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HomeMy WebLinkAbout09819ORDINANCE NO. 9819 AN ORDINANCE APPROVING A COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PUEBLO HOUSING SOLAR, LLC, AS CSG SUBSCRIBER ORGANIZATION RELATING TO A COMMUNITY SOLAR GARDEN SUBSCRIPTION FOR AN ALLOCATED PERCENTAGE OF THE DELIVERED ENERGY TO BE GENERATED BY THE BLACK HILLS ENERGY COMMUNITY SOLAR FACILITY LOCATED WITHIN LOT 1, BLOCK 1 OF THE EAST PUEBLO RD HEIGHTS, 3 FILING AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Community Solar Garden Subscription Agreement (“Agreement”) between the City of Pueblo, a Colorado Municipal Corporation and Pueblo Housing Solar, LLC, as CSG Subscriber Organization, dated November 23, 2020, a copy of which is attached hereto including all associated documents, 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 directed and authorized to perform any and all acts consistent with the intent of the Ordinance and Agreement to effectuate the policies and procedures described therein. SECTION 3. This Ordinance shall become effective immediately upon final passage and approval. Action by City Council: Introduced and initial adoption of Ordinance by City Council on November 9, 2020. Final adoption of Ordinance by City Council on November 23, 2020 . President of City Council Action by the Mayor: ☒ Approved on November 25, 2020 . ☐ 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-6 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: November 9, 2020 TO: President Dennis E. Flores and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, City Clerk FROM: Scott Hobson, Acting Director of Planning and Community Development SUBJECT: AN ORDINANCE APPROVING A COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PUEBLO HOUSING SOLAR, LLC, AS CSG SUBSCRIBER ORGANIZATION RELATING TO A COMMUNITY SOLAR GARDEN SUBSCRIPTION FOR AN ALLOCATED PERCENTAGE OF THE DELIVERED ENERGY TO BE GENERATED BY THE BLACK HILLS ENERGY COMMUNITY SOLAR FACILITY LOCATED WITHIN LOT 1, BLOCK 1 RD OF THE EAST PUEBLO HEIGHTS, 3 FILING AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT SUMMARY: Attached is a proposed Ordinance approving and authorizing the Mayor to sign a Community Solar Garden Subscription Agreement (“Agreement”) with Pueblo Housing Solar, LLC, as CSG Subscriber Organization (“CSG SO”) which authorizes the City to buy 40% (798.4 kWp) of the estimated annual delivered energy from the community solar facility that will be credited to various City buildings and facilities. The solar electric facility is located on City-owned property that is leased for the community solar garden. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: This Agreement authorizes the City to buy 40% (798.4 kWp) of the estimated annual delivered energy from the CSG SO community solar facility that will be credited to 34 meters on various City buildings and facilities. The kWh Rate in the first Agreement Year is defined as $.01152/kWh for properties with CO710 Rate Class and $.0926/kWh for properties with a CO711 Rate Class. Black Hills’ CO710 Rate Class is a small general service that is non- demand and their CO711 is a small general service that is subject to demand charges. There are 25 subscription meters in the Agreement that are CO710 rated and nine meters that are CO711 rated. These are the required terms and savings thresholds for the Project’s financing, which will result in an overall estimated first year bill savings of 8% off the City’s electricity bills for the 34 meters. The City will receive Bill Credits on these meters that are included within the Agreement. The City will pay the CSG SO a price per kilowatt hour ("kWh Rate") for its allocated percentage of the delivered energy up to but limited to the amount of kWh's for which the City receives or is eligible to receive bill credits. The price per kilowatt hour will increase 1% per Agreement Year. If, as a result of an BHE billing adjustment, the quantity of Delivered Energy is decreased (the "Electricity Deficiency Quantity'') and BHE reduces the amount of Bill Credits allocated to the City for such period, CSG SO will reimburse the City for the amount paid in consideration for the Electricity Deficiency Quantity. If as a result of such adjustment the quantity of Delivered Energy allocated to the City is increased (the "Electricity Surplus Quantity") and BHE increases the amount of Bill Credits allocated to Subscriber for such period, the City will pay for the Electricity Surplus Quantity at the kWh Rate applicable during such period. The City does not need CSG SO's consent to change the Subscriber Meters for the same amount of subscription if all the Subscriber Meters are owned by the City and meet the requirements of the Community Solar Garden program. The City has the right to terminate this Agreement if the Commercial Operations Date is not achieved within 2 years of the Effective Date of this Agreement. FINANCIAL IMPLICATIONS: Under the attached Agreement, the City will be a Subscriber for a term of 20 years. In accordance with the required terms and savings thresholds for the project’s financing, there will be an overall estimated first year bill savings of 8% off the City’s electricity bills for the 34 Subscriber Meters. There is no intention that the terms and requirements of TABOR will be violated by the execution of this Agreement. This Agreement will not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR. Therefore, all payment obligations of City are expressly dependent and conditioned upon the continuing appropriation of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available, in the sole discretion of City Council in accordance with the rules, regulations, and resolutions and ordinances of City, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. BOARD/COMMISSION RECOMMENDATION: Not applicable. STAKEHOLDER PROCESS: This Project was submitted and approved as one of the community solar garden applications to Black Hills Energy. The Project was developed by Grid Alternatives and the City-owned property for the solar facility is being leased from the City. The Project has been previously reviewed and supported by several community agencies and organizations. ALTERNATIVES: The CSG SO community solar project will need to attract the 40% more subscribers if the City chooses not to enter into the Subscription Agreement. RECOMMENDATIONS: Approve the Ordinance. Attachments: Proposed Ordinance Community Solar Garden Subscription Agreement and Attachments COMMUNITY SOLAR GARDEN(CSG) SUBSCRIPTION AGREEMENT This CSG Subscription Agreement ("Agreement") is made and entered into by and between Pueblo Housing Solar, LLC, as CSG Subscriber Organization ("CSG SO") and City of Pueblo, a Municipal Corporation ("Subscriber"). Hereafter,CSG SO and Subscriber are sometimes referred to individually as a"Party"and collectively as the"Parties." RECITALS WHEREAS,CSG SO is selling,and Subscriber is buying,a Community Solar Garden subscription for an allocated percentage(as described in Exhibit A)of the Delivered Energy to be generated by the Community Solar Garden; WHEREAS, Black Hills Energy will provide the Subscriber with Bill Credits based on the Subscriber's allocated percentage of Delivered Energy, which will be applied to Subscriber's monthly invoices for retail electric service for Subscribed Meters(Exhibit B); NOW,THEREFORE, in consideration of the foregoing recitals,the mutual promises, representations,warranties, covenants, conditions herein contained, and the Exhibits attached hereto, CSG SO and Subscriber agree as follows. DEFINITIONS "Bill Credit" means the monetary value of the electricity generated by the CSG commensurate with Subscriber's Allocated Percentage, as calculated pursuant to the Subscriber Agency Agreement and the Community Solar Garden tariff in BHE's rate book Tariff, and credited to Subscriber by Black Hills Energy("BHE") on its monthly invoice for electric service for the Subscriber Meters in accordance with Subscriber Agency Agreement "Community Solar Garden"or"CSG"means solar photovoltaic system that qualifies as a community solar garden pursuant to the RFP CSG Agreement provided in Exhibit D "Agreement Year" means each year long period beginning with the Date of Commercial Operation "Commercial Operation Date" means the first day of the first full calendar month upon which commercial operation is achieved following completion of all interconnection agreement requirements and processes, as defined by the RFP CSG Agreement executed by the CSG SO and BHE. "Delivered Energy" means the amount of alternating current(AC)energy generated by the CSG as inverted to AC and delivered to BHE at the Production Meter(as defined in the RFP Community Solar Garden Agreement). "Effective Date" means the date on which the Agreement is signed by authorized representatives of both Parties "BHE" or"Black Hills Energy" means Black Hills Energy, and any successor thereto to the extent it has control over BHE's business. "RFP CSG Agreement " means the agreement provided in Exhibit D which is entered into by and between CSG SO, the CSG owner, and BHE, whereby BHE agrees to purchase all of the energy produced by the Community Solar Garden and to pay for such energy by providing Bill Credits to Subscribers. "Subscriber's Allocated Percentage" means Subscriber's allocated portion, stated as a percentage, of the Delivered Energy in a given month, as described in Exhibit A. "Subscriber Meters" means the meters associated with specific subscriber BHE accounts/premises listed in Exhibit B as updated from time to time by the Parties. 1. TERM AND TERMINATION. 1.1 Term. The term of the Agreement begins on the Effective Date and continues for 20 years from the Commercial Operation Date. The CSG SO will notify the Subscriber of the Commercial Operation Date by delivering the form provided in Exhibit C. 1.2 CSG SO Termination Before Commercial Operation Date. If the CSG SO is unable to achieve commercial operation it may terminate this agreement immediately upon written notice, in which case neither Party will have any liability to the other except for any liabilities that accrued before termination. 1.3 Subscriber Early Termination. The Subscriber may terminate this agreement if the Commercial Operations Date is not achieved within 2 years of the Effective Date of this Agreement. Furthermore, the parties understand and acknowledge that City is subject to Article X, §20 of the Colorado Constitution("TABOR"). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of City are expressly dependent and conditioned upon the continuing appropriation of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available, in the sole discretion of the Subscriber's City Council, in accordance with the rules, regulations,and resolutions and ordinances of City, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. 1.4 Force Majeure. Upon the occurrence of a force majeure event, the Agreement may be terminated consistent with the provisions of Section 10.3 of this Agreement. 1.5 Termination for Default. If either Party defaults on their responsibilities under this Agreement,the Agreement may be terminated under Section 11. 1.6 Termination upon Mutual Agreement. This Agreement may be terminated at any time, for any reason,by mutual agreement of the Parties in writing. 2. SUBSCRIPTION AMOUNT AND DELIVERY OF BILL CREDITS 2.1 Subscriber Allocation. The Subscriber Allocated Percentage will be 40 percent. The estimated total Delivered Energy for the Allocated Percentage is shown in Exhibit A. 2.2 Delivery of Bill Credits. The Subscriber will receive Bill Credits on its Subscribed Meters. The Allocated Percentage will be split across the Subscribed Meters as identified in Exhibit B. The Subscriber agrees to complete a Subscriber Agency Agreement and any BHE required data consent forms for each Subscribed Meter. The Subscriber Agency Agreement is shown in Exhibit B of the RFP CSG Agreement provided which is provided Exhibit D of this Agreement. 2.3 No Right to Environmental Attributes. Subscriber disclaims any right to any and all carbon trading credits, Renewable Energy Credits or certificates, emissions reduction credits, emissions allowances, green tags, tractable renewable credits, or Green-e© products. 3. PRICE AND PAYMENT 3.1 Payment. The Subscriber will pay the CSG SO a price per kilowatt hour ("kWh Rate") for its Allocated Percentage of the Delivered Energy up to but limited to the amount of kWh's for which the Subscriber receives or is eligible to receive Bill Credits. The price per kilowatt hour will increase 1% per Agreement Year. The kWh Rate in the first Agreement Year is defined as $.01 l52/kWh for properties with C0710 Rate Class and $.0926/kWh for properties with a CO711 Rate Class. 3.2 Invoices.CSG SO shall invoice Subscriber within 30 days of the last Business day of each calendar month for the Subscriber's Allocated Percentage of Delivered Energy during the immediately preceding calendar month. Subscriber's first invoice under this Agreement shall be for the first full calendar month after the Commercial Operation Date. 3.3 Time of Payment. Subscriber will pay all undisputed amounts due hereunder within 30 days of the Invoice Date. 3.4 Method of Payment. Subscriber will make all payments under the Agreement by electronic funds transfer in immediately available funds to the account designated by CSG SO, which may be changed from time to time. If Subscriber does not have electronic funds transfer capability, or does not desire to use electronic funds transfer, payments shall be considered timely if a check is postmarked by the 30-day due date. All payments that are not paid when due shall bear interest accruing from the date becoming past due until paid in full at a rate equal to 0% . Except for billing errors or as provided in Section 3.6 below, all payments made hereunder shall be non-refundable, be made free and clear of any tax, levy, assessment, duties or other charges and not subject to reduction, withholding, set-off, or adjustment of any kind. 3.5 Disputed Payments. If a bona fide dispute arises with respect to any invoice, Subscriber shall not be deemed in default under the Agreement and the Parties shall not suspend the performance of their respective obligations hereunder, including payment of undisputed amounts owed hereunder. If an amount disputed by Subscriber is subsequently deemed to have been due pursuant to the applicable invoice, interest shall accrue at rate of 0% on such amount from the date becoming past due under such invoice until the date paid.5 3.6 Billing Adjustments Following BHE Billing Adjustments. If, as a result of an BHE billing adjustment, the quantity of Delivered Energy is decreased (the "Electricity Deficiency Quantity") and BHE reduces the amount of Bill Credits allocated to Subscriber for such period,CSG SO will reimburse Subscriber for the amount paid by Subscriber in consideration for the Electricity Deficiency Quantity. If as a result of such adjustment the quantity of Delivered Energy allocated to Subscriber is increased (the "Electricity Surplus Quantity") and BHE increases the amount of Bill Credits allocated to Subscriber for such period, Subscriber will pay for the Electricity Surplus Quantity at the kWh Rate applicable during such period. 4. REPRESENTATIONS &WARRANTIES. 4.1 Representations and Warranties Relating to Agreement Validity. In addition to any other representations and warranties contained in the Agreement, each Party represents and warrants to the other as of the date of this Agreement and on the Effective Date that: (a) it is duly organized and validly existing and in good standing in the jurisdiction of its organization; (b) it has the full right and authority to enter into, execute, deliver, and perform its obligations under the Agreement; (c) it has taken all requisite corporate or other action to approve the execution, delivery, and performance of the Agreement; (d) the Agreement constitutes its legal, valid and binding obligation enforceable against such Party in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws now or hereafter in effect relating to creditors' rights generally; (e) there is no litigation, action, proceeding or investigation pending or, to the best of its knowledge, threatened before any court or other governmental authority by, against, affecting or involving any of its business or assets that could reasonably be expected to adversely affect its ability to carry out the transactions contemplated herein; and 5. FORCE MAJEURE. 5.1 Definition. "Force Majeure Event" means any cause not within the reasonable control of the affected Party which precludes that Party from carrying out, in whole or in part, its obligations under this Agreement, including, but not limited to, acts of god; winds; hurricanes; tornadoes; fires; epidemics; landslides; earthquakes; floods; other natural catastrophes; strikes; lock-outs or other industrial disturbances; acts of public enemies;acts,failures to act or orders of any kind of any governmental authority acting in its regulatory or judicial capacity; insurrections; military action; war, whether or not it is declared; sabotage; riots; civil disturbances or explosions. Force Majeure shall not mean: (i) economic hardship (including inability to meet payment obligations) of either Party; or(ii) or any nonpayment under this Agreement or any third-party agreement. 5.2 Excused Performance. Except as otherwise specifically provided in the Agreement, neither Party shall be considered in breach of the Agreement or liable for any delay or failure to comply with the Agreement (other than the failure to pay amounts due hereunder), if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event: provided that the Party claiming relief under this Article 5 shall immediately (i) notify the other Party in writing of the existence of the Force Majeure Event, (ii) exercise all reasonable efforts necessary to minimize delay caused by such Force Majeure Event, (iii) notify the other Party in writing of the cessation or termination of said Force Majeure Event and (iv) resume performance of its obligations hereunder as soon as practicable thereafter; provided, however,that Subscriber shall not be excused from making any payments and paying any unpaid amounts due in respect of Subscriber's Allocated Percentage of Delivered Energy prior to any performance interruption due to a Force Majeure Event. 5.3 Termination for Force Majeure. Either Party may terminate this Agreement upon 15 days written notice to the other Party if any Force Majeure Event affecting such other Party has been in existence for a period of 180 consecutive days or longer, unless such Force Majeure Event expires before the end of the 15 day notice period. 6. DEFAULT. 6.1 CSG SO Defaults and Subscriber Remedies. (a) CSG SO Defaults. The following events are defaults with respect to CSG SO (each, an "CSG SO Default"): (i) A bankruptcy event occurs with respect to CSG SO; (ii) CSG SO fails to pay Subscriber any undisputed amount owed under the Agreement within 90 days from receipt of notice from Subscriber of such past dueamount; (iii) CSG SO breaches any material term of this Agreement and (A) if CSG SO can cure the breach within 60 days after Subsciber's written notice of such breach and CSG SO fails to so cure, or(B) CSG SO fails to commence and pursue a cure within such 60-day period if a longer cure period is needed; (b) Subscriber's Remedies. If a CSG SO Default described in Section 6.1 (a) has occurred and is continuing, in addition to other remedies expressly provided herein, Subscriber may terminate the Agreement and exercise any other remedy it may have at law or equity or under the Agreement. In the event of such termination, Subscriber shall use reasonable efforts to mitigate its damages. 6.2 Subscriber Defaults and CSG SO's Remedies. (b) Subscriber Default. The following events shall be defaults with respect to Subscriber (each, a "Subscriber Default"): (i) A bankruptcy event occurs with respect to Subscriber; (ii) Subscriber fails to pay CSG SO any undisputed amount due CSG SO under the Agreement within 90 days from receipt of notice from CSG SO of such past due amount; and (iii) Subscriber breaches any material term of this Agreement and (A) if such breach can be cured within 60 days after CSG SO's written notice of such breach and Subscriber fails to so cure, or(B) Subscriber fails to commence and pursue said cure within such 60 day period if a longer cure period is needed. (c) CSG SO's Remedies. If a Subscriber Default described in Section 6.2(a)has occurred and is continuing, in addition to other remedies expressly provided herein, CSG SO may terminate this Agreement, sell Subscriber's Allocated Percentage to one or more persons other than Subscriber, recover from Subscriber the actual,reasonable and verifiable damages related to electricity provided to Subscriber for which Subscriber has not paid CSG SO. .Other than the recovery of damages for electricity provided to Subscriber for which Subscriber has not paid CSG SO, CSG SO hereby waives the right to recover from Subscriber any direct, indirect, compensatory, consequential or exemplary damages. In the event of such termination, CSG SO shall use reasonable efforts to mitigate its damages. 7. ASSIGNMENT. 7.1 Assignment by CSG SO. Neither Party shall assign or in any manner transfer this Agreement, any rights or obligations included herein, or any part thereof without the prior written consent of the other Party, which consent may not be unreasonably conditioned, withheld or delayed, except that: (a) Subscriber does not need CSG SO's consent to change the Subscriber Meters for the same amount of subscription as long as all the Subscriber Meters are owned by the Subscriber and meet the requirements of the Community Solar Garden program. For such changes, Subscriber will notify CSG SO in writing and CSG SO will inform BHE of the change within 60 days. Any request to change Subscribed Meters must include delivery to CSG SO of the Subscriber Agency Agreement(Exhibit B of the RFP CSG Agreement provided in Exhibit D of this Agreement and any form of data consent that may be required by BHE. 8. NOTICES. 8.1 Notice Addresses. Unless otherwise provided in the Agreement, all notices and communications concerning the Agreement shall be in writing and addressed to the other Party (or Financing Party, as the case may be) at the addresses below, or at such other address as may be designated in writing to the other Party from time to time. Entity Pueblo Housing Solar LLC Contact Name Executive Director Contact Address 201 S. Victoria Pueblo, CO 81003 Contact Email joe.mahoney@hapueblo.org Entity City of Pueblo Contact Name Mayor Nicholas A. Gradisar Contact Address 1 City Hall Place, 2nd Floor, Pueblo. CO 81003 Contact Email ngradisar@pueblo.us With a Copy to: Entity City of Pueblo Law Department Contact Address City Attorney, 1 City Hall Place, Pueblo, CO 81003 8.2 Notice. Unless otherwise provided herein, any notice provided for in the Agreement shall be hand delivered, sent by registered or certified U.S. Mail, postage prepaid, or by commercial overnight delivery service, or transmitted by email and shall be deemed delivered to the addressee or its office when received at the address for notice specified above when hand delivered, upon confirmation of sending when sent by email (if sent during normal business hours or the next Business day if sent at any other time), on the Business day after being sent when sent by overnight delivery service, or 5 Business days after deposit in the mail when sent by U.S. mail. 8.3 Address for Invoices. All invoices under the Agreement shall be sent to the address provided by Subscriber. Invoices shall be sent by regular first-class mail postage prepaid. 9. INDEMNIFICATION & LIABILITY 9.1 Indemnification. CSG SO shall defend, indemnify, and hold harmless Subscriber from any liability, claims, causes of action,judgments, damages, losses, costs, or expenses, including reasonable attorney's fees, resulting from any act or omission of CSG SO, a subcontractor, anyone directly or indirectly employed by them, and/or anyone for whose acts and/or omissions they may be liable in the performance of the services required by this Agreement. 9.2 Liability. Without Subscriber waiving any statutory immunities, each Party agrees that it will be responsible for its own acts and omissions and the results thereof, to the extent authorized by the law, and shall not be responsible for the acts and omissions of another Party and the results thereof. Subscriber warrants that it has an insurance or self-insurance program with minimum coverage consistent with the liability limits in Colorado Statutes. 10. MISCELLANEOUS. 10.1 Integration; Exhibits. This Agreement, together with the attached Exhibits, constitute the entire agreement and understanding between CSG SO and Subscriber with respect to the subject matter thereof and supersedes all prior agreements relating to the subject matter hereof. The Exhibits attached hereto are integral parts of the Agreement and are made a part of the Agreement by reference. 10.2 Remedies. Any right or remedy of CSG SO or Subscriber for breach of this Agreement shall be restricted to those specified in Section 6.1 (b)and Section 6.2 (c) of this Agreement. 10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to any choice of law principles. The Parties agree that the Pueblo County District Court, State of Colorado shall have personal and subject matter jurisdiction over any action or proceeding arising under the Agreement to the fullest extent permitted by applicable law. To the fullest extent permitted by applicable law,the Parties hereby waive their rights to a trial by jury. 10.4 Severability. If any term, covenant or condition in the Agreement shall, to any extent, be invalid or unenforceable in any respect under applicable Law,the remainder of the Agreement shall not be affected thereby,and each term, covenant or condition of the Agreement shall be valid and enforceable to the fullest extent permitted by applicable law and,if appropriate, such invalid or unenforceable provision shall be modified or replaced to give effect to the underlying intent of the Parties and to the intended economic benefits of the Parties. 10.5 Counterparts.This Agreement may be executed in one or more counterparts,all of which taken together shall constitute one and the same instrument 10.6 Record Keeping. CSG SO will maintain books, records, documents and other evidence directly pertinent to performance of the work under this Agreement in accordance with generally accepted accounting and utility metering principles and practices, including all meter production records and adjustments thereto. CSG SO will also maintain the financial information and data used in preparation or support of the cost submission for any negotiated Agreement amendment and provide electronic, printed or copied documentation to the Subscriber as requested. These books, records,documents,and data must be retained for at least 6 years after the term of the Agreement,except in the event of litigation or settlement of claims arising from the performance of this Agreement, in which case the CSG SO agrees to maintain them until the Subscriber and any of its duly authorized representatives have disposed of the litigation or claims. 10.7 Audit. The records,books,documents,and accounting procedures and practices of the CSG SO and of a any subcontractor relating to work performed pursuant to this Agreement shall he subject to audit and examination by the Subscriber at Subscriber's expense. The CSG SO and any subcontractor shall permit the Subscriber or its designee to inspect,copy, and audit its accounts, records, and business documents at any time during regular business hours,as they may relate to the performance under this Agreement. Audits conducted by the Subscriber under this provision shall be in accordance with generally accepted auditing standards. Financial adjustments resulting from any audit by the Subscriber shall be paid by the owing party in full within ninety (90) days of the CSG SO's receipt ofaudit. 10.8 Dispute Resolution. CSG SO must submit in writing to the Subscriber any dispute regarding the meaning and intent of this Agreement or arising from performance of this Agreement within 60 days after the dispute arises. The Subscriber or his/her designee must respond to the CSG SO in writing with a decision within 60 calendar days following receipt of the CSG SO's dispute. Submission of a dispute to Dispute Resolution is a condition precedent to the CSG SO initiating any litigation relating to this Agreement. Pending final decision of a dispute, the Parties will proceed diligently with the performance of the Agreement. Failure by the CSG SO to comply precisely with the time deadlines under this paragraph as to any claim shall operate as a release of that claim but only to the extent that Subscriber is prejudiced by such failure. The remainder of this page is intentionally blank. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers on the dates below: CSG Subscriber Organization Pueblo Housing Solar, LLC Authorized Signatory: Joe Mahoney Title of Signatory: Executive Director Dated: ' �' ,j �'� Signed: ,.- Subscriber City of Pueblo Authorized Signatory: Nicholas A. Gradisar Title of Signatory: Mayor Dated: li-016-..p104%d By: -.-14e / ,,e4t4Ziefie:f Nicholas A. Gradisar, Mayor ATTEST: ' 4‘...LnCIA Gait, Brenda Armijo, City Clerk Exhibit A: Subscribers Allocation of Delivered Energy Community Solar Garden identifier: Community Solar Garden total system size: Subscribers Total Allocation of Delivered Energy: 40 percent(_798.4 kWp) Estimated Annual Delivered Energy commencing on the Commercial Operation Date, and continuing through the Term. Year Estimated Annual Kwh Year Estimated Annual Kwh 4,050,000 3,782,876 1 11 4,022,460 3,757,153 2 12 3,995,107 3,731,604 3 13 3,967,941 3,706,229 4 14 3,940,959 3,681,027 5 15 3,914,160 3,655,996 6 16 3,887,544 3,631,135 7 17 3,861,108 3,606,443 8 18 3,834,853 3,581,919 9 19 3,808,776 3,557,562 10 20 For the purposes of the table Term year 1 begins on the Commercial Operation Date The values in the table above are estimates of(i) the kWhs of Delivered Energy expected to be generated annually by the System and(ii)the portion of the Delivered Energy generated annually that is to be allocated to Subscriber pursuant to Subscriber's Allocated Percentage, which amount is derived by multiplying the estimated Delivered Energy by the Subscriber's Allocated Percentage in each year.The table will be updated upon final design of the System; provided,however, any such updated values are also estimates. Estimated Delivered Energy may be reduced if the system size is reduced due to square footage limitations on the leased land. CSG SO used the following methodology to develop the above production projections: National Renewable Energy Laboratory's PVWatts and SAM software tools. Exhibit B (Subscribers Allocation of Delivered Energy by Subscribed Meter) Account Premise Allocated %of Allocated KW Bill Credit Number Number generation capacity Rate Code 193035847 EL10111025 0.38% 7.5 CO710 193035847 EL 10071801 0.82% 16.3 CO710 193035847 EL 10019087 0.47% 9.5 CO710 193035847 EL09923697 0.28% 5.6 CO710 193035847 EL08767006 0.72% 14.4 CO710 193035847 EL 18140787 0.95% 18.9 CO710 193035847 EL09871969 1.06% 21.2 CO710 193035847 EL 12393502 0.94% 18.8 CO710 193035847 EL09854288 0.71% 14.3 CO710 193035847 EL09850404 0.63% 12.5 CO710 193035847 EL09918730 0.30% 6.0 CO710 193035847 EL 10020924 0.74% 14.9 CO710 314623209 EL09873690 1.20% 24.0 CO710 314623209 EL 17366194 0.86% 17.2 CO710 314623209 EL 11236030 0.88% 17.7 CO710 314623209 EL09800416 0.57% 11.4 CO710 7880946176 ELI 1246469 0.33% 6.6 CO710 7880946176 EL 10110934 0.46% 9.1 CO710 7880946176 EL 17689349 0.71% 14.1 CO710 7880946176 EL19403238 0.76% 15.2 CO710 7880946176 EL 18487251 0.70% 13.9 CO710 7880946176 EL 10247603 0.47% 9.4 CO710 7880946176 ELI 8606524 0.62% 12.3 CO710 7880946176 EL20946271 0.65% 13.1 CO710 7880946176 EL 17507718 0.78% 15.6 CO710 7880946176 EL 10142648 3.35% 66.9 CO711 7880946176 EL 12248489 2.43% 48.5 C0711 7880946176 EL 16886254 1.75% 35.0 C0711 7880946176 EL 17381292 1.73% 34.6 CO711 7880946176 EL 13241740 1.41% 28.2 CO711 193035847 EL12325363 2.83% 56.4 CO711 193035847 EL08793840 6.33% 126.4 CO711 193035847 EL 11435378 2.28% 45.5 CO711 193035847 EL 12780309 0.87% 17.4 CO711 Exhibit C: Commercial Operation Date Notification [To be added when the Commercial Operation Date is Finalized] Exhibit D: RFP CSG AGREEMENT AMENDMENT NO. 1 TO COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT This Amendment No. 1 to the Community Solar Garden Subscription Agreement ("Amendment No. 1") is executed to be effective as of December 17, 2020, by and between Pueblo Housing Solar, LLC, a Colorado limited liability company ("CSG SO") and the City of Pueblo, Colorado, a Colorado municipal corporation, ("Subscriber"). WHEREAS, CSG SO and the Subscriber entered into that certain Community Solar Garden (CSG) Subscription Agreement which was executed by the Subscriber on November 25, 2020 (the "Contract"); and WHEREAS, the Contract contained a typographical error which CSG SO and Subscriber wish to correct by modifying the Contract pursuant to the provisions set forth herein. NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises set forth herein and other good and valuable consideration, CSG SO and Subscriber hereby agree to the following: AGREEMENT 1. Amendment. 1.1 Section 3.1 of the Contract is amended as follows: 3.1 Payment. The Subscriber will pay the CSG SO a price per kilowatt hour ("kWh Rate") for its Allocated Percentage of the Delivered Energy up to but limited to the amount of kWh's for which the Subscriber receives or is eligible to receive Bill Credits. The price per kilowatt hour will increase 1% per Agreement Year. The kWh Rate in the first Agreement Year is defined as $.1152/kWh for properties with CO710 Rate Class and $.0926/kWh for properties with a C0711 Rate Class. 1.2 Exhibit B is amended as follows: Replace Premise Number EL12393502 with EL10006685 as of March 2021. 2. Successors and Assigns. This Amendment No. 1 shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 3. Ratification. Except as expressly stated herein, the Contract shall remain in full force and effect. If there is any conflict between the Contract and the terms of this Amendment No. 1, the terms of this Amendment No. 1 shall control. 4. Authority of Mayor. The Mayor is authorized to execute this Amendment No. 1 by Section 1-5-2 (2) (f) of the Pueblo Municipal Code. 5. Counterparts. This Amendment No. 1 may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document with the same effect as if all parties had signed the same original. Furthermore, the undersigned agree that transmission of this Amendment No. 1 by telecopy or via e-mail in a PDF format shall be deemed transmission of the original Amendment No. 1 for all purposes. IN WITNESS WHEREOF, the parties to this Amendment No. 1 to the Community Solar Garden (CSG)Subscription Agreement have set forth their hand, to be effective as of the Effective Date. COMMUNITY SOLAR GARDEN SUBSCRIBER ORGANIZATION: PUEBLO HOUSING SOLAR, LLC a Colorado Limited Liability company By: ( Jiv Name: Frank D Pacheco Title: Executive Director Date: 4., 2/ .2007/ SUBSCRIBER: CITY OF PUEBLO, COLORADO, a Colorado municipal corporation r By: 7i.�L..1J �° "1-- Name: Nicholas A. t radisar Title: Mayor Date: / .01,001/ ATTESTED BY: ( Sr --- City rk 2