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HomeMy WebLinkAbout2016-27032016 -2703 ApexFacility Solutions - Efficiency Solutions - Arena Solutions This Guaranteed Energy Savings Agreement ( "Agreement "), is made by and between the City of Columbia Heights, hereafter referred to as CLIENT with an office at 590 40th Ave NE, Columbia Heights, MN 55421, and Apex Efficiency Solutions, SBC, a Minnesota Special Benefit Corporation, with its principal place of business at 403 Jackson Street, Anoka, MN 55303 hereafter referred to as CONTRACTOR. CLIENT and CONTRACTOR may be referred to as "Party" or collectively as "Parties." 1.0 RECITALS WHEREAS, the CLIENT is authorized under Minnesota Statutes Section 471.345 subd.13, (the Statute ") to enter into guaranteed energy savings agreements with a qualified provider not exceeding twenty years for the purpose of implementing comprehensive utility cost - savings measures to improve the energy efficiency of an independent school district facility provided the cost of implementing the measures will not exceed the amount to be saved in utility operation and maintenance costs over a twenty year period and the qualified provider provides a written guarantee that the energy or operating cost savings will meet or exceed the cost of the system; and WHEREAS, CLIENT signed the Detailed Engineering Study Agreement on March 24, 2015 for CONTRACTOR to provide a Detailed Engineering Study / Technical Energy Audit at the CLIENT's Premises; and WHEREAS, CONTRACTOR represents that it is qualified, willing and able to responsibly act as guarantor for energy, operational and maintenance cost savings (the "Savings "), and to provide or to arrange for long term debt financing as hereafter set forth; WHEREAS, CLIENT has reviewed the Project Costs and Savings and believes it to be reasonable and accurate; WHEREAS, CLIENT is authorized under the Statute to make payments required by the debt service obligation from the Savings obtained from the installation of the utility cost savings measures described herein; and WHEREAS, CLIENT has published notice of, and held a meeting in which it proposed to award the contract, the names of the parties to the proposed contract, and the contract's purpose. NOW, THEREFORE, in consideration of the mutual benefits and obligations set forth herein, the parties hereto agree as follows: 2.0 DEFINITIONS The terms defined in this section shall, for all purposes of this Agreement, have the meaning herein specified. "Acts of God" An Act of God is an unusual, extraordinary and sudden manifestation of an event that could not under normal circumstances have been anticipated or expected. Ordinary weather conditions of normal intensity for the locality shall not be considered as an Act of God "Change" shall mean substitutions, additions, or deletions within the scope of the Agreement as expressly approved in writing by CLIENT. "Completion Date" shall mean the date on which CLIENT issues the Certificate of Final Completion "Extra Work" shall mean work outside the scope of this Agreement. "Guarantee Commencement Date" shall mean the Completion Date. "Guarantee Term End Date" shall mean the date on which CONTRACTOR's guarantee term ends. "Guarantee Year" shall mean each twelve (12) month period during the term of this Agreement, beginning on the Completion Date. Agreement Apex Facility Solutions • Efficiency Solutions • Arena Solutions "Measured and Verified Savings" shall mean utility cost savings calculated using utility consumption data recorded by utility meter(s). "Pre- agreed Savings" shall mean utility cost savings calculated using generally accepted engineering methods when actual measurements are impossible or not cost effective. "Final Acceptance" The work has progressed to the point where the system is generating power which is available for consumption by the Client. This date is referred to and commencement of commercial operation in the Power Purchase Agreement (PPA). "Total Actual Savings" shall mean the sum of the reconciled utility cost savings, and the operation and maintenance cost savings. "Utility Savings" shall mean the difference between the utility consumption under the pre- contract conditions and the utility consumption after the "Work" has been completed under the contract. Utility savings shall be calculated in comparison to an established baseline of utility consumption. "Work" means activities set forth in Exhibit A. "Working Days" means Monday through Friday excluding State holidays. "Solar Power Purchase Agreement" means the agreement contained in Exhibit K and L. The Solar Power Purchase Agreement may be referred to as "Power Purchase Agreement" or "PPA." 3.0 EXHIBITS The following Exhibits are attached hereto and made a part hereof thereby: ® Exhibit A - Scope of Work ® Exhibit B - Schedule of Payments ® Exhibit C - Certificate of Final Acceptance ® Exhibit D - Facility Operating Parameters & Utility Savings Calculation Methods ❑ Exhibit E - Not Used ® Exhibit F - Contractor's Measurement and Verification Responsibilities ® Exhibit G - CLIENT's Maintenance Responsibilities ® Exhibit H - General Requirements & Site - specific Requirements ® Exhibit I - Project Schedule ® Exhibit J - Insurance Coverage Exhibit K - Solar Power Purchase Agreement ® Exhibit L - Made In Minnesota Solar Power Purchase Agreement ® Exhibit M - Rooftop Lease Agreement 4.0 TERM OF CONTRACT Effective Date: The Effective Date of this Agreement shall be the date all signatures required have been obtained on this agreement, the Solar Power Purchase Agreement in Exhibit K and L, and the Rooftop Lease Agreement in Exhibit M. CONTRACTOR shall not begin work under this Agreement until this Agreement is fully executed and CONTRACTOR has been notified by CLIENT's Contact to begin the work. Agreement Apex Facility Solutions • Efficiency Solutions • Arena Solutions Term: Unless otherwise canceled or terminated, this Agreement shall expire fifteen (15) years after the Completion Date, 5.0 CONTACTS For the purpose of administration of this Agreement, the following individuals will be the contact personnel authorized to speak on behalf of the respective parties. CLIENT Contact: Kevin Hansen, (hereafter "CLIENT Contact "). CONTRACTOR shall render all services pursuant to this Agreement under the direction of the CLIENT Contact or the designated representative. CONTRACTOR Contact: Mark Rasmussen, CONTRACTOR (hereafter "CONTRACTOR Contact"). CLIENT shall provide all the direction and supervision pursuant to this Agreement under the direction of the CONTRACTOR Contact or the designated representative. 6.0 CONTRACTOR'S DUTIES Equipment and Materials: CONTRACTOR shall provide all materials, and equipment necessary to perform the work. CONTRACTOR shall provide CLIENT with specifications, drawings, cut sheets, and other information required by CLIENT regarding the materials and equipment for review, acceptance and approval pursuant to Section 7.0 Acceptance, prior to implementation of the work. Installation Services: CONTRACTOR shall install, replace and refurbish equipment and energy systems components at the Facility, as more specifically described in Exhibit A. CONTRACTOR shall provide CLIENT with specifications, drawings, and other information required by CLIENT regarding installation, replacement and refurbishment for review, acceptance and approval pursuant to Section 7.0 Acceptance, prior to implementation of the WORK's. CONTRACTOR shall provide the installation, replacement and refurbishment services with minimum interruption to the normal business of the Facility. CONTRACTOR shall perform all Work under this Agreement according to the schedule set forth in Exhibit I. Damaged Facilities to be restored: Where CONTRACTOR, subcontractors or any of its agents, causes damage to any part of the Facility during the Work, CONTRACTOR shall restore or replace the damaged part to its original condition or to the reasonable satisfaction of CLIENT as determined by the CLIENT Contact. Personnel: CONTRACTOR shall secure, at its own expense, all personnel required in the performance of this Agreement. Such personnel shall not be deemed employees of CLIENT for any purposes whatsoever. CONTRACTOR further represents that all of the services required hereunder will be performed by CONTRACTOR or under its supervision, all personnel so engaged shall be fully qualified and authorized under applicable law to perform such services, and that CONTRACTOR is responsible for all Work of its subcontractors and agents. Cleanup: CONTRACTOR shall keep the premises and the surrounding area free from accumulation of waste materials or rubbish caused by the Work and, upon completion of the Work, CONTRACTOR shall remove all waste materials, rubbish, tools, construction equipment, machinery, and surplus materials. Safety: CONTRACTOR shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Work. CONTRACTOR shall comply with all applicable laws, ordinances, rules, regulations, and lawful orders of public authorities related to safety of persons or property. Disposal Manifests: CONTRACTOR shall provide to the CLIENT Contact copies of all records (e.g., manifests, disposal facility receipt, etc.) which indicate that CONTRACTOR has disposed of any and all equipment, including lamps, and ballasts. Completion of Work: After CONTRACTOR has performed all Work, CONTRACTOR shall submit a written Notice of Final Completion to the Facility's CLIENT Contact as described in Exhibit C. Compliance: CONTRACTOR shall ensure that all Work complies with current local, state, and federal construction and environmental codes and regulations. Agreement 3 Apex Facility Solutions • Efficiency Solutions • Arena Solutions 7.0 ACCEPTANCE Authority: The CLIENT Contact shall have final authority to review and approve specifications, drawings, and related documents concerning the Work, to approve and accept all equipment, materials and services, and to approve CONTRACTOR's invoices for payment. No approval by the CLIENT will act as a waiver of the CLIENT's rights hereunder or relieve CONTRACTOR of its obligations hereunder. Construction Documents: During the construction period, CONTRACTOR shall keep copies of Construction Documents at the Facility for review by CLIENT at all reasonable hours and shall provide a complete set to the CLIENT upon completion of each portion of the work. Satisfactory Performance: Within fifteen (15) Working Days of receipt of an invoice, CLIENT shall have the right to review the Work performed by CONTRACTOR on the Facility, for purposes of determining whether the Work is deemed satisfactory. Where CLIENT finds the Work performed by CONTRACTOR unsatisfactory, the CLIENT Contact shall provide CONTRACTOR with a written notice of unsatisfactory Work within fifteen (15) Working Days of its receipt of CONTRACTOR's invoice. CONTRACTOR shall cure the work within ten (10) Working Days after receiving the CLIENT Contact's notice of unsatisfactory Work. When the invoiced Work has been completed to the satisfaction of the CLIENT Contact, the CLIENT Contact shall approve the invoice for payment. Work Completion: Upon receipt of the written Notice of Work Completion and project completion documents by CONTRACTOR (as described in Exhibit B), the CLIENT Contact shall review all Work and all project completion documents within fifteen (15) Working Days. Upon approval of all Work and project completion documents, the CLIENT Contact shall send the dated Certificate of Final Completion (Exhibit C) to all parties. In the event the CLIENT reasonably determines that additional work is required to complete the project, it shall inform CONTRACTOR, and CONTRACTOR shall perform the additional work in accordance with a mutually agreed upon prompt schedule. 8.0 CHANGE AND EXTRA WORK Amendments of Agreement and Exhibits: The Parties expressly recognize, prior to the Completion Date, that there may be Change or Extra Work, either at the request of CLIENT, at the suggestion of CONTRACTOR, or as the result of an "act of God "; but in each event upon a mutual agreement that the proposed Change or Extra Work is proper. The Parties also recognize that the correct interpretation and administration of this Agreement depends in large part on the accuracy of all of the exhibits attached hereto, which may need to be amended according to the type of Change or Extra Work agreed to by the Parties, and therefore the Parties agree to amend this Agreement or the exhibits hereto as appropriate to reflect the agreed upon Change or Extra Work. Any "Change" or "Extra Work" providing for price, energy savings guarantee, or project schedule adjustments or relief will be made in accordance with the procedures established herein. CLIENT Initiated: CLIENT, at any time prior to the Completion Date, may propose "Changes" or "Extra Work" in writing. CONTRACTOR shall respond by submitting to CLIENT a proposed written proposal containing the initial cost, annual energy and annual utility, operational and maintenance cost savings, payback period, and a schedule for completion of the Change or Extra Work within ten (10) Working Days of CLIENT's request. CONTRACTOR shall perform the Changes or Extra Work only upon receipt of CLIENT's approval of the written proposal and after execution of an amendment to this Agreement when an amendment is required for performance of the Extra Work or Changes. Any Change or Extra Work performed by CONTRACTOR which is not approved by CLIENT in writing shall not be approved for payment and will not be included in the final scope of Work. The Parties will amend this Agreement accordingly. CONTRACTOR Initiated: CONTRACTOR, at any time prior to the Completion Date, may propose "Changes" or "Extra Work" in writing. CONTRACTOR shall submit to CLIENT a written proposal that explains the circumstances for the change, initial cost, annual energy and utility, operational and maintenance cost savings, payback calculations and a schedule for completion of the Change or Extra Work. CLIENT may accept or reject the request within ten (10) Working Days. Failure by CLIENT to respond within ten (10) Working Days to the proposed change order shall be deemed a rejection by CLIENT. CONTRACTOR shall perform the Changes or Extra Work only upon approval by CLIANT and receipt of the written proposal, and after execution of an Agreement Apex Facility Solutions • Efficiency Solutions • Arena Solutions amendment to this Agreement when an amendment is required for performance of the Extra Work or Changes. The Parties will amend this Agreement accordingly. 9.0 COMPENSATION AND PAYMENT Total Obligation: The CLIENT's total obligation under this Agreement and it's exhibits, including compensation for mobilization, engineering, permits, utility interconnection, and prepayment of the power purchase agreement shall be One dollar. ($1.00). Invoices: CLIENT will pay CONTRACTOR after CONTRACTOR presents an invoice for the work completed and the CLIENT Contact accepts the invoice. Invoices must be submitted timely and according to the schedule contained in Exhibit B. Payment shall be made within 30 days following the receipt of a correct and proper invoice for the completed delivery of the product or services. If the invoice is incorrect, defective, or otherwise improper, CLIENT will notify CONTRACTOR within ten (10) Working Days of discovering the error. Conditions of Payment: All services provided by CONTRACTOR under this Agreement must be performed to CLIENT's satisfaction, in accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations. CONTRACTOR will not receive payment for Work found by CLIENT to be unsatisfactory or performed in violation of federal, state, or local law. 10.0 CONTRACTOR'S ENERGY SAVINGS GUARANTEE Guarantee Term: The term of CONTRACTOR's Guarantee shall be the Term of the Agreement and shall survive any earlier cancellation or termination of this Agreement. CONTRACTOR's guarantee will be terminated if the Technical Services Agreement - Performance Assurance Services are cancelled by the CLIENT. Total Guaranteed Savings: CONTRACTOR guarantees that the amount to be saved in utility, operation and maintenance costs over the term of this Agreement shall be at least the "Total Guaranteed Savings" as set forth in Exhibit E which Total Guaranteed Savings are sufficient to satisfy the total debt service payment required under the debt obligation. Annual Meetings: CLIENT and CONTRACTOR shall meet at least once annually for the purpose of, reviewing utility loads, changes in utility rates, operating hours and maintenance issues of equipment installed under this contract, for the previous Guarantee Year. At each annual meeting, CLIENT will provide CONTRACTOR with the applicable utility rates for the previous Guarantee Year. The Parties agree to hold the Annual Meeting within thirty (30) Working Days after the final month of each Guarantee Year. In the event of chronic or material equipment failure, CLIENT and CONTRACTOR will meet within a reasonable time after a request by the CLIENT to discuss a timely cure for the failure. Guarantee Reconciliation: While within the guarantee term, CONTRACTOR shall perform a guarantee reconciliation at the end of each Guarantee Year and submit a guarantee reconciliation report with updated Exhibits E2 and E3 to the CLIENT Contact within forty -five (45) Working Days of each Guarantee Year anniversary, and at the Guarantee Term End Date. CONTRACTOR shall calculate the Total Actual Savings as set forth in Exhibit E3 for the immediately previous Guarantee Year. In the event that the Total Actual Savings realized by CLIENT are less than the Guaranteed Savings, CONTRACTOR shall remit an amount equal to such deficiency to CLIENT within forty -five (45) Working Days of the guarantee reconciliation submittal. Survival: This Section 10.0 survives the termination of the Agreement and terminates only upon Completion by CONTRACTOR of a final Guarantee Reconciliation and final payment of any savings deficiencies. CONTRACTOR's guarantee will be terminated if the Technical Services Agreement - Performance Assurance Services are cancelled by the CLIENT. 11.0 CLIENT RESPONSIBILITIES CLIENT agrees to perform the following tasks in addition to those set out in Exhibit G of this Agreement: Daily Operations: After acceptance by CLIENT of the Work performed by CONTRACTOR, CLIENT shall be responsible for all routine maintenance as set out in the original equipment manufacturer's documentation provided by CONTRACTOR to the CLIENT. Exhibit D contains a set of operating parameters that need to be Agreement 5 Apex Facility Solutions • Efficiency Solutions • Arena Solutions maintained to obtain the Utility Cost Savings and the Operation and Maintenance Cost Savings outlined in Exhibit E1. Automatic Functions: To protect public health and safety, or CLIENT property, CLIENT may manually override any automatic function provided by CONTRACTOR's equipment furnished hereunder, or make changes in operating procedures specified. In that event, the Parties shall make the necessary changes to the established baseline. Access CLIENT shall grant CONTRACTOR reasonable access to the Facility to perform CONTRACTOR's Verification Responsibilities. Energy Management System: CLIENT shall provide standard energy management system reports to CONTRACTOR for Guarantee Reconciliation when requested by CONTRACTOR. 12.0 INSURANCE CONTRACTOR shall maintain in full force and effect, at its expense, property, casualty, worker's compensation and liability insurance as specifically described in Exhibit J. The insurance is for the benefit of the Facility. In the event of loss or damage to the property under this Contract, loss payment will be made in favor of the Facility. 13.0 ASBESTOS /HAZARDOUS MATERIALS CONTRACTOR shall have no obligation to remove asbestos or other hazardous materials encountered during the Work performed under this Agreement. Any removal of asbestos or other hazardous material shall be the sole responsibility of CLIENT. In the event CONTRACTOR encounters asbestos or other hazardous material, CONTRACTOR shall stop all Work immediately and shall notify CLIENT at once to determine the appropriate action. Any delay in completion of the Work according to the completion schedule in Exhibit I caused by CONTRACTOR's encounter with asbestos or other hazardous material and CLIENT's determination of appropriate action to correct the situation shall not constitute an Event of Default. Where a delay under this section will be for a significant amount of time, as determined by the parties, but where the Work under this Agreement is otherwise substantially complete, the parties agree to amend this Agreement appropriately so that payment hereunder can begin notwithstanding the delay caused hereunder. 14.0 INDEMNIFICATION CONTRACTOR shall defend, indemnify and save and hold harmless CLIENT, its agents and employees, from and against any and all claims, demands, or causes of action, and damages, including all attorney's fees incurred by CLIENT, arising out of the performance of this Agreement by CONTRACTOR or CONTRACTOR's agent, employees, or subcontractors, except for gross negligence by CLIENT. This section shall not be construed to bar any legal remedies CONTRACTOR may have for CLIENT's failure to fulfill its obligations pursuant to this Agreement. 15.0 PERFORMANCE AND PAYMENT BONDS CONTRACTOR shall furnish performance and payment bonds (the "Bonds "), each in amounts equal to the Construction Cost. The Bonds shall cover completion of the physical work per the approved design, and shall not cover any design obligation or any guarantee or warranty of efficiency or system performance. The Bonds shall not cover any obligation of the contractor to ensure that the work as constructed will result in any particular level of energy savings. Any suit on the Bonds must be brought within the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit. Payment Bond is intended for the use and benefit of all persons furnishing labor and materials who are engaged by CONTRACTOR. Performance Bond is intended for the use and benefit of the CLIENT to complete the work as described in Exhibit A. These bonds shall be released within thirty (30) Working Days of the Completion Date. The surety for each such bond shall be an insurance company or corporate surety licensed to do business in the state of Minnesota. The bonds shall contain a provision requiring reasonable advance notice to CLIENT in the event that CONTRACTOR is in default of any obligation in relation to the bond. 16.0 REPRESENTATIONS AND WARRANTIES CONTRACTOR warrants and represents to CLIENT as follows: Agreement 6 Apex Facility Solutions • Efficiency Solutions • Arena Solutions A. It has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Agreement and perform its obligations hereunder. B. Its execution, delivery, and performance of this Agreement have been duly authorized by, and are in accordance with, its organic instruments; this Agreement has been duly executed and delivered for it by the signatories so authorized; and it constitutes its legal, valid and binding obligation. C. Its execution, delivery, and performance of this Agreement will not result in a breach or violation of, or constitute a default under, any agreement, lease or instrument to which it is a party or by which it or its properties may be bound or affected. D. It has not received any notice, nor to the best of its knowledge is there pending or threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially adversely affect its ability to perform hereunder. E. It has made secure provisions for promptly paying all its suppliers and subcontractors in connection with this Agreement. F. It has prepared the Engineering Report in good faith based on generally accepted engineering practices and mathematical formula. G. It has all right, title and interest in, or appropriate licenses to use, any intellectual property required by this Agreement to be installed, employed, or modified. H. The services performed under this Agreement will be of high professional standards and quality. To the extent consistent with other specific terms and warranties of the Agreement, CONTRACTOR further represents that all services and goods provided under this Agreement: (i) are free from defects in material and workmanship; (ii) are of the quality, size and dimensions ordered; (iii) are fit for the particular needs and purposes of the CLIENT as may be communicated to CONTRACTOR; (iv) comply with all warranties and representations expressed by CONTRACTOR orally or in any written advertisement, correspondence, response to the CLIENT's RFP or RFI, or other document provided to or in the possession of the CLIENT; (v) comply with all applicable laws, codes and regulations. CONTRACTOR's Warranty/Assignment of Manufacturer's Warranty: CONTRACTOR expressly warrants to CLIENT that all equipment (including the material supplied by CONTRACTOR) installed as part of this Agreement are new, in good and proper working condition and all Work performed under this Agreement shall be free from material defects and protected by appropriate written warranties covering all parts and equipment performance. CONTRACTOR agrees to deliver all warranty documentation to the CLIENT Contact as required in Section 4.10. CONTRACTOR agrees that CLIENT will pursue rights and remedies against manufacturer for equipment under warranties in the event of equipment malfunction or improper or defective function, and defect in parts, workmanship and performance. CONTRACTOR agrees to cooperate with CLIENT in enforcing warranties. All warranties shall be transferable and extend to CLIENT. The warranties shall specify that only new and non - re- conditioned parts may be used and installed when repair is necessitated by malfunction. All warranties required hereunder shall be in force for a minimum of one year from the date of final completion per Exhibit C. 17.0 EVENTS OF DEFAULT Default by CLIENT. Each of the following events or conditions shall constitute an "Event of Default" by CLIENT: A. Failure to make payments in accordance with this Agreement. B. Any other material failure to perform or comply with the terms and conditions of this Agreement, including breach of any covenant or duty contained herein, provided that such failure continues for thirty (30) Working Days after written notice to CLIENT demanding that such failure to perform be cured or, if cure cannot be effected in such thirty (30) Working Days, without commencement of a cure and diligent Agreement Apex Facility Solutions • Efficiency Solutions • Arena Solutions subsequent completion thereof. In the event the default is cured within said periods, this Agreement shall remain in full force and effect Default by CONTRACTOR: Each of the following events or conditions shall constitute an "Event of Default" by CONTRACTOR: A. The installation of the materials and equipment is not completed in a timely or satisfactory manner, according to the terms of this Agreement, provided however that CONTRACTOR shall have thirty (30) Working Days from receipt of written notice that it is in default to cure said default. In the event the default is cured, this Agreement shall remain in full force and effect, B. Any representation or warranty furnished by CONTRACTOR in this Agreement, which is false or misleading in any material respect when made. C. Any other material failure by CONTRACTOR to perform or comply with the terms and conditions of this Agreement, including breach of any covenant or duty contained herein, provided that such failure continues for thirty (30) Working Days after written notice to CONTRACTOR demanding that such failure to perform be cured, or if cure cannot be effected in such thirty (30) Working Days, without commencement of a cure and diligent subsequent completion thereof. In the event the default is cured within said period, this Agreement shall remain in full force and effect. 18.0 REMEDIES UPON DEFAULT Default by CLIENT. Upon the occurrence of an Event of Default by CLIENT, CONTRACTOR may elect to enforce one or more of the following remedies: A. Terminate this Agreement by delivery of a notice declaring termination, whereupon CONTRACTOR may enter the premises on which the Services are being performed and remove CONTRACTOR's property; B. Seek damages in the amount of all payments, then or thereafter owing from CLIENT to CONTRACTOR pursuant to this Agreement, together with all costs and expenses reasonably incurred in exercise of its remedies (including reasonable attorneys' fees and court costs) in seeking and enforcing any or all of the remedies provided in this section; C. Seek specific performance of the terms and conditions of this Agreement to the extent permitted by law, including without limitation injunctive relief where appropriate; and /or D. Suspend further provision of the Services. If delivery of the Services has been suspended as a result of CLIENT's default and CLIENT and CONTRACTOR agree to arrange for the reinstatement of the delivery of the Services, CLIENT shall pay to CONTRACTOR a performance reinstatement fee in such amount or amounts, and payable on such date or dates as shall be reasonably acceptable to CONTRACTOR, as will reimburse CONTRACTOR for its actual costs (including overhead) to be incurred in reinstating delivery of the Services; provided, however, that nothing herein shall obligate CONTRACTOR to reinstate the delivery of Services. Default by CONTRACTOR: Upon the occurrence of an Event of Default by CONTRACTOR, CLIENT shall have the right to: A. Terminate the Agreement by delivering a notice declaring termination (permitting CONTRACTOR to enter the Premises and remove all of its Property); and /or B. Seek specific performance of the terms and conditions of this Agreement to the extent permitted by law, including without limitation injunctive relief where appropriate; C. Seek damages in the amount of all payments, then or thereafter owing from CONTRACTOR to CLIENT pursuant to this Agreement, together with all costs and expenses reasonably incurred in exercise of its remedies (including reasonable attorneys' fees and court costs) in seeking and enforcing any or all of the remedies provided in this section; Agreement g Apex Facility Solutions • Efficiency Solutions • Arena Solutions 19.0 TERMINATION For Uncured Breach: Either party may terminate this Agreement thirty (30) days after written notice to the other party of any material breach of this Agreement by such party that has not been cured within such thirty (30) day period (an "Event of Default "). The notice must set forth the nature of the breach with reasonable specificity. Notwithstanding the foregoing, CONTRACTOR shall have the right to terminate this Agreement if CLIENT fails to pay any amounts due hereunder within five (5) days after written notice. Bankruptcy: In addition to Section 19.0 and any other rights it may have at law or in equity, either party may terminate and without liability suspend all activity related to this Agreement immediately if the other party is adjudicated a bankrupt, ceases to do business as a going concern, makes an assignment for the benefit of creditors, permits the appointment of a receiver, or otherwise avails itself of or becomes subject to any bankruptcy or insolvency statute. 20.0 GENERAL PROVISIONS Governing Law, Jurisdiction and Venue: This Agreement is governed by the laws of the State of Minnesota. The venue for any proceedings is agreed to be in CLIENT's County, State of Minnesota, and CONTRACTOR consents to such jurisdiction. CONTRACTOR shall incorporate the requirements of this Section in its agreements with subcontractors, consultants, and independent contractors in connection with this Agreement. Conditions Beyond Control of CONTRACTOR: Neither party will be responsible for any failure to comply with, or for any delay in performance of, the terms of this Agreement where the failure or delay is due to acts of God or the public enemy, war, riot, embargo, fire, explosion, sabotage, flood, strikes, labor disputes, default of subcontractors, accident; or, without limiting the foregoing, any circumstances of like or different character beyond its control (collectively, "Force Majeure Event "). If either party is unable to perform under this Agreement for more than sixty (60) due to a Force Majeure Event, then the other party may terminate this Agreement upon fifteen (15) days' written notice. Notices and Changes of Address: All notices to be given by either party to the other shall be in writing and must be either delivered in person or mailed by registered or certified mail, return receipt requested, addressed as follows: To CONTRACTOR Apex Efficiency Solutions, SBC 403 Jackson Street, Suite 308 Anoka, MN 55303 Attn: Mark Rasmussen To the CLIENT: City of Columbia Heights 590 40th Avenue NE Columbia Heights, MN 55421 Attn: City Manager Or such other addresses as either party may hereinafter designate by a written notice to the other Successors and Assigns: CONTRACTOR binds itself jointly and severally, his successors, executors, and administrators to CLIENT in respect to all covenants of this Agreement. CONTRACTOR shall not assign or transfer any part of its interest in this Agreement. Permits: CONTRACTOR shall be responsible for obtaining all governmental permits, consents, and authorizations as may be required to perform it obligations hereunder. Agreement Apex Facility Solutions • Efficiency Solutions • Arena Solutions Compliance by CONTRACTOR's Subcontractors and Consultants: CONTRACTOR shall provide and require in all of its contracts or subcontracts with other parties who provide services in regard to performance of this Agreement that such subcontractors, consultants, or other parties contracting with CONTRACTOR with regard to performance of this Agreement shall comply with those requirements of Minnesota law specified herein and otherwise required of persons performing work for the CLIENT of the type contemplated under this Agreement. No Waiver: The failure of CONTRACTOR or CLIENT to insist upon the strict performance of the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of either party's right to thereafter enforce the same in accordance with this Agreement in the event of a continuing or subsequent default on the part of CONTRACTOR or CLIENT. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply only to the instance to which such a waiver is directed. Complete Agreement: This Agreement, when executed, together with all exhibits attached hereto as provided for by this Agreement, shall constitute the entire agreement between both parties and this Agreement may not be amended, modified or terminated except in writing signed by the parties hereto. The terms and conditions contained in this Agreement shall govern and shall take precedence over any different or additional terms and conditions which CONTRACTOR may have included in any documents attached to or accompanying this Agreement. Any handwritten changes on the face of this document shall be ignored and have no legal effect unless initialed by both parties. Severability: In the event that any clause or provision of this Agreement or any part thereof shall be declared invalid, void or unenforceable by any court having jurisdiction, such invalidity shall not affect the validity or enforceability of the remaining portions of this Agreement unless the result would be manifestly inequitable or unconscionable. Recitals: The background recitals set forth at the beginning of this Agreement are expressly incorporated into and made an integral part of the body of this Agreement and the terms of the Recitals fix the obligations of the parties and are binding upon them in the same way and to the same extent as all other provisions of this Agreement. Headings: The headings of all provisions are for ease of reference only. The headings in no way define, limit or describe the scope, intent or obligations of the provisions of this Agreement and therefore are not to be used in construing this Agreement. Amendments: Amendments to this Agreement shall be valid only if they are in writing and are signed by the same parties, or their successors in office, who signed the original Agreement. Limitation on CLIENT Liability: In no event shall the parties be liable to one another for any indirect, consequential, incidental, lost profits or like expectancy damages arising out of this agreement. Ownership of Works and Intellectual Property Rights: For the purposes of this paragraph, the term "Works" includes creative writings, research data and reports, writings, sound recordings, pictorial reproductions, drawings, film and video recordings, and other graphical representations, software, business methods, inventions, improvements, and discoveries, and works of any similar nature (whether or not eligible for copyright, trademark, patent or other proprietary rights), which are to be prepared for the CLIENT and delivered under this Agreement. It does not include any of CONTRACTOR's background intellectual property. Ownership of the Works and all copyrights, trademarks, patents and other proprietary rights in the Works shall be owned exclusively by CONTRACTOR. The CLIENT agrees that all copyrightable Works shall be considered a "work made for hire" and that the CONTRACTOR is the author of and owns all rights in and to the Works. Notwithstanding the foregoing, the CLIENT shall have a license to utilize the Works to maintain its equipment or to complete the Work in the event of a termination of CONTRACTOR for cause. The CLIENT shall not have a license to use the Works for any other project. Agreement 10 Apex Facility Solutions • Efficiency Solutions • Arena Solutions IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed intending to be bound thereby. CLIENT: By: � . a CONTRACTOR: By: Date: Agreement 11 Apex Facility Solutions • Efficiency Solutions • Arena Solutions Exhibit A Summary of Work Scope of work includes: • Mobilization costs for startup and construction of the system. • Engineering including roof analysis, electrical analysis and other engineering as required for proper installation and permitting requirements. • Permits required for construction activities on solar system construction • Work and fees required for utility interconnection of solar systems to the utility grid. All other scope required for complete installation and operation of PV systems are included in PPA in Exhibit K. Exhibit A 1 Apex Facility Solutions • Efficiency Solutions • Arena Solutions Exhibit B Payments Schedule Exhibit B Mobilization, Engineering, Permits, & Utility Interconnect 1 Total Payments 1 $1 E77 Exhibit B pexFacility Solutions • Efficiency Solutions • Aicna Solutions CERTIFICATE OF FINAL COMPLETION (Commencement of Commercial Operation) Pursuant to the Agreement, by and between the CONTRACTOR and the CLIENT, the CLIENT does hereby acknowledge the following: 1. Completion and Acceptance. The CLIENT agrees that the Work specified in the agreement and any applicable amendments thereof have been completed by the CONTRACTOR and are hereby accepted by the CLIENT. 2. Project Completion Documents. The CLIENT has received four (4) copies of the following project completion documents a) Final detailed project costs b) All amended exhibits C) All as -built documentation d) Operating manual including vendor cut sheet giving general instructions and installation instructions, name plate data, parts list along with local service representative and pricing sheet, detailed system description with operating instruction, and detailed adjustment instructions including alignments, tolerances, etc. e) Manufacturer warranty documentation and information including contact names and telephone numbers. 3. Energy Conservation Measure (ECM) Approval. ECM Description Client Approval Signature Date Solar Power Generation System Exhibit C Apex Facility Solutions • Efficiency Solutions • Arena Solutions GENERAL This section identifies the terms and conditions for savings guarantees for this Agreement. ANNUAL UTILITY COST SAVINGS GUARANTEE The solar models predict that the solar systems will produce the following amount of power on an annual basis: • Library (135 kW system) - 158,000 kWh annually • Public Works (85 kW system) - 99,000 kWh annually • Public Safety (65 kW system) - 76,000 kWh annually • Top Valu 1 Made In Minnesota system (40 kW system) - 46,100 kWh annually The actual production will vary depending upon weather conditions, snow accumulation, and solar intensity. Apex guarantees that the systems shall produce at least 90% of the above listed values. UTILITY COST SAVINGS ADJUSTMENT In the Measurement and Verification reports we will provide cost savings data with the energy savings guarantee calculated as outlined below. For the purpose of calculating savings under this guarantee, utility rates used will be the base rates paid by the Client subject to the following: The base rate shall be stipulated at $.105 per kWh escalated at 2.5% annually. This rate represents the value of solar energy to the Client. Exhibit D Apex Facility Solutions • Efficiency Solutions • Arena Solutions Scope of Services: The CONTRACTOR shall provide the services identified in the summary table included in this section: • An annual report will be prepared and presented to the Client showing actual energy generated by the systems and compared to the guaranteed energy production amount. CONTRACTOR's Equipment: The CONTRACTOR may provide tools, documentation, panels, or other equipment in the facility for the CONTRACTOR's convenience in performing the CONTRACTOR's Measurement and Verification Responsibilities. That equipment shall remain the CONTRACTOR's property. The CONTRACTOR retains the right to remove such items at any time during the term, or upon the termination of CONTRACTOR's Measurement and Verification Responsibilities. Exhibit F Apex Facility Solutions • Efficiency Solutions • Arena Solutions Scope of Services: The CONTRACTOR shall provide the services identified in the summary table included in EXHIBIT A. The CLIENT hereby agrees to assume the following responsibilities as part of this Agreement: 1. Notification of Problems. The CLIENT shall promptly notify the CONTRACTOR of any system or building changes, which may impact the CONTRACTOR's ability to meet its obligation in Exhibit E. 2. Current Responsibilities. The CLIENT shall perform the following work before the Completion Date: • Be available for a project kick off meeting and project completion meeting • Be available for any on -site safety concerns as they may arise during project construction • CLIENT to make the CONTRACTOR aware of any specific customer site conditions that will need to be adhered to during the construction phase of the project 3. Provide the CONTRACTOR copies of all Utilities (gas, agri- fuels, oil, water, and electric bills) upon request. 4. Provide the CONTRACTOR with the following information: • Major schedule changes within 72 hours of occurrence • Major Facility Construction /Remodeling /Expansion changes or plans 5. Discuss with the CONTRACTOR before any changes with respect to utility deregulation or any proposed utility agreements, as it pertains to the facilities within this contract. 6. Provide the installation and monthly cost of electronic access (internet or dedicated telephone line) used by the solar metering and monitoring system for on -line analysis, data transfer, and trouble- shooting between the CONTRACTOR and the facilities. Exhibit G Apex Facility Solutions • Efficiency Solutions • Arena Solutions GENERAL REQUIREMENTS 1. CONTRACTOR'S USE OF PREMISES The CONTRACTOR shall limit his or her use of premises for work and storage to allow for facility occupancy in all areas. The CONTRACTOR shall assume full responsibility for the protection and safekeeping of products under this contract stored on the site and shall move any products under his or her control that interfere with Facility operations. 2. BUILDING OCCUPANCY The CONTRACTOR shall cooperate with the CLIENT to establish work schedules if disruption is necessary in any area. 3. ENERGY SYSTEM DISRUPTION The CONTRACTOR shall consult with the CLIENT prior to disrupting any energy systems. 4. STORAGE OF MATERIALS The CONTRACTOR shall make arrangements with CLIENT to provide for the storage of materials on the job site. If such arrangements cannot be made, CONTRACTOR shall provide facilities necessary for storage. This may also include crew quarters and lunchroom facilities if necessary. All CONTRACTOR storage areas must be confined to the area designated by the CLIENT. 5. RECEIVING, HANDLING, AND STORAGE The CONTRACTOR shall receive from carriers at the CLIENT and check, unload, handle and store all materials and equipment that are to be incorporated in the construction under these Specifications. The CONTRACTOR shall be responsible for the prompt unloading of materials and equipment. The CONTRACTOR shall provide all storage facilities for CONTRACTOR- furnished materials and equipment. The CONTRACTOR MAY NOT use the CLIENT receiving area, personnel or equipment to receive any materials unless approved by the CLIENT. 6. TEMPORARY LIGHT, POWER AND WATER The CLIENT will furnish all AC electricity and water. However, the CONTRACTOR shall furnish and pay for any /all temporary conduit, wiring and piping, as may be required from the nearest available point of service and shall remove same upon completion of the Work at no cost to the CLIENT. CLIENT shall be responsible for costs of utility usages and demand for connections to the CLIENT's systems. 7. SANITARY FACILITIES The CONTRACTOR shall make arrangements with the CLIENT for the use of sanitary facilities and shall be responsible for the cleanliness and conditions of said facilities until completion of the project. The CONTRACTOR shall remove any workman creating a nuisance on the premises from the site. 8. DEMOLITION AND REMODELING WORK: The CONTRACTOR shall remove existing equipment and materials noted on the Drawings or in the Specifications to be removed or as required for the installation of new construction. Dust, noise and vibration shall be controlled and held to a minimum. Demolition work shall be coordinated and conducted in a manner that will not interfere with the normal operation of the adjacent work areas. This work shall be planned in advance with the CLIENT. 9. PARKING Parking will be available as designated by the CLIENT. 10. CLEAN -UP AND RESTORATION OF DISTURBED AREAS The CONTRACTOR shall be responsible for cleaning all work areas. Interiors - at the end of each day or shift, the CONTRACTOR shall pick -up, sweep or vacuum the work area to prevent tracking dirt through the facility. Damage to the facility including equipment, structures or the CONTRACTOR at his or her cost must restore finish. Exterior - all sidewalk and other areas must be clear of excavated material and equipment. The walk areas must be swept clean to prevent tracking into building. Excavation must be well barricaded and lit at night. Exhibit H Apex Facility Solutions • Efficiency Solutions • Arena Solutions The CONTRACTOR must repair any damage to blacktop, concrete or grass areas from excavation or equipment. Grass areas must be repaired by excavation and replacing black dirt to 12 inches below grade and sodding the area. 11. Environmental Attributes and Incentives a. Environmental Attributes. Seller shall have all right, title, and interest in and to all Environmental Attributes related to the System. At Seller's expense, Purchaser agrees to cooperate with Seller in any applications for Environmental Attributes related to the System. b. Environmental Incentives. Seller shall have all right, title, and interest in and to all Environmental Incentives related to the System. Any Environmental Incentive related to the System that is initially credited or paid to Purchaser shall be assigned by Purchaser to Seller without delay. At Seller's expense, Purchaser agrees to cooperate with Seller in any applications for Environmental Incentives related to the System. c. Impairment of Environmental Attributes and Incentives. Neither Party shall take any action or suffer any omission that would have the effect of impairing the value of the Environmental Attributes and Environmental Incentives. Exhibit H 2 0 0 T U N U 44-" (7� O O V) J w X (1) Q • ^I M TV V1 V . 0 r.19 >C W m v� �N to a m m a ° m m N W O CO n N � O U r M \O b O O. \ Y � n ti \ c r E E E E n - v a r o a c v N n N O _ o r \ N E > - o n N .y M N V � o N N ~ N ^ \ r O N W W - N Y o N 0 N 0 N 0 M 0 r 0 N 0 o > m co a > > .n n Q v m c > u E ° Y c 3 c D E o z -O `w w c v '� � v E „ `-0 >• � Y 3 c u o �� ,f0• � `� F- — O — �e v - o v� .y N M C of b n Apex Facility Solutions • Efficiency Solutions • Arena Solutions Exhibit J Insurance Coverage The CONTRACTOR, at its expense, shall maintain the following insurance for the duration of this Agreement. CONTRACTOR agrees at all times during the term of this Agreement to have and keep in force insurance, either under a self- insurance program or separate insurance policy, as follows: a. b. C. Commercial General Liability shall list Itasca County as an additional insured with the following insurance limily, General Aggregate Products- Compieted Operations Aggregate Personal and Advertising Injury Each Occurrence: Combined Bodily Injury and Property Damage Automobile Liability - Combined single limit each occurrence for bodily injury and property damage covering owned, non -owned and hired automobiles Workers' Compensation and Employer's Liability, If the Contractor is based outside the State of Minnesota, coverage must apply to Minnesota laws d. Employer's Liability Bodily injury by: Accident - Each Accident Disease - Policy Limit Disease - Each Employee Limits $3,000,000 $3,000,000 $1,500,000 $1,500,000 Limits 51,500,000 statutory Limits Limits $500,000 $500,000 $500,000 The CONTRACTOR shall provide to the CLIENT certificates of insurance evidencing compliance with the requirements within 15 days after this Agreement is signed. The certificates will show the CLIENT as an additional insured on the insurance coverage's. Exhibit J Apex Facility Solutions • Efficiency Solutions • Arena Solutions Exhibit K Solar Power Purchase Agreement (PPA) Exhibit K SOLAR PHOTOVOLTAIC SYSTEM POWER PURCHASE AGREEMENT This Solar Photovoltaic System Power Purchase Agreement ( "Agreement ") is made and entered into as of ;7' , 2016 ( "Effective Date "), by and between New Energy Equity, LLC, a Maryland limited liability company ( "System Owner "), and City of Columbia Heights, a municipal corporation located at 590 40th Ave. NE Columbia Heights, Minnesota ( "Host Customer "). Each of System Owner and Host Customer may be referred to herein as a "Party" and collectively, as the "Parties." RECI'T'ALS WHEREAS, Host Customer owns and controls certain properties located in Columbia Heights, Minnesota which use electricity ( "Premises "); WHEREAS, System Owner is willing to design, install, insure, own, operate and maintain a solar photovoltaic electric generating system ( "System "), on Premises; WHEREAS, the System would satisfy a portion of Host Customer's electricity requirements at Host Customer's Premises, and System Owner desires to sell and Host Customer desires to purchase all of the electricity generated by the System ( "Output"); WHEREAS, Host Customer is willing to provide System Owner with access to, and the right to occupy a portion of, its property for the purpose of having the System Owner design, install, operate and maintain the System; WHEREAS System Owner and Host Customer agree that System Owner will obtain and retain all Environmental Credits and all Financial Incentives and Tax Benefits associated with the installation, ownership, operation and Output of the System; NOW, THEREFORE, in consideration of the agreements and covenants hereinafter set forth, the Parties hereby covenant and agree as follows: ARTICLE I DEFINITIONS AND INTERPRETATION 1.1 Definitions "Agreement" means this Solar Photovoltaic System Power Purchase Agreement, as the same may be modified or amended from time to time in accordance with the provisions hereof. "Ancillary Services" means any supplemental services necessary to support the transmission of electric power from a seller to a purchaser and available from the System from time to time, whether existing as of the Effective Date or thereafter. "Capacity" means electrical capacity that is dependent upon the availability and operation of the System, measured in kilowatts. "Contractors" means the independent contractors engaged by System Owner to perform any of System Owner's obligations hereunder and shall include the independent contractors subcontracted by independent contractors engaged by System Owner as set forth in Section 4.4. "Defaulting Party" means the Party responsible for an uncured Event of Default "Delivery Point" means the physical location where the System connects to the Site Electrical System. "Dispute" means a dispute as defined in Section 18.1. "Disruption of Delivery" means a disruption of delivery when the System Owner is capable of generating and delivering Output to I -lost Customer as set forth in Section 11.3. "Due Date" means the due date that Host Customer must pay an invoice for Output as set forth in Section 9.6.1. "Effective Date" means the date of execution of this Agreement. "Environmental Credits" means any and all federal, state or local renewable energy or emissions credits, offsets, or green tags, whether related to any renewable portfolio standard, renewable energy purchase requirement, carbon cap or trade market, or otherwise, whether existing as of the Effective Date or enacted thereafter and whether available to System Owner as owner of the System or producer of Output or available to Host Customer as the purchaser or user of Output. "Event of Default" means the events set forth in Section 15.1. "Financial Incentives and Tax Benefits" means any and all federal, state or local rebates, tax credits, energy production credits, or depreciation incentives related to any renewable portfolio standard or other renewable energy purchase requirement or otherwise, whether existing as of the Effective Date or enacted thereafter and whether available to System Owner as producer of Output or available to Host Customer as the purchaser or user of Output. "Force Majeure" shall have the meaning set forth in Section 14.1. "Force Majeure Event" means the events of Force Majeure as set forth in Section 14.1. "Host Utility" means the electric distribution company serving or connected to the Host Customer. "Indemnifying Party" means the Party responsible for indemnifying the Indemnified Parties as set forth in Section 15.3. "Installation Period" means the period commencing on the satisfaction of the pre - installation conditions of Section 3.1 and continuing to the Service Commencement Date. "Late Fee" means the late fee that System Owner may impose on Host Customer for payments not made by the Due Date pursuant to Section 9.6.2. "Meter" means the standard instrument(s) and equipment installed at the Site by System Owner as part of the System to be used to measure and record the Output delivered to the Host Customer at the Delivery Point. "Net Metering Arrangements" shall have the meaning set forth in Section 4.7 herein. "Non- Defaulting Party" means the Parry to whom the Defaulting Party is liable in accordance with the provisions of Article XV. "Non- Delivery Period" means the unexcused non - delivery of Output by System Owner as set forth in Section 15.1.1. "Output" means, and is limited to, the electricity produced by the System and delivered to Host Customer at the Delivery Point. "Person" means any natural person, partnership, trust, estate, association, corporation, limited liability company, governmental authority or agency or any other individual or entity. "Premises" means Host Customer's property, as described in Exhibit PPA -A. "Services" means the design, installation and testing of the System and, upon successful completion of installation and testing, the operation, maintenance and repair of the System, by System Operator as necessary to produce and delivery Output to Host Customer in accordance with the terms and conditions of this Agreement. "Service Commencement Date" means the successful completion of the installation and testing of the System with notice to Host Customer that the System is ready to deliver Output as set forth in Section 4.9. "Service Term" means the period commencing on the Service Commencement Date and continuing until the termination of this Agreement. "Site" means the area on the Premises described in Exhibit PPA -A on which the System Owner will install the System. "Site Electrical System" means Host Customer's existing building electrical systems that are owned or leased, operated, maintained and controlled by Host Customer, and which systems are interconnected with the Host Utility. "Solar Electricity Price" means the price specified in Exhibit PPA -C that Host Customer shall pay System Owner for the delivery of Output. "System" means all equipment and materials, including but not limited to photovoltaic arrays, DC /AC inverters, wiring, meters, tools, software, and any other property now or hereafter installed, owned, operated, or controlled by System Owner for the purpose of, or incidental or useful to, maintaining and modifying the use of the solar generation system and providing Output to Host Customer at the Delivery Point. The System is described more particularly in Exhibit PPA -B. For the avoidance of doubt, the System specifically excludes any part of the Site Electrical System. "Tariff' means the tariff of the Ilost Utility that set forth the interconnection and net metering standards and requirements for the System to operate and for System Owner to deliver Output to Host Customer in accordance with terms and conditions of this Agreement. "Term" means the period of time that this Agreement shall be in effect as set forth in Article II. 1.2 Interpretation In this Agreement, unless the context requires otherwise, the singular includes the plural and the plural the singular, words importing any gender include the other gender; references to statutes, sections or regulations are to be construed as including all statutory or regulatory provisions consolidating, amending, replacing, succeeding or supplementing the statute, section or regulation referred to; the words "including," "includes" and "include" shall be deemed to be followed by the words "without limitation" or "but not limited to" or words of similar import; references to articles, sections (or subdivisions of sections), exhibits, annexes or schedules are to those of this Agreement unless otherwise indicated; references to agreements and other contractual instruments shall be deemed to include all exhibits and appendices attached thereto and all subsequent amendments and other modifications to such instruments, and references to Persons include their respective successors and permitted assigns. 1.3 Service Contract The Parties intend that this Agreement be treated as a "service contract" within the meaning of Section 7701(e) of the Internal Revenue Code. ARTICLE II TERM 2.1 The Term of this Agreement shall commence on the Effective Date and shall terminate 15 years following the Service Commencement Date, unless terminated earlier in accordance with provisions of this Agreement. 2.2 At the time that Host Customer notifies System Owner of its election pursuant to Section 12.1.6, Host Customer may request that System Owner agree to a renewal of the Agreement beyond the end of the Service Term. Any agreement to renew this Agreement shall be subject to negotiation and agreement between the Parties. ARTICLE III SYSTEM DETAILED DESIGN 3.1 Pre - Installation Conditions 3.1.1 Completion of Detailed System Design At the time of the execution of this Agreement, Host Customer shall have provided System Owner with all available, necessary and up -to -date Premises, Site and Site Electrical System drawings, specifications and other documentation that System Owner may reasonably require to develop and complete a detailed System design. For this purpose Host Customer shall provide System Owner with access to the Premises and the Site to verify field conditions, and shall make appropriate staff available to answer questions and provide information required by System Owner to support the detailed design process. 3.1.2 Receipt of Required Third Party Authorizations Within ten (10) days of the execution of this Agreement, host Customer shall have obtained or shall obtain on behalf of itself and System Owner, any and all easements, leases, licenses, consents, acknowledgments, approvals and other rights and authorizations from third parties, including entities or persons holding any mortgage or other lien or lease burdening the Premises on the Effective Date, necessary for System Owner to begin installation of the System at the Site, to install and test the System, to produce and deliver Output to Host Customer to the Delivery Point, and to own, operate and maintain the System under this Agreement. Host Customer shall obtain and forward the foregoing authorizations and approvals to System Owner as each is received. 3.1.3 Receipt of all Necessary Construction and Other Permits System Owner shall apply for, pay for, and obtain all necessary construction and other permits from local authorities and Host Utility. Host Customer shall cooperate with System Owner as necessary in the permitting process and shall apply directly for permits if necessary. System Owner shall deliver copies of all permits obtained to Host Customer upon Host Customer's request, and where applicable Host Customer shall do the same. 3.1.4 Failure to Satisfy Pre - Installation Conditions (a) If System Owner determines in its sole discretion that a pre - installation condition set forth in this Section 3.1 cannot be satisfied, or that the System as described in Exhibit PPA -B cannot be installed on the Site because the roof is structurally inadequate to support the System, the Site Electrical System is inadequate to accept the Output of the System, or architectural and other requirements are discovered that would add to the cost of the System, System Owner will notify Host Customer that the System cannot be constructed as proposed, and this Agreement will terminate with neither Party having further obligations under this Agreement; provided however, that the Parties may agree to amend this Agreement to accommodate a revised, feasible System in which case the Parties shall agree to a revised System design and execute an amendment to this Agreement with revised Exhibits PPA -A, PPA -B and PPA -C. (b) If System Owner determines that the drawings, specifications and other documentation provided to System Owner by Host Customer pursuant to Section 3. 1.1 are not correct or complete, and that revisions thereto would add to the cost of the System, System Owner will notify Host Customer that the System cannot be constructed as proposed, this Agreement will terminate, and Host Customer will reimburse System Owner for all reasonable third party and materials costs incurred up to termination; provided however, that the Parties may agree to amend this Agreement to accommodate a revised, feasible System in which case the Parties shall agree to a revised System design and execute an amendment to this Agreement with revised Exhibits PPA -A, PPA -B and PPA -C. ARTICLE IV SYSTEM INSTALLATION 4.1 System Installation 4.4.1 Installation Schedule System Owner will provide Host Customer with a proposed installation schedule and an estimated Service Commencement Date. Host Customer shall have five (S) business days to review and comment on the schedule or the proposed schedule will be considered approved. System Owner will notify Host Customer of any material changes to the proposed schedule and any revisions to the estimated Service Commencement Date during the Installation Period. 4.1.2 Rip-ht of Access During Installation Period System Owner and its Contractors shall have the right of access specified in Article VI during the Installation Period and will coordinate installation activities with Host Customer to minimize interference with normal operations at the Premises, to the extent reasonably practical and without causing undue delay in the Service Commencement Date. Any work that requires interruption of electricity to Host Customer's Premises will be identified in the installation schedule, and System Owner or its Contractors will receive approval from Host Customer prior to any such interruption. 4.1.3 Installation to Specifications and Standards Upon satisfaction of the pre - installation conditions of Section 3.1, System Owner will begin installation at the Site. System Owner shall install, and test the System on the Site in accordance with the technical specifications set forth in Exhibit PPA -B. System Owner shall perform Services in a good and workmanlike manner and in compliance with all applicable laws and regulations, including System compliance with the Host Utility's interconnection and Tariff requirements. 4.1.4 Output During System Testing During the Installation Period, System Owner or its Contractors may test the System, and Host Customer shall accept delivery of any Output resulting from such testing during the Installation Period. There shall be no charge to Host Customer for Output delivered from the System during the Installation Period. 4.1.5 Connection of System to Site Electrical System System Owner shall be responsible for the interconnection of the System to the Site Electrical System and shall be solely responsible for all equipment, maintenance, and repairs associated with such interconnection equipment in accordance with the terms and conditions of this Agreement. Host Customer shall at all times own and be responsible for the operation and maintenance of the Site Electrical System at and from the Delivery Point. 4.2 Hazardous Materials and Refuse 4.2.1 Host Customer Representation Host Customer represents that at the time it executes this Agreement, it has disclosed to System Owner any and all hazardous materials that exist at the Site or Premises in Exhibit PPA- A of this Agreement. 4.2.2 System Owner Responsibilities During the Installation Period and thereafter, System Owner agrees and shall cause its Contractors to agree, as follows: (a) To take reasonable measures to reduce or mitigate noise, dust, the spread of debris and installation materials; (b) To remove all debris, extra materials, scaffolding, tools, machinery and other installation materials from the Site and other work areas at the conclusion of the Installation Period; and (c) To use and dispose of any "hazardous materials" as defined in any applicable federal or state environmental laws brought to the Site or the Premises in connection with Services being performed in accordance with all applicable laws. 4.2.3 Effect of Discovery of Hazardous Materials If System Owner or its Contractors discover any hazardous materials existing on the Premises or the Site during the installation and testing of the System that System Owner reasonably believes may require removal or remediation, or that otherwise impairs or prevents installation and testing of the System, System Owner shall promptly notify Host Customer, and System Owner may, in its sole discretion, suspend installation or testing of the System until such time as Host Customer has removed the hazardous materials and remediated the Premises to System Owner's satisfaction. System Owner shall have no responsibility or liability in respect of hazardous materials existing at the Premises (other than any hazardous materials brought to the Premises by or on behalf of System Owner). If Host Customer does not agree on a schedule and terms to remove the hazardous materials which permits System Owner to resume installation within five (5) days following the discovery of such hazardous materials at the Premises or the Site, then such failure shall be an Event of Default, Host Customer shall be liable for damages as a Defaulting Party in accordance with the provisions of Article XV, and System Owner may terminate this Agreement. 4.2.4 Mutual Indemnification Each Party agrees to indemnify and hold harmless the other Party for any claims, fines, damages, and costs (including attorney's and consultant's fees) arising out of hazardous material liability to the extent the Party is responsible for such hazardous materials and is thus an Indemnifying Party under Section 15.3. This clause shall survive the termination of this Agreement and expiration of the Service Term. 4.3 Licenses, Permits and Inspections During Installation System Owner shall maintain and shall ensure that its Contractors maintain all required licenses and permits during the Installation Period. System Owner and its Contractors shall obtain all inspections required by all authorities having jurisdiction during the Installation Period and during the Term. Certificates of inspection or other appropriate documentation by said authorities shall be delivered to Host Customer upon completion of the installation of the System. 4.4 Contractors 4.4.1 Subcontract Requirements System Owner may hire Contractors by subcontracting the performance of any part or all of the Services System Owner is obligated to provide hereunder. All Contractors so engaged by System Owner shall be required by contract to have all permits, licenses, insurance and registrations required to perform the Services subcontracted to them. 4.4.2 Identification of Contractors to Host Customer System Owner shall provide ilost Customer with (a) the identification of all Contractors to be engaged by System Owner, and (b) evidence that such Contractors have obtained and will maintain insurance as required by Article XVI. All Contractors shall follow Host Customer's Premises access protocols, including sign -in, security and safety orientation, before commencing any work at the Premises. 4.4.3 Host Customer R.iaht to Remove Contractors from Site for Cause Host Customer shall have the right to require the removal from the Site of any Contractor or the agents, employees or subcontractors of such Contractor, who, in Host Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of workmanship, or behavior inappropriate for the workplace. 4.5 Safe Workplace While at the Premises and the Site, System Owner and its Contractors will take all reasonable and customary steps to ensure the safety of workers and visitors in accordance with all applicable laws. System Owner shall cause the work to be carried out in accordance with Host Customer's published safety program, a copy of which is appended hereto as Exhibit PPA - E. 4.6 Installation of Meter System Owner shall install the Meter at the Delivery Point to measure the amount of Output delivered by the System to Host Customer. System Owner will own, operate and maintain the Meter during the Service Term at its own expense. 4.7 Net Metering Arrangements 4.7.1 System Owner Notification to Make Net Metering Arrangements System Owner shall provide Host Customer with timely notification that Host Customer must make Net Metering Arrangements with the Host Utility in order for System Owner to be able to complete the installation and testing of the System. Within five (5) business days of such notification from System Owner, Host Customer shall enter into Net Metering Arrangements by executing such agreements as may be required by Host Utility to permit the interconnection of the System with the Site Electrical System and to allow any Output of the System not consumed by the Host Customer to flow to the Host Utility. Host Customer shall promptly provide copies of such agreements and arrangements to System Owner when executed. 4.7.1 Required Documentation System Owner shall provide Host Customer with documentation under System Owner's control that the Host Utility requires by its Tariff to demonstrate that the System complies with the requirements of the Host Utility's interconnection standards. 4.8 Internet Access Consistent with the System Description and Specifications in Exhibit PPA -B, Host Customer shall make available to System Owner such internet access at the Premises and the Site as System Owner shall require for the continuous remote monitoring of the System's operation and performance. 4.9 Notification of Service Commencement Date Upon the successful completion of the installation and testing of the System and Host Utility approval to operate the System, System Owner shall provide Host Customer with notice that the System is ready to deliver Output and of the Service Commencement Date on the form in Exhibit PPA -F. ARTICLE V OPERATION AND MAINTENANCE OF THE PREMISES, SYSTEM, SITE, AND SITE ELECTRICAL SYSTEM 5.1 System Owner Operation Maintenance and Repair of System 5.1 .1 System Owner shall maintain the System in good working condition, ordinary wear and tear, and shall operate the System in accordance with all applicable laws, regulations and ordinances. 5.1.2 If the System is damaged due to the negligence or intentional misconduct of Host Customer, then Host Customer shall be responsible for such costs incurred by System Owner for the repair or replacement of the System to the extent of its negligence or intentional misconduct. 5.2 System Owner Operation and Maintenance Contractors 5.2.1 Contractor Requirements System Owner may engage Contractors to operate, maintain and repair the System. System Owner shall require any such Contractors to have all licenses, permits and registrations and obtain inspections required for such service providers, and any such Contractors shall maintain insurance as required by Article XVI. 5.2.2 Identification of Contractors to Host Customer System Owner shall provide Host Customer with (a) the identification of all Contractors with whom System Owner contracts to operate, maintain and repair the System, and (b) evidence that such Contractors have obtained and will maintain insurance as required by Article XVI. All Contractors shall follow Host Customer's Premises access protocols, including sign -in, security and safety orientation, before commencing any work at the Premises. 5.2.3 Host Customer Right to Remove Contractors from Site for Cause Host Customer shall have the right to require the removal from the Site of any Contractor or the agents, employees or subcontractors of such Contractor, who, in Host Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of workmanship, or behavior inappropriate for the workplace. 5.2.4 Safe Workplace While at the Premises and the Site, System Owner and its Contractors will take all reasonable and customary steps to ensure the safety of workers and visitors in accordance with all applicable laws. System Owner shall cause the work to be carried out in accordance with Host Customer's published safety program, a copy of which is appended hereto as Exhibit PPA- E. 5.3 Host Customer Operation Maintenance and Repair of Premises and Site 5.3.1 Host Customer Responsibility and Coordination with System Owner Host Customer shall be solely responsible for the operation, maintenance and repair of the Premises and the Site, including any repair, maintenance or replacement of the roof on which the System is located. Host Customer will advise System Owner in writing prior to making any adjustments, modifications, or upgrades to the Premises or Site to ensure that the Output of the System is not negatively impacted. The duration of any maintenance or repair that disrupts System Output shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with Section 11.3, and shall not constitute a Non - Delivery Period by System Owner as set forth in Section 15.1.1; provided, that if the need for any such repair or maintenance is caused by the negligence or intentional misconduct of System Owner, then the period required for maintenance or repair shall not constitute a Disruption of Delivery on the part of the Host Customer. Host Customer and System Owner shall coordinate such activities so as to minimize disruption to the System. 5.3.2 Separate Contract to Accommodate Host Customer Site Roof Repair If during the Term of this Agreement, Host Customer performs Site repairs or maintenance which may include replacement of the roof on which the System is located, Host Customer will contract separately with System Owner to disassemble, temporarily relocate, move, and reassemble System components as necessary to coordinate with the repairs, maintenance or replacement. System Owner will coordinate with Host Customer to minimize the disruption of Output during such repairs, maintenance, or replacement, and to restore the System to full capacity in a timely manner; provided, however that the duration of the repairs, maintenance or replacement shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with the provisions of Section 11.3, and shall not constitute a Non - Delivery Period by System Owner in accordance with the provisions of Section 15.1.1. 5.4 Host Customer Maintenance and Repair of Site Electrical System Host Customer shall maintain the Site Electrical System in good working order, and shall perform such other maintenance, repair and upgrades as may be required including but not limited to such work required by the Host Utility or by applicable laws, regulations, ordinances, and codes. Host Customer will advise System Owner in writing prior to making any adjustments, modifications, or upgrades to the Site Electrical System to ensure that the Output of the System is not negatively impacted. The duration of any maintenance, repair, or upgrade that disrupts System Output shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with Section 11.3, and shall not constitute a Non - Delivery Period by System Owner as set forth in Section 15.1.1; provided, that if the need for any such repair or maintenance is caused by the negligence or intentional misconduct of System Owner, then and the period required for such maintenance or repair shall not constitute a Disruption of Delivery on the part of the Host Customer. Host Customer and System Owner shall coordinate such activities so as to minimize disruption to the System. 5.5 Notice of System Malfunction and Non - Interference Host Customer shall notify System Owner immediately upon learning of (a) any material malfunction of or damage to the System and (b) any interruption or alteration of the energy supply to the Premises. Host Customer may not adjust, modify, maintain, alter, service or in any way interfere with the System, except as authorized in writing by System Owner, or in the event of an emergency if there is an imminent threat to life or property in which case Host Customer shall give System Owner or its designated Contractor immediate notice of such emergency. Host Customer shall be responsible for any damage to the System that is caused by its negligent or intentional interference with the System. 5.6 Host Customer Continuing Responsibility for Net Metering At all times during the Servicc Term, Host Customer shall maintain the Net Metering Arrangements and any other related agreements. 5.7 Host Customer Continuing Responsibility for Internet Access Consistent with the System. Description and Specifications in Exhibit PPA -B, Host Customer shall make available to System Owner such internet access at the Premises and the Site as System Owner shall require for the continuous remote monitoring of the System's operation and performance. VI ACCESS AND SPACE PROVISIONS 6.1 Adequate Space for Installation Host Customer shall provide System Owner and its Contractors with adequate space on the Premises and the Site during the Installation Period for System Owner's installation and testing of the System, including reasonable staging and lay down areas. 6.2 Adequate Access for System Owner; Grant of License 6.2.1 Host Customer shall provide System Owner adequate access to the Premises and the Site for System Owner's installation, operation, maintenance, and, to the extent applicable, repair, replacement or removal of all or part of the System. Host Customer shall provide System Owner access to the Premises during regular business hours, outside of regular business hours upon reasonable request of System Owner, and at any time in the event of an emergency as may be necessary for System Owner to fulfill its obligations under this Agreement. Such access shall be subject to reasonable supervision by Host Customer as Host Customer may require. System Owner shall use reasonable efforts to minimize disruption to Host Customer's operations. 6.2.2 This Agreement shall constitute a non - exclusive license throughout the Term of this Agreement granting System Owner reasonable access to, occupancy of and use of the Premises for System Owner to exercise its rights and meet its obligations hereunder. Host Customer will insure that any other license or other allowed use of the Premises shall not interfere with System Owner's reasonable access hereunder. 6.2.3 As used in this Article VI access rights applicable to System Owner shall include access for System Owner's agents, Contractors and assigns. 6.3 Access by Host Customer to System Because the System will be located on the Premises, the Parties acknowledge that Host Customer will have access to the Site for maintenance of Host Customer's property, safety, security, and emergency purposes. Host Customer shall take all reasonable actions to ensure that the operation of the System is not disrupted when Host Customer accesses the Site. and that the System will not be damaged thereby as a result of the actions or inactions of Host Customer, its designee(s) or invitees. 6.4 Prevention of Unauthorized Access Host Customer, in consultation with the System Owner, shall develop and implement, prior to the Service Commencement Date, written policies, systems and practices to prevent unauthorized access to and trespass on the System and to prevent harm or damage to the System or to Output. VII ADDITIONAL COVENANTS 7.1 Ownership of System by System Owner 7. 1.1 Host Customer and System Owner (a) intend that the System shall at all times be the personal property of System Owner severable from the Site and the Premises and shall not become a fixture and (b) shall each take such actions as are reasonably required by the other Party to ensure that the System constitutes the personal property of System Owner and shall not become a fixture. 7.1.2 If any person attempts to claim ownership of or other rights to the System by asserting any claim against or through Host Customer, and such claim is not attributable to any act or omission of System Owner, Host Customer agrees to protect and defend System Owner's title to the System, at Host Customer's expense. Host Customer will at all times keep the System free from any legal process and any lien not attributable to any act or omission of System Owner, and will give System Owner immediate notice if any legal process or lien is asserted or made against the System or against Host Customer where the System may be subject to any lien, attachment or seizure by any Person. 7.2 Use of Premises 7.2.1 Host Customer intends to continue to use the Premises in a manner similar to its present use throughout the Term, except as has been disclosed to System Owner by Host Customer and included in Exhibit PPA -A of this Agreement. Host Customer shall give reasonable prior notice to System Owner of any material modification of the Premises or change in the use of the Premises that would have an impact on the operation of the System or on Host Customer's consumption of Output. 7.2.2 If Host Customer provides a notice to System Owner pursuant to Section 7.2.1 that it seeks to make a material modification of the Premises or to change the use of the Premises in a way that would have an impact on the operation of the System or on Host Customer's consumption of Output, the Parties shall attempt to amend this Agreement so as to preserve to System Owner the economic benefits of this Agreement prior to such modification or change. If the Parties are unable to reach agreement on an amendment within ten (14) business days of the date Host Customer notifies System Owner of such change or modification, System Owner shall have the right to treat such change as an Event of Default hereunder and terminate this Agreement. In such event, (a) System Owner shall have the right to remove the System from Host Customer's property and the Premises and (b) Host Customer shall be liable for damages in accordance with the provisions of Article XV. 7.3 Obstructions 7.3.1 Host Customer shall not install or permit to be installed on the Premises (or any other property owned or controlled by Host Customer) any physical obstruction to the operation of the System that reduces Output. 7.3.2 In the event that any obstruction that could reasonably be expected to reduce Output is proposed to be erected or installed on property other than the Premises or other than property owned or controlled by Host Customer, Host Customer shall promptly deliver to System Owner copies of any notice relating thereto received by Host Customer, and System Owner shall have the right to intervene or to direct Host Customer to intervene (at System Owner's expense) in any proceeding and to contest the installation or erection of any such obstruction. In the event such obstruction is installed, (a) System Owner shall have the right to remove the System from Host Customer's property and the Premises and (b) Host Customer shall be liable for damages in accordance with the provisions of Article XV. 7.4 Status of Premises and Site 7.4.1 In the event that any or all of the Premises is or becomes subject during the Tenn to a new lease, security interest, lien or mortgage, Host Customer shall require that the lessor or the holder of such security interest, lien or mortgage enter into an agreement with System Owner, or provide an estoppel reasonably acceptable to System Owner and the lenders, acknowledging and recognizing System Owner's rights under this Agreement and acknowledging that the System is the personal property of System Owner severable from the Site and not a fixture. 7.4.2 If necessary after the execution of this Agreement, Host Customer shall from time to time grant to System Owner easements, leases, licenses, consents, acknowledgments, and approvals and other rights System Owner reasonably requires for the installation and testing of the System, production and delivery of Output to the Delivery Point, and the operation and maintenance of the System under this Agreement. 7.5 Host Customer's On-jzoing _Ab_ility to Perform During the Term of the Agreement and when requested by System Owner, Host Customer shall promptly provide reasonable evidence of creditworthiness and ability to pay amounts due under this Agreement. VIII ENVIRONMENTAL CREDITS AND SYSTEM ATTRIBUTES 8.1 System Attributes System Owner shall at all times during the Term of this Agreement own and retain exclusive rights to any and all attributes, products or economic benefits attributable to the System or to the production and delivery of Output, including but not Iimited to Environmental Credits, Capacity and Ancillary Services. 8.2 Environmental Credits All Environmental Credits, whether available directly or indirectly, shall be and shall remain the property of System Owner for the Service Term. System Owner shall have sole use of such Environmental Credits and shall be permitted to use such Environmental Credits for itself, or to sell, grant, convey, or otherwise dispose of such Environmental Credits to any other Person, in System Owner's sole discretion. Host Customer hereby grants, makes and conveys to System Owner an absolute and irrevocable assignment of any and all right, title and interest Host Customer may at any time have in or to any Environmental Credits. 8.3 Documentation At System Owner's request, Host Customer will complete any and all documentation required to substantiate the existence, nature, and/or quantity of Environmental Credits produced by the System, or required to validate System Owner's rights to and ownership of the Environmental Credits. 8.4 Conditions Precedent. The System Owner's obligations hereunder shall be subject to and conditional upon each of the following conditions been met to the System Owners satisfaction: a) Structural and electrical engineering review completed as acceptable to System Owner. b) System Owner approval of this Agreement by Financial Partners. IX PURCHASE AND SALE OF OUTPUT On and after the Service Commencement Date and through the end of the Service Term, System Owner shall deliver and sell to Host Customer to the Delivery Point, and Host Customer shall accept delivery and purchase at the Delivery Point, all of the Output at the price and the terms and conditions set forth in Exhibit PPA -C of this Agreement. 9.1 Solar Electricity Price Begimung on the Service Commencement Date, the Solar Electricity Price paid by Host Customer for Output shall be as specified in Exhibit PPA -C. 9.2 Other Electricity Purchases 9.2.1 System to Reduce Other Electricity Purchases The Parties intend that the Output will reduce Host Customer's purchase of electricity from the Host Utility or retail electricity suppliers, and acknowledge that the System is not expected to meet the entirety of Host Customer's demand for electricity. To the extent that at any time the Output is insufficient to meet all of Host Customer's electricity demand, Host Customer will be responsible for purchasing electricity from such other sources. The Parties further intend that Host Customer's obligations to purchase Output shall not be reduced by the installation of another power source(s) on the Premises. 9.2.2 Other Electricity Purchase Agreements Host Customer shall be responsible for maintaining and fulfilling all obligations to any of its other electricity service providers, including but not limited to any competitive electric supplier of generation or transmission services to Host Customer, and for meeting all requirements imposed by any such electricity service provider and by any federal, state or local government agencies with respect to such services and to the purchase of the Output. 9.3 Sale Only to Host Customer In no event shall System Owner sell, or be deemed to have sold, Output to any Person other than Host Customer, 9.4 Host Customer Net Metering Obligation The Parties recognize and acknowledge that, from time to time, (a) the Output may exceed Host Customer's demand for electricity or (b) Host Customer will otherwise be unable to consume Output delivered to the Delivery Point. Host Customer shall nonetheless accept and take title to the Output at the Delivery Point and shall have in place and maintain Net Metering Arrangements as required by Tariff or by the Host Utility to deliver to the Host Utility any Output that exceeds Host Customer's demand for, or ability to consume, electricity; provided that if, through no cause attributable to Host Utility or System Owner, Host Customer fails to enter into, fails to maintain or otherwise fails to comply with the required Net Metering Arrangements, and as a result of such failure, System Owner cannot deliver Output to Host Customer, then such failure shall constitute a Disruption of Delivery and an Event of Default, and Host Customer shall be liable to System Owner for the electricity that the System produced, or was capable of producing, and that would otherwise have been delivered to Host Customer as Output, in accordance with the provisions of Article XV. 9.5 Taxes Host Customer shall either pay or reimburse System Owner for any and all taxes assessed on the generation, sale, delivery or consumption of electric energy produced by the System. For purposes of this Section, "Taxes" means any state and local ad valorem, occupation, generation, privilege, gross receipts, sales, use, consumption, excise, transaction, and other taxes, regulatory fees, surcharges or other similar charges, but shall not include any income taxes or similar taxes imposed on System Owner's revenues due to the sale of energy under this Agreement, which shall be System Owner's responsibility. The purchaser is required to provide the seller with any documentation for exemptions from taxes. 9.6 Invoice and Payment Following the end of each calendar month during the Service Term, System Owner shall prepare and provide Host Customer an invoice for the Output delivered in the prior month (or partial month if the Service Commencement Date is not the first day of a month). Deliveries during the month of an anniversary date shall be prorated as to the applicable Solar Electricity Price. The amount due for the Output shall be determined by multiplying the applicable Solar Electricity Price by the Output delivered (or deemed delivered) to Host Customer during such month, and each invoice shall set forth in reasonable detail the calculation of all amounts owed. A sample invoice calculation is shown in Exhibit PPA -D. Delays in the issuance of any such invoice shall not constitute any waiver of Host Customer's obligation to pay once Host Customer has actually received and invoice from System Owner, or System Owner's right to collect, any payment under any such invoice. 9.6.1 Payments Subject to its contest rights set forth in Section 9.6.3, Host Customer shall pay the full amount of each invoice on or before the thirtieth (30"') day following issuance thereof ( "Due Date "). All payments made by Host Customer under this Agreement shall be by electronic funds transfer pursuant to the instructions set forth in Exhibit PPA -D attached hereto, or by check payable to System Owner (unless otherwise directed in writing by System Owner) at the address for notices set forth in Section 18.3, as such instructions or address may be modified by System Owner by notice to Host Customer in writing. 9.6.2 Late Payment Fees If any part of a monthly payment is not made by Host Customer within thirty (30) days following the Due Date, Host Customer agrees to pay System Owner a late fee that shall accrue on the basis of one percent (1 %) per month (or such lower percentage as and if required by applicable law) on the amount of such late payment ( "bate Fee "). 9.6.3 Contest Rights Host Customer shall notify System Owner in writing within five (5) business days of issuance of the monthly invoice of any portion of the invoiced amount that it has a reasonable basis to dispute in accordance with Section 18.1 and the basis for such Dispute. The contested portion of any invoiced amount shall not relieve Host Customer of its obligation to pay the uncontested portion of such invoice as set forth in Section 9.6.1. ARTICLE X METERING During the Service Term, System Owner shall, at its own expense, own, operate and maintain the Meter and provide necessary Meter related services. 10.1 Meter Readinsz System Owner shall cause the Meter to be read at the end of each calendar month, and shall cause the Output delivered to Host Customer to be recorded. The reading shall be used as the basis for calculating the amount to be invoiced pursuant to Section 9.6 under this Agreement. 10.2 Alternative Measures in Event of Non - Operability If the Meter is out of service or registers inaccurately, then the measurement of the Output shall be determined by the following alternatives, in the following order: (a) any alternative or back -up meter that System Owner or Host Utility may have installed, if registering accurately; (b) a mathematical calculation, if upon a calibration test of such Meter a percentage error is ascertainable; or (c) estimates of deliveries of Output by reference to quantities measured during periods of similar conditions when such Meter was registering accurately. 10.3 Calibration 10.3.1 System Owner shall notify Host Customer of the time it will test and calibrate the Meter and Host Customer may witness such testing. Host Customer may request that System Owner to re -test and re- calibrate the Meter, and any such testing shall be at Host Customer's expense if such tests indicate that the Meter is accurate within plus or minus two percent (2 %). Host Customer may witness any re- tests. 10.3.2 If, upon testing, any Meter is found to be accurate or in error by not more than plus or minus 2 percent ( ±2 %), then previous recordings of such Meter shall be considered accurate in computing deliveries of Output hereunder, but such Meter shall be promptly adjusted to record correctly. 10.3.3 If, upon testing, any Meter shall be found to be inaccurate by an amount exceeding plus or minus 2 percent (+2 %), then such Meter shall be promptly repaired or adjusted to record properly and any previous readings from such Meter used to compute invoices for Output shall be corrected to zero error. If no reliable information exists as to the period over which such Meter registered inaccurately, it shall be assumed for purposes of correcting previous invoices that such inaccuracy began at a point in time midway between the testing date and the next previous date on which such Meter was tested and found to be accurate. 10.3.4 If upon testing, any Meter shall be found to be inaccurate by an amount exceeding plus or minus two percent (±2 %), then the payments for Output made since the previous test of such Meter shall be adjusted to reflect the corrected readings as determined in accordance with Section 10.3.3. If the difference in the previously invoiced amounts minus the adjusted payment is a positive number (Meter has over- registered Output), that difference will offset amounts owing by Host Customer to System Owner in subsequent month(s). If the difference is a negative number (Meter has under- registered Output), the difference shall be added to the next month's invoice and paid by Host Customer to System Owner on the Due Date of such invoice. ARTICLE XI OUTPUT INTERRUPTIONS 11.1 Intermittent Interruptions Are Expected Host Customer acknowledges and understands that the System, as a solar photovoltaic system, will produce Output intermittently, and will not provide Host Customer with an uninterrupted supply of electricity. THIS AGREEMENT PROVIDES NO WARRANTY OR GUARANTEE TO HOST CUSTOMER OF AN UNINTERRUPTED SUPPLY OF ELECTRICITY. System Owner shall not be liable to Host Customer for any intermittent interruption in Output during the Term, nor shall System Owner be responsible for Host Customer's cost of alternative supplies of electricity during any such interruption. If delivery of Output from the System is interrupted other than as a result of the default, negligent acts or omissions of Host Customer or as otherwise provided in Section 11.2, System Owner will make commercially reasonable efforts to restore Output in a timely manner. 11.2 Interruption of Output 11.2.1 Notwithstanding anything to the contrary herein, System Owner shall have the right to interrupt, reduce or discontinue the delivery of Output for purposes of inspection, maintenance, repair, replacement, or alteration of the System, or at the direction of authorized governmental authorities or electric utilities. Other than in the event of an unexpected interruption or in the event of an emergency, System Owner shall give Host Customer notice prior to an interruption of Output and an estimate of the expected duration of the interruption. 11.2.2 System Owner shall not be required to supply Output to Host Customer at any time System Owner reasonably believes the Site or Site Electrical System to be unsafe, but in no event will System Owner have any responsibility to inspect or approve the Site Electrical System. Similarly, Host Customer, should it deem System to be in an unsafe condition, shall have the right to direct System Owner to disconnect System, or, in the case of imminent danger caused by such unsafe condition, Host Customer may disconnect System from its Site or Site Electrical System without penalty under this Agreement. In such an occurrence, Host Customer shall notify System Owner of said unsafe condition and of the emergency disconnection without delay. 11.3 Disruption of Delivery_ In the event that System Owner is capable of generating and delivering Output to Host Customer, but Host Customer fails to accept delivery of such Output (a "Disruption of Delivery "), Host Customer agrees to pay System Owner for such Output as follows: 11.3.1 Payments that Host Customer would have made to System Owner for Output that would have been produced during the period of the Disruption of Delivery, as determined by historic billing data or as represented by the National Renewable Energy Laboratory PV Watts modeling software given the System attributes during the period of Disruption of Delivery; 11.3.2 Beginning on the fifth (5'h)day following the commencement of the Disruption of Delivery, revenues that System Owner would have received under any state solar incentive program and any other assistance program with respect to Output that would have been produced during the period of the Disruption of Delivery; and 11.3.3 Beginning on the fifth (5'h) day following the commencement of the Disruption of Delivery, revenues from Environmental Credits that System Owner would have received with respect to Output that would have been produced during the period of the Disruption of Delivery with due consideration to compliance fee payments to governmental authorities that may be caused by the Disruption of Delivery. 11.3.4 Payments will be made in accordance with the terms of Section 9.6. 11.4 Cost to Restore Service Following Interruption System Owner shall bear any costs associated with restoring service following any interruption of the supply of Output from the System as a result of System Owner's operation of the System. Host Customer shall bear the costs associated with the restoration of the delivery of Output if an interruption is caused by the actions or inactions of Host Customer or the condition of the Premises, Site or Site Electrical System. ARTICLE XII SYSTEM PURCHASE OPTIONS 12.1 Purchase Option 12. 1.1 Provided that Host Customer has fulfilled all obligations to System Owner under this Agreement, at the expiration of the Service Term Host Customer shall have the option to purchase the System by notifying System Owner in writing at least ninety (90) days prior to the end of the Service Term that Host Customer intends to exercise its option under this Section 12.1. 12.1.2 If Host Customer exercises its option under this Section 12. 1, Host Customer shall pay System Owner an amount equal to fair market value for the System and its Output. 12.1.3 Upon Host Customer's payment for the System, System Owner shall furnish the System to Host Customer, including all components thereof and operation manuals, in the condition at the time of determination of the fair market value, subject to normal wear and tear. 12.1.4 The term "fair market value" as used herein shall mean (i) the price that would be negotiated in an arm's - length, free market transaction, for cash, between an informed, willing seller and an informed, willing buyer (other than the user currently in possession), neither of whom is under compulsion to complete the transaction, for the purchase of the System as removed from the Site at the date of determination, de- installed, packed, crated and ready for shipment to such buyer or, if higher, as installed on the Site and (ii) as determined by the mutual agreement of the Parties. If unable to agree, the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to value the System; such valuation to be binding absent fraud or manifest error. The costs of the appraisal shall be borne equally by the Parties. If the Parties are unable to agree on the selection of an appraiser, such appraiser shall be selected by the two proposed appraiser firms. 12.1.5 Transfer to Host Customer Upon transfer of ownership of the System to Host Customer, System Owner shall have no further obligation with respect to the performance, installation, operation, maintenance or repair of any part or component of the System; provided, however, System Owner agrees to pass through and to transfer to Host Customer any applicable manufacturers' warranties provided on the System, to the extent that such warranties are transferable. 12. 1.6 Non - Election and Removal 12.1.6 If Host Customer does not purchase the System pursuant to Section 12.1, or if System Owner and Host Customer do not agree to renew this Agreement pursuant to Section 2.2, System Owner shall, within ninety (90) days after the end of the Service Term, remove the System from the Site at its expense including the reasonable expense of repairing any adverse impact such removal directly causes to the Site or the Premises. ARTICLE XIII REPRESENTATIONS 13.1 Host Customer Representations Host Customer makes the following representations and warranties to System Owner: 13. 1.1 Host Customer is duly authorized and has the power to enter into this Agreement and perform its obligations hereunder. 13.1.2 Host Customer has all the rights required to enter into this Agreement and perform its obligations hereunder, and has obtained all necessary consents, if any, from third parties including any mortgagee. 13.1.3 This Agreement is enforceable against Host Customer in accordance with its terms and does not conflict with or violate the terms of any other agreement to which Host Customer is a party, including, if applicable, any agreement pursuant to which Host Customer leases, occupies, or has financed the Premises or the Site. 13.1.4 Host Customer has no knowledge of any facts or circumstances that could materially adversely affect its ability to perform its obligations hereunder including its creditworthiness pursuant to Section 7.5. 13.1.5 The information provided to System Owner by Host Customer pursuant to this Agreement as of the Effective Date is true and accurate in all material respects including but not limited to: data concerning energy usage for the Premises; and construction drawings for the Premises in existence as of the Effective Date. 13.1.6 Host Customer shall use its best efforts to satisfy all conditions precedent in Section 3.1. 13.2 System Owner Representations System Owner makes the following representations and warranties to Host Customer: 13.2.1 System Owner is duly authorized and has the power to enter into this Agreement and perform its obligations hereunder. 13.2.2 System Owner has all the rights required to enter into this Agreement and perform its obligations hereunder, and has obtained all necessary consents, if any, from third parties including any mortgagee. 13.2.3 This Agreement is enforceable against System Owner in accordance with its terms and does not conflict with or violate the terms of any other agreement to which System Owner is a party. 13.2.4 System Owner has no knowledge of any facts or circumstances that could materially adversely affect its ability to perform its obligations hereunder including its creditworthiness. 13.2.5 The information provided to System Owner by Host Customer pursuant to this Agreement as of the Effective Date is true and accurate in all material respects. 13.2.6 System Owner shall use its best efforts to satisfy all conditions precedent in Section 3.1. ARTICLE XIV FORCE MAJEURE 14.1 Definition of Force Majeure Force Majeure Events Force Majeure means any circumstance not within the reasonable control, directly or indirectly, of the Party affected, but only if and to the extent that (a) such circumstance, despite the exercise of due diligence, cannot be or be caused to be prevented, avoided or removed by such Party, (b) such event is not due to such Party's negligence or intentional misconduct, (c) such event is not the result of any failure of such Party to perform any of its obligations under this Agreement, (d) such Party has taken all reasonable precautions, due care, and reasonable alternative measures to avoid the effect of such event and to mitigate the consequences thereof, and (e) such Party has given the other Party prompt notice describing such event, the effect thereof and the actions being taken to comply with this Agreement. Subject to the foregoing conditions, Force Majeure Events may include: strikes or other labor disputes, other than strikes or labor disputes solely by employees of the Party declaring the Force Majeure Event or as a result of such Party's failure to comply with a collective bargaining agreement; adverse weather conditions and other acts of nature; earthquakes; and riot or civil unrest; provided, that Force Majeure Events shall not include any inability to make any payments that are due hereunder or to any third party or to procure insurance required to be procured hereunder. 14.2 No Default Neither System Owner nor Host Customer shall be considered to be in default in the performance of its obligations under this Agreement to the extent that performance of any such obligation is prevented or delayed by a Force Majeure Event. Not withstanding any provision herein to the contrary, the Host Customer shall not be obligated to make payments under this Agreement for any period during which the System Owner is unable to deliver Output to the Host Customer by reason of a Force Majeure Event. 14.3 Notice and Cure If a Party is prevented or delayed in the performance of any such obligation by a Force Majeure Event, then such Party shall immediately provide notice to the other Party of the circumstances preventing or delaying performance and the expected duration thereof. Such notice shall be confirmed in writing as soon as reasonably possible. The Party affected by a Force Majeure Event shall use commercially reasonable efforts to remove or repair the cause of the Force Majeure Event and shall resume performance of its obligations as soon as reasonably practicable. 14.4 Termination for Force Mai cure Either Party shall be entitled to terminate this Agreement upon ten (10) days prior written notice to the other Party if any Force Majeure Event affecting the other Party has been in existence for a period of forty -five (45) consecutive days or longer, unless such Force Majeure Event ceases prior to the expiration of such forty-five (45) day period. ARTICLE XV DEFAULT, REMEDIES AND LIMITATIONS, INDEMNITY, RELEASE AND DISCLAIMER 15.1 Default. Each Party (the "Defaulting Party ") shall be liable to the other Party (the "Non - Defaulting Party ") for the following "Events of Default." 15. 1.1 Failure to Perform or to Meet a Material Obligation (a) System Owner's unexcused failure to provide any Output following the Service Commencement Date for a period of at least sixty (60) consecutive days during the Service Term ( "Non- Delivery Period "); provided that the Non - Delivery Period shall not include any period during which the System is not operating due to a Force Majeure Event or any period during which the Host Customer is in default hereunder or otherwise cannot accept delivery of Output, and such periods shall interrupt any calculation of consecutive days. and provided, further, that System Owner's failure to deliver Output following the Non - Delivery Period shall not be a default for so long as System Owner, at its option, pays to Host Customer on a monthly basis in arrears the positive difference, if any, between the Solar Electricity Price Host Customer would have paid for Output during the Non - Delivery Period and the rate for electricity service from Host Utility in effect at the time, until such time as System Owner restores deliveries of Output to Host Customer. (b) Host Customer's failure to pay an invoice following the Due Date, and such failure continues for a period of thirty (30) days after System Owner provides written notice of such nonpayment to Host Customer. (c) Host Customer's modification or change in use of the Premises without System Owner's prior written consent, failure to keep the System free from legal process or to accommodate a modification or change in use of the Premises, failure to obtain an acknowledgement from a financial entity that the System is a fixture, or failure to demonstrate its ability to perform, all pursuant to Articles VI and Vll. (d) Host Customer's Disruption of Delivery pursuant to Section 113. (e) Host Customer's failure to remove hazardous materials pursuant to Section 4.2.3. (f) Host Customer's failure to maintain the Premises, Site and Site Electrical System pursuant to Sections 5.3 and 5.4. (g) Host Customer's failure to maintain the Net Metering Arrangements pursuant to Section 5.6. (h) (lost Customer's failure to maintain the internet access pursuant to Section 5.7. (i) A Party's failure to perform fully any other material obligation under a provision of this Agreement including but not limited to those provisions explicitly set forth in this Section 15.1.1 and either (a) such failure continues for a period of ten (10) business days after written notice of such nonperformance from the other Parry or (b) if the nonperforming Party commences an action to cure such failure to perform within such ten (10) business day period, and thereafter proceeds with all due diligence to cure such failure, but such failure is still not cured within thirty (30) days after the expiration of the initial ten (10) business day period. 15.1.2 Material Misrepresentation Representations, warranties and other statements made by a Party that misrepresents a material fact as of the Effective Date or thereafter, and such misrepresentation has a material adverse effect on the other Party that is not cured within ten (10) business days from the earlier of (a) notice from the Party affected by the misrepresentation and (b) the discovery or determination by a Party of its misrepresentation; provided, that if the Party that has made the misrepresentation commences an action to cure such misrepresentation within such ten (10) business day period, and thereafter proceeds with all due diligence to cure such failure, the cure period shall extend for an additional thirty (30) days after the expiration of the initial ten (10) business day period. 15.1.3 Bankruptcy A Party (a) voluntarily or involuntarily files or has filed against it a bankruptcy or other similar petition, (b) enters into an assignment of its assets for the benefit of its creditors or (c) otherwise is unable to pay its debts as they become due. 15.2 Remedies. Upon the occurrence of, and during the continuation without cure of, an Event of Default, the Non - Defaulting Party shall have the option, but not the obligation, to terminate this Agreement, and the Defaulting Party shall be liable to the Non - Defaulting Party for damages for Default. 15.2.1 If a Host Customer Event of Default occurs, (i) System Owner shall have the right to terminate this Agreement upon thirty (30) days prior written notice to Host Customer, and promptly following such termination, shall have the right to remove the System from the Premises, and (ii) Host Customer shall be liable to System Owner for actual, direct damages. At all times following an Event of Default by the Host Customer until the termination of this Agreement, System Owner shall have the right, but not the obligation, to deliver the Output to the Host Customer, and the Host Customer shall be obligated to purchase and pay for such Output in accordance with this Agreement. 15.2.2 If a System Owner Event of Default occurs, then Host Customer shall have the right to terminate this Agreement upon thirty (30) days prior written notice to System Owner. Following such termination, System Owner shall have the right to remove the System from the Site within thirty (30) days after such termination, and shall promptly make or have made any repairs to the Site to the extent necessary to repair any adverse impact such removal causes to the Site. 15.2.3 Host Customer shall be liable to System Owner for any actual, direct damages, including but not limited to lost revenues for the sale of Output due to a Disruption of Delivery, cause by a Host Customer Event of Default. Subject to ordinary wear and tear of the System, Host Customer agrees to pay System Owner for the reasonable costs and expenses relating to any repairs to, direct or indirect harm to, or loss of the System, to the extent resulting from negligence or intentional misconduct of Host Customer or any of its contractors, agents, tenants, employees, partners, owners, subsidiaries, affiliates or invitees, or resulting from the failure of Host Customer to reasonably protect the System from trespass or other unauthorized access as provided herein. 15.2.4 System Owner shall be liable to Host Customer for any actual, direct damages caused by a System Owner Event of Default. System Owner agrees to pay Host Customer for the reasonable costs and expenses relating to any repairs to, direct or indirect harm to, or loss of the Site or Host Customer's personal property or fixtures on the Site, to the extent resulting from negligence or intentional misconduct of System Owner or any of its contractors, second -tier contractors, agents, employees, partners, owners, subsidiaries or affiliates. 1 5.2.5 Limitation of Liability While the Defaulting Party shall be liable to the Non - Defaulting Party for actual, direct damages caused by an Event of Default, neither Party shall be liable to the other Party for any special, indirect or consequential damages arising out of the performance or non - performance of this Agreement, whether caused by negligence, tort, strict liability, breach of contract, or breach of warranty. 15.2.6 Reservation of Rights Neither termination nor the exercise of any other right or remedy by a Non - Defaulting Party hereunder shall eliminate the Non - Defaulting Party's right to pursue any other remedy given under this Agreement now or hereafter existing at law, in equity or otherwise. 15.3 Mutual General Indemnity To the maximum extent permitted by law, each Party hereto (the "Indemnifying Party ") shall defend, indemnify and hold harmless the other Party and the directors, officers, shareholders, partners, agents and employees of such other Party, and the affiliates of the same (collectively, the "Indemnified Parties "), from and against all loss, damage, expense and liability in connection with this Agreement (including court costs and reasonable attorney's fees) to the extent caused by, or arising out of, the negligent acts or omissions of the Indemnifying Party, or the failure of the Indemnifying Party to comply with the provisions of this Agreement. 15.4 Defense of Claims An Indemnifying Party shall have the right to defend an Indemnified Party by counsel (including insurance counsel) of the Indemnifying Party's selection reasonably satisfactory to the Indemnified Party, with respect to any claims within the indemnification obligations hereof, subject to any limitations imposed by the Indemnifying Party's insurer. The Parties shall give each other prompt written notice of any asserted claims or actions indemnified against hereunder and shall cooperate with each other in the defense of any such claims or actions. No Indemnified Party shall take any action relating to such claims or actions within the indemnification obligations hereof without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and no Indemnifying Party shall settle any such claims without the Indemnified Party's prior written consent, unless the settlement includes a full and unconditional release of claims against the Indemnified Party. 15.5 Release of Liens and Claims So long as Host Customer has paid all amounts that become due and owing to System Owner hereunder, System Owner shall hold harmless Host Customer from all liens and claims filed or asserted by System Owner's independent contractors, second -tier contractors or other third parties against Host Customer or the Premises for services performed or material furnished to System Owner by such parties. System Owner shall, at no cost to Host Customer, promptly release, discharge or otherwise remove any such lien or claim by bonding, payment or otherwise and shall notify Host Customer of such release, discharge or removal. If System Owner does not timely cause any such lien or claim to be released, discharged or otherwise removed, Host Customer shall have the right (but not the obligation) to pay all sums necessary to obtain releases, discharges or removals (including the settlement of any lien or claim). In such event, Host Customer shall have the right to deduct all amounts so paid (plus reasonable attorneys' fees) from amounts due System Owner hereunder. Alternatively, upon reasonable demand by Host Customer, System Owner shall reimburse Host Customer for such amounts 15.6 Disclaimer of Warranties EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER (INCLUDING ANY SERVICES, GOODS, MATERIALS OR OTHER ITEMS SUPPLIED HEREUNDER), INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. ARTICLE XVI INSURANCE 16.1 System Owner's Insurance 16. 1.1 System Owner's Insurance Coverage At all times relevant to this Agreement, System Owner shall maintain (or shall cause its Contractors to maintain), with a company or companies licensed or qualified to do business in the State of Minnesota and rated A / VIII or above by A.M. Best, the following insurance coverage: (a) Workers' compensation insurance in compliance with appropriate federal and State of Minnesota laws, and employers liability insurance with limit of not less than $1,000,000 per accident or disease for each employee; (b) Commercial general liability insurance, occurrence form, including, but not Iimited to, contractual coverage for all of the provisions or this Agreement, with limits of not less than $2,000,000 per occurrence and in the aggregate, $2,000,000 products and completed operations aggregate, and $1,000,000 personal injury and advertising injury per offense. Host Customer shall be endorsed as an additional insured on the System Owner's coverage. 16.2 Host Customer's Insurance 16.2.1 Host Customer's Insurance Coverage At all times relevant to this Agreement, Host Customer shall maintain the following insurance coverages with the League of Minnesota Cities Insurance Trust, or alternatively, an insurance company agreeable to the System Owner: (a) Workers' compensation insurance in compliance with appropriate federal and State of Minnesota laws, and employers liability insurance with limit of not less than $1,000,000 per accident or disease for each employee; (b) Commercial general liability insurance or its equivalent, including, but not limited to, contractual coverage for all of the provisions or this Agreement, with limits of not less than $2,000,000 per occurrence and in the aggregate, $2,000,000 products and completed operations aggregate; and $1,000,000 personal injury and advertising injury per offense. If coverage is provided on a claims -made basis, the retroactive or prior acts date of such coverage shall not be after the effective date of this Agreement and Host Owner shall maintain such insurance for a period of at least three (3) years, following completion of this Agreement. If such insurance is discontinued, extended reporting period coverage must be obtained by Host Owner to fulfill this requirement. (c) Property coverage will be maintained providing replacement cost value for the System pursuant to Section 5.1.2 and for property that is in Host Customer's care, custody and control, with limits not less than the replacement value of the System. This coverage shall include appropriate riders for specialty equipment as necessary. 16.2.2 Deductibles In addition, Host Customer must provide the System Owner with a bona fide list of all deductibles, retentions, or any other cost sharing agreements affecting this coverage. These deductibles, retentions, or other forms of cost sharing shall not exceed $10,000. 16.3 Certificates Host Customer and System Owner shall cause certified copies of all required insurance policies to be endorsed by the insurance providers for the above coverages. Evidence of the above insurance policies shall be provided on a continuous basis and on a standard ACORD form 25, providing not less than thirty (30) days notice of cancellation or material alteration or in the case of non - payment of premium, at least 10 days' written notice of cancellation. All policies listed in Section 16.2.1 shall grant System Owner and Host Customer, its successors, subsidiaries, directors, officers, agents and employees a waiver of subrogation. The commercial general liability policy in Section 16.2.1(b) shall name the System Owner, its successors, subsidiaries, directors, officers, agents and employees as an additional insured. The property coverage policy in Section 16.2.1(c) shall name System Owner, its successors, subsidiaries, directors, officers, agents and employees as a loss payee. ARTICLE XVII ASSIGNMENT 17.1 Assignment by Host Customer Host Customer shall not assign this Agreement without the consent of System Owner, such consent not to be unreasonably withheld. 17.1.1 Substitute Solar Energy Power Purchase and Sale Agreement In the event that Host Customer terminates this Agreement during the Term because it will no longer own or occupy the Premises, Host Customer shall use commercially reasonable efforts to facilitate discussions between System Owner and a successor owner or occupant of the Premises regarding the sale of Output to such new owner or occupant pursuant to an assignment of this Agreement acceptable to System Owner. In the event that System Owner accepts such an assignment or enters into an agreement with such new owner or occupant for the sale of Output on terms at Ieast as favorable to System Owner as this Agreement, then Host Customer shall have no further liability to System Owner. Otherwise, Host Customer shall be liable to System Owner for damages in accordance with the provisions of Article XV. 17.2 Assignment by ystem Owner 17.2.1 System Owner may, with the prior written consent of Host Customer which consent shall not be unreasonably withheld, assign its interest in and be released from its obligations under this Agreement, as long as the assignee shall expressly assume this Agreement and agrees to be bound by the terms and conditions hereof. 17.2.2 System Owner may, without the consent of Host Customer, (a) transfer or assign all or substantially all of its rights and obligations hereunder to an affiliate or successor or (b) collaterally assign to its lenders, in connection with a financing of the System, all or any part of System Owner's rights or obligations hereunder. Host Customer agrees to provide acknowledgements, consents, or certifications reasonably requested by System Owner's lenders in conjunction with such financing. System Owner shall inform Host Customer of any such transfers or assignments. ARTICLE XVIII MISCELLANEOUS 18.1 Disputes The Parties agree to attempt to resolve any dispute, controversy or claim (each, a "Dispute ") arising out of or relating to this Agreement or any breach or alleged breach hereof through an informal process that shall be assigned to an executive officer of each Party. In the event such a process fails, each Party may seek appropriate relief in an appropriate forum. 18.2 Confidentiality 18.2.1 Both Parties agree that this Agreement and its performance by both Parties are proprietary and confidential to the Parties, and that disclosure of the terms of this Agreement or of the costs incurred under this Agreement to third parties could place one or both Parties at a commercial disadvantage. Subject to the other provisions of this Section, each Party agrees not to disclose to any third parties the terms of this Agreement or costs incurred by either Party under this Agreement without the other Party's prior written consent, which consent shall not be unreasonably withheld, or to the extent of any disclosure required under applicable law or court order; provided, that disclosing Party first shall have given advance notice to other Party so as to permit said other Party to attempt to obtain a protective order requiring that the confidential information to be disclosed be used only for the purposes for which the order was issued or to vacate or otherwise quash the order or other legal process. System Owner agrees to keep confidential all documents, utility bills, architectural and mechanical plans, and any other information provided by Host Customer under this Agreement. Each Parry may disclose confidential information hereunder to its authorized representatives, attorneys, agents, consultants and employees on a need to know basis so long as such persons agree in writing to be bound by the confidentiality obligations of this Section 18.2.1. 18.2.2 Notwithstanding anything to the contrary set forth herein or in any other agreement to which the Parties are parties or by which they are bound, the obligations of confidentiality contained herein and therein, as they relate to the transaction, shall not apply to the U.S. federal tax structure or U.S. federal tax treatment of the transaction, and each Party (and any employee, representative, or agent of any Party hereto) may disclose to any and all persons, without limitation of any kind, the U.S. federal tax structure and U.S. federal tax treatment of the transaction. The preceding sentence is intended to cause the transaction not to be treated as having been offered under conditions of confidentiality for purposes of Section 1.6011- 4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Code and shall be construed in a manner consistent with such purpose. In addition, each Party acknowledges that it has no proprietary or exclusive rights to the tax structure of the transaction or any tax matter or tax idea related to the transaction. 18.2.3 The Parties agree and acknowledge that each Party may promote the installation and use of the System by any means; provided, that neither Party shall identify the other by name (or in the case of the Host Customer, by location) without the consent of the other Party and the approval by such other Party of all written materials identifying such other Party. 18.3 Notices Any written notice, direction, instruction, request or other communication required or permitted under this Agreement shall be deemed to have been duly given on the date of receipt, and shall be delivered (a) personally to the Party to whom notice is to be given, (b) by electronic mail to the Party to whom notice is to be given (provided receiving Party issues an electronic mail receipt acknowledgment), (c) by a recognized overnight delivery service to the Party to whom notice is to be given, or (d) to the Party to whom notice is to be given, by first class registered or certified mail, return receipt requested, postage prepaid (with additional notice by regular mail), and addressed to the addressee at the address stated opposite its name below, or at the most recent address specified by written notice given to the other Party in the manner provided in this Section 18.3. If to System Owner: New Energy Equity, LLC 705 Melvin Ave., Suite 100 Annapolis, MD 21401 Attention: Matthew Hankey If to Host Customer: City of Columbia Heights 590 40th Ave. NE Columbia Heights, MN 55421 Attention: 18.4 Applicable Law and Jurisdiction; Waiver 18.4.1 This Agreement is made and shall be interpreted and enforced in accordance with the laws of Minnesota. The Parties hereby consent and submit to the personal jurisdiction of the courts of Minnesota. 18.5 Entire Agreement This Agreement and any documents expressly incorporated herein by reference shall constitute the entire Agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, understandings, representations, and statements, including any marketing materials and sales presentations whether oral or written. There are no agreements, understandings, or covenants between the Parties of any kind, expressed or implied, or otherwise, pertaining to the rights and obligations set forth herein that have not been set forth in this Agreement. 18.6 Amendments and Modifications No amendments or modifications of this Agreement shall be valid unless evidenced in writing and signed by duly authorized representatives of both Parties. 18.7 Invaliditv The invalidity or unenforceability, in whole or in part, of any portion or provision of this Agreement will not affect the validity and enforceability of any other portion or provision hereof. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain such invalid or unenforceable portion or provision. Notwithstanding the provisions of the preceding sentence, should any term or provision of this Agreement be found invalid or unenforceable, the Parties shall immediately renegotiate in good faith such term or provision of this Agreement to effectuate the same intent and to eliminate such invalidity or unenforceability. 18.8 Counterpart Execution This Agreement may be executed and delivered by the Parties in any number of counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. 18.9 Neutral Interpretation The Parties acknowledge that this is a negotiated Agreement and, in the event of any dispute over its meaning or application, this Agreement shall be interpreted fairly and reasonably and neither more strongly for, nor more strongly against, either Party. 18.10 Headings Any headings or captions contained in this Agreement are for reference purposes only and are in no way to be construed to interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. 18.11 No Waiver No waiver of any of the terms and conditions of this Agreement shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. Any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose given. The failure of a Party to insist, in any instance, on the strict performance of any of the terms and conditions hereof shall not be construed as a waiver of such Party's right in the future to insist on such strict performance. 18.12 Survival Any provisions that are necessary to give effect to the intent of the Parties hereunder after the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement. IN WITNESS WHEREOF, the duly authorized representatives of the Parties have each executed this Solar Energy Power Purchase and Sale Agreement, as of the Effective Date. New Energy uiy, L C By: ` t r Z am an It r.cr� +tw r Ajvv�+., City of COIUm i Heights By. O LIST OF EXHIBITS Exhibit PPA -A Description of Premises and Site Exhibit PPA -B System Description and Specifications Exhibit PPA -C Solar Electricity Price Exhibit PPA -D Sample Invoice and Electronic Fund Transfer Instructions Exhibit PPA -E Host Customer Safety Program Exhibit PPA -F Form of Notice of Installation Completion and Service Commencement Date EXHIBIT PPA -A Description of Premises and Sites Library Parcel Number 36- 30 -24 -33 -0148 located at 3939 Central Ave NE Columbia Heights, MN 55421. Public Safety Parcel Number 36- 30 -24 -13 -0100 located at 825 41 st Ave. NE Columbia Heights, MN 55421 Public Works Parcel Number 35- 30 -24 -43 -0008 located at 637 38th Ave. NE Columbia Heights, MN 55421. EXHIBIT PPA -B System Description and Specifications The Library system is a 135 kW roof mount installation comprised of approximately 483 solar modules. In this location and at this orientation, the system is expected to produce 158,000 kWh of electricity per yea r. I I I ..— rxa �i aunir:mES I��W�� m,— r-r-r- raTri � CLTi "I 7—!—j anti A—mrp rcr w%I iim-rN WI Y P I'KE- The Public Safety system is a 65 kW roof mount installation comprised of approximately 232 solar modules. In this location and at this orientation, the system is expected to produce 76,000 kWh of electricity per year. J- E! FF=T mom raz The Public Works system is a 85 kW roof mount installation comprised of approximately 452 solar modules. In this location and at this orientation, the system is expected to produce 99,000 kWh of electricity per year. I i L oa Ma 4 Exhibit PPA -C Solar Electricity Price Contract Year Energy Price ($ /kWh) 1 $ 0.1575 2 $ 0.1614 3 $ 0.1655 4 $ 0.1696 5 $ 0.1739 6 $ 0.1782 7 $ 0.1827 8 $ 0.1872 9 $ 0.1919 10 $ 0.1967 11 $ 0.2016 12 $ 0.2067 13 $ 0.2118 14 $ 0.2171 15 $ 0.2225 EXHIBIT PPA -D Sample Invoice and Electronic Funds Transfer Instructions NEW/ENERGY INVOICE EQUITY 705 Melvin Ave Ste 100 1 NVOICE NO. 007 -15 Annapolis MD 21401 DATE October6,2015 443 - 267 -5012 CUSTOMER ID XXX www. newenergyeguity. com TO Custome TBD SHIP TO Quantity Units DESCRIPTION Type Unit Price Amount 4357,05 kWh kWh electricity delivered Solar PV For additional deta its rega rding sola r generation during the month please visit www.solaros.datareadings.com and use the following username and password User: assword: SUBTOTAL SALES TAX TOTAL Remit by check payable to: New Energy Equity LLC 705 Melvin Ave Ste 100 Annapolis MD 21401 Attw Accounti ng THANK YOU FOR YOUR BUSINESS! EXHIBIT PPA -E Host Customer Safety Program To Be Added at Contract Execution EXHIBIT F Form of Notice of Installation Completion and Service Commencement Date New Energy Equity, LLC ( "System Owner ") hereby notifies City of Columbia Heights ( "Host Customer ") that pursuant to the Solar Photovoltaic System Power Purchase Agreement between the Parties dated , 2015 the System has been installed and tested successfully and is fully operational and is ready to produce Output to be delivered to Host Customer at the Delivery Point beginning , 2015, the Service Commencement Date. Invoicing calculations will be based on the following Meter readings recorded on the Service Commencement Date: Building Meter Reading (kWh) Upon receipt of this Notice of Installation Completion and Service Commencement Date please sign one of the duplicate originals of this notice and return one fully executed original to the undersigned. New Energy Equity, LLC [Date] City of Columbia Heights [Name & Title] [Date] SOLAR POWER PURCHASE AGREEMENT This SOLAR POWER PURCHASE AGREEMENT (this "Agreement ") is made and entered into as of November 17, 2015 (the "Effective Date ") by and between Apex Efficiency Solutions, SBC, a Minnesota special benefit corporation ( "Seller "), and the City of Columbia Heights, a municipality ( "Purchaser "). Each of Seller and Purchaser are sometimes referred to as a "Party" and collectively as the "Parties." RECITALS WHEREAS, Purchaser conducts its business at the Premises (defined below); WHEREAS, the Premises are owned by Purchaser (in its capacity as owner of the Premises, "Owner ") WHEREAS, Owner and Seller are parties to that certain System Site Lease Agreement dated of even date herewith (the "Site Lease "), pursuant to which Owner has leased to Seller that certain portion of the Premises referred to herein as the Project Site (as defined in the Site Lease) and granted to Seller certain easements on, over, and across the Premises for the installation, maintenance, and operation of the System (defined below); WHEREAS, Seller desires to install the System on the Project Site and sell the electricity generated by the System to Purchaser, on the terms set forth herein; and WHEREAS, Purchaser desires to purchase from Seller the electricity generated by the System on the terms set forth herein. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows: AGREEMENT 1. DEFINITIONS. Capitalized terms used herein shall have the respective meanings set forth in Exhibit A. 2. PURCHASE AND SALE OF ENERGY. 2.1 Sale of Energy. Seller shall sell to Purchaser and Purchaser shall purchase from Seller all of the Energy generated by the System, as and when the same is produced. Seller shall deliver the Energy to the Delivery Point, and Purchaser shall accept the Energy delivered for the full Delivery Term. 2.1.1 If, for any reason, Purchaser's electric requirements are less than the Energy produced by the System Purchaser shall nevertheless pay for all Energy as and when L•. produced by System pursuant to the terms of this Agreement. To the extent permitted by applicable law, Purchaser may deliver any excess Energy to Utility in accordance with the Net Metering Rules. 2.1.2 To the extent that Purchaser's electricity requirements exceed the Energy produced by the System, Purchaser shall purchase such excess electricity from Utility. Purchaser shall be responsible for all charges, applicable taxes, penalties, ratcheted demand or similar charges assessed by Utility for transmission and distribution service and other services necessary to meet the full energy requirements of Purchaser. 2.1.3 Purchaser shall be entitled to utilize the entire Energy output of the System; provided, however, that Seller shall not be required to deliver a minimum amount, or any other specific quantity, of Energy from the System. Anything herein to the contrary notwithstanding, there is no guarantee that Purchaser will realize any energy cost savings as result of this Agreement or the purchase of Energy from the System. 2.2 Contract Term; Delivery Term. This Agreement shall have a delivery term (the "Delivery Term ") of ten (10) years commencing on the Commercial Operation Date. The term of this Agreement (the "Contract Term ") shall commence on the Effective Date and shall end upon the expiration of the Delivery Term, unless terminated earlier in accordance with the terms of this Agreement. 2.3 Environmental Incentives. 2.3.1 Environmental Incentives. Seller shall have all right, title, and interest in and to all Environmental Incentives related to the System. Any Environmental Incentive related to the System that is initially credited or paid to Purchaser shall be assigned by Purchaser to Seller without delay. At Seller's expense, Purchaser agrees to cooperate with Seller in any applications for Environmental Incentives related to the System. 2.3.2 Impairment of Environmental Attributes and Incentives. Neither Party shall take any action or suffer any omission that would have the effect of impairing the value of the Environmental Attributes and Environmental Incentives. 2.3.3 Environmental Attributes. Seller shall have all right, title, and interest in and to all Environmental Attributes related to the System. At Seller's expense, Purchaser agrees to cooperate with Seller in any applications for Environmental Attributes related to the System. 3. THE SYSTEM. 3.1 Installation, Operation, and Maintenance of the System. Seller shall be responsible for the installation, operation, and maintenance of the System in a manner consistent with Prudent Operating Practice. If the supply of Energy from the System is PPA 2 interrupted as a result of malfunction or other shutdown, Seller shall use commercially reasonable efforts to remedy such interruption. Both Parties shall comply with all applicable laws and regulations relating to the operation of the System and the generation and sale of Energy, including obtaining and maintaining in effect all relevant approvals and permits. 3.2 Maintenance of Health and Safety. Seller shall take all reasonable safety precautions with respect to the operation, maintenance, repair, and replacement of the System and shall comply with all applicable health and safety laws, rules, regulations, and permit requirements. If Seller becomes aware of any circumstances relating to the Premises or the System that creates an imminent risk of damage or injury to any Person or any Person's property (and, should Purchaser become aware of such circumstances, Purchaser shall promptly notify Seller with respect thereto), Seller shall take prompt action to prevent such damage or injury and shall promptly notify Purchaser. Such action may include disconnecting and removing all or a portion of the System, or suspending the supply of Energy to Purchaser. 3.3 Assistance with Permits and Licenses. Upon Seller's request, Purchaser shall assist and cooperate with Seller, to acquire and maintain approvals, permits, and authorizations or to facilitate Seller's compliance with all applicable laws and regulations related to the construction, installation, operation, maintenance, and repair of the System, including providing any building owner or occupant authorizations, signing and processing any applications for permits, local utility grid interconnection applications, and rebate applications as are required by law to be signed by Purchaser. Purchaser shall also deliver to Seller copies of any necessary approvals, permits, rebates, or other financial incentives that are required by law in the name or physical control of Purchaser. 3.4 Commercial Operation Date. Seller shall notify Purchaser of the occurrence of the Commercial Operation Date. 3.5 Early Termination. In the event that the Notice to Proceed Date has not occurred within one (1) year following the Effective Date, either Party may terminate this Agreement upon thirty (30) days' written notice to the other party delivered at any time prior to the actual Notice to Proceed Date; provided, however, that the foregoing date shall be extended on a day- for -day basis for any Force Majeure occurring after the Effective Date and prior to the Notice to Proceed Date. Seller shall refund to Purchaser the first installment of the Prepayment Amount (if already paid by Purchaser) within one hundred eighty (180) days of an early termination under this Section. 3.6 Seller's Taxes. Subject to Section 3.7, Seller is solely responsible for all income, gross receipts, ad valorem, personal property, or other similar taxes and any and all franchise fees or similar fees relating to Seller's ownership of the System. 3.7 Purchaser's Taxes. Purchaser is responsible for paying timely all taxes, charges, levies, and assessments against the Premises. Purchaser is also responsible for paying all sales, use, and other taxes, and any and all franchise fees or similar fees assessed against Purchaser as a result of Purchaser's purchase of the Energy and, in the event that Purchaser exercises the PPA 3 Purchase Option, its purchase and ownership of the System, which fees are not otherwise the obligation of Seller. 3.8 Notice of Damage. Purchaser shall promptly notify Seller of any physical conditions or other circumstances of which Purchaser becomes aware that indicate there has been or might be damage to or loss of the use of the System or that could reasonably be expected to adversely affect the System. 4. PAYMENT AND METERING. 4.1 Consideration for Energy Delivered. As consideration for the delivery of Energy by Seller, Purchaser shall pay the following amounts: 4.2 Payments for Energy delivered under this Agreement shall be made at the applicable Energy Price. 4.3 Invoicing. Seller shall invoice Purchaser for payments as they become due for Energy on a monthly basis. Seller shall deliver each invoice within thirty (30) Business Days after the end of each billing period. Each invoice shall set out the amount of Energy delivered in kWh during such billing period, the then - applicable Energy Price, and the total amount then due to Seller. The amount due shall be prorated for any partial billing period during the Contract Term. Such invoice shall include sufficient details so that Purchaser can reasonably confirm the accuracy of the invoice including, among other details, beginning and ending meter readings. Purchaser shall pay the amount due to Seller within thirty (30) days after receipt of each invoice. A processing charge may be applied to any payments not made by automated funds transfer. 4.4 Disputed Amounts. A Party may in good faith dispute the correctness of any invoice (or any adjustment to any invoice) under this Agreement at any time within thirty (30) days following the delivery of the invoice (or invoice adjustment). In the event that either Party disputes any invoice or invoice adjustment, such Party shall nonetheless pay the full amount of the applicable invoice or invoice adjustment (except any portions thereof that are reasonably believed to be inaccurate or are not reasonably supported by documentation, payment of which amounts may be withheld subject to adjustment as hereinafter set forth) on the applicable payment due date, except as expressly provided otherwise elsewhere in this Agreement, and to give written notice of the objection to the other Party. Any required payment will be made within five (5) Business Days after resolution of the applicable dispute, together with interest accrued at the Interest Rate from the due date to the date paid. 4.5 Metering of Delivery. Seller shall measure the amount of Energy supplied to Purchaser at the Delivery Point using a commercially available, revenue -grade metering system. Such meter shall be installed and maintained at Seller's cost. Purchaser shall cooperate with Seller to enable Seller to have reasonable access to the meter as needed to inspect, repair, and maintain such meter. At Seller's option, the meter may have standard industry telemetry and /or automated meter reading capabilities to allow Seller to read the meter remotely. If PPA 4 Seller elects to install telemetry allowing for remote reading, Purchaser shall allow for the installation of necessary communication lines and shall reasonably cooperate in providing access for such installation. 4.6 Meter Verification. On each of the fifth, tenth and fifteenth anniversary of the Commercial Operation Date, or earlier upon Purchaser's reasonable request, Seller shall test the meter and provide copies of any related test results to Purchaser. The tests shall be conducted by a qualified independent third party. Seller shall notify Purchaser seven (7) days in advance of each such test, and shall permit Purchaser to be present during such tests. If a meter is inaccurate, Seller shall promptly cause the meter to be repaired or replaced. If a meter is accurate or inaccurate by two percent (2 %) or less, then Purchaser shall pay the costs of the meter testing. If a meter is inaccurate by more than two percent (2 %), then Seller shall pay for the costs of the meter testing. If a meter is inaccurate by more than two percent (2 %) and the duration of such inaccuracy is known, then prior invoices shall be adjusted accordingly and any amounts owed to Purchaser shall be credited against future invoices for Energy deliveries. If a meter is inaccurate by more than two percent (2 %) and it is not known when the meter inaccuracy commenced, then prior invoices shall be adjusted for the amount of the inaccuracy on the basis that the inaccuracy persisted during the twelve month period preceding the test and any amounts owed to Purchaser shall be credited against future invoices for Energy deliveries. 4.7 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years, and Seller shall grant Purchaser reasonable access to those books, records, and data at the principal place of business of Seller. Purchaser may examine such books and records relating to transactions under, and administration of, this Agreement, at any time during the period the records are required to be maintained, upon request with reasonable notice and during normal business hours. 5. OPTION TO PURCHASE SYSTEM; END OF TERM. 5.1 Grant of Purchase Option. Seller hereby grants to Purchaser the right and option to purchase all of the Seller's right, title, and interest in and to the System on the terms set forth herein ( "Purchase Option "). Purchaser may exercise the Purchase Option simultaneously with the termination of this Agreement pursuant to Section 10.2 (the "Purchase Option Date "), provided that no Purchaser Event of Default, or any event which with the passage of time will become a Purchaser Event of Default, has then occurred and is ongoing. 5.2 Determination of Purchase Price. If Purchaser wishes to exercise the Purchase Option, it shall deliver an exercise notice to Seller within thirty (30) days of the Purchase Option Date (the "Exercise Period "). Any such exercise notice shall be irrevocable once delivered. The Purchase Price for the System shall be the fair market value ( "FMV "). FMV shall be determined PPA 5 by an independent appraiser hired by Seller to estimate the value of a comparable in- service system. 5.3 Terms and Date of System Purchase. The Parties shall consummate the sale of the System to Purchaser no later than forty -five (45) days following Purchaser's exercise of the Purchase Option. On the effective date of such sale (the "Transfer Date ") (a) Seller shall surrender and transfer to Purchaser all of Seller's right, title, and interest in and to the System and shall retain all liabilities, and profits arising from or relating to the System that arose prior to the Transfer Date; (b) Purchaser shall pay the Purchase Price to Seller in readily available funds, and shall assume all liabilities arising from or relating to the System as of and after the Transfer Date; (c) Purchaser shall pay all amounts due under this Agreement for Energy delivered hereunder; and (d) both the Seller and the Purchaser shall (i) execute and deliver a bill of sale and assignment of contract rights, together with such other conveyance and transaction documents as are reasonably required to fully transfer and vest title to the System in Purchaser, and (ii) deliver ancillary documents, including releases, resolutions, certificates, third -party consents and approvals, and such similar documents as may be reasonably necessary to complete and conclude the sale of the System to Purchaser. The purchase and sale of the System shall be on an "as -is, where -is" basis, and Seller shall not be required to make any warranties or representations with regard to the System, but Seller shall, to the extent reasonably possible, transfer or assign to Purchaser all manufacturer and third -party warranties with respect to the System or any part thereof. Purchaser shall pay all transaction and closing costs associated with exercise of the Purchase Option. 5.4 End of Term. In the event Purchaser declines to exercise its Purchase Option in connection with the final Purchase Option during the Contract Term, then, at least thirty (30) days before the expiration of the Contract Term, the Parties shall use commercially reasonable efforts to negotiate and document an extension of the Contract Term. In the event the Parties fail to reach agreement regarding such an extension, then Seller shall, within one hundred eighty (180) days after the date of expiration of the Contract Term, remove the System from the Premises. Other than as specifically provided otherwise herein or in the Site Lease, the removal of the System shall be at the cost of Seller. 6. TITLE AND RISK OF LOSS. 6.1 Title. Seller shall at all times retain title to and be the legal and beneficial owner of the System, and the System shall remain the personal property of Seller and shall not attach to or be deemed a part or fixture of the Premises. Seller may file one or more precautionary financing statements in jurisdictions it deems appropriate with respect to the System in order to protect its rights in the System. 6.2 Risk of Loss. Seller shall bear the risk of loss for the System, except to the extent caused by the breach by Purchaser of its obligations under this Agreement, the Site Lease or the negligence or intentional misconduct of Purchaser or its invitees. PPA 6 6.3 System Casualty. Upon the total damage, destruction, or loss of the System, or, in the reasonable opinion of Seller's insurance provider, the System is determined to have experienced a constructive total loss, Seller shall have the option, in its sole discretion, to repair or replace the System or terminate this Agreement. Seller shall notify Purchaser in writing of its election within thirty (30) days after the date of the damage to the System. Seller shall under all circumstances be entitled to all insurance proceeds with respect to the System. If Seller elects to repair or replace the System, Seller shall undertake such repair or replacement as quickly as practicable. If Seller elects to terminate this Agreement, the termination shall be effective immediately upon delivery of the notice under this Section 6.3. 7. FORCE MAJEURE. 7.1 Force Maieure. To the extent either Party is prevented by an event of Force Majeure from performing its obligations under this Agreement, such Party shall be excused from the performance of its obligations under this Agreement (other than the obligation to make payments when due). The Party claiming Force Majeure shall use commercially reasonable efforts to eliminate or avoid the Force Majeure and resume performing its obligations; provided, however, that neither Party is required to settle any strikes, lockouts or similar disputes except on terms acceptable to such Party, in its sole discretion. The non - non- claiming Party shall not be required to perform or resume performance of its obligations to the claiming Party corresponding to the obligations of the claiming Party excused by Force Majeure. 7.2 Notice. In the event of any delay or nonperformance resulting from an event of Force Majeure, the Party suffering the event of Force Majeure shall, as soon as practicable, notify the other Party in writing of the nature, cause, date of commencement thereof and the anticipated extent of any delay or interruption in performance; provided, however, that a Party's failure to give timely notice shall not affect such Party's ability to assert Force Majeure unless the delay in giving notice prejudices the other Party. 8. ADDITIONAL COVENANTS. 8.1 Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien (including mechanics', labor or materialman's lien), charge, security interest, encumbrance or claim on or with respect to the System or any portion thereof. If Purchaser breaches it obligations under this Section 8.1, it shall promptly notify Seller in writing, shall promptly cause any lien to be discharged and released of record without cost to Seller, and shall indemnify Seller against all claims, losses, costs, damages, and expenses, including reasonable attorneys' fees, incurred in discharging and releasing such lien. 8.2 Additional Purchaser Financial Information. If requested by Seller, Purchaser shall deliver (i) within one hundred eighty (180) days following the end of each fiscal year, a copy of Purchaser's annual report containing audited consolidated financial statements with footnotes for such fiscal year. Such financial statements shall be for the most recent accounting period and prepared in accordance with generally accepted accounting principles consistently PPA 7 applied; provided, however, that if any such financial statements are not available on a timely basis due to a delay in preparation or certification, such delay shall not be deemed a Purchaser Event of Default so long as Purchaser diligently pursues the preparation, certification and delivery of the statements. 9. REPRESENTATIONS AND WARRANTIES. 9.1 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller that: 9.1.1 Purchaser has the requisite capacity to enter into this Agreement and fulfill its obligations hereunder, that the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite action of its governing body, and that, subject to compliance with and obtaining all required governmental approvals under any applicable regulatory laws or regulations governing the sale or delivery of Energy, the entering into of this Agreement and the fulfillment of its obligations hereunder does not contravene any law, statute or contractual obligation of Purchaser; 9.1.2 This Agreement constitutes Purchaser's legal, valid and binding obligation enforceable against it 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; 9.1.3 No suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against the Purchaser that would have a material adverse effect on the validity or enforceability of this Agreement or the ability of Purchaser to fulfill its commitments hereunder, or that could result in any material adverse change in the business or financial condition of Purchaser; 9.1.4 No governmental approval (other than any governmental approvals which have been previously obtained) is required in connection with the due authorization, execution and delivery of this Agreement by Purchaser or the performance by Purchaser of its obligations hereunder which Purchaser will be unable to obtain in due course; and 9.2 Representations and Warranties of Seller. Seller represents and warrants to Purchaser that: 9.2.1 Seller has the requisite corporate, partnership or limited liability company capacity to enter into this Agreement and fulfill its obligations hereunder, that the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite action of its stockholders, partners or members, and by its board of directors or other governing body, and that, subject to compliance with and obtaining all required governmental approvals under any applicable regulatory laws or regulations governing the sale or delivery of Energy, the entering into of this PPA 8 Agreement and the fulfillment of its obligations hereunder does not contravene any law, statute or contractual obligation of Seller; 9.2.2 This Agreement constitutes Seller's legal, valid and binding obligation enforceable against it 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; 9.2.3 No suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against the Seller that would have a material adverse effect on the validity or enforceability of this Agreement or the ability of Seller to fulfill its commitments hereunder, or that could result in any material adverse change in the business or financial condition of Seller; and 9.2.4 Neither the System nor any of Seller's services provided to Purchaser pursuant to this Agreement infringe on any third party's intellectual property or other proprietary rights. 10. DEFAULTS /REMEDIES. 10.1 Seller Event of Default. Each of the following events shall constitute a "Seller Event of Default ": 10.1.1 Seller fails to pay to Purchaser any amount when due under this Agreement and such breach remains uncured for ten (10) Business Days following notice of such breach to Seller; 10.1.2 (i) Seller commences a voluntary case under any bankruptcy law; (ii) Seller fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against Seller in an involuntary case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against Seller remains undismissed or undischarged for a period of sixty (60) days; and 10.1.3 Seller materially breaches any other term of this Agreement and (i) if such breach is capable of being cured within thirty (30) days after Purchaser's notice to Seller of such breach, Seller has failed to cure the breach within such thirty (30) day period, or (ii) if Seller has diligently commenced work to cure such breach during such thirty (30) day period but such breach is not capable of cure within such period, Seller has failed to cure the breach within a further one hundred fifty (150) day period (such aggregate period not to exceed one hundred eighty (180) days from the date of Purchaser's notice). 10.2 Purchaser's Remedies. If a Seller Event of Default has occurred and is continuing, Purchaser may terminate this Agreement by written notice to Seller following the expiration of the applicable cure period, and may exercise any other remedy it may have at law or equity, including, exercising the Purchase Option. PPA 9 10.3 Purchaser Event of Default. Each of the following events shall constitute a "Purchaser Event of Default ": 10.3.1 Purchaser fails to pay to Seller any amount when due under this Agreement and such breach remains uncured for thirty (30) Business Days following notice of such breach to Purchaser; 10.3.2 (i) Purchaser commences a voluntary case under any bankruptcy law; (ii) Purchaser fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against Purchaser in an involuntary case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against Purchaser remains undismissed or undischarged for a period of sixty (60) days; 10.3.3 Owner breaches any of its obligations under the Site Lease; 10.3.4 Purchaser breaches any of its obligations under Section 2.3.4; 10.3.5 Purchaser ceases to conduct business at the Premises; 10.3.6 Purchaser (i) refuses to execute any document required for Seller to obtain any Environmental Incentives related to the System, or (ii) causes any material change to the condition of the Premises that has a material adverse effect on the System; and 10.3.7 Purchaser materially breaches any other term of this Agreement and such breach remains uncured for thirty (30) days following notice of such breach to Purchaser, or such longer cure period as may be agreed to by the Parties. 10.4 Seller's Remedies. If a Purchaser Event of Default has occurred and is continuing, Seller may terminate this Agreement by written notice to Purchaser following the expiration of the applicable cure period. Seller may also exercise any other remedy it may have at law or equity, including recovering from Purchaser all resulting damages, which damages shall include, but not be limited to, projected payments for Energy generated for the remainder of the Contract Term; the cost of removing the System from the Premises; any loss or damage to Seller due to lost or recaptured Environmental Incentives, and the recapture of the investment tax credit under Section 48 of the Internal Revenue Code, the grant in lieu of tax credits pursuant to Section 1603 of Division B of the American Recovery and Reinvestment Act of 2009, and accelerated depreciation for the System; and all other amounts of any nature due under this Agreement (collectively, the "PPA Damages "). Pending Purchaser's payment of the PPA Damages, Seller may remain on the Premises and sell Energy produced by the System to any third party. 10.5 Waiver of Consequential Damages. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE PARTIES AGREE THAT TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, PPA 10 MULTIPLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSS OR INTERRUPTION OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE SYSTEM OR THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PPA DAMAGES SHALL NOT BE CONSIDERED CONSEQUENTIAL DAMAGES AND SHALL NOT BE SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION. 10.6 Limitation of Liability. SELLER'S MAXIMUM LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000.00). 11. NOTICES. Any notice required, permitted, or contemplated hereunder shall be in writing and addressed to the Party to be notified at the address set forth below or at such other address or addresses as a Party may designate for itself from time to time by notice hereunder. Such notices may be sent by personal delivery or recognized overnight courier, and shall be deemed effective upon receipt. To Seller: Apex Efficiency Solutions, SBC 403 Jackson, St, Suite 308 Anoka, MN 55303 Attention: Mark Rasmussen Phone: 763 - 201 -8952 To Purchaser: City of Columbia Heights 590 40th Ave NE Columbia Heights, MN 55421 Attention: City Manager Phone: 763.706 -3600 12. GOVERNING LAW; VENUE. 12.1 Choice of Law. This Agreement shall be construed in accordance with the laws of the State of Minnesota, without regard to its conflict of laws principles. 12.2 VENUE. PURCHASER AND SELLER EACH HEREBY IRREVOCABLY SUBMITS IN ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN STEARNS COUNTY, MINNESOTA AND WAIVES ANY AND ALL OBJECTIONS TO JURISDICTION THAT IT MAY HAVE UNDER THE LAWS OF THE UNITED STATES OR OF ANY STATE. PURCHASER AND SELLER EACH WAIVE ANY OBJECTION THAT IT MAY HAVE (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON FORUM NON CONVENIENS) TO THE LOCATION OF THE COURT IN WHICH ANY PROCEEDING IS COMMENCED. PPA 1 I 13. INDEMNIFICATION. 13.1 Seller's Indemnity to Purchaser. Seller shall indemnify, defend, and hold harmless Purchaser (including Purchaser's permitted successors and assigns) and Purchaser's subsidiaries, directors, officers, members, shareholders, employees and agents (collectively, "Purchaser Indemnified Parties ") from and against any and all third -party claims, losses, costs, damages, and expenses, including reasonable attorneys' fees, incurred by Purchaser Indemnified Parties arising from or relating to (i) Seller's breach of this Agreement, or (ii) Seller's negligence or willful misconduct. Seller's indemnification obligations under this Section 14.1 shall not extend to any claim to the extent such claim is due to the gross negligence, sole negligence, or willful misconduct of any Purchaser Indemnified Party. 13.2 Purchaser's Indemnity to Seller. Purchaser shall indemnify, defend, and hold harmless Seller (including Seller's permitted successors and assigns) and Seller's subsidiaries, directors, officers, members, shareholders, employees and agents (collectively, "Seller Indemnified Parties ") from and against any and all third -party claims, losses, costs, damages, and expenses, including reasonable attorneys' fees, incurred by Seller Indemnified Parties arising from or relating to (i) Purchaser's breach of this Agreement, or (ii) Purchaser's negligence or willful misconduct. Purchaser's indemnification obligations under this Section 14.2 shall not extend to any claim to the extent such claim is due to the gross negligence, sole negligence, or willful misconduct of any Seller Indemnified Party. 14. INSURANCE. 14.1 Insurance Required. Each Party shall maintain in full force and effect throughout the Contract Term, with insurers of recognized responsibility authorized to do business in the State in which the System will be located, assigned an A.M. Best rating of no less than A- IX, insurance coverage in the amounts and types set forth on Exhibit C. Each policy of insurance maintained by Purchaser shall (a) name Seller as loss payee (to the extent covering risk of loss or damage to the Premises or the System) and as an additional named insured as its interests may appear (to the extent covering any other risk); and (b) contain endorsements providing that such policy shall not be cancelled or amended with respect to the named insured and its designees without thirty (30) days' prior written notice to Seller. Each Party shall, within ten (10) days of written request therefor, furnish current certificates of insurance to the other Party evidencing the insurance required hereunder. 14.2 Waiver of Subrogation. Each policy of insurance required hereunder shall provide for a waiver of subrogation rights against the other Party, and of any right of the insurers to any set -off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of that policy. 14.3 No Waiver of Obligations. The provisions of this Agreement shall not be construed in a manner so as to relieve any insurer of its obligations to pay any insurance proceeds in accordance with the terms and conditions of valid and collectable insurance policies. The liabilities of the Parties to one another shall not be limited by insurance. PPA 12 15. MISCELLANEOUS. 15.1 Assignments. Neither Party shall have the right to assign any of its rights, duties, or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. The foregoing notwithstanding, Seller may assign any of its rights, duties, or obligations under this Agreement, without the consent of Purchaser, (i) to any of its Affiliates, (ii) to any third party in connection with a financing transaction, or (iii) to any purchaser of the System. 15.2 Entire Agreement. This Agreement and the Site Lease represent the full and complete agreement between the Parties hereto with respect to the subject matter contained herein and supersedes all prior written or oral agreements between the Parties with respect to the subject matter hereof. 15.3 Amendments. This Agreement may only be amended, modified, or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Purchaser. 15.4 No Partnership or Joint Venture. Seller and Seller's agents, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of Purchaser. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement). 15.5 Headings; Exhibits. The headings in this Agreement are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Agreement. Any Exhibits referenced within and attached to this Agreement, including any attachments to the Exhibits, shall be a part of this Agreement and are incorporate by reference herein. 15.6 Remedies Cumulative; Attorneys' Fees. No remedy herein conferred upon or reserved to any Party shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. If any action, arbitration, judicial reference, or other proceeding is instituted between the Parties in connection with this Agreement, the losing Party shall pay to the prevailing Party a reasonable sum for attorneys' and experts' fees and costs incurred in bringing or defending such action or proceeding (at trial and on appeal) and /or enforcing any judgment granted therein. 15.7 Waiver. The waiver by either Party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein. Any such waiver must be in a writing executed by the Party making such waiver. PPA 13 15.8 Severability. If any part, term, or provisions of this Agreement is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect or impair the validity, legality, or enforceability of any other part, term, or provision of this Agreement and shall not render this Agreement unenforceable as a whole. Instead, the part of the Agreement found to be invalid, unenforceable, or illegal shall be amended, modified, or interpreted to the extent possible to most closely achieve the intent of the Parties and in the manner closest to the stricken provision. 15.9 No Public Utility. Nothing contained in this Agreement shall be construed as an intent by Seller to dedicate the System to public use or subject itself to regulation as a "public utility' (as such term may be defined under any applicable law). 15.10 Service Contract. The Parties acknowledge and agree that, for accounting and tax purposes, this Agreement is not and shall not be construed as a capital lease and, pursuant to Section 7701(e)(3) of the Internal Revenue Code, this Agreement is and shall be deemed to be a service contract for the sale to Purchaser of energy produced at an alternative energy facility. 15.11 Forward Contract. The Parties acknowledge and agree that the transaction contemplated under this Agreement constitutes a "forward contract" within the meaning of the United States Bankruptcy Code, and the Parties further acknowledge and agree that each Party is a "forward contract merchant" within the meaning of the United States Bankruptcy Code. 15.12 Publicity. The Parties agree that each may, from time to time, issue press releases regarding the System, provided, however that neither Party shall issue a press release regarding the System without the prior consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Parties shall cooperate with each other in connection with the issuance of such press releases. Purchaser shall not make claims which are not consistent with Section 2.3. 15.13 Counterparts and Facsimile Signatures. This Agreement may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or portable document format ( ".PDF ") signatures shall have the same effect as original signatures, and each Party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any court or arbitration proceedings between the Parties. 15.14 Further Assurances 15.14.1 Additional Documents. Upon the receipt of a written request from the other Party, each Party shall execute such additional documents, instruments, and assurances and take such additional actions as are reasonably necessary and desirable to carry out the terms and intent hereof. Neither Party shall unreasonably withhold, condition, or delay its compliance with any reasonable request made pursuant to this section. PPA 14 15.14.2 Certificates. From time to time, Purchaser shall provide within five (5) Business Days after receipt of a written request from Seller (i) a lien waiver from any party purporting to have a lien, security interest, or other encumbrance on the Premises, confirming that it has no interest in the System, or (ii) an estoppel certificate attesting, to the knowledge of Purchaser, of Seller's compliance with the terms of this Agreement or detailing any known issues of noncompliance, and making such other representations, warranties, and accommodations reasonably requested by the recipient of the estoppel certificate. [SIGNATURE PAGES FOLLOW] PPA 15 IN WITNESS WHEREOF, the Parties have caused this Power Purchase Agreement to be duly executed and delivered as of the Effective Date. SELLER APEX EFFICIENCY SOLUTIONS, SBC By: Nam reg Ackerson Title: C.E.O. PPA 16 PURCHASER CITY OF COLUMBIA HEIGHTS By: Name: Title: % EXHIBIT PPA -A DEFINITIONS "Affiliate" means, with respect to any person or entity, any other person or entity controlling, controlled by or under common control with such first person or entity. For purposes of this definition and this Agreement, the term "control" (and correlative terms) means the right and power, directly or indirectly through one or more intermediaries, to direct or cause the direction of substantially all of the management and policies of a person or entity through ownership of voting securities or by contract, including, but not limited to, the right to fifty percent (50 %) or more of the capital or profits of a partnership or, alternatively, ownership of fifty percent (50 %) or more of the voting stock of a corporation. "Agreement" has the meaning set forth in the Preamble. "Annual Prepaid Energy" has the meaning set forth in Section 4.1.1. "Annual Production Estimate" means, for any Contract Year, the applicable amount set forth on Exhibit F. "Business Day" means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. "Commercial Operation Date" means the date when the first of the solar energy generating systems comprising the System is "placed in service" for purposes of Section 48 of the Internal Revenue Code. "Confidential Information" has the meaning set forth in Section 16.1. "Contract Term" has the meaning set forth in Section 2.2. "Contract Year" means the twelve (12) month period commencing on the Commercial Operation Date, and each consecutive twelve (12) month period thereafter during the Delivery Term. "Delivery Point" means the point of interconnection between the System and the Premises' internal electrical system. "Delivery Term" has the meaning set forth in Section 2.2. "Effective Date" has the meaning set forth in the Preamble. "Energy" means electrical energy that is generated by the System, expressed in kWh. (PPA -A - 1) "Energy Price" means, for any Contract Year, the applicable amount set forth on Exhibit M "Environmental Attributes" means any and all environmental benefits, air quality credits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to energy generation by a renewable fuel source and its displacement of energy generation by conventional, nonrenewable, and /or carbon -based fuel sources. Environmental Attributes include, but are not limited to, (1) any benefit accruing from the renewable nature of the generation's motive source; (2) any avoided emissions of pollutants to the air, soil, or water (such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO), and other pollutants other than those that are regulated pursuant to state or federal law); (3) any avoided emissions of carbon dioxide (CO2), methane (CH4), and other greenhouse gases that have been determined by the United Nations Intergovernmental Panel on Climate Change to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere; (4) any property rights that may exist with respect to the foregoing attributes howsoever entitled; (5) any green tags, renewable energy credits or similar credits, including RECs created pursuant to applicable law ( "RECs "); and (6) any reporting rights to these avoided emissions, including, but not limited to, green tag or REC reporting rights. Environmental Attributes do not include (i) any energy, capacity, reliability, or other power attributes, (ii) Environmental Incentives, or (iii) emission reduction credits encumbered or used for compliance with local, state, or federal operating and /or air quality permits. "Environmental Incentives" means any and all financial incentives, from whatever source, related to the construction, ownership, or operation of the System. Environmental Incentives include, but are not limited to, (i) federal, state, or local tax credits; (ii) any other financial incentives in the form of credits, reductions, or allowances that are applicable to a local, state, or federal income taxation obligation; and (iii) other grants, rebates, or subsidies, including utility incentive programs. Environmental Incentives do not include Environmental Attributes. "Exercise Period" has the meaning set forth in Section 5.2. "FMV" has the meaning set forth in Section 5.2. "Financing Party" has the meaning set forth in Section 11.1. "Force Maieure" means any act or event that delays or prevents a Party from timely performing obligations under this Agreement or from complying with conditions required under this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided by, and is beyond the reasonable control of and without the fault or negligence of, the Party relying thereon as justification for such delay, nonperformance, or noncompliance, which includes, without limitation, an act of God or the elements, site conditions, extreme or severe weather conditions, explosion, fire, epidemic, landslide, mudslide, sabotage, terrorism, lightning, earthquake, flood, volcanic eruption or similar cataclysmic event, an act of public enemy, war, blockade, civil insurrection, riot, civil disturbance, or strike or other labor difficulty (PPA -A - 2) caused or suffered by a Party or any third party beyond the reasonable control of such Party. However, financial cost alone or as the principal factor shall not constitute grounds for a claim of Force Majeure. "Governmental Authorities" means any national, state, regional, municipal or local government, any political subdivision thereof, or any governmental, quasi- governmental, regulatory, judicial or administrative agency, authority, commission, board or similar entity having jurisdiction over the System or its operations, the Premises, the Project Site or otherwise over any Party. "Independent Appraiser" has the meaning set forth in Section 5.2. "Interest Rate" means an annual rate equal to the lesser of (a) twelve (12) percent and (b) the highest interest rate permitted by applicable law. "kWh" means kilowatt- hours. "Net Metering Rules" means the rules established pursuant Minn. Stat. § 21613.164. "Notice to Proceed Date" means the date on which physical work of a significant nature relating to the installation of the System on the Project Site commences. "Owner" has the meaning set forth in the Preamble. "Party" and "Parties" have the meanings set forth in the Preamble. "Person" means any individual, corporation (including, without limitation, any non - stock or non - profit corporation), limited liability company, partnership, joint venture, association, joint -stock company, trust, unincorporated organization, or governmental body. "PPA Damages" has the meaning set forth in Section 10.4. "Premises" has the meaning set forth in the Site Lease. "Prepaid Credit" has the meaning set forth in Section 4.1.1(b). "Prepayment Amount" has the meaning set forth in Section 4.2. "Project Site" means has the meaning set forth in the Site Lease. "Prudent Operating Practice" means the practices, methods, and standards of professional care, skill, and diligence engaged in or approved by a significant portion of the electric power industry for solar energy facilities of similar size, type, and design as the System that, in the exercise of reasonable judgment, in light of the facts known at the time, would have been expected to accomplish results consistent with applicable law, reliability, safety, environmental protection, applicable codes, and standards of economy and expedition. (PPA -A - 3) "Purchase Option" has the meaning set forth in Section 5.1. "Purchase Price" has the meaning set forth in Section 5.2. "Purchase Option Date" has the meaning set forth in Section 5.1. "Purchaser" has the meaning set forth in the Preamble. "Purchaser Event of Default" has the meaning set forth in Section 10.3. "Purchaser Indemnified Parties" has the meaning set forth in Section 14.1. "Seller" has the meaning set forth in the Preamble. "Seller Event of Default" has the meaning set forth in Section 10.1. "Seller Indemnified Parties" has the meaning set forth in Section 14.2. "Site Lease" has the meaning set forth in the Recitals. "System" means the solar energy generating systems described in Exhibit B. "Transfer Date" has the meaning set forth in Section 5.3. "Utility" means the Purchaser's electrical utility company. (PPA -A - 4) EXHIBIT PPA -B DESCRIPTION OF THE SYSTEM • 39.7 kW Roof mounted - fixed solar array at TopValu I (PPA -B - 1) EXHIBIT PPA -C INSURANCE REQUIREMENTS Insurance requirements shall be as set forth in the Site Lease. (PPA -C — 1) EXHIBIT PPA -D ENERGY PRICE Contract Year I Energy Price ($ /kWh) 1 $0.220 2 $0.223 3 $0.227 4 $0.230 5 $0.233 6 $0.237 7 $0.241 8 $0.244 9 $0.248 10 $0.252 (PPA -D — 1) EXHIBIT PPA -E Annual Production Estimate Contract Year Annual Production Estimate (kWh) 1 48,917 2 48,673 3 48,429 4 48,187 5 47,946 6 47,706 7 47,468 8 47,230 9 46,994 10 46,759 (PPA -E — 1) Rooftop Lease Agreement November 17, 2015 SYSTEM SITE LEASE AGREEMENT This SYSTEM SITE LEASE AGREEMENT (this "Agreement ") is made and entered into as of September 15, 2015 (the "Effective Date") by and between Apex Efficiency Solutions, SBC, a Minnesota special benefit corporation ( "Lessee "), and The City of Columbia Heights, a municipality ( "Lessor "). Each of Lessor and Lessee are sometimes referred to as a "Party" and collectively as the "Parties." WHEREAS, Lessor is the owner of certain real property located in multiple locations in Minnesota, together with certain improvements, buildings, and other structures, as more particularly described on Exhibit RLA 1 attached hereto (the "Premises ") and which includes the areas on which the System will be installed at the locations described on Exhibit RLA 1 (the "Protect Site "); WHEREAS, Lessee is the developer, owner, and operator of photovoltaic solar energy generation equipment and facilities; WHEREAS, Lessee (as Seller) and Lessor (in this capacity, "Purchaser ") are parties to that certain Solar Power Purchase Agreement dated of even date herewith (the "PPA "), pursuant to which Lessee has agreed to sell to Purchaser, and Purchaser has agreed to purchase from Lessee, all of the electrical energy produced by the Systems (as defined in the PPA) to be installed and operated on the Premises by Lessee; and WHEREAS, as a condition to entering into the PPA, Lessee requires Lessor to enter this Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree as follows: AGREEMENT 1. DEFINITIONS. Capitalized terms used but not defined herein shall have the meanings assigned to them in the PPA. 2. LEASE. 2.1 Lease. Lessor hereby leases the Project Site to Lessee in accordance with the terms and conditions and for the purposes set forth herein. The Parties intend that this lease Rooftop Lease Agreement create a valid and present interest in the Project Site in favor of Lessee. Therefore, this Agreement is an interest in and encumbrance upon the Project Site which shall run with the land and shall be binding upon the Project Site and Lessor and its successors and assigns for the benefit of Lessee and its successors and assigns. 2.2 Term. The term of this Agreement (the "Term ") shall begin on Effective Date and shall end ten (10) years after the Commercial Operation Date (as defined in the PPA); provided that this Agreement shall automatically terminate (i) upon the termination or expiration of the PPA for a reason other than termination by Lessee following an Event of Default by Purchaser or Lessor in its capacity as Purchaser under the PPA, and (ii) in the case of termination by Lessee following an Event of Default by Purchaser or Lessor in its capacity as Purchaser under the PPA, following the payment of PPA Damages (as defined in the PPA) to Lessee. 2.3 Payment to Lessor. Lessee shall pay to Lessor as rent the one -time sum of one hundred dollars ($100.00) (the "One -Time Payment ") within thirty (30) days after the Effective Date. Lessor acknowledges and agrees that the One -Time Payment constitutes payment in full of rent for the Term, and no additional amount shall be due or owing to Lessor under this Agreement. 2.4 Permitted Uses. Lessee shall have the right to occupy and use the Project Site for solar energy conversion, for the collection and transmission of electric power, and for related and incidental purposes and activities (collectively, "Operations ") including, but not limited to, the construction, installation, improvement, relocation, operation, maintenance and repair of the System and, as may be occasioned by the termination of the PPA, removal of the System. 2.5 Lessee's Exercise of Rights. Lessee may construct and install the System on the Premises in the manner Lessee deems reasonable and appropriate; provided, however, that Lessee shall not unreasonably interfere with Lessor's use, operation, or maintenance of the Premises. The System shall be installed within the areas of the Project Site. 2.6 Premises Utilities. Lessor shall provide existing and available utilities to the Project Site in connection with Lessee's construction, start -up, maintenance, repair, replacement, operation and removal of the System. Lessor acknowledges and agrees that Lessee's use of the Premises includes the nonexclusive appurtenant right to the use of water lines, sewer lines, storm water lines, power lines, and telephone and communication lines. Without limiting the generality of the foregoing, At Lessee's request, Lessor shall provide Lessee with high -speed internet access at the Project Site during the entire Term. 2.7 Construction Laydown Area. Lessor shall provide Lessee sufficient space on the Premises for the temporary storage and staging of tools, materials and equipment reasonably necessary during installation and any maintenance, repair, replacement or removal of the System, provided that Lessee shall use commercially reasonable efforts to minimize disruption to Lessor's operations, and provided further that Lessee understands and acknowledges that space is limited at the Premises. Lessor and Lessee shall coordinate and cooperate in Rooftop Lease Agreement 2 determining the amount of space and specific portion of the Premises necessary for such purposes. 2.8 Notice. Except as may be required by an emergency, Lessee shall give Lessor reasonable written or telephonic notice before any entry onto the Premises outside of normal business hours by Lessee's employees, agents, or contractors. Notwithstanding anything to the contrary in this Agreement, Lessee shall be permitted to access the Premises (i) during normal business hours and (ii) twenty -four (24) hours a day, seven (7) days a week for emergency purposes as reasonably determined by Lessee. In the event Lessee enters the Premises due to an emergency, Lessee shall promptly notify Lessor of its entry and the nature of the emergency. Unless otherwise agreed in advance, normal business hours shall mean Monday through Saturday, 7AM through 7PM. 3. EASEMENTS. 3.1 Access Easement and Use Rights. Lessor grants Lessee a nonexclusive easement for access and use of the Premises, on, under, over, and across the Premises and any other real property adjacent to the Premises and owned by Lessor (collectively, the "Easement Area "), for the purposes of locating, installing, operating, maintaining, improving, repairing, relocating, and removing the System on the Premises (the "Use Rights "). The Use Rights include the right of parking, access, and ingress to and egress from the System on, over, and across the Easement Area during the Term, and shall survive, unless Purchaser has exercised the Purchase Option, for a period of one hundred eighty (180) days following the termination of this Agreement for the purpose of removing the System. Without limiting the foregoing grant, Lessor covenants that the Use Rights may be used to achieve all the purposes set forth in the PPA. 3.2 Solar Easement. Lessor hereby grants Lessee a solar easement on, over, and above the Easement Area for the free passage of solar radiation to the System. Such easement shall extend horizontally three hundred sixty degrees (360 °) across the entire Easement Area, together extending vertically through all space located above the surface of the Easement Area, that is, one hundred eighty degrees (180 °) or such greater number or numbers of degrees as may be necessary to extend from each point on and along a line drawn along the surface of the ground from each point along the exterior boundary of the Easement Area. Lessor shall not obstruct, or allow any tenant or assignee of Lessor to obstruct, the passage of direct solar radiation across the Easement Area to the System. Trees, structures, and improvements located on the Easement Area as of the Effective Date shall be allowed to remain, and Lessee may not require their removal; provided that Lessee may require that any trees or other vegetation be pruned or trimmed to the point that they do not obstruct the passage of direct solar radiation across the Easement Area to the System to a degree greater than on the Effective Date. Lessor shall not place or plant any trees, structures, or improvements on the Easement Area after the Effective Date that may, in Lessee's sole judgment, impede or interfere with the passage of direct solar radiation to the System, unless Lessor has received prior written approval from Lessee. Lessee and Lessor further agree to execute and record such Rooftop Lease Agreement 3 instruments or addenda to this Agreement as may be required under applicable State or local law to evidence the solar easement granted in this Section. 4. RIGHTS OF LESSEE. 4.1 Solar Resources. Lessee shall have the sole and exclusive right to convert all of the solar resources of, and to conduct Operations on, the Premises. Lessor shall not grant any rights in the Premises purporting to permit others to conduct Operations on the Premises in derogation of Lessee's sole and exclusive rights and privileges hereunder. Without the prior written consent of Lessee, Lessor shall not (i) waive any right available to Lessor or grant any right or privilege subject to the consent of Lessor by law or contract, including without limitation any environmental regulation, land use ordinance, or zoning regulation, with respect to setback requirements, or other restrictions and conditions respecting the placement of the System on the Premises or (ii) grant, confirm, acknowledge, recognize, or acquiesce in any right claimed by any other Person to conduct Operations on the Premises, and Lessor agrees to give Lessee notice of any such claims and to cooperate with Lessee in resisting and disputing such claims. 4.2 Signage. Lessee shall have the right to erect, modify, and maintain reasonable signage on the Premises with respect to the System and to Lessee's interests therein. 4.3 Enforcement of Legal Rights. Lessee shall have the right to enforce Lessor's rights under applicable laws protecting solar energy systems from obstruction. Lessor shall cooperate with any efforts by Lessee to enforce such rights. 5. DESIGN AND CONSTRUCTION OF SYSTEM. 5.1 Design and Construction. Lessor hereby consents to the construction of the System in accordance with the plans and specifications set forth on the attached Exhibit RLA 3. Lessee shall cause its contractors to comply with Lessor's reasonable and customary safety requirements and to coordinate construction of the System with Lessor so as to reasonably minimize disruption to the Premises and to Lessor's normal operations and activities thereon. Lessee shall not release Hazardous Materials on the Premises. As used in this Agreement, "Hazardous Materials" means any substance, material, waste, pollutant, or contaminant listed or defined as hazardous or toxic under any applicable law, and asbestos and petroleum, including crude oil or any fraction thereof, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas). 5.2 Acknowledgment of Lessor. Lessor acknowledges that the installation of all or a portion of the System will require physically mounting and adhering the System to the roof of the Premises, including penetrations into the roof surface. Lessor agrees to review and approve any System load studies provided by Lessee, including those relating to the weight of the System and the integrity of the roof. If ground mount system, Lessor acknowledges that the installation of the System may require penetrations into building. Rooftop Lease Agreement 4 5.3 Removal Upon Termination. Upon the termination or expiration of this Agreement for any reason, unless Purchaser has exercised the Purchase Option in the PPA, Lessee shall, within one hundred eighty (180) days after the date of expiration, remove the System from the Premises, and restore the rooftop to its condition as of the Effective Date, normal wear and tear excepted. Other than as specifically provided otherwise herein or in the PPA, the removal of the System shall be at the cost of Lessee. 6. THE PROJECT SITE. 6.1 Confirmation of Ownership. At the request of Lessee, Lessor shall obtain executed and acknowledged instruments and such other documents as Lessee or Lessee's title company may require to confirm Lessor's ownership of the Project Site or to complete or evidence the full granting of the leasehold interest in the Project Site as intended by this Agreement. 6.2 Liens. 6.2.1 Subordination. Lessor shall cooperate with Lessee to obtain a Subordination, Non - Disturbance and Attornment Agreement (an "SNDA ") from each lienholder which provides on terms reasonably acceptable to Lessee that the lien and rights of the lienholder shall be subordinate to this Agreement. Lessor will also obtain any necessary consent and /or SNDA in favor of Lessee and on terms reasonably acceptable to Lessee from any and all entities having a possessory interest in the Premises. 6.2.2 Notice to Premises Lienholders and Release. Lessor shall give effective notice of Lessee's ownership of the System and the System's status as personal property to all parties having an interest in or any mortgage, pledge, lien (including mechanics', labor or materialmen's liens), charge, security interest, or encumbrance of any nature (collectively, "Liens ") upon the real property and fixtures that are part of the Premises. If there is any Lien against the Premises that could reasonably be construed as prospectively attaching to the System as a fixture of the Premises, Lessor shall obtain a disclaimer or release of such Lien. Lessor consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction of the Premises, and any other filing by Lessee in a public office regarding its ownership of the System deemed necessary or appropriate by Lessee, and Lessor hereby appoints Lessee as its agent with regarding to any such filing and authorizes Lessee to take required actions on Lessor's behalf required for such filing. 6.2.3 System Liens. Lessor shall not directly or indirectly allow any Lien on or with respect to the System by, through or under Lessor. If Lessor becomes aware of a Lien on the System by, through or under Lessor, Lessor shall promptly give Lessee written notice of such Lien and shall take such action as is necessary or appropriate to have such Lien discharged and removed. Lessor shall indemnify Lessee against all reasonable costs and expenses (including reasonable attorneys' fees) incurred in discharging and releasing any such Lien. Rooftop Lease Agreement 5 6.2.4 Premises Liens. Lessee shall not directly or indirectly allow any Lien by, through or under Lessee, on or with respect to the Premises or any interest therein, excluding Lessee's leasehold interest created pursuant to this Agreement, or any other asset of Lessor, including, without limitation, any Lien arising from or relating to the construction, ownership, maintenance or operation of the System by Lessee. Lessee shall defend and indemnify Lessor against all costs and expenses (including reasonable attorneys' fees and court costs at trial and on appeal) incurred in discharging and releasing any such Lien. 6.3 Quiet Enjoyment. Lessee shall enjoy quiet and peaceful use, enjoyment and possession of the Project Site, free from any claim of any entity or person of superior title thereto without hindrance to or interference with or molestation of Lessee's quiet enjoyment thereof, and neither Lessor nor any person claiming by, through or under Lessor shall disturb Lessee's quiet and peaceful use, enjoyment and possession of the Project Site. 6.4 No Interference. Lessor hereby agrees, for itself, its agents, employees, representatives, successors, and assigns, that it will not initiate or conduct activities that it knows or reasonably should know may damage, impair, or otherwise adversely affect the System or its functions, including without limitation activities that may adversely affect the System's exposure to sunlight. Lessor further covenants for itself and its agents, employees, representatives, successors, and assigns that it will not (i) interfere with or prohibit the free and complete use and enjoyment by Lessee of its rights granted under this Agreement; (ii) take any action that will interfere with the availability and accessibility of solar radiation over and above the Premises; (iii) take any action that will or may interfere with the transmission of electrical energy to or from the Premises; (iv) take any action that may impair Lessee's access to the Premises for the purposes specified in this Agreement; (v) plant or maintain any vegetation or erect or maintain any structure that will, during daylight, cast a shadow on the System; or (vi) take any action that may impair Lessee's access to any portion of the System. 6.5 System Property of Lessee; Transfer of the Premises. Lessor acknowledges and agrees that Lessee is the exclusive owner and operator of the System and all equipment (including, but not limited to, photovoltaic modules or panels, inverters, meters, wire, data monitoring equipment, and cabling), components and moveable property of Lessee attached to or used in the operation of the System, that no portion or component of the System is a fixture, and that in the event that the Premises are sold, leased, assigned, mortgaged, pledged, or otherwise alienated or encumbered (a "Transfer "), such Transfer shall not attach to or affect the System, or Lessee's ownership rights to the System. 6.6 Transfer of Premises. Lessor shall not Transfer all or any portion of the Premises unless the transferee agrees in writing that its interest in the Premises is subject and subordinate in all respects to the terms of this Lease. Lessor shall give Lessee at least sixty (60) days' prior notice of any Transfer of all or any portion of the Premises. Any such notice shall identify the transferee, the portion of the Premises to be transferred, and the proposed date of the Transfer. Rooftop Lease Agreement Gi 6.7 Premises Security, Health and Safety. Lessor shall provide reasonable measures for the security of the Premises, including restricting access to the area on which the System is located and providing monitoring of the Premises' security alarms. Lessor shall maintain the Premises in a structurally sound and safe condition consistent with all applicable Laws. If Lessor becomes aware of any circumstances relating to the System that creates an imminent risk of damage or injury to the System or any employee of Lessee, Lessor shall promptly notify Lessee. 6.8 System Security. Lessee may install all security measures that Lessee, in its sole discretion, determines are or may be reasonably necessary for the System. Such measures may, but will not necessarily, include warning signs, fences, barbed wire closed and locked gates, and other measures appropriate and reasonable to protect against damage or destruction of the System or injury or damage to persons or property resulting from the System and Operations. 6.9 Maintenance of Premises. Lessor shall, without interfering with the operation of the System, maintain the Premises in good condition and repair, including the integrity of the roof, so that Lessee is able to comply with its obligations under this Agreement and the PPA. Lessor shall use commercially reasonable efforts to maintain Lessor's electrical energy equipment located on the Premises in good condition and repair so as to be able to receive and use the Energy generated by the System. Lessor shall maintain its connection and service contract(s) with its local utility, or any successors thereto, so that Lessor can, upon any suspension or interruption of delivery of energy from the System, provide the Premises with its full requirements for electricity. 6.10 System Maintenance. During the Term, Lessee shall, at Lessee's sole cost, maintain the System, the Project Site and all areas of the Premises used by Lessee in the Operations, in accordance with applicable laws and Prudent Operating Practices. 6.11 Roof Maintenance. If the system is located on the roof, Lessor shall be solely responsible for, and bear all costs and expense relating to, maintaining the roof of the buildings on which the System is located, including all required repair (including leak repair), remediation and maintenance of such roof, unless such repair, remediation and maintenance is required as a direct result of the negligent installation of the System. Lessor shall consult with Lessee before performing any required roof repair, remediation and maintenance that may affect the System, and Lessee shall be permitted to witness any such repair, remediation and maintenance. In the event the System must be temporarily disconnected or removed in order for Lessor to perform roof repair, remediation or maintenance, Lessor shall consult with Lessee in advance of any such activity, Lessee shall disconnect and remove the System at Lessor's expense, and Lessor shall pay to Lessee PPA Damages for the period during which the System is disconnected. Lessor shall be responsible for maintaining and enforcing all warranties relating to the roof. 6.12 Ground Maintenance. If the system is ground mounted, Lessor shall be solely responsible for, and bear all costs and expense relating to, maintaining the ground on which the System is located, including all required repair (including sprinkler system), unless such repair, Rooftop Lease Agreement 7 remediation and maintenance is required as a direct result of the negligent installation of the System. Lessor shall consult with Lessee before performing any required repair, remediation and maintenance that may affect the System, and Lessee shall be permitted to witness any such repair, remediation and maintenance. In the event the System must be temporarily disconnected or removed in order for Lessor to perform repair, remediation or maintenance, Lessor shall consult with Lessee in advance of any such activity, Lessee shall disconnect and remove the System at Lessor's expense, and Lessor shall pay to Lessee PPA Damages for the period during which the System is disconnected. Lessor shall be responsible for maintaining any grass mowing or general land maintenance. 6.13 System Relocation. In the event of an emergency, Lessor may request that Lessee relocate the System, at Lessor's expense, to another suitable location on the Premises, provided that (a) the Parties shall use reasonable efforts to perform the relocation during the months of October through March and outside of normal business hours and (b) Lessor shall pay to Lessee PPA Damages for the period during which the System is disconnected in connection with such relocation. 6.14 Clean Condition. Lessee shall not unreasonably clutter the Project Site or the Premises and shall collect and dispose of any and all of Lessee's refuse and trash. 6.15 Taxes. Lessor shall pay when due all real property taxes and assessments possessory interest taxes, business or license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any kind which are assessed, levied, charged, confirmed, imposed or levied against the Premises by any governmental body or public authority. 7. REPRESENTATIONS AND WARRANTIES 7.1 Representations of Lessor. Lessor represents and warrants to Lessee that: 7.1.1 Lessor has the requisite corporate, partnership or limited liability company capacity to enter into this Agreement and fulfill its obligations hereunder, that the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite action of its stockholders, partners or members, and by its board of directors or other governing body, and that the entering into of this Agreement and the fulfillment of its obligations hereunder does not contravene any law, statute or contractual obligation of Lessor; 7.1.2 this Agreement constitutes Lessor's legal, valid and binding obligation enforceable against it 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; 7.1.3 no suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against the Lessor that would have a material adverse effect Rooftop Lease Agreement E-3 on the validity or enforceability of this Agreement or the ability of Lessor to fulfill its commitments hereunder, or that could result in any material adverse change in the business or financial condition of Lessor; 7.1.4 Lessor owns the Premises in fee simple, subject to no liens or encumbrances except as set forth in Exhibit RLA 2. All persons having any ownership or possessory interest in the Premises (including spouses) are signing this Agreement; 7.1.5 there are no Hazardous Materials on or under the Project Site; and 7.1.6 no governmental approval (other than any governmental approvals which have been previously obtained) is required in connection with the due authorization, execution and delivery of this Agreement by Lessor or the performance by Lessor of its obligations hereunder which Lessor will be unable to obtain in due course. 7.2 Representations of Lessee. Lessee represents and warrants to Lessor that: 7.2.1 Lessee has the requisite corporate, partnership or limited liability company capacity to enter into this Agreement and fulfill its obligations hereunder, that the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite action of its stockholders, partners or members, and by its board of directors or other governing body, and that the entering into of this Agreement and the fulfillment of its obligations hereunder does not contravene any law, statute or contractual obligation of Lessee; 7.2.2 this Agreement constitutes Lessee's legal, valid and binding obligation enforceable against it 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; 7.2.3 no suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against the Lessee that would have a material adverse effect on the validity or enforceability of this Agreement or the ability of Lessee to fulfill its commitments hereunder, or that could result in any material adverse change in the business or financial condition of Lessee; and 7.2.4 no governmental approval (other than any governmental approvals which have been previously obtained) is required in connection with the due authorization, execution and delivery of this Agreement by Lessee or the performance by Lessor of its obligations hereunder which Lessee will be unable to obtain in due course. 8. DEFAULT; REMEDIES. 8.1 Lessee Default. Each of the following events shall constitute a "Lessee Default ": Rooftop Lease Agreement 9 8.1.1 Lessee materially breaches any term of this Agreement and (i) if such breach is capable of being cured within thirty (30) days after Lessor's notice of such breach, Lessee has failed to cure the breach within such thirty (30) day period, or (ii) if Lessee has diligently commenced work to cure such breach during such thirty (30) day period but such breach is not capable of cure within such period, Lessee has failed to cure the breach within a further one hundred fifty (150) day period (such aggregate period not to exceed one hundred eighty (180) days from the date of Lessor's notice); and 8.1.2 (i) Lessee commences a voluntary case under any bankruptcy law; (ii) Lessee fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against Lessee in an involuntary case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against Lessee remains undismissed or undischarged for a period of sixty (60) days. 8.2 Lessor's Remedies. If a Lessee Default has occurred and is continuing, Lessor may terminate this Agreement by written notice to Lessee following the expiration of the applicable cure period, and may exercise any other remedy it may have at law or equity. 8.3 Lessor Defaults. The following events shall be defaults with respect to Lessor (each, a "Lessor Default "): 8.3.1 Lessor materially breaches any term of this Agreement and such breach remains uncured for thirty (30) days following notice of such breach to Lessor, or such longer cure period as may be agreed to by the Parties; and 8.3.2 (i) Lessor commences a voluntary case under any bankruptcy law; (ii) Lessor fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against Lessor in an involuntary case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against Lessor remains undismissed or undischarged for a period of sixty (60) days. 8.4 Lessee's Remedies. If a Lessor Default has occurred and is continuing, Lessee may terminate this Agreement by written notice to Lessor following the expiration of the applicable cure period. Lessee may also exercise any other remedy it may have at law or equity, including recovering from Lessor all resulting damages, which damages shall include, but not be limited to, the PPA Damages and all other amounts of any nature due under this Agreement. 9. LIMITATIONS. 9.1 Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE PARTIES AGREE THAT TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSS OR Rooftop Lease Agreement 1111 INTERRUPTION OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE SYSTEM OR THIS AGREEMENT. THE FOREGOING NOTWITHSTANDING, THE PPA DAMAGES SHALL NOT BE CONSIDERED CONSEQUENTIAL DAMAGES AND SHALL NOT BE SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION. 9.2 Equitable Relief. The Parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement, and that, accordingly, in the event of any such breach or threatened breach, either Party shall be entitled to immediately seek any and all remedies available to it at law or in equity, including but not limited to an injunction or specific performance, from a court of competent jurisdiction. 10. FINANCING ACCOMMODATIONS. 10.1 Lessor Acknowledgment. Lessor acknowledges that Lessee may finance the System and that Lessee's obligations may be secured by, among other collateral, a pledge or collateral assignment of this Agreement and a security interest in the System. In order to facilitate such financing, and with respect to each Financing Party Lessor agrees as follows: 10.1.1 Consent to Collateral Assignment. Lessee shall have the right to assign this Agreement as collateral for financing or refinancing of the System, and Lessor hereby consents to the collateral assignment by Lessee to any Financing Party of Lessee's right, title, and interest in and to this Agreement. 10.1.2 Financing Party's Rights Following Default. Notwithstanding any contrary term of this Agreement: (a) Financing Party, as collateral assignee, shall be entitled to exercise, in the place and stead of Lessee, any and all rights and remedies of Lessee under this Agreement in accordance with the terms of this Agreement. Financing Party shall also be entitled to exercise all rights and remedies of secured parties generally with respect to this Agreement and the System. (b) Financing Party shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty, or obligation required of Lessee hereunder or cause to be cured any default or event of default of Lessee in the time and manner provided by the terms of this Agreement. Nothing herein requires Financing Party to cure any default of Lessee (unless Financing Party has succeeded to Lessee's interests) to perform any act, duty, or obligation of Lessee, but Lessor hereby gives Financing Party the option to do so. (c) Upon the exercise of remedies under its security interest in the System, including any sale thereof by Financing Party, whether by judicial proceeding or under any power of sale, or any conveyance from Lessee to Financing Party, Financing Party shall give notice to Lessor of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a Lessee Default. Rooftop Lease Agreement (d) Upon any rejection or other termination of this Agreement pursuant to any process undertaken with respect to Lessee under the United States Bankruptcy Code, at the request of Financing Party made within ninety (90) days of such termination or rejection, Lessor shall enter into a new site lease agreement with Financing Party or its assignee on substantially the same terms as this Agreement. 10.1.3 Financing Party Cure Rights. Lessor shall not exercise any right to terminate or suspend this Agreement unless Lessor has given prior written notice to each Financing Party of which Lessor has notice. Lessor's notice of an intent to terminate or suspend must specify the condition giving rise to such right. Financing Party has the longer of thirty (30) days and the cure period allowed for a default of that type under this Agreement to cure the condition; provided that if the condition cannot be cured within such time but can be cured within the extended period, Financing Party may have up to an additional ninety (90) days to cure if Financing Party commences to cure the condition within the thirty (30) day period and diligently pursues the cure thereafter. Lessor's and Lessee's obligations under this Agreement shall otherwise remain in effect, and Lessor and Lessee shall be required to fully perform all of their respective obligations under this Agreement during any cure period. 10.1.4 Continuation Following Cure. If Financing Party or its assignee acquires title to or control of Lessee's assets and cures all defaults existing as of the date of such change in title or control within the time allowed by Section 10.1.3, then this Agreement shall continue in full force and effect. 10.2 Notice of Defaults and Events of Default. Lessor agrees to deliver to each Financing Party a copy of all notices that Lessor delivers to Lessee pursuant to this Agreement. 11. NOTICES. 11.1 Notices. Any notice required, permitted, or contemplated hereunder shall be in writing and addressed to the Party to be notified at the address set forth below or at such other address or addresses as a Party may designate for itself from time to time by notice hereunder. Such notices may be sent by personal delivery or recognized overnight courier, and shall be deemed effective upon receipt. To Lessee: Apex Efficiency Solutions, SBC 403 Jackson, St, Suite 308 Anoka, MN 55303 Attention: Mark Rasmussen Phone: 763 - 201 -8952 Rooftop Lease Agreement 12 To Lessor: City of Columbia Heights 590 40th Ave NE Columbia Heights, MN 55421 Attn: City Manager Phone: 763.706 -3600 12. GOVERNING LAW; DISPUTES. 12.1 Choice of Law. This Agreement shall be construed in accordance with the laws of the State of Minnesota, without regard to its conflict of laws principles. 12.2 Disputes. The Parties agree to attempt to resolve any dispute, controversy or claim (each, a "Dispute ") arising out of or relating to this Agreement or any breach or alleged breach hereof through an informal process that shall be assigned to an executive officer of each Party. In the event such a process fails, each Party may seek appropriate relief in an appropriate forum. 13. INDEMNIFICATION. 13.1 Lessee's General Indemnity. Lessee shall indemnify, defend, and hold harmless Lessor (including Lessor's permitted successors and assigns) and Lessor's subsidiaries, directors, officers, members, shareholders, employees and agents (collectively, "Lessor Indemnified Parties ") from and against any and all third -party claims, losses, costs, damages, and expenses, including reasonable attorneys' fees, incurred by Lessor Indemnified Parties arising from or relating to (i) Lessee's breach of this Agreement, or (ii) the negligence or willful misconduct of Lessee's invitees. Lessee's indemnification obligations under this Section 13.1 shall not extend to any claim to the extent such claim is due to the negligence or willful misconduct of any Lessor Indemnified Party. 13.2 Lessee's Environmental Indemnity. Lessee shall indemnify, defend and hold harmless the Lessor Indemnified Parties against, any claims, costs, damages, fees, or penalties arising from a violation by Lessee or Lessee's agents or contractors of any federal, State, or local law, ordinance, order, or regulation relating to the generation, manufacture, production, use, storage, release or threatened release, discharge, disposal, transportation, or presence of any Hazardous Material on or under the Premises. 13.3 Lessor's General Indemnity. Lessor shall indemnify, defend, and hold harmless Lessee (including Lessee's permitted successors and assigns) and Lessee's subsidiaries, directors, officers, members, shareholders, employees and agents (collectively, "Lessee Indemnified Parties ") from and against any and all third -party claims, losses, costs, damages, and expenses, including PPA Damages and reasonable attorneys' fees, incurred by Lessee Indemnified Parties arising from or relating to (i) Lessor's breach of this Agreement, (ii) the negligence or willful misconduct of Lessor, Lessor's tenants, or Lessor's invitees, or (iii) the failure of building or roof to support, in whole or in part, the System as installed, including Rooftop Lease Agreement 13 changes in roof surface incline. Lessor's indemnification obligations under this Section 13.3 shall not extend to any claim to the extent such claim is due to the gross negligence or willful misconduct of any Lessee Indemnified Party. 13.4 Lessor's Environmental Indemnity. Lessor shall indemnify, defend and hold harmless the Lessee Indemnified Parties for, from, and against, any claims, costs, damages, fees, or penalties, including PPA Damages, arising from the presence of any Hazardous Materials on or under the Premises, except to the extent that such presence is attributable to a violation by Lessee or Lessee's agents or contractors of any federal, State, or local law, ordinance, order, or regulation relating to the generation, manufacture, production, use, storage, release or threatened release, discharge, disposal, transportation, or presence of any Hazardous Material on or under the Premises. 14. INSURANCE. 14.1 Insurance Required. Each Party shall maintain in full force and effect throughout the Term, with insurers of recognized responsibility authorized to do business in the State in which the System will be located, insurance coverage in the amounts and types set forth on Exhibit RLA 4. Each policy of insurance maintained by Lessor shall (a) name Lessee as loss payee (to the extent covering risk of loss or damage to the Premises or the System) and as an additional insured as its interests may appear (to the extent covering any other risk); and (b) contain endorsements providing that such policy shall not be cancelled or amended with respect to the named insured and its designees without thirty (30) days' prior written notice to Lessee, in the case of non - payment of premium, at least 10 days' written notice of cancellation shall be provided. Each Party shall, within ten (10) days of written request therefor, furnish current certificates of insurance to the other Party evidencing the insurance required hereunder. Lessee shall add the City as an additional insured to the Lessee's liability insurance. 14.2 Waiver of Subrogation. Each policy of insurance required hereunder shall provide for a waiver of subrogation rights against the other Party, and of any right of the insurers to any set -off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of that policy. 14.3 No Waiver of Obligations. The provisions of this Agreement shall not be construed in a manner so as to relieve any insurer of its obligations to pay any insurance proceeds in accordance with the terms and conditions of valid and collectable insurance policies. The liabilities of the Parties to one another shall not be limited by insurance. 15. MISCELLANEOUS. 15.1 Assignments. Neither Party shall have the right to assign any of its rights, duties, or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. The foregoing notwithstanding, Lessee may assign any of its rights, duties, or obligations under this Agreement, without the consent of Rooftop Lease Agreement E Lessor, (i) to any of its affiliates, (ii) to any third party in connection with a financing transaction, or (iii) to any purchaser of the System. 15.2 Entire Agreement. This Agreement and the PPA represent the full and complete agreement between the Parties hereto with respect to the subject matter contained herein and supersedes all prior written or oral agreements between the Parties with respect to the subject matter hereof. 15.3 Amendments. This Agreement may only be amended, modified, or supplemented by an instrument in writing executed by duly authorized representatives of Lessee and Lessor. 15.4 No Partnership or Joint Venture. Lessee and Lessee's agents, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of Lessor. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement). 15.5 Headings; Exhibits. The headings in this Agreement are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Agreement. Any Exhibits referenced within and attached to this Agreement, including any attachments to the Exhibits, shall be a part of this Agreement and are incorporate by reference herein. 15.6 Remedies Cumulative; Attorneys' Fees. No remedy herein conferred upon or reserved to any Party shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. If any action, arbitration, judicial reference, or other proceeding is instituted between the Parties in connection with this Agreement, the losing Party shall pay to the prevailing Party a reasonable sum for attorneys' and experts' fees and costs incurred in bringing or defending such action or proceeding (at trial and on appeal) and /or enforcing any judgment granted therein. 15.7 Waiver. The waiver by either Party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein. Any such waiver must be in a writing executed by the Party making such waiver. 15.8 Severability. If any part, term, or provisions of this Agreement is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect or impair the validity, legality, or enforceability of any other part, term, or provision of this Agreement and shall not render this Agreement unenforceable as a whole. Instead, the part of the Agreement found to be invalid, unenforceable, or illegal shall be amended, modified, or interpreted to the extent possible to most closely achieve the intent of the Parties and in the manner closest to the stricken provision. Rooftop Lease Agreement 15 15.9 Counterparts and Facsimile Signatures. This Agreement may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or portable document format ( ".PDF ") signatures shall have the same effect as original signatures, and each Party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any court or arbitration proceedings between the Parties. 15.10 No Partnership or Sale. Nothing contained in this Agreement shall be deemed or construed by the Parties or by any third person to create the relationship of principal and agent, partnership, joint venture, buyer and seller real property, or any other association between Lessor and Lessee, other than the relationship of lessor and lessee. 15.11 Memorandum of Lease. Lessor and Lessee agree to execute and record a memorandum of this Lease. Lessor shall execute, with notarization, and deliver to Lessee together with the its initial delivery of the signed Agreement a recordable Memorandum of Lease in a form reasonably acceptable to the Parties ( "Memorandum of Lease "), which shall include the Exhibit RLA 1 description of the Project Site and which Lessee shall then record in the Official Records of the County in which the Project Site is located. Lessee shall be responsible for the cost of recordation. 15.12 Estoppel Certificate. From time to time, upon written request by Lessee, Lessor shall provide within seven (7) days thereafter an estoppel certificate attesting, to the knowledge of Lessor, of Lessee's compliance with the terms of this Agreement, or detailing any known issues of noncompliance. [SIGNATURE PAGE FOLLOWS] Rooftop Lease Agreement 16 IN WITNESS WHEREOF, the Parties have caused this System Site Lease Agreement to be duly executed and delivered as of the Effective Date. LESSEE LESSOR Apex Efficiency Solutions, SBC City of Columbia Heights By: By: �� 2 / NaYV Greg Ackerson Name:;��`G, Title: C.E.O. Title: '�% / / r Exhibit L 17 TopValu I Liquor 4950 Central Ave NE Columbia Heights, MN 55421 EXHIBIT RLA 1 PREMISES; PROJECT SITE Exhibit L (RLA -1) L *: a,II:3ya:1T_,vj ENCUMBRANCES ON LESSOR'S TITLE Exhibit L (RLA -2) EXHIBIT RLA 3 DESCRIPTION OF THE SYSTEM • 39.7 kW Roof mounted —fixed solar array at TopValu I Exhibit L (RLA -3) pexFacility Solutions • Efficiency Solutions • Arena Solutions EXHIBIT RLA 4 INSURANCE REQUIREMENTS (a) Lessee shall obtain and maintain the following insurance policies: (i) Commerical general liability insurance against liability of not less than two million dollars ($2,000,000) combined single limit per occurrence and annual aggregate. Lessee shall in no event be obligated to repair or replace Lessor's buildings or Premises; and (ii) Lessee may satisfy the insurance requirements contained in this Agreement though any combination of primary and /or excess coverage. (b) Lessor shall obtain and maintain the following insurance policies: (i) Commercial general liability insurance against liability for injury to or death of any Person or damage to property in connection with the use, operation or condition of the Premises of not less than two million dollars ($2,000,000) combined single limit per occurrence and annual aggregate. Lessee shall be named as an additional insured under this liability insurance; (ii) All -risk property insurance covering the replacement value of the Premises and the System. Lessee shall be named as an additional insured under this policy; and (iii) Lessor may satisfy the insurance requirements contained in this Agreement though any combination of primary and /or excess coverage. Exhibit L (RLA -4)