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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; 1 (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 2 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 3 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. 4 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. 5 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 6 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 7 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 8 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. 9 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 10 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. 11 (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 12 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. 13 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. 14 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 15 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. 16 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 17 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. -3, =,`" i=4,s•-'..'''.=P-O .,,E' `..;3:',7 ,F.,',"4.4 n_ ,.,-•4-.4 '3 ,T=','.7,,;>', "1: ",' '''- ''a''- ' 4'• ,-'• '• ',,-;''';'1,', ,',. 3 ...• ;; 7 0,, ... A, -,.. NO1'30.501N 739 40 ,,,,„ , - • iii Va • A Z o ITI <:, 'ft b i ().1.--: 8 = c.> i c,it rn r iu) )1 1 ) 73 ,1 : . 3 N., I i i g T i A P. 1 63 A A ..f 0 .1. ,, - ^ T , 4,1 sl-f il II -`.1 -? I u, . 1`...)1 , i {.< ..,...,.' 1 3.T. i rE x I • E ,.„, I 4'5 ,, I :) :-,,:i•...".;',f., C.,,,a, '"^ 0 i i t ',. ,-<:).-Z , 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 c-1