaults hereunder
and thereafter diligently process such cure to completion, whereupon Owner's right to terminate this
Agreement based upon such defaults shall be deemed waived; provided, however, the Financing Party or
party acquiring title to Grantee's leasehold and easement estate shall not be required to cure those non-
monetary defaults, if any, which are not reasonably susceptible of being cured or performed by such party
("Non-Curable Defaults"). Non-Curable Defaults shall be deemed waived by Owner upon completion of
foreclosure proceedings or acquisition of Grantee's interest in this Agreement by such party.
(d) Any Financing Party or other party who acquires Grantee's leasehold and
easement estate pursuant to foreclosure or assignment in lieu of foreclosure shall not be liable to perform
the obligations imposed on Grantee by this Agreement incurred or accruing after such party no longer has
ownership of the leasehold and easement estate or possession of the Property.
(e) Neither the bankruptcy nor the insolvency of Grantee shall be grounds for
terminating this Agreement as long as the rent and all other obligations of Grantee hereunder are paid or
performed by or on behalf of Grantee or the Financing Party in accordance with the terms of this Agreement.
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(f) Nothing herein shall be construed to extend this Agreement beyond the
Term or to require a Financing Party to continue foreclosure proceedings after the default has been cured.
If the default is cured and the Financing Party discontinues foreclosure proceedings, this Agreement shall
continue in full force and effect.
13.3 New Lease Agreement. If this Agreement terminates because of Grantee's default
or if the leasehold and easement estate is foreclosed,or if this Agreement is rejected or disaffirmed pursuant
to bankruptcy law or other law affecting creditors' rights, Owner shall, upon written request from any
Financing Party within ninety(90)days after such event,enter into a new lease agreement for the Property,
on the following terms and conditions; provided that Owner shall be entitled to reimbursement from the
Mortgagee for reasonably incurred attorney's fees associated with the negotiation and execution of such
new agreement:
(a) The term of the new lease agreement shall commence on the date of
termination,foreclosure,rejection or disaffirmance and shall continue for the remainder of the Term of this
Agreement,at the same fees and payments and subject to the same terms and conditions as set forth in this
Agreement.
(b) The new lease agreement shall be executed within thirty (30) days after
receipt by Owner of written notice of the Financing Party's election to enter into a new lease agreement,
provided said Financing Party: (i)pays to Owner all fees and payments and other monetary charges payable
by Grantee under the terms of this Agreement up to the date of execution of the new lease agreement, as if
this Agreement had not been terminated, foreclosed, rejected or disaffirmed; and (ii)performs all other
obligations of Grantee under the terms of this Agreement, to the extent performance is then due and
susceptible of being cured and performed by the Financing Party; and(iii)agrees in writing to perform, or
cause to be performed, all non-monetary obligations which have not been performed by Grantee that are
reasonably susceptible of being performed by the Financing Party and would have accrued under this
Agreement up to the date of commencement of the new lease agreement. Any new lease agreement granted
to the Financing Party shall enjoy the same priority as this Agreement over any lien,encumbrances or other
interest created by Owner.
(c) At the option of the Financing Party, the new lease agreement may be
executed by a designee of such Financing Party without the Financing Party assuming the burdens and
obligations of Grantee thereunder.
(d) If more than one Financing Party makes a written request for a new lease
agreement pursuant hereto, the new lease agreement shall be delivered to the Financing Party requesting
such new lease agreement whose Mortgage is prior in lien, and the written request of any other Financing
Party whose lien is subordinate shall be void and of no further force or effect.
(e) The provisions of this Section 13 shall survive the termination, rejection
or disaffirmance of this Agreement and shall continue in full force and effect thereafter to the same extent
as if this Section were a separate and independent contract made by Owner, Grantee and such Financing
Party,and,from the effective date of such termination, rejection or disaffirmation of this Agreement to the
date of execution and delivery of such new lease agreement, such Financing Party may use and enjoy said
Property without hindrance by Owner or any person claiming by, through or under Owner, provided that
all of the conditions for a new lease agreement as set forth herein are complied with.
13.4 Financing Parties' Consent to Amendment, Termination or Surrender.
Notwithstanding any provision of this Agreement to the contrary,the parties agree that this Agreement shall
not be modified or amended and Owner shall not accept a surrender of the Property or any part thereof or
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a cancellation or release of this Agreement from Grantee prior to expiration of the Term without the prior
written consent of all Financing Parties. This provision is for the express benefit of and shall be enforceable
by such Financing Parties.
13.5 No Waiver. No payment made to Owner by a Financing Party shall constitute an
agreement that such payment was, in fact, due under the terms of this Agreement; and a Financing Party
having made any payment to Owner pursuant to Owner's wrongful, improper or mistaken notice or demand
shall be entitled to the return of any such payment.
13.6 Further Amendments. At Grantee's request, Owner shall amend this Agreement to
include any provision which may reasonably be requested by a Financing Party; provided, however, that
such amendment does not impair any of Owner's rights under this Agreement or materially increase the
burdens or obligations of Owner hereunder. Upon request of any Financing Party,Owner shall execute any
additional instruments reasonably required to evidence such Financing Party's rights under this Agreement.
13.7 Estoppel Certificates. Owner shall, within ten (10) days after a written request by
Grantee, any assignee or any Financing Party, execute, acknowledge and deliver to the requesting party
such estoppel certificates(certifying as to such matters as may reasonably be requested, including, without
limitation, that this Agreement is unmodified and in full force and effect (or modified and stating the
modifications), the dates to which the payments and any other charges have been paid, and that there are
no defaults existing (or that defaults exist and stating the nature of such defaults)) and/or consents to
assignment (whether or not such consent is actually required) and/or non-disturbance agreements as
Grantee, any assignee or any Financing Party may reasonably request from time to time during the term of
this Agreement. At Lessee's option,such certificates,consents and agreements may be recorded and Owner
consents to such recording.
14. Termination.
14.1 Grantee's Right to Terminate. Subject to Section 14.3,Grantee shall have the right
to terminate this Agreement as to all or any part of the Property at any time and without cause, effective
upon written notice to Owner from Grantee. Upon providing notice of termination, Grantee shall owe
Owner a termination penalty payment equal to one year of the then-current rent due under this Agreement,
and shall make such payment within thirty(30)days of delivering the termination notice.
14.2 Owner's Right to Terminate. Subject to Section 13.4, Owner shall have the right
to terminate all or any portion of its rights in this Agreement after October 19,2021 if,at the time Owner's
written termination notice is delivered, Grantee has not entered the Operations Term and has not notified
Owner that the required delivery date under a then-effective power purchase agreement has been extended
beyond May 1, 2023. If Grantee has notified Owner that the required delivery date under a then-effective
power purchase agreement has been extended beyond October 19, 2021, then Owner's right to terminate
pursuant to this Section 14.2 shall commence on the date that such extension expires.
14.3 Effect of Termination; Decommissioning. Upon expiration of the Extended Term
(or the Operations Term if Grantee does not elect to extend the term)or upon notice of earlier termination
of this Agreement, Grantee shall, as soon as practicable thereafter, but not later than one (1)year after the
termination,remove above-ground and below-ground(to a depth of three feet below grade)Solar Facilities
from the Property. All Property disturbed by Grantee shall be restored to a condition reasonably similar to
its original condition as it existed upon the Effective Date; provided that no regrading of the Property or
removal or grading over any roads that were installed shall be required. All of Owner's obligations under
this Agreement, including provide access to the Property, shall remain in full force and effect until removal
of the Solar Facility is complete.
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15. Miscellaneous.
15.1 Force Majeure. If performance of this Agreement or of any obligation hereunder
is prevented or substantially restricted or interfered with by reason of an event of Force Majeure (defined
below), the affected Party, upon giving notice to the other Party, shall be excused from such performance
to the extent of and for the duration of such prevention, restriction or interference, and the Term or any
other time periods herein shall be extended for such period of time. The affected Party shall use its
reasonable efforts to avoid or remove such causes of nonperformance and shall continue performance
hereunder whenever such causes are removed. "Force Majeure" means fire, earthquake, flood, or other
casualty, condemnation or accident; strikes or labor disputes; war, acts of terrorism, civil strife or other
violence; any law, order, proclamation, regulation, ordinance, action, demand or requirement of any
government agency or utility; or any other act or condition beyond the reasonable control of a Party hereto.
15.2 Condemnation. As used herein,the term"Taking"means the taking or damaging
of the Property, the Solar Facility Equipment, the rights granted to Grantee pursuant to this Agreement,
including without limitation any easement and leasehold rights granted hereunder, or any part thereof
(including severance damage)by eminent domain, condemnation or for any public or quasi-public use. A
Party who receives any notice of a Taking shall promptly give the other Party a copy of the notice,and each
Party shall provide to the other Party copies of all subsequent notices or information received with respect
to such Taking. If a Taking occurs, then the compensation payable therefor, whether pursuant to a
judgment, by agreement or otherwise, including any damages and interest, shall be distributed
proportionally to Grantee and Owner based on the values of their respective interests and rights in this
Agreement,the Property and the uses thereof,taking into account:
(a) with respect to Grantee, (i) the Taking of or injury to the rights granted to
Grantee pursuant to this Agreement, including without limitation any easements and leasehold rights
granted hereunder, and the Solar Facility Equipment, (ii) any cost or loss that Grantee may sustain in the
removal and/or relocation of the Solar Facility Equipment, or Grantee's chattels and fixtures, and (iii)
Grantee's anticipated or lost profits, damages because of deterrent to Grantee's business and any special
damages of Grantee; and
(b) with respect to Owner, (i)the Taking of the fee title, (ii) the cost to remove
chattels and fixtures, (iii)Owner's anticipated or lost profits and any special damages of Owner.
15.3 Confidentiality. To the fullest extent allowed by law,Owner shall maintain in the
strictest confidence, and Owner shall require each Related Person of Owner to maintain in the strictest
confidence,for the sole benefit of Grantee,all information pertaining to Grantee's product design,methods
of operation, methods of construction and power production ("Confidential Information"). To the fullest
extent permitted by law, Owner shall not use such Confidential Information for its own benefit, publish or
otherwise disclose it to others, or permit its use by others for their benefit or to the detriment of Grantee.
Notwithstanding the foregoing,Owner may disclose such information to any auditor or to Owner's lenders,
attorneys, accountants and other professional advisors; any prospective purchaser of or lenders for the
Property. In the event such Confidential Information is requested pursuant to lawful process, subpoena or
the Colorado Open Records Act, Owner shall provide reasonable notice to Grantee and provide Grantee
with the opportunity to obtain a court order prohibiting such disclosure.
15.4 Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon Owner and Grantee and, to the extent provided in any assignment or other transfer under
Section 11 hereof, any transferee, and their respective heirs, transferees, successors and assigns, and all
persons claiming under them. References to Grantee in this Agreement shall be deemed to include
transferees of Grantee that hold a direct ownership interest in this Agreement and actually are exercising
rights under this Agreement to the extent consistent with such interest.
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15.5 Memorandum; Recording. At Grantee's option: (i)Grantee may record a copy of
this Agreement, or (ii) upon request from Grantee, Owner shall execute in recordable form, and Grantee
may then record, a memorandum of this Agreement, providing only the information required by the
applicable jurisdiction in which recording is sought and to reflect the terms of this Agreement. Owner
hereby consents to the recordation of the interest of a transferee of Grantee in the Property. With respect
to the Operations Term and Extended Term,upon request from Grantee,Owner shall execute,in recordable
form, and Grantee may then record, a memorandum evidencing the Operations Term and Extended Term,
as applicable; provided that the execution of such memorandum is not necessary for such Operations Term
or Extended Term to be effective. Upon expiration or earlier termination of this Agreement, Grantee shall
file and record a termination of any previously recorded memorandum.
15.6 Notices. All notices or other communications required or permitted by this
Agreement, including payments to Owner, shall be in writing and shall be deemed given when personally
delivered to Owner or Grantee, or in lieu of such personal delivery services, the same day if sent via
facsimile or email with confirmation, the next business day if sent via overnight delivery or five (5) days
after deposit in the United States mail, first class, postage prepaid, certified, addressed as follows:
If to Owner:
Mayor, City of Pueblo, 1 City Hall Place,
2nd Floor, Pueblo, Colorado, 81003
with copy to
City Attorney, 1 City Hall Place, 3`d Floor,
Pueblo, Colorado, 81003
If to Grantee:
1120 W. 12th Avenue
Denver, CO 80204
Either Party may change its address for purposes of this paragraph by giving written notice of such change
to the other Parties in the manner provided in this paragraph.
15.7 Entire Agreement; Amendments. This Agreement, together with all exhibits
attached hereto, constitutes the entire agreement between Owner (and its respective successors, heirs,
affiliates and assigns)and Grantee(and its respective successors,heirs,affiliates and assigns)respecting its
subject matter,and supersedes any and all oral or written agreements. All of the provisions of the Exhibits
shall be treated as if such provisions were set forth in the body of this Agreement and shall represent binding
obligations of each of the Parties as part of this Agreement. Any agreement,understanding or representation
respecting the Property, or any other matter referenced herein not expressly set forth in this Agreement or
a subsequent writing signed by both Parties is null and void. No purported modifications or amendments,
including without limitation any oral agreement(even if supported by new consideration),course of conduct
or absence of a response to a unilateral communication, shall be binding on either Party unless in a writing
signed by both Parties. Provided that no material default in the performance of Grantee's obligations under
this Agreement shall have occurred and remain uncured, Owner shall cooperate with Grantee in amending
this Agreement from time to time to include any provision that may be reasonably requested by Grantee for
the purpose of implementing the provisions contained in this Agreement or for the purpose of preserving
the security interest of any transferee of Grantee or Mortgagee. The Parties agree that any rule of
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construction to the effect that ambiguities are to be resolved in favor of either Party shall not be employed
in the interpretation of this Agreement and is hereby waived.
15.8 Dispute Resolution. The Parties agree to first attempt to settle any dispute arising
out of or in connection with this Agreement by good-faith negotiation for thirty (30) days; provided,
however, no such obligation to negotiate shall limit a party from seeking specific performance or other
injunctive or equitable relief if such Party deems the same necessary. The cure periods for any alleged
default(s)under this Agreement disputed in good faith by either Party shall be tolled until resolution of the
dispute is completed and the period for any appeal has lapsed.
15.9 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the state in which the Property is located.
15.10 Specific Performance. Owner recognizes that monetary damages for any breach
of this Agreement may not be sufficient to compensate Grantee fully for such breach. Accordingly,without
derogation of Grantee's other rights under this Agreement, in the event of any default by Owner hereunder,
Grantee shall be entitled to specific performance hereof, without bond, from any court of competent
jurisdiction.
15.11 WAIVER OF JURY TRIAL. TO THE EXTENT ENFORCEABLE UNDER
APPLICABLE LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON,OR ARISING OUT OF,UNDER OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS(WHETHER VERBAL OR WRITTEN),OR ACTIONS OF EITHER PARTY.
15.12 Expenses. The non-prevailing Party shall pay the costs of any litigation or other
legal proceedings related to this Agreement, including the fees and costs of the litigation and the legal fees
and other out-of-pocket costs of the prevailing Party.
15.13 Partial Invalidity. Should any provision of this Agreement be held, in a final and
unappealable decision by a court of competent jurisdiction,to be either invalid, void or unenforceable, the
remaining provisions hereof shall remain in full force and effect, unimpaired by the holding.
Notwithstanding any other provision of this Agreement, the Parties agree that in no event shall the Term,
or the term of any easement granted herein be longer than, respectively, the longest period permitted by
applicable law.
15.14 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which when taken together shall constitute one and the same
document.
15.15 Tax Benefits. Grantee and its assigns shall be entitled to all depreciation, tax
credits and other tax benefits arising out of the construction, ownership and operation of the Solar Facility
and the production of solar energy therefrom. If under applicable law the holder of a leasehold interest or
easement becomes ineligible for any depreciation, tax credit, benefit or incentive for alternative energy
expenditure or production established by any local, state or federal government, then, at Grantee's option,
Owner and Grantee shall amend this Agreement or replace it with a different instrument so as to convert
(to the extent practicable) Grantee's interest in the Property to a substantially similar interest that makes
Grantee eligible for such depreciation,tax credit, benefit or incentive.
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15.16 Environmental Benefits. Owner acknowledges that Grantee or its assignee is the
exclusive owner of electricity (kWh) generated by the Solar Facilities and all renewable energy credits,
carbon reduction credits,tax credits and rebates, or other environmental attributes or incentives associated
with the Solar Facilities.
15.17 No Partnership. This Agreement conveys to Grantee a leasehold and easement
estate in the Property and various easements appurtenant to that estate. Nothing contained in this
Agreement shall be construed to create an association, joint venture, trust or partnership covenant,
obligation or liability on or with regard to any one or more Parties in this Agreement.
REST OF THIS PAGE LEFT INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, Owner and Grantee, acting through their duly authorized representatives,
have executed this Agreement with the intent that it be effective as of the Effective Date, and certify that
they have read, understand and agree to the terms and conditions of this Agreement.
OWNER:
City of Pueblo, Colorado
a Colorado Municipal Corporation
[ SEAL ]
Q 1
Attest!-Eunctl.Z .�L' By (leaeLe
City Clerk `J Nicholas A. Gra sar
Mayor
REST OF THIS PAGE LEFT INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
18
GRANTEE:
GRID Alternatives Colorado, Inc.
a Delaware nonprofit corporation
By: Ib_
Nafne:... TA a '.Aix /1L:-A
Title: 6.1,( 1 6 Ire r ''
STATE OF CC)(,-� )
) ss.
COUNTY OF `-?t-A-e b o L 'n'C e_ )
The foregoing instrument was acknowledged before me this 26 day of
, 2020 by . ' ',i Dc),' as Exkcu}Web; ecit of GRID
Alternate s Colorado, Inc. a Delaware nonprofit corporation.
Witness my hand and official seal.
z2My commission expires: ' `22 - c� -
[ SEAL] .1 •J .-I ' IAk
AN-
,
7-- otary 'ublic
TOMEKA MUHAMMAD
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20184003561
MY COMMISSION EXPIRES 01122!2022
19
EXHIBIT A
Description of the Property
I 0 acres on Parcel 428200002 —generally located North of Hwy 50 Bypass, east of Troy Avenue, south
of Oakshire Lane.
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BIN COMMUNITY SOLAR KANN NG SFr
PLANNING DRAWINGS
!73 I NOT FOR CONSTRUCTION ,II `I" .;
B-1
EXHIBIT B
Payment Terms
In consideration for the rights provided to Grantee under the Agreement, Grantee agrees to make
payments to Owner as follows:
1. Development Term Fees. There will be no fee paid during the Development Term.
2. Operating Fees. Beginning at the start of the Operations Term and ending on the date on
which Grantee ceases to operate the Solar Generating Equipment on the Property, Grantee shall pay to
Owner the below annual amounts (collectively"Operating Fees"):
(a)Fixed Fee. During the Operations Term,and any Extended Term,Grantee shall
pay to Owner a fixed fee of ONE DOLLAR ($1) times the number of Net Acres of the Property.
For purposes of this Agreement"Net Acre" or "Net Acreage" means the gross area of the portion
of the Property being referred to, including all internal easements and rights-of-way but excluding
any and all perimeter easements and dedicated rights-of-way.
(b)Payment of Operating Fees. The payment of the Operating Fees each calendar
year shall be made in arrears in semi-annual installments, the first semi-annual payment shall be
due on or before six months following the Operations Date(or anniversary thereof)and the second
semi-annual payment shall be due on or before twelve (12)months following the Operations Date
(or anniversary thereof). Owner shall have the right to receive, upon written request, a statement
from Grantee showing the computational basis for Owner's semi-annual payments.
3. Decommissioning Term. There will be no fee paid during the Decommissioning Term.
4. Late Payment Penalty. If Grantee fails to make any payment to Owner required of it
hereunder when due, interest shall accrue on the overdue amount, from the date of expiration of Grantee's
cure period until the date paid, at a rate equal to the sum of: (i)two percent(2%)per annum; plus, (ii)the
prime lending rate as from time to time may be published by The Wall Street Journal under the "Money
Rates" section; provided, that in no event shall such total interest exceed the maximum rate permitted by
law.
5. IRS Form W-9. Notwithstanding anything in this Agreement to the contrary,Grantee shall
have no obligation to make any payment to Owner otherwise required under this Agreement until Owner
has returned to Grantee a completed Internal Revenue Service Form W-9, such W-9 form to either(i)have
been provided by Grantee to Owner prior to execution of this Agreement or(ii) be provided by Grantee to
Owner promptly upon execution of this Agreement.
6. Payment Instructions. All payments issued hereunder will be paid to Owner,and if Owner
is comprised of more than one person or entity, such payments will be issued by a single check payable to
all such persons or entities.
B-2
Exhibit C:
Insurance Coverages
ACOROe CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDVVV)
1119)2016
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER CONTACT
NAME
Arthur J.Gallagher 8 Co. PHONE FAX
Insurance Brokers of California,Inc.LIC#0726293 ,1AI4 No star 415-546-9300 _Alc,No):415-536-8499
1255 Battery Street,Suite 450 ADDRESS.
San Francisco CA 94111 INSURER(S)AFFORDING COVERAGE NA ICN
INSURER ACrum 8 Forster Specialty Insurance Co 44520
INSURED INSURER B: _____
Grid Alternatives,Inc.
285 Griffin Street INSURERC:
Salinas,CA 93901 INSURER D:
INSURER E
INSURER F
COVERAGES CERTIFICATE NUMBER:1219216575 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POUCIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
ILMI IADDL R TYPE OF INSURANCE SUEPOLICY NUMBER I MMMPOUDDD1YYYICY Y) 11014 YPOLICY PYI LIMITS
LTR 0180 IE
A X COMMERCIAL GENERAL LIABILITY EPK721050 411/2010 4/1/2018 EACH OCCURRENCE $1,000,000
CLAIMS-MADE X OCCUR DAMAGE TO RENTEDPREMISES(Ea occurrence) $500.000
X $15,000 Ded. MED EXP(Any one person) $10,000
PERSONAL&ADV INJURY $1,000,000
GEN'(AGGREGATE LIMIT APPLIES PER' GENERAL AGGREGATE $2,000,000
X POLICY l!ECT I LOC PRODUCTS-COMP/OP AGG $2,000,000
OTHER
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $
(Ea accident)
ANY AUTO BODILY INJURY(Por person)__$
OWNED SCHEDULED BODILY INJURY(Per accident) $
AUTOS ONLY AUTOS
HIRED NON-OWNED PROPERTY DAMAGE
`_AUTOS ONLY AUTOS ONLY -(Ther accident) _
—
UMBRELLA LIAB OCCUR EACH OCCURRENCE $
EXCESS LIAB CLAIMS-MADE AGGREGATE $
DED RETENTIONS $
WORKERS COMPENSATION
STTAATUTE EERH
AND EMPLOYERS'LIABILITY YIN S —_—
ANYPROPRIETOR/PARTNER/EXECUTIVE N/A EL EACH ACCIDENT $
OFFICER/MEMBER EXCLUDED, I I
(Mandatory In NH) E L DISEASE•EA EMPLOYEE$
II ye decnibo uer
DESCRIPTION'OVOPERATIONS below E L.DISEASE-POLICY LIMIT $
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(ACORD 101,Additional Namara.Sehamlle,may M attached 0 mora space Is required)
Evidence of Insurance.
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
®1988-2015 ACORD CORPORATION. All rights reserved.
ACORD 26(2016/03) The ACORD name and logo are registered marks of ACORD
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