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HomeMy WebLinkAbout2016-27311' 1 • CONSENT, AMENDMENT AND ESTOPPEL AGREEMENT This CONSENT, AMENDMENT AND ESTOPPEL AGREEMENT, dated as of July 13, 2016 (this "Agreement "), is made by the City of Columbia Heights, a Minnesota municipal corporation (the "City ") and New Energy Equity, LLC, a Maryland limited liability company ( "Developer "), for the benefit of AEP OnSite Partners, LLC, a Delaware limited liability company ( "OnSite "). RECITALS A. The City and Developer entered into that certain Solar Photovoltaic Power Purchase Agreement, dated as of February 5, 2016 (the "PPA "). B. Pursuant to a Purchase Agreement (the "Purchase Agreement ") between Developer and OnSite, OnSite will acquire all of Developer's right, title and interest in and to the PPA, and will assume all of Developer's obligations thereunder as of the date of the Purchase Agreement. C. The City and Developer are executing and delivering this Agreement as a material inducement to OnSite entering into the Purchase Agreement. AGREEMENT 1. Consent. The City hereby unconditionally and irrevocably consents to the assignment by Developer of its right, title and interest in, and the assumption by OnSite of Developer's obligations under, the PPA pursuant to the Purchase Agreement. 2. Amendments to PPA. The PPA is hereby amended as follows: a. Section 12.1.6 is amended by replacing "ninety (90)" with "as quickly as possible, but no later than one hundred eighty (180)." b. Section 14.4 is amended by replacing "forty -five (45)" with "three hundred sixty (360)." c. Section 15.2.2 is amended by replacing "within thrity (30) days after such termination" with "as quickly as possible, but no later than within one hundred eighty (180) days after such termination." d. Section 16.1.1(b) is amended by replacing "occurrence form" with "claims -made form." e. Section 16.3 is amended by deleting "certified copies of' from the first sentence thereof. 3. Estoppel. To induce OnSite to enter into the Purchase Agreement, the City hereby certifies and agrees as follows: 15751638_1 a. PPA. The PPA (i) attached hereto as Exhibit A is a true, correct and complete copy thereof as of the date hereof, (ii) was duly authorized, executed and delivered by the City, (iii) is in full force and effect and is a valid and binding obligation of the City, enforceable in accordance with its terms, (iv) except as provided in this Agreement, has not been amended or modified, and (v) constitutes the entire PPA. b. Consents and Approvals. The City has received the third party authorizations referred to in Section 3.1.2 of the PPA, and there is no mortgage or other lien or lease burdening the Premises as referenced in Section 3.1.2 (nor is any such mortgage, lien or lease currently contemplated). C. No Claims. The City has no claims against Developer under, relating to the subject matter of, or arising out of the PPA. d. No Default. Neither the City, nor to the City's knowledge Developer, (i) is in breach of or default under the PPA, or (ii) anticipates to be in breach or default under the PPA. e. Reliance. The City acknowledges that Purchaser and its affiliates are relying on the estoppel provisions of this Section 3. f. Power and Authority. The City has the requisite power, authority and capacity to execute and deliver this Agreement and this Agreement has been duly and validly executed and delivered by the City. g. Performance. The City knows of no reason why it cannot perform its obligations under the PPA. 4. Governing Law. This Agreement and the legal relations between the parties hereunder shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to principles of conflicts of laws that would direct the application of the laws of another jurisdiction. 5. Validity. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provisions of this Agreement, each of which will remain in full force and effect. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other teens and provisions of this Agreement will nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to either party hereto. 6. Electronic Signatures. The delivery of copies of this Agreement and of the signature page by facsimile transmission, by electronic mail in "portable document format" ( ".pdf ') form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, will constitute effective execution and delivery of this Agreement and may be used in lieu of the original Agreement for all purposes. The City's signature transmitted by facsimile or other electronic means will be deemed to be its original signatures for all purposes. 157516381 2 IN WITNESS WHEREOF, the undersigned has duly executed or caused this Agreement to be duly executed on the date first written above. The City of Columbia �Ig Minnesota municipal rporati to 15751638_1 EXHIBIT A [Attached] 15751638_1 140TAW 31 k14 a Pitts) two F.T*li W41" 164 DI A 75 1 WN I This Solar Photovoltaic System Power Purchase Agreement ( "Agreement ") is made and entered into as of Sr , 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 Omer and Host Customer may be referred to herein as a "Party" and collectively, as the "Parties." RECITALS 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; WHERE AS, 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 hereinaRer set forth, the Parties hereby covenant and agree as follows: ARTICLE I DEFINITIONS AND IWERPRETATIf W, 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 Host Customer as set forth in Section 113. "Due Date" means the due date that Host Customer must pay an invoice for Output as set forth in Section 9.5.1. "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 An-angemen&' shall have the meaning set forth in Section 4.7 herein- "Non-Defaulting Party" means the Party 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 system 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 Host 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 IL 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 770 1 (e) of the Internal Revenue Code. "'1111111911 Mypi-140M 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. 3.1 Pre-Installation Conditions 3.1.1 Completion of Detailed SvstemDesigLi 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 Rgguircdj-Wrd 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 Satisf y 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 INSTALLAZM 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 (5) 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 Right 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 QgVut 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 Durine 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 Host 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 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. 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 Meterine Arrangements 4.7.1 System Owner Notification to Make Not 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 PRE-#--bn.W7&;1& fnWVjr. 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 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 servicv, 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 Q3eration. , Maintenance and Repair of Premises and Site 5.3.1 Host Customer Responsibility and Coordination 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 H9s I 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- In terfe rence 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 Service Tern-4 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. 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 Omme-r, 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. 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 (10) 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 grunt 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-going Abili y to Perform During the Tenn 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. Vin ENVIRONMF,NTAL CREDITS AND SYSTUJL&J7#',Ir?.J 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 limited 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 Tenn, 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, # I I I J1 - I # 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 Electricitv Price Beginning 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 Electric jty,j� 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. 93 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 Oblieation 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 he 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 Pa ments Subject to its contest tights set forth in Section 9.6.3, Host Customer shall pay the full amount of each invoice on or before the thirtieth (30th) 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 PaMent 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 ("Late 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 4.6.1. am= 10 1 py I pf 414 ICE During the Service Tenn, System Owner shall, at its own expense, own, operate and maintain the Meter and provide necessary Meter related services. 10.1 Meter Reading 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 (±20/-D), 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. 1111111 Ila SIM-3 2,419,411 W 11.1 Intermittent lntemjab�ons 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 ofOutput 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. 113 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"')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 (51) 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. 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 Tenn that Host Customer intends to exercise its option under this Section 12.1. 12.12 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 informcd, 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. MIMM��� RM.10 WJ WN ID I OR 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. 1315 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. W-11 JUN MIJ 11,10) Do 0 14.1 Definition of Force Maieure. 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 (c) 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 Majeure 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. REME)YR-44,1RIM 6 IM11 mo I a V allu Di IR WMI WIWI I a I-) -t,- is � JWj 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 Tenn {"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 I-lost 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 VII. (d) Host Customer's Disruption of Delivery pursuant to Section 11.3. (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) Host 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 Party 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 Tight 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. 15.2.5 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 Rj&ts 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 arts 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 mitten 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 IgggVee 16.1.1 Snt =.-Owner's insurance coveMge 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 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. 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_ 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, M- RM-3 MOO I DIIU 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 Tenn 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 least 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 Assienment by y System 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 leaders in conjunction with such financing. System Owner shall inform Host Customer of any such transfers or assignments. . i 1016MIDINW-11 # 18.1 Dis putes 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. 18.2.1 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 Party 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 1.60114(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 for 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 19.3. 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 lnvghdiy 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 Intemretation 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 Headins 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. & � -1 4 MA M ARM��; � 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 1 a.14: of Libra!:j 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 925 41st Ave. NE Columbia Heights, MN 55421 Public Works Parcel Number 35-30-24A3-0008 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 year. 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. Ma .o+ran mu as 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,oOD kWh of electricity per year. I " MUM Solar Electricity Price Contract Year Energy Price ($/kWh) 1 0.1575 2 01614 3 0,1655 5 0.1739 6 0.1782 7 0.1827 10 0.1967 11 0.2016 12 0.2067 15 S 0.2225 Sample Invoice and Electronic Funds Transfer Instructions WENERGY EQUITY 705 Melvin Ave Ste 100 Annapolis M021401 "3-2674012 ww-V-rkew0L*My!nUqy,COM Period I Due Date im INVOICE NO. 007-I5 DATE October 6,2015 CUSTOMER ID XxX SHIP TO Point Remit by ched payable to., New Energy Equity LLC 705 Melvin Ave Ste 100 Annapolis MD 21401 Attw Accounting THANK YOU FOR YOUR BUSINESSI 1*.4:1::3vdu . Host Customer Safety Program To Be Added at Contract Execution Notice Of Installation Completion and Service Commencement Date New Energy Equity, LLC ("System Owner") hereby notifies City of Columbia Heights Most 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 (k)klj 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. Im City of Columbia Heights [Name & Title] [Date]