HomeMy WebLinkAboutOrdinance #4347 CERTIFICATE
THE UNDERSIGNED CERTIFIES THAT SHE IS THE CITY CLERK FOR THE CITY
OF CANTON, ILLINOIS, AND THAT THE CITY COUNCIL AT A SPECIAL MEETING OF
SAID CITY COUNCIL OF THE CITY OF CANTON ON THE 12TH DAY OF JUNE,2023
ADOPTED ORDINANCE NO.4347 A TRUE AND CORRECT COPY OF WHICH I CONTAINED
IN THIS PAMPHLET.
GIVEN UNDER MY HAND AND SEAL THIS 12TH DAY OF JUNE, 2023.
(SEAL) -
4 B REA SMITH-WALTERS
ITY CLERK
ORDINANCE NO. 4347
AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF A SOLAR
POWER PURCHASE AGREEMENT AND LEASE OF REAL PROPERTY FOR A TERM
IN EXCESS OF TWENTY(20)YEARS FOR REAL PROPERTY OWNED BY THE CITY
OF CANTON LOCATED AT OR NEAR THE CITY'S WATER TREATMENT PLANT
WHEREAS, the City of Canton(the "City") owns the real property described on"Exhibit
A," (P.I.N. No. 10-09-19-101-009) (the "Property"), which is currently used as part of Lake
Canton,for the City's Water Treatment Plant, and vacant/undeveloped land;
WHEREAS,the City has evaluated options for obtaining a solar power purchase agreement
("PPA") for the purposes of purchasing solar generated electricity, solely for the City's use, from
Keystone Power Holdings, LLC or its related entities/affiliates (collectively"Keystone");
WHEREAS, on February 21, 2023, the City Council approved certain letters of intent
regarding utilizing a certain portion of the Property(the"Premises"),which will be utilized for the
solar sites and subject to a lease agreement by and between Keystone;
WHEREAS, in order to reduce, or otherwise stabilize, electricity costs to the City, and to
take action to protect the environment,the City Council of the City of Canton has determined that
it is desirable and in the best public interests of the City of Canton that it enter into a PPA with
Keystone and to lease the Premises to Keystone for purposes of a solar site to be used in connection
with the PPA and for the purpose of purchasing solar generated electricity, solely for the City's
behind-the-meter use at City buildings and/or facilities;
WHEREAS, pursuant to Section 11-76-2 of the Illinois Municipal Code (65 ILCS 5/11-
76-2),notice has been given of the proposal to lease such real estate, said notice having first been
published on May 23, 2023, and having been published at least once in the Fulton Democrat, a
newspaper published in the county in which the municipality is located, not less than 15 nor more
than 30 days before the date on which it is proposed to adopt this Ordinance;
WHEREAS,pursuant to said notice,this Ordinance was adopted at the special meeting of
the City Council held on June 12,2023; and
WHEREAS,the corporate authorities find it to be clearly in the public's interest to proceed
with the PPA and lease and have agreed, by this Ordinance and by at least a vote of two-thirds
(2/3),to waive competitive bidding requirements to the extent same would be required;
WHEREAS, the City Council finds and determines that the best interests of the City of
Canton and its residents will be served by the approval of the above-referenced lease.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Canton, Fulton
County, Illinois, as follows:
1. The corporate authorities find as fact the recitals hereinabove set forth.
2. The Solar Power Purchase Agreement and Solar System Site Lease Agreement,
substantially in the form as attached hereto as"Exhibit B"(collectively the"Agreement")is hereby
APPROVED.
3. Any applicable competitive bidding requirements set forth by Illinois law and the
Canton Municipal Code are hereby waived.
4. The Mayor is hereby authorized to sign, and the City Clerk is hereby authorized to
attest to,the Agreement, subject to any revised terms and consideration negotiated with Keystone.
5. The City Attorney, upon approval of the Mayor, is hereby authorized to negotiate
with Keystone, and make any revisions to the Agreement necessary to accomplish the foregoing.
6. The Mayor,and/or his designee(s),is hereby authorized to execute any and all other
applications, agreements, permits, or other documents necessary to or related to the Agreement,
including without limitation an Interconnection Agreement with Ameren Illinois Company.To the
extent the Mayor has already done so,his actions are hereby RATIFIED.
7. This ordinance shall be in full force and effect from and after its passage and
approval in the manner provided by law.
PASSED THIS 12th DAY OF JUNE,2023.
AYES:Mayor Kent McDowell, Alderpersons Chamberlin, Grimm, Lovell, Hale, Gossett,
Lingenfelter.
NAYES:None
ABSENT:Alderpersons Nelson,Ketcham
APPROVED THIS 12th DAY OF JUNE,2023.
e t
t A. McDowell, '' . •
ATTEST:
drea J. S ith-Walters, City Clerk
Exhibit A
A part of the Northeast and Northwest Quarters of Section 30,Township 7 North,Range 5 East of
the Fourth Principal Meridian, Fulton County,Illinois,more particularly described as follows:
Beginning at a stone found at the Center of said Section 30; thence North 01 degrees 38 minutes
22 seconds East,a distance of 890.99 feet along the west line of said Northeast Quarter of Section
30 to the southwest corner of Lake View Addition as shown on Document No. 1462755 in Slide
496;thence along the southerly, easterly and northerly boundary lines of said Lake View Addition
for the following courses bearing North 86 degrees 39 minutes 02 seconds East, a distance of
499.09 feet;thence North 78 degrees 44 minutes 03 seconds East,a distance of 336.37 feet;thence
North 01 degrees 34 minutes 44 seconds East, a distance of 81.57 feet; thence North 89 degrees
55 minutes 48 seconds East, a distance of 61.46 feet; thence 47.90 feet, along a curve to the right
having a radius of 10.00 feet and the chord of said curve bears South 42 degrees 50 minutes 12
seconds East, a chord length of 13.58 feet; thence South 04 degrees 23 minutes 48 seconds West,
a distance of 110.90 feet;thence South 67 degrees 44 minutes 51 seconds East,a distance of 127.90
feet;thence North 15 degrees 46 minutes 34 seconds East, a distance of 175.79 feet;thence North
19 degrees 01 minutes 52 seconds East, a distance of 158.50 feet; thence North 12 degrees 17
minutes 05 seconds West,a distance of 82.86 feet;thence North 38 degrees 48 minutes 07 seconds
West, a distance of 61.35 feet;thence North 53 degrees 21 minutes 05 seconds West, a distance of
59.13 feet; thence North 76 degrees 41 minutes 16 seconds West, a distance of 43.46 feet; thence
South 59 degrees 05 minutes 29 seconds West, a distance of 148.55 feet;thence South 58 degrees
55 minutes 57 seconds West, a distance of 145.71 feet; thence South 63 degrees 19 minutes 09
seconds West, a distance of 130.62 feet; thence South 72 degrees 44 minutes 05 seconds West, a
distance of 92.90 feet; thence South 79 degrees 21 minutes 03 seconds West, a distance of 104.26
feet;thence North 85 degrees 56 minutes 51 seconds West, a distance of 99.76 feet;thence North
87 degrees 57 minutes 31 seconds West, a distance of 99.42 feet; thence North 84 degrees 45
minutes 05 seconds West,a distance of 99.27 feet;thence North 74 degrees 20 minutes 02 seconds
West,a distance of 102.23 feet to said west line;thence leaving said boundary lines of Lake View
Addition and along said west line bearing South 01 degrees 38 minutes 22 seconds West,a distance
of 128.31 feet to the southeast corner of the City of Canton property as described in Book 464 on
Page 499; thence along the southerly and westerly lines of said City of Canton property as
described in said Book 464 on Page 499 and in Book 464 on Page 444 and Book 469 on Page 308
for the following courses bearing North 89 degrees 01 minutes 51 seconds West, a distance of
321.96 feet;thence North 44 degrees 01 minutes 52 seconds West,a distance of 257.50 feet;thence
North 00 degrees 58 minutes 08 seconds East, a distance of 480.00 feet; thence North 89 degrees
01 minutes 52 seconds West, a distance of 197.00 feet; thence South 00 degrees 58 minutes 08
seconds West, a distance of 350.00 feet; thence North 89 degrees 01 minutes 52 seconds West, a
distance of 242.50 feet;thence North 00 degrees 58 minutes 08 seconds East, a distance of 190.00
feet;thence North 89 degrees 01 minutes 52 seconds West, a distance of 250.00 feet;thence South
00 degrees 58 minutes 08 seconds West, a distance of 420.00 feet; thence North 89 degrees 51
minutes 52 seconds West,a distance of 292.50 feet;thence North 00 degrees 55 minutes 16 seconds
East, a distance of 249.30 feet; thence North 89 degrees 49 minutes 56 seconds West, a distance
of 540.00 feet;thence North 00 degrees 39 minutes 52 seconds East, a distance of 263.00 feet to a
concrete marker found;thence North 89 degrees 46 minutes 21 seconds West,a distance of 204.72
feet to a concrete marker found; thence North 00 degrees 59 minutes 15 seconds East, a distance
of 611.04 feet to a concrete marker found;thence North 89 degrees 52 minutes 43 seconds East, a
distance of 747.13 feet to a concrete marker found;thence North 01 degrees 28 minutes 22 seconds
East, a distance of 366.96 feet to a concrete marker found on the north line of said Section 30;
thence leaving said southerly and westerly lines of said City of Canton property and along said
north line bearing South 89 degrees 51 minutes 21 seconds East, a distance of 1837.74 feet to a
line near the shoreline of Canton Lake; thence along said line for the following courses bearing
South 17 degrees 39 minutes 45 seconds West, a distance of 7.57 feet; thence South 39 degrees 05
minutes 39 seconds West,a distance of 22.55 feet;thence South 19 degrees 33 minutes 14 seconds
West, a distance of 198.33 feet; thence South 02 degrees 30 minutes 49 seconds East, a distance
of 10.78 feet;thence South 76 degrees 35 minutes 40 seconds East, a distance of 6.63 feet;thence
North 74 degrees 46 minutes 56 seconds East, a distance of 49.79 feet; thence North 49 degrees
19 minutes 15 seconds East, a distance of 46.89 feet; thence North 78 degrees 23 minutes 20
seconds East, a distance of 145.72 feet; thence North 52 degrees 43 minutes 03 seconds East, a
distance of 48.29 feet; thence North 39 degrees 08 minutes 04 seconds East, a distance of 54.21
feet; thence North 81 degrees 10 minutes 49 seconds East, a distance of 49.86 feet; thence North
82 degrees 48 minutes 19 seconds East, a distance of 55.83 feet; thence North 77 degrees 42
minutes 04 seconds East, a distance of 18.23 feet;thence North 66 degrees 41 minutes 48 seconds
East, a distance of 24.00 feet; thence North 72 degrees 36 minutes 48 seconds East, a distance of
58.34 feet; thence South 87 degrees 00 minutes 21 seconds East, a distance of 50.30 feet; thence
North 80 degrees 08 minutes 35 seconds East, a distance of 88.37 feet; thence North 70 degrees
17 minutes 38 seconds East,a distance of 59.80 feet to said north line;thence South 89 degrees 51
minutes 21 seconds East, a distance of 235.14 feet along said north line; thence South 25 degrees
11 minutes 25 seconds East,a distance of 7.20 feet;thence South 74 degrees 44 minutes 15 seconds
East, a distance of 41.09 feet; thence South 42 degrees 47 minutes 37 seconds East, a distance of
40.21 feet; thence South 58 degrees 26 minutes 53 seconds East, a distance of 79.57 feet; thence
South 54 degrees 36 minutes 05 seconds East, a distance of 37.88 feet; thence South 47 degrees
32 minutes 50 seconds East, a distance of 85.80 feet; thence South 63 degrees 18 minutes 18
seconds East, a distance of 39.93 feet; thence North 52 degrees 48 minutes 33 seconds East, a
distance of 32.05 feet; thence North 20 degrees 21 minutes 10 seconds East, a distance of 114.31
feet; thence North 18 degrees 10 minutes 40 seconds East, a distance of 61.93 feet to said north
line; thence South 89 degrees 51 minutes 21 seconds East, a distance of 168.43 feet along said
north line to the west line of Lot 21-A in the Lake Wind Resubdivision of Lots 20,21 &22;thence
along the westerly, southerly and easterly boundary lines of said Lake Wind Resubdivision for the
following courses bearing South 12 degrees 12 minutes 09 seconds East, a distance of 33.68 feet;
thence South 21 degrees 52 minutes 01 seconds East, a distance of 88.75 feet; thence North 79
degrees 03 minutes 38 seconds East, a distance of 89.69 feet;thence North 43 degrees 38 minutes
38 seconds East, a distance of 87.08 feet; thence South 89 degrees 53 minutes 22 seconds East, a
distance of 105.00 feet; thence North 00 degrees 06 minutes 38 seconds East, a distance of 34.72
feet to said north line; thence leaving said westerly, southerly and easterly boundary lines and
along said north line bearing South 89 degrees 51 minutes 21 seconds East, a distance of 507.38
feet to the northwest corner of Lot 37 in said Lake Wind Addition;thence along the outer boundary
lines of Lots 32-37 in said Lake Wind Addition for the following courses bearing South 45 degrees
00 minutes 39 seconds West, a distance of 69.80 feet; thence North 74 degrees 02 minutes 21
seconds West, a distance of 139.50 feet; thence South 21 degrees 04 minutes 38 seconds West, a
distance of 100.94 feet;thence South 37 degrees 31 minutes 34 seconds West,,a distance of 264.90
feet;thence South 41 degrees 38 minutes 39 seconds East, a distance of 18.49 feet; thence South
07 degrees 45 minutes 12 seconds West, a distance of 24.46 feet; thence South 46 degrees 25
minutes 09 seconds East, a distance of 53.14 feet;thence North 84 degrees 00 minutes 58 seconds
East, a distance of 73.26 feet; thence South 60 degrees 40 minutes 56 seconds East, a distance of
26.41 feet; thence North 70 degrees 59 minutes 59 seconds East, a distance of 50.98 feet; thence
North 21 degrees 49 minutes 18 seconds East, a distance of 123.57 feet; thence North 70 degrees
09 minutes 07 seconds East, a distance of 162.90 feet; thence North 26 degrees 17 minutes 01
seconds East, a distance of 70.60 feet; thence North 52 degrees 27 minutes 35 seconds East, a
distance of 87.33 feet; thence North 07 degrees 30 minutes 29 seconds East, a distance of 92.59
feet to said north line;thence leaving said outer boundary lines and along said north line South 89
degrees 51 minutes 21 seconds East, a distance of 10.00 feet to a railroad spike found at the
northeast corner of said Section 30; thence South 01 degrees 08 minutes 57 seconds West, a
distance of 443.35 feet along the east line of said Northeast Quarter of Section 30 to the northeast
corner of Old Beach Addition as shown on Document No. 1778527 in Slide 539;thence along the
northerly, westerly and southerly boundary lines of said Old Beach Addition for the following
courses bearing North 88 degrees 51 minutes 00 seconds West, a distance of 66.99 feet; thence
North 57 degrees 09 minutes 32 seconds West, a distance of 27.21 feet; thence North 82 degrees
50 minutes 02 seconds West, a distance of 243.17 feet; thence South 07 degrees 41 minutes 48
seconds West, a distance of 92.03 feet; thence South 46 degrees 54 minutes 38 seconds West, a
distance of 68.99 feet; thence North 60 degrees 02 minutes 56 seconds West, a distance of 56.33
feet;thence South 65 degrees 47 minutes 06 seconds West, a distance of 24.94 feet; thence South
39 degrees 40 minutes 57 seconds West, a distance of 65.35 feet; thence South 15 degrees 01
minutes 57 seconds West,a distance of 59.85 feet;thence South 74 degrees 07 minutes 48 seconds
West,a distance of 88.50 feet;thence South 63 degrees 07 minutes 03 seconds West, a distance of
67.24 feet; thence South 48 degrees 39 minutes 08 seconds West, a distance of 74.44 feet; thence
South 57 degrees 10 minutes 17 seconds West, a distance of 74.95 feet; thence South 25 degrees
28 minutes 00 seconds West, a distance of 79.02 feet; thence South 00 degrees 17 minutes 16
seconds West, a distance of 42.59 feet; thence South 24 degrees 14 minutes 47 seconds East, a
distance of 36.82 feet; thence South 30 degrees 22 minutes 03 seconds East, a distance of 87.75
feet;thence North 73 degrees 56 minutes 43 seconds East, a distance of 123.97 feet;thence South
15 degrees 11 minutes 24 seconds East, a distance of 111.94 feet; thence North 74 degrees 20
minutes 57 seconds East,a distance of 256.75 feet;thence North 77 degrees 19 minutes 27 seconds
East, a distance of 85.61 feet; thence South 01 degrees 09 minutes 00 seconds West, a distance of
200.00 feet;thence South 22 degrees 57 minutes 21 seconds East,a distance of 197.35 feet;thence
South 01 degrees 09 minutes 00 seconds West, a distance of 200.00 feet;thence North 77 degrees
19 minutes 27 seconds East, a distance of 196.34 feet to said east line; thence leaving said
northerly, westerly and southerly boundary lines of said Old Beach Addition and along said east
line bearing South 01 degrees 08 minutes 53 seconds West, a distance of 1152.38 feet to a mag
nail found at the southeast corner of said Northeast Quarter of Section 30;thence North 89 degrees
•
21 minutes 48 seconds West, a distance of 2665.07 feet to the point of beginning, containing
198.322 acres more or less.
Excepting from the above description Lots 23-28 in Lake Wind Addition.
Subject to all easements of record and to the rights, if any, of the public for roadway purposes for
Dal Bar Road and any roadway running to the existing subdivisions adjoining the above described
property.
Exhibit B
See Solar Power Purchase Agreement and Solar System Site Lease Agreement
Solar Power Purchase Agreement
This Solar Power Purchase Agreement(this"Agreement") is entered into by the parties listed below(each a"Party" and collectively
the"Parties")as of the date signed by Seller below(the"Effective Date").
Purchaser: City of Canton,Illinois Seller: KPH IL30,LLC and/or it's nominees
Name Attention: Mayor Kent McDowell Name 12 Paoli Pike Ste#5
and 2 N.Main Street and Paoli PA. 19301
Address Canton,IL 61520 Address Attention: Legal Department
Phone 309-647-0065 Phone 484 301-0755 x20
E-mail luncdowell@cantoncityhall.org E-mail admin(2l keystoneph.com
Premises Purchaser owns the parcels of land(the Additional
Ownership "Property")on which each"Facility"to Seller
be powered by solar is located Information
(collectively,the"Premises").
Property Tax Identification No(s).
Part of 10-09-30-100-020,Canton water
treatment plant parcel on North
Lakeshore Drive,Canton,Illinois
This Agreement sets forth the terms and conditions of the purchase and sale of solar generated electric energy from the solar panel
system described in Exhibit 2(the"System")and installed at the Purchaser's facility described in Exhibit 2(the"Facility").
The exhibits listed below are incorporated by reference and made part of this Agreement.
Exhibit 1 Basic Terms and Conditions
Exhibit 2 System Description
Exhibit 3 Credit Information
Exhibit 4 General Terms and Conditions
Exhibit 5 Form of Lease Agreement
Purchaser: City f CantoSeller: KPH IL30,LLC and/or it's nominees
d,
Signature: Signature:
Printed Name: I ‹.6 r31*--- 4. 1411P,...Not-
/1 Printed Name:
Title: //,V 1, OLAV Title:
Date: riti t L /Z 2-3 Date:
Hower i'urcnase Agreement Disclosure corm- Iu#596485
Printed Name40-r- A . .g66,„)2s-/)
Signature . 1(j. L �v` Lx-e2,(4
x-e Date /?/ 0202.3
Exhibit 1
Basic Terms and Conditions
1. Term:Thirty(30)years,beginning on the Commercial Operation Date.
2. Additional Terms: Up to 3 (three)Additional Term(s)of five()years at starting at$0.04/kWH for the first renewal and
rising by 0%per year thereafter.
3. Environmental Incentives and Environment Attributes:Accrue to Seller.
4. Contract Price:
Contract Year $/kWh
1 0.04
2 0.04
3 0.04
4 0.04
5 0.04
6 0.04
7 0.04
8 0.04
9 0.04
10 0.04
11 0.04
12 0.04
13 0.04
14 0.04
15 0.04 _
16 0.04
17 0.04
18 0.04
19 0.04
20 0.04
21 0.04
22 0.04
23 0.04
24 0.04
25 0.04
26 0.04
27 0.04
28 0.04
29 0.04
30 0.04
5. Condition Satisfaction Date:December 31,2023
6. Anticipated Commercial Operation Date: December 31,2023
7. Rebate Variance.All prices in this Agreement are calculated based on receiving the Illinois Power Agency Adjustable
Block Program 2023 block incentive. If the actual incentive is not granted or is lower than expected,Seller shall have the
right to terminate this Agreement without fault or further liability.
8. Purchaser Options to Purchase System.Yes,as set forth in Section 16(b).
9. Outside Commercial Operation Date:December 31,2024.
10. System Installation:
Includes: [X]Design,engineering,permitting,installation,monitoring,operation&maintenance,electrical interconnection,
tree removal or tree trimming(as needed),ground work(as needed),fencing(as needed),safety and paperwork
processing of the System.
Exhibit 2
System Description
1. System Locations: Part of the Property located West of the City of Canton's water treatment plant parcel on North
Lakeshore Drive, Canton, Illinois (Property Tax Identification No. 10-09-30-100-020). The final location (or the
"Premises")is to be agreed upon by the parties prior to installation.
2. System Size (DC kW): 750 kW to 975 kW (to be amended based on individual site actual electrical usage, ground
suitability analysis,and final approved design/installation)and subject to agreement of the parties
3. Expected First Year Energy Production (kWh): 1300 kWh/kWp +/-20% (to be amended based on final approved
design/installation)
4. Expected Structure:Ground Mount
5. Expected Module(s):
Manufacturer/Model Quantity
Hanwha Q Cells,Q.PEAK DUO XL-G11.2 585 (585W)or similar 1,452(to be amended
based on final approved
design/installation)
6. Expected Inverter(s):
Manufacturer/Model Quantity
CPS SCH100KTL-DO/US-480(Chint Power Systems)or similar 7(to be amended based
on final approved
design/installation)
7. Facility and System Layout: See Exhibit 2,Attachment A
8. Utility: Ameren
Exhibit 2
Attachment A:
Facility and System Layout
An Aerial Photograph of the Facility See below
Conceptual Drawing of the System See below
Delivery Point At the revenue grade
meter installed as part
of the solar project for
each location
Access Points Access to the Premises,
to install and maintain
the System
Property Tax Identification 10-09-30-100-020, Part of Property on N.Lakeshore Drive,Canton,Illinois—
Aerial Photo Ira.h of the Facili and Conce•tual Desi.n of the S stem
iF S jt rfyll \ 't.-3-',1.,- �` �, Y+o
u
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,L
4 {
*11._
ower Holdin•s,LLC
Exhibit 3
Credit Information
Promptly following the execution of this Agreement,Purchaser shall supply Seller with the following credit information:
PURCHASER INFORMATION
Name:City of Canton,Illinois Tax ID: r'... ;,•,•
Previous&Other Names: Website:www.cantonillinois.org
Corporate Address: 2 North Main St,
City,State,Zip Canton Illinois 61520
Phone Number: 309-647-0065 Fax Number: N/A
Entity Type S-Corp C-Corp Partnership Sole Prop LLC LLP X Other
Check One: Municipality
Property Addresses for Solar Installation: State: Zip Code: Property Is Owned by Applicant
25495 N Lakeshore,Canton IL IL 61520
792 North 20'St Canton,IL
Property Type Insurance Agent Name Agents Phone: Name of Property Owner(s)if Not Applicant
Vacant/Water Treatment Plant Dan Kiesewetter (309)245-2434 N/A
Kiesewetter Insurance Agency
Information.Requested:Please submit the information required below via electronic format to admin@keystoneph.com
Corporate Records •
❑ Copy of Ordinance approving this Agreement and authorizing the Mayor to execute this Agreement.
Financial Statements
❑ Last three(3)years of CPA audited,reviewed,compiled financial statements
Real Estate Documents
❑ Lease with Premises Fee Owner(Not applicable)
❑ Copies of Liens or Third Party Security Interests in the Premises(If Applicable)
NOTICE: The Federal Equal Opportunity Act prohibits creditors from discriminating against credit applicants on the basis of race,color,religion,national origin,sex,
marital status or age(provided the applicant has the capacity to enter into a binding contract);because all or part of the applicant's income derives from any public assistance
programs;or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with
this law conceming this creditor is the Office of the Comptroller of the Currency,Customer Assistance Unit, 1301 McKinney Street,Suite 3450,Houston,Texas 77010-
9050. Seller is an equal opportunity lender.
Exhibit 4
Solar Power Purchase Agreement
General Terms and Conditions
1. Definitions and Interpretation: Unless otherwise defined or required by the context in which any term appears: (a) the
singular includes the plural and vice versa;(b)the words"herein,""hereof'and"hereunder"refer to this Agreement as a whole
and not to any particular section or subsection of this Agreement; (c) references to any agreement, document or instrument
mean such agreement,document or instrument as amended,modified,supplemented or replaced from time to time;and(d)the
words "include," "includes" and "including" mean include, includes and including "without limitation." The captions or
headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement.
2. Purchase and Sale of Electricity. Purchaser shall purchase from Seller,and Seller shall sell to Purchaser,all of the electric
energy generated by the System during the Initial Term and any Additional Term(as defined in Exhibit 1,and collectively the
"Term"). Purchaser agrees to purchase from Seller one hundred percent (100%) of the available electricity in priority to
purchases from all other available energy sources. Electric energy generated by the System will be delivered to Purchaser at
the delivery point identified on Exhibit 2(the"Delivery Point"). Purchaser shall take title to the electric energy generated by
the System at the Delivery Point, and risk of loss will pass from Seller to Purchaser at the Delivery Point. Purchaser may
purchase electric energy for the Facility from other sources if the Purchaser's electric requirements at the Facility exceed the
output of the System. Any purchase,sale and/or delivery of electric energy generated by the System prior to the Commercial
Operation Date shall be treated as purchase,sale and/or delivery of limited amounts of test energy only and shall not indicate
that the System has been put in commercial operation by the purchase,sale and/or delivery of such test energy.
3. Term and Termination.
a. Initial Term. The initial term ("Initial Term") of this Agreement shall commence on the Commercial Operation
Date(as defined below)and continue for the length of time specified in Exhibit 1,unless earlier terminated as provided
for in this Agreement. The"Commercial Operation Date"is the date Seller gives Purchaser written notice that the
System is mechanically complete and capable of providing electric energy to the Delivery Point and the System is
interconnected.Such notice shall be deemed effective unless Purchaser reasonably objects within five(5)days of the
date of such notice.Upon Purchaser's request,Seller will give Purchaser copies of certificates of completion or similar
documentation from Seller's contractor and the interconnection or similar agreement with the entity authorized and
required under applicable law to provide electric distribution service to Purchaser at the Facility(the"Utility"),as set
forth on Exhibit 2. This Agreement is effective as of the Effective Date and Purchaser's failure to enable Seller to
provide the electric energy by preventing it from installing the System or otherwise not performing shall not excuse
Purchaser's obligations to make payments that otherwise would have been due under this Agreement.
b. Additional Terms. Prior to the end of the Initial Term or of any applicable Additional Term, as defined below, if
Purchaser has not exercised its option to purchase the System,either Party may give the other Party written notice of
its desire to extend this Agreement on the terms and conditions set forth herein for the number and length of additional
periods specified in Exhibit 1 (each such additional period,an"Additional Term"). Such notice shall be given,if at
all,not more than one hundred twenty(120)and not less than sixty(60)days before the last day of the Initial Term or
the then current Additional Term,as applicable. The Party receiving the notice requesting an Additional Term shall
respond positively or negatively to that request in writing within thirty(30)days after receipt of the request. Failure
to respond within such thirty(30)day period shall be deemed a rejection of the offer for an Additional Term. If both
Parties agree to an Additional Term,the Additional Term shall begin immediately upon the conclusion of the Initial
Term or the then current term on the same terms and conditions as set forth in this Agreement. If the Party receiving
the request for an Additional Term rejects or is deemed to reject the first Party's offer,this Agreement shall terminate
at the end of the Initial Term(if the same has not been extended)or the then current Additional Term.
4. Billing and Payment.
a. Monthly Charges. During the Initial Term and each Additional Term(if any),Purchaser shall pay Seller monthly
for the electric energy generated by the System and delivered to the Delivery Point at the$/kWh rate shown in
Exhibit 1 (the"Contract Price"). The monthly payment for such energy will be equal to the applicable$/kWh rate
multiplied by the number of kWh of energy generated during the applicable month,as measured by the System
meter.
b. Monthly Invoices. Seller shall invoice Purchaser monthly, either through printed matter or through email no later
than the tenth(10`h)day of each month.Such monthly invoices shall state(i)the amount of electric energy produced
by the System and delivered to the Delivery Point, (ii) the rates applicable to, and charges incurred by, Purchaser
under this Agreement and (iii) the total amount due from Purchaser. The payment will be made through either an
electronic check(ACH)or manual check per the instructions of the Seller.
c. Taxes. Purchaser shall either pay or reimburse Seller for any and all taxes assessed on the generation,sale, delivery
or consumption of electric energy produced by the System or the interconnection of the System to the Utility's electric
distribution system;provided,however,Purchaser will not be required to pay or reimburse Seller for any taxes during
periods when Seller fails to deliver electric energy to Purchaser for reasons other than Force Majeure or as a result of
Purchaser's acts or omissions. For purposes of this Section 4(d), "Taxes" means any federal, state and local
occupation, generation, privilege, 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 Seller's
revenues due to the sale of energy under this Agreement or on the improvements which make up the System,which
shall be Seller's responsibility. Any property taxes that may be imposed on the System will either be paid directly by
Purchaser or reimbursed by Purchaser to Seller. Seller agrees to reasonably cooperate and coordinate with Purchaser
for the purposes of causing the Premises to be exempt(or remain exempt through the Term)from property or other
related taxes.
d. Payment Terms. All amounts due under this Agreement shall be due and payable net thirty(30)days from receipt
of invoice,provided the invoice was delivered to Purchaser by the tenth(10`h)day of the month.If the invoice is not
received by the tenth(10t)day of the month,then the invoice will be due thirty(30)days following the tenth(10th)
day of the following month. Any undisputed portion of the invoice amount not paid within the thirty(30)day period(s)
shall accrue interest at the annual rate of two and one-half percent(2.5%)over the prime rate,as published in the Wall
Street Journal(but not to exceed the maximum rate permitted by law).
5. Environmental Attributes and Environmental Incentives.
Unless otherwise specified on Exhibit 1,Seller is the owner of all Environmental Attributes and Environmental Incentives and
is entitled to the benefit of all Tax Credits, and Purchaser's purchase of electricity under this Agreement does not include
Environmental Attributes, Environmental Incentives or the right to Tax Credits or any other attributes of ownership and
operation of the System,all of which shall be retained by Seller. Purchaser shall cooperate with Seller in obtaining, securing
and transferring all Environmental Attributes and Environmental Incentives and the benefit of all Tax Credits, including by
using the electric energy generated by the System in a manner necessary to qualify for such available Environmental Attributes,
Environmental Incentives and Tax Credits. Purchaser shall not be obligated to incur any out—of—pocket costs or expenses in
connection with such actions unless reimbursed by Seller. If any Environmental Incentives are paid directly to Purchaser,
Purchaser shall immediately pay such amounts over to Seller.
"Environmental Attributes" means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever
entitled, attributable to the System,the production of electrical energy from the System and its displacement of conventional
energy generation, including (a)any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx),
nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (b) any avoided emissions of carbon dioxide (CO2),
methane(CH4),nitrous oxide,hydrofluorocarbons,perfluorocarbons,sulfur hexafluoride and other greenhouse gases(GHGs)
that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to
contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere;and(c)the reporting
rights related to these avoided emissions, such as Green Tag Reporting Rights and Renewable Energy Credits. Green Tag
Reporting Rights are the right of a party to report the ownership of accumulated Green Tags in compliance with federal or state
law, if applicable,and to a federal or state agency or any other party,and include Green Tag Reporting Rights accruing under
Section 1605(b)of The Energy Policy Act of 1992 and any present or future federal,state,or local law,regulation or bill,and
international or foreign emissions trading program. Environmental Attributes do not include Environmental Incentives and
Tax Credits. Purchaser and Seller shall file all tax returns in a manner consistent with this Section 5. Without limiting the
generality of the foregoing,Environmental Attributes include carbon trading credits,renewable energy credits or certificates,
emissions reduction credits,emissions allowances,green tags tradable renewable credits and Green-e®products.
"Environmental Incentives" means any and all credits, rebates, subsidies, payments or other incentives that relate to self—
generation of electricity,the use of technology incorporated into the System, environmental benefits of using the System,or
other similar programs available from the Utility,any other regulated entity,the manufacturer of any part of the System or any
Governmental Authority.
"Governmental Authority" means any national, state or local government (whether domestic or foreign), any political
subdivision thereof or any other governmental, quasi-governmental,judicial, public or statutory instrumentality, authority,
body,agency,bureau or entity(including the Federal Energy Regulatory Commission or the Illinois Commerce Commission),
or any arbitrator with authority to bind a party at law.
"Tax Credits"means any and all(a)investment tax credits,(b)production tax credits and(c)similar tax credits or grants under
federal,state or local law relating to the construction,ownership or production of energy from the System.
6. Conditions to Obligations.
a. Conditions to Seller's Obligations. Seller's obligations under this Agreement are conditioned on the completion of
the following conditions to Seller's reasonable satisfaction on or before the Condition Satisfaction Date:
i. Completion of a physical inspection of the Facility and the property upon which the Facility is located(the
"Premises") including, if applicable, geotechnical work, and real estate due diligence to confirm the
suitability of the Facility and the Premises for the System;
ii. Approval of(A) this Agreement and (B) the Construction Agreement (if any) for the System by Seller's
Financing Parties. "Construction Agreement" as used in this subsection means an agreement between
Seller and any contractor or subcontractor to install the System;
iii. Confirmation that Seller will obtain all applicable Environmental Incentives and Tax Credits;
iv. Receipt of all necessary zoning,land use and building permits;and
v. Execution of all necessary agreements with the Utility for interconnection of the System to Facility electrical
system and/or the Utility's electric distribution system.
b. Failure of Conditions. If any of the conditions listed in subsection(a)are not satisfied by the Condition Satisfaction
Date,the Parties will attempt in good faith to negotiate new dates for the satisfaction of the failed conditions. If the
Parties are unable to negotiate new dates then Seller may terminate this Agreement upon ten(10)days written notice
to Buyer without liability for costs or damages or triggering a default under this Agreement.
c. Commencement of Construction. Seller's obligation to commence construction and installation of the System is
conditioned on Seller's receipt of (A) proof of insurance for all insurance required to be maintained by Purchaser
under this Agreement,(B)written confirmation from any person holding a mortgage,lien or other encumbrance over
the Premises or the Facility,as applicable,that such person will recognize Seller's rights under this Agreement for as
long Seller is not in default hereunder and(C), a signed and notarized original copy of the lease agreement suitable
for recording,substantially in the form attached hereto as Exhibit 5(the"Lease Agreement"). Seller shall commence
construction and installation of the System at a time that is agreed upon by Purchaser.
d. Conditions to Purchaser's Obligations. Purchaser's obligations under Section 4(a) are conditioned on the
occurrence of the Commercial Operation Date for the System by the Outside Commercial Operation Date.
7. Seller's Rights and Obligations.
a. Permits and Approvals. Seller,with Purchaser's reasonable cooperation,shall use commercially reasonable efforts
to obtain,at its sole cost and expense:
i. any zoning,land use and building permits required to construct,install and operate the System;and
ii. any agreements and approvals from the Utility necessary in order to interconnect the System to the Facility
electrical system and/or the Utility's electric distribution system.
Purchaser shall cooperate with Seller's reasonable requests to assist Seller in obtaining such agreements,permits and
approvals.
b. Standard System Repair and Maintenance. Seller shall construct and install the System at the Facility. During the
Term,Seller will operate and perform all routine and emergency repairs to,and maintenance of,the System at its sole
cost and expense,except for any repairs or maintenance resulting from Purchaser's negligence,willful misconduct or
breach of this Agreement. Seller shall not be responsible for any work done by others on any part of the System unless
Seller authorizes that work in advance in writing. Seller shall not be responsible for any loss,damage,cost or expense
arising out of or resulting from improper environmental controls or improper operation or maintenance of the System
by anyone other than Seller or Seller's contractors. If the System requires repairs for which Purchaser is responsible,
Purchaser shall pay Seller for diagnosing and correcting the problem at Seller or Seller's contractors' then current
standard rates. Seller shall provide Purchaser with reasonable notice prior to accessing the Facility to make standard
repairs.
c. Non-Standard System Repair and Maintenance. If Seller incurs incremental costs to maintain the System due to
reasonably unforeseen conditions at the Facility that Seller could not have discovered by due diligence or due to the
inaccuracy of any information provided by Purchaser and relied upon by Seller,the pricing,schedule and other terms
of this Agreement will be equitably adjusted to compensate for any work in excess of normally expected work required
to be performed by Seller. In such event,the Parties will negotiate such equitable adjustment in good faith.
d. Breakdown Notice. Seller shall notify Purchaser as soon as practicable, generally within twenty-four(24) hours,
following Seller's discovery of(i) any material malfunction in the operation of the System or(ii)an interruption in
the supply of electrical energy from the System. Purchaser and Seller shall each designate personnel and establish
procedures such that each Party may provide notice of such conditions requiring Seller's repair or alteration at all
times, twenty-four(24)hours per day, including weekends and holidays. Purchaser shall notify Seller immediately
upon the discovery of an emergency condition affecting the System.
e. Suspension. Notwithstanding anything to the contrary herein,Seller shall be entitled to suspend delivery of electricity
from the System to the Delivery Point for the purpose of maintaining and repairing the System and such suspension
of service shall not constitute a breach of this Agreement; provided, that Seller shall use commercially reasonable
efforts to minimize any interruption in service to the Purchaser.
f. Use of Contractors and Subcontractors. Seller shall be permitted to use contractors and subcontractors to perform
its obligations under this Agreement, provided however, that such contractors and subcontractors shall be duly
licensed and shall provide any work in accordance with applicable industry standards.Notwithstanding the foregoing,
Seller shall continue to be responsible for the quality of the work performed by its contractors and subcontractors.
g. Liens and Payment of Contractors and Suppliers. Seller shall pay when due all valid charges from all contractors,
subcontractors and suppliers supplying goods or services to Seller under this Agreement and shall keep the Facility
and Premises free and clear of any liens related to such charges, except for those liens which Seller is permitted by
law to place on the Facility following non-payment by Purchaser of amounts due under this Agreement. Seller shall
indemnify Purchaser for all claims,losses,damages,liabilities and expenses resulting from any liens filed against the
Facility or the Premises in connection with such charges;provided,however,that Seller shall have the right to contest
any such lien, so long as it provides a statutory bond or other reasonable assurances of payment that either remove
such lien from title to the Facility and the Premises or that assure that any adverse judgment with respect to such lien
will be paid without affecting title to the Facility and the Premises. Under no circumstances shall Seller permit or
cause any lien or encumbrance to attach to the Facility and/or Premises.
h. No Warranty. NO WARRANTY OR REMEDY, WHETHER STATUTORY, WRITTEN, ORAL,EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE
OF TRADE SHALL APPLY. The remedies set forth in this Agreement shall be Purchaser's sole and exclusive
remedies for any claim or liability arising out of or in connection with this Agreement, whether arising in contract,
tort(including negligence),strict liability or otherwise.
Pollinator-Friendly Seeding. Within ninety(90)days,or if unable due to weather as soon as reasonably practicable
thereafter,of the Commercial Operation Date, Seller shall plant seed for pollinator-friendly plants in and around the
System to attract pollinators (e.g. bees,butterflies, and other pollinating insects)to the Premises. The seed shall be
approved by the Purchaser within fourteen(14)days of submission to Seller prior to planting,with such approval not
to be unreasonably withheld. Seller shall be responsible during the Term for ensuring pollinator-friendly plants are
planted and present in the area encompassing the System.
j. Fencing. Any fencing or other barriers intended to secure the System shall be approved prior to installation by the
Purchaser in accordance with applicable laws and regulations,including but not limited to the Purchaser's zoning and
building codes.
k. Interconnection Agreement. Seller shall at all times construct,maintain,own,operate,design, install,test,inspect,
repair,and/or replace the System and its components(including but not limited to the interconnection equipment)as
Purchaser is required to in accordance with the Standard Agreement for Interconnection of Distributed Generation
Facilities with a Capacity of Less than or Equal to 10MWA between Purchaser and the local electrical utility in full
force and effect(the"Interconnection Agreement"),and Seller shall not agree to any modification or amendment of
the terms of such agreement that could reasonably be expected to have a material and adverse effect on this Agreement,
the rights of Purchaser hereunder or the consummation of the transactions contemplated hereby. Seller further agrees
to comply with all terms and conditions of the Interconnection Agreement for which Seller has control,as would be
required by Purchaser thereunder, and to be responsible for and pay all costs and expenses associated with any
distributed generation facility,metering and data acquisition equipment,interconnection facilities,or other costs and
expenses for which Purchaser would be responsible pursuant to the terms and conditions of the Interconnection
Agreement. Seller shall cooperate with and assist Purchaser in obtaining any and all certifications,permits,licenses,
and approvals necessary to construct,operate, and maintain the System and for Purchaser to perform its obligations
under the Interconnection Agreement.
S. Purchaser's Rights and Obligations.
a. License to the Premises; Facility Access Rights. Purchaser grants to Seller and to Seller's agents, employees,
contractors and assignees an irrevocable non-exclusive license running with the Premises(the"License")for access
to, on, over, under and across the Premises for the purposes of (i) installing, constructing, operating, owning,
maintaining,accessing,removing and replacing the System;(ii)performing all of Seller's obligations and enforcing
all of Seller's rights set forth in this Agreement;and(iii)installing,using and maintaining electric lines and equipment,
including inverters and meters necessary to interconnect the System to Purchaser's electric system at the Facility,to
the Utility's electric distribution system, if any, or for any other purpose that may from time to time be useful or
necessary in connection with the construction, installation, operation, maintenance or repair of the System. Seller
shall notify Purchaser prior to entering the Facility except in situations where there is imminent risk of damage to
persons or property. The term of the License shall continue until the Lease Agreement described in Section 6.c.
becomes effective,provided that if this Agreement terminates prior to the Lease Agreement having become effective,
then the term shall continue until completion of Seller's System removal obligation under Section 11 following
termination of this Agreement(the"License Term"). During the License Term,Purchaser shall ensure that Seller's
rights under the License and Seller's access to the Premises and the Facility are preserved and protected. Purchaser
shall not interfere with and shall not permit any third parties to interfere with such rights or access. The grant of the
License shall survive termination of this Agreement by either Party.
b. OSHA Compliance. Both parties shall ensure that all Occupational Safety and Health Act(OSHA)requirements and
other similar applicable safety laws or codes are adhered to in their performance under this Agreement.
c. Maintenance of Facility. Purchaser will ensure that the Facility remains interconnected to the Utility's electric
distribution system at all times and will not cause cessation of electric service to the Facility from the Utility.
Purchaser shall promptly notify Seller of any matters of which it is aware pertaining to any damage to or loss of use
of the System or that could reasonably be expected to adversely affect the System.
d. No Alteration of Facility. Purchaser shall not make any alterations or repairs to the Facility which could adversely
affect the operation and maintenance of the System without Seller's prior written consent. If Purchaser wishes to
make such alterations or repairs that could adversely affect the operation and maintenance of the System,Purchaser
shall give prior written notice to Seller, setting forth the work to be undertaken (except for emergency repairs, for
which notice may be given by telephone), and give Seller the opportunity to advise Purchaser in making such
alterations or repairs in a manner that avoids damage to the System,but,notwithstanding any such advice,Purchaser
shall be responsible for all damage to the System caused by Purchaser or its contractors. To the extent that temporary
disconnection or removal of the System is necessary to perform such alterations or repairs, such work and any
replacement of the System after completion of Purchaser's alterations and repairs, shall be done by Seller or its
contractors at Purchaser's cost. Except for a Force Majeure Event and a Temporary Disconnection(as defined below),
in the event any disconnection resulting from alterations or repairs to the Facility that affect the operation and
maintenance of System exceeds ten(10)days,Purchaser shall pay Seller an amount equal to the sum of(i)payments
that Purchaser would have made to Seller hereunder for electric energy that would have been produced by the System
during such disconnection or removal;(ii)revenues that Seller would have received but did not receive,with respect
to the System under the any rebate program and any other assistance program with respect to electric energy that
would have been produced during such disconnection or removal; (iii)revenues from Environmental Attributes and
Environmental Incentives that Seller would have received but did not receive with respect to electric energy that would
have been produced by the System during such disconnection or removal;and(iv)Tax Credits that Seller(or,if Seller
is a pass-through entity for tax purposes, Seller's owners)would have received but did not with respect to electric
energy that would have been produced by the System during such disconnection or removal. Determination of the
amount of energy that would have been produced during any disconnection or removal shall be in accordance with
the procedures in Section 10(b). All of Purchaser's alterations and repairs will be done in a good and workmanlike
manner and in compliance with all applicable laws,codes and permits.
e. Outages. Purchaser shall be permitted to be off line for a total of twenty-four(24)daylight hours(each,a"Scheduled
Outage")per calendar year during the Term,during which hours Purchaser shall not be obligated to accept or pay for
electricity from the System;provided,however,that Purchaser must notify Seller in writing of each such Scheduled
Outage at least forty-eight(48) hours in advance of the commencement of a Scheduled Outage. In the event that
Scheduled Outages exceed a total of twenty-four (24) daylight hours per calendar year or there are unscheduled
outages,in each case for a reason other than a Force Majeure event or Temporary Disconnection(as defined below),
Purchaser shall pay Seller an amount equal to the sum of(i) payments that Purchaser would have made to Seller
hereunder for electric energy that would have been produced by the System during the outage;(ii)revenues that Seller
would have received with respect to the System under any rebate program and any other assistance program with
respect to electric energy that would have been produced during the outage; (iii) revenues from•Environmental
Attributes and Environmental Incentives that Seller would have received with respect to electric energy that would
have been produced by the System during the outage; and(iv)Tax Credits that Seller(or,if Seller is a pass-through
entity for tax purposes, Seller's owners) would have received with respect to electric energy that would have been
produced by the System during the outage. Determination of the amount of energy that would have been produced
during the removal or disconnection shall be in accordance with the procedures in Section 10(b).
f. Liens. Purchaser shall not directly or indirectly cause,create,incur,assume or allow to exist any mortgage,pledge,
lien,charge,security interest,encumbrance or other claim of any nature on or with respect to the System or any interest
therein. Purchaser shall immediately notify Seller in writing of the existence of any such mortgage, pledge, lien,
charge,security interest,encumbrance or other claim,shall promptly cause the same to be discharged and released of
record without cost to Seller,and shall indemnify Seller against all costs and expenses(including reasonable attorneys'
fees)incurred in discharging and releasing any such mortgage,pledge,lien,charge,security interest,encumbrance or
other claim. Notwithstanding anything else herein to the contrary,pursuant to Section 19.a,Seller may grant a lien
on the System and may assign,mortgage,pledge or otherwise collaterally assign its interests in this Agreement and
the System to any Financing Party.
g. Security. Purchaser shall be responsible for using commercially reasonable efforts to maintain the physical security
and the System against known risks and risks that should have been known by Purchaser. Purchaser will not conduct
activities on,in or about the Premises or the Facility that have a reasonable likelihood of causing damage,impairment
or otherwise adversely affecting the System.Notwithstanding the foregoing,the Parties acknowledge that Purchaser
shall not have the obligation to regularly monitor the System by video,audio,or in-person nor any obligation to install
a fence or other barrier to protect the System.
h. Insolation. Purchaser understands that unobstructed access to sunlight ("Insolation") is essential to Seller's
performance of its obligations and a material term of this Agreement. Purchaser shall not in any way cause and,where
possible,shall not in any way permit any interference with the System's Insolation. If Purchaser becomes aware of
any activity or condition that could diminish the Insolation of the System,Purchaser shall notify Seller immediately
and shall cooperate with Seller in preserving the System's existing Insolation levels. The Parties agree that reducing
Insolation would irreparably injure Seller,that such injury may not be adequately compensated by an award of money
damages,and that Seller is entitled to seek specific enforcement of this Section 8(h)against Purchaser,if said reduction
of Insolation of the System is the direct fault of Purchaser or Purchaser's officials,representatives or agents.
Data Line. Purchaser shall provide Seller a high speed internet data line during the Term solely to enable Seller to
remotely monitor the System via camera. Any other data transmission needs of the System shall be the sole
responsibility of the Purchaser.
j. Spare Parts Storage. Purchaser shall not be responsible for providing spare parts storage. Seller shall construct or
purchase a shed or similar facility to place on the Premises that is large enough to hold up to 1 pallet of solar panels
and up to 2 inverters in box. It is expected that the covered storage space will be less than 6 feet by 10 feet(60 square
feet)and will be able to be secured by lock or other suitable means of security and be readily accessible by Seller's
representatives.
k. Breakdown Notice. Purchaser shall notify Seller as soon as practicable,which is generally within twenty-four(24)
hours following the discovery by it of (i) any material malfunction in the operation of the System; or (ii) any
occurrences that could reasonably be expected to adversely affect the System. Purchaser shall notify Seller
immediately upon (i) an interruption in the supply of electrical energy from the System; or(ii)the discovery of an
emergency condition respecting the System. Purchaser and Seller shall each designate personnel and establish
procedures such that each Party may provide notice of such conditions requiring Seller's repair or alteration at all
times,twenty-four(24)hours per day,including weekends and holidays.
Interconnection Agreement.Purchaser shall at all times maintain the Interconnection Agreement(as defined above)
in full force and effect, and shall not agree to any modification or amendment of the terms of such agreement that
could reasonably be expected to have a material and adverse effect on this Agreement,the rights of Seller hereunder
or the consummation of the transactions contemplated hereby.
m. Temporary Disconnection._In the event of a Temporary Disconnection (as set forth in Section 3.4 of the
Interconnection Agreement), which also interrupts electricity service from the System to the Facility, then the
interruption shall be treated as a Scheduled Outage under Section 8.e.and,by way of clarity,not counted for purposes
of the daylight hour limitation,during the time of said Temporary Disconnection by Ameren Illinois Company or such
other applicable utility.
9. Change in Law.
"Change in Law"means:
(i)the enactment, adoption, promulgation, modification or repeal after the Effective Date of any applicable law or
regulation;(ii)the imposition of any material conditions on the issuance or renewal of any applicable permit after the
Effective Date of this Agreement(notwithstanding the general requirements contained in any applicable Permit at the
time of application or issue to comply with future laws,ordinances,codes,rules,regulations or similar legislation),or
(iii)a change in any utility rate schedule or tariff approved by any Governmental Authority which in the case of any
of (i), (ii) or (iii), establishes requirements affecting owning, supplying, constructing, installing, operating or
maintaining the System,or other performance of the Seller's obligations hereunder and which has a material adverse
effect on the cost to Seller of performing such obligations;provided, that a change in federal, state, county or any
other tax law after the Effective Date of this Agreement shall not be a Change in Law pursuant to this Agreement.
If any Change in Law occurs that has a material adverse effect on the cost to Seller of performing its obligations under this
Agreement,then the Parties shall,within thirty(30)days following receipt by Purchaser from Seller of notice of such Change
in Law,meet and attempt in good faith to negotiate amendments to this Agreement as are reasonably necessary to preserve the
economic value of this Agreement to both Parties. If the Parties are unable to agree upon such amendments within such thirty
(30)day period,then Seller shall have the right to terminate this Agreement without further liability to the other Party except
with respect to payment of amounts accrued prior to termination.
10. Relocation of System.
a. System Relocation. If Purchaser ceases to conduct business operations at the Facility,or otherwise vacates the Facility
prior to the expiration of the Term, Purchaser shall have the option to provide Seller with a mutually agreeable
substitute premises located within the same utility district as the terminated System or in a location with similar utility
rates and Insolation. Purchaser shall provide written notice at least sixty(60) days but not more than one hundred
eighty (180) days prior to the date that it wants to make this substitution. In connection with such substitution,
Purchaser shall execute an amended agreement that shall have all of the same terms as this Agreement except for the
(i)Effective Date;(ii)License,which will be amended to grant rights in the real property where the System relocated
to; and (iii) Term, which will be equal to the remainder of the Term of this Agreement calculated starting at the
shutdown of the System pursuant to such relocation, and shall toll until the relocated System achieves commercial
operation of such new location. Such amended agreement shall be deemed to be a continuation of this Agreement
without termination. In addition,Purchaser shall be obligated to provide a new executed and notarized lease agreement
covering the substitute premises in form and content substantially similar to the Lease Agreement. Purchaser shall
also provide any new consents,estoppels,or acknowledgments reasonably required by Financing Parties in connection
with the substitute premises.
b. Costs of Relocation. Purchaser shall pay all costs associated with relocation of the System, including all costs and
expenses incurred by or on behalf of Seller in connection with removal of the System from the Facility and installation
and testing of the System at the substitute facility and all applicable interconnection fees and expenses at the substitute
facility,as well as costs of new title search and other out-of-pocket expenses connected to preserving and refiling the
security interests of Seller's Financing Parties in the System. In addition,Purchaser shall pay Seller an amount equal
to the sum of(i)payments that Purchaser would have made to Seller hereunder for electric energy that would have
been produced by the System during the relocation;(ii)revenues that Seller would have received with respect to the
System under the any rebate program and any other assistance program with respect to electric energy that would have
been produced during the relocation; ; (iii) revenues from Environmental Attributes and Environmental Incentives
that Seller would have received with respect to electric energy that would have been produced by the System during
the relocation;and(iv)Tax Credits that Seller(or,if Seller is a pass-through entity for tax purposes,Seller's owners)
would have received with respect to electric energy that would have been produced by the System during the
relocation. Determination of the amount of energy that would have been produced during the relocation shall be
based,during the first Contract Year,on the estimated levels of production and,after the first Contract Year,based on
actual operation of the System in the same period in the previous Contract Year,unless Seller and Purchaser mutually
agree to an alternative methodology. "Contract Year"means the twelve month period beginning at 12:00 AM on
the Commercial Operation Date or on any anniversary of the Commercial Operation Date and ending at 11:59 PM on
the day immediately preceding the next anniversary of the Commercial Operation Date,provided that the first Contract
Year shall begin on the Commercial Operation Date.
c. Adjustment for Insolation; Termination. Seller shall remove the System from the vacated Facility prior to the
termination of Purchaser's ownership, lease or other rights to use such Facility. Seller will restore the Facility and
Premises to its condition existing on the date of this Agreement,normal wear and tear excepted,including the removal
of System mounting pads or other support structures,. If the substitute facility has inferior Insolation as compared to
the original Facility,Seller shall have the right to make an adjustment to Exhibit 1 such that Purchaser's payments to
Seller are the same as if the System were located at the original Facility, increased to the extent necessary to
compensate Seller for reduced revenues from Environmental Attributes,Environmental Attributes and reduced Tax
Credits that Seller(or, if Seller is a pass-through entity for tax purposes, Seller's owners) receive as a result of the
relocation. If Purchaser is unable to provide such substitute facility and to relocate the System as provided,any early
termination will be treated as a default by Purchaser.
11. Removal of System at Expiration.
Upon the expiration or earlier termination of this Agreement(provided Purchaser does not exercise its purchase option),Seller
shall,at its expense,remove all of its tangible property comprising the System from the Facility on a mutually convenient date,
but in no event later than one hundred eighty(180)days after the expiration of the Term or earlier termination(whichever is
sooner). Excluding ordinary wear and tear and casualty, the portion of the Premises where the System is located shall be
returned to its original condition including the removal of System mounting pads or other support structures. In no case shall
Seller's removal of the System affect the integrity of Purchaser's roof,which shall be as leak proof as it was prior to removal
of the System and shall be flashed and/or patched to existing roof specifications. Seller shall leave the Facility in neat and
clean order. If Seller fails to remove or commence substantial efforts to remove the System by such agreed upon date,Purchaser
shall have the right, at its option,to remove the System and restore the Facility to its original condition(other than ordinary
wear and tear)at Seller's cost.Purchaser shall provide sufficient space for the temporary storage and staging of tools,materials
and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably
necessary during System removal, provided the System removal does not unreasonably interfere with the Purchaser's use of
its Facility.
12. Measurement.
Seller shall install one or more meter(s),as Seller deems appropriate,at or immediately before the Delivery Point to measure
the output of the System. Such meter shall meet the general commercial standards of the solar photovoltaic industry or the
required standard of the Utility. Seller shall maintain the meter(s)in accordance with industry standards.
13. Default,Remedies and Damages.
a. Default. Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances
listed below shall be deemed to be the"Defaulting Party",the other Party shall be deemed to be the"Non-Defaulting
Party",and each event of default shall be a"Default Event":
i. failure of a Party to pay any amount due and payable under this Agreement, other than an amount that is
subject to a good faith dispute, within ten (10) days following receipt of written notice from the Non-
Defaulting Party of such failure to pay("Payment Default");
ii. failure of a Party to substantially perform any other material obligation under this Agreement within thirty
(30)days following receipt of written notice from the Non-Defaulting Party demanding such cure;provided.
that such thirty(30)day cure period shall be extended(but not beyond ninety(90)days)if and to the extent
reasonably necessary to cure the Default Event, if(A) the Defaulting Party initiates such cure within the
thirty(30)day period and continues such cure to completion and(B)there is no material adverse effect on
the Non-Defaulting Party resulting from the failure to cure the Default Event;
iii. if any representation or warranty of a Party proves at any time to have been incorrect in any material respect
when made and is material to the transactions contemplated hereby,if the effect of such incorrectness is not
cured within thirty(30)days following receipt of written notice from the Non-Defaulting Party demanding
such cure;
iv. Purchaser loses its rights to occupy and enjoy the Premises or any individual property that constitutes part of
the Premises;
v. a Party becomes insolvent or is a party to a bankruptcy,reorganization,insolvency,liquidation,receivership,
dissolution,winding-up or relief of debtors,or any general assignment for the benefit of creditors or other
similar arrangement or any event occurs or proceedings are taken in any jurisdiction with respect to the Party
which has a similar effect,and, if any such bankruptcy or other proceedings were initiated by a third party,
if such proceedings have not been dismissed within sixty(60)days following receipt of a written notice from
the Non-Defaulting Party demanding such cure;or
vi. Purchaser prevents Seller from installing the System or otherwise failing to perform in a way that prevents
the delivery of electric energy from the System. Such Default Event shall not excuse Purchaser's obligations
to make payments that otherwise would have been due under this Agreement.
b. Remedies.
Remedies for Payment Default. If a Payment Default occurs, the Non-Defaulting Party may suspend
performance of its obligations under this Agreement. Further,the Non-Defaulting Party may(A)at any time
during the continuation of the Default Event,terminate this Agreement upon ten(10)days prior written notice
to the Defaulting Party,and(B)pursue any remedy under this Agreement,at law or in equity,including an
action for damages.
ii. Remedies for Other Defaults. On the occurrence of a Default Event other than a Payment Default,the Non-
Defaulting Party may(A)at any time during the continuation of the Default Event,terminate this Agreement
or suspend its performance of its obligations under this Agreement,upon thirty(30)days prior written notice
to the Defaulting Party,and(B)pursue any remedy under this Agreement,at law or in equity, including an
action for damages. Nothing herein shall limit either Party's right to collect damages upon the occurrence of
a breach or a default by the other Party that does not become a Default Event
iii. Damages Upon Termination by Default. Upon a termination of this Agreement by the Non-Defaulting Party
as a result of a Default Event by the Defaulting Party,the Defaulting Party shall pay a Termination Payment
to the Non-Defaulting Party determined as follows(the"Termination Payment"):
A. Purchaser. If Purchaser is the Defaulting Party and Seller terminates this Agreement,the
Termination Payment to Seller shall be equal to the sum of(1)reasonable compensation,
on a net after tax basis assuming a tax rate of thirty five percent (35%), for the loss or
recapture of(a)the investment tax credit equal to thirty percent(30%)of the System value;
(b) MACRS accelerated depreciation equal to eighty five percent (85%) of the System
value,(c)loss of any Environmental Attributes or Environmental Incentives that accrued
or were otherwise assigned to Seller pursuant to the terms of this Agreement(Seller shall
furnish Purchaser with a detailed calculation of such compensation if such.a claim is made),
(d)other financing and associated costs not included in(a),(b)and(c),(2)the net present
value (using a discount rate of 8%) of the projected payments over the Term post-
termination,had the Term remained effective for the full Initial Term,(3)removal costs as
provided in Section 13(b)(iii)(C) and (4) any and all other amounts previously accrued
under this Agreement and then owed by Purchaser to Seller.
B. Seller. If Seller is the Defaulting Party and Purchaser terminates this Agreement, the
Termination Payment to Purchaser shall be equal to the sum of(1)the net present value
(using a discount rate of 8%) of the excess, if any, of the reasonably expected cost of
electric energy from the Utility over the Contract Price for the reasonably expected
production of the System for the remainder of the Initial Term or the then current
Additional Term, as applicable; (2) all costs reasonably incurred by Purchaser in re-
converting its electric supply to service from the Utility;(3)any removal costs incurred by
Purchaser,and(4)any and all other amounts previously accrued under this Agreement and
then owed by Seller to Purchaser. The Termination Payment shall not be less than zero.
C. Obligations Following Termination. If a Non-Defaulting Party terminates this Agreement
pursuant to this Section 13(b),then following such termination,Seller shall,at the sole cost
and expense of the Defaulting Party,remove the equipment(except for mounting pads and
support structures) constituting the System. The Non-Defaulting Party shall take all
commercially reasonable efforts to mitigate its damages as the result of a Default Event.
14. Representations,Warranties and Covenants.
a. General Representations and Warranties. Each Party represents and warrants to the other the following as of the
Effective Date:
i. Such Party is duly organized,validly existing and in good standing under the laws of the jurisdiction of its
formation; the execution, delivery and performance by such Party of this Agreement have been duly
authorized by all necessary corporate,partnership or limited liability company action,as applicable,and do
not and shall not violate any law; and this Agreement is valid obligation of such Party,enforceable against
such Party in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors' rights
generally).
ii. Such Party has obtained all licenses,authorizations,consents and approvals required by any Governmental
Authority or other third party and necessary for such Party to own its assets, carry on its business and to
execute and deliver this Agreement; and such Party is in compliance with all laws that relate to this
Agreement in all material respects.
b. Purchaser's Representations,Warranties and Covenants. Purchaser represents and warrants to Seller the
following as of the Effective Date and covenants that throughout the Term:
i. License. Purchaser has title to or a leasehold or other property interest in the Premises. Both parties agree
that Purchaser has the full right,power and authority to grant the License contained in Section 8(a). Such
grant of the License does not violate any law,ordinance,rule or other governmental restriction applicable to
Purchaser or the Facility and is not inconsistent with and will not result in a breach or default under any
agreement by which Purchaser is bound or that affects the Facility. If Purchaser does not own the Premises
or Facility,Purchaser has obtained all required consents from the owner of the Premises and/or Facility to
grant the License and enter into and perform its obligations under this Agreement.In the event the License
is found invalid for any reason,the parties agree to use good faith efforts to negotiate a short-term lease,for
up to two years,to substantially accomplish the intent of the parties as it applies to the License;provided,
however,that if Seller is unable,using reasonable commercial efforts,to complete its rights and obligations
within the short-term lease term,then the parties shall enter into either an extension or additional short-term
leases,up to two years each,for such completion.
ii. Other Agreements. Neither the execution and delivery of this Agreement by Purchaser nor the performance
by Purchaser of any of its obligations under this Agreement conflicts with or will result in a breach or default
under any agreement or obligation to which Purchaser is a party or by which Purchaser or the Facility is
bound.
iii. Accuracy of Information. All information provided by Purchaser to Seller, as it pertains to the Facility's
physical configuration, Purchaser's planned use of the Facility, and Purchaser's estimated electricity
requirements,is accurate in all material respects to be best of Purchaser's knowledge.
iv. Purchaser Status. Purchaser is not a public electric utility or a public electric utility holding company and is
not subject to regulation as a public utility or a public electric utility holding company.
v. Hazardous Substances. To the best of Purchaser's knowledge, there are no Hazardous Substances at, on,
above,below or near the Premises.
vi. Electric Usage. All of the electricity generated from the solar energy system will be consumed by the Facility
for general heating/cooling/lighting and other normal large commercial/industrial building electricity uses.
15. System and Facility Damage and Insurance.
a. System and Facility Damage.
i. Seller's Obligations. If the System is damaged or destroyed other than by Purchaser's gross negligence or
willful misconduct,Seller shall promptly repair and restore the System to its pre-existing condition;provided,
however,that if more than fifty percent(50%)of the System is destroyed during the last five(5)years of the
Initial Term or during any Additional Term,Seller shall not be required to restore the System,but may instead
terminate this Agreement,unless Purchaser agrees(A)to pay for the cost of such restoration of the System
or(B)to purchase the System"AS-IS"at the greater of(1)the Fair Market Value of the System and(2)the
sum of the amounts described in Section 13.b.iii.A(1)and Section 13.b.iii.A(3) If the System is damaged or
destroyed other than by Purchaser's gross negligence or willful misconduct during the last five(5)years of
the Initial Term or during any Additional Term,Seller shall not be required to restore any System but instead
may terminate this Agreement in its entirety unless Purchaser agrees to either(A)or(B)above.
ii. Purchaser's Obligations. If the Facility is damaged or destroyed by casualty of any kind or any other
occurrence other than Seller's gross negligence or willful misconduct,such that the operation of the System
and/or Purchaser's ability to accept the electric energy produced by the System are materially impaired or
prevented, Purchaser shall promptly repair and restore the Facility to its pre-existing condition; provided,
however,that if more than 50%of the Facility is destroyed during the last five years of the Initial Term or
during any Additional Term, Purchaser may elect either (A) to restore the Facility or (B) to pay the
Termination Payment and all other costs previously accrued pertaining to such affected Facility but unpaid
under this Agreement and thereupon terminate this Agreement.
b. Insurance Coverage. At all times during the Term,Seller and Purchaser shall maintain the following insurance:
i. Seller's Insurance. Seller shall maintain (A) property insurance on the System for the replacement cost
thereof,(B)commercial general liability insurance with coverage of at least$1,000,000 per occurrence and
$2,000,000 annual aggregate,(C)employer's liability insurance with coverage of at least$1,000,000 and(iv)
workers' compensation insurance as required by law.
ii. Purchaser's Insurance.Purchaser shall maintain commercial general liability insurance with coverage of at
least one million dollars($1,000,000)per occurrence and two million dollars($2,000,000)annual aggregate.
c. Policy Provisions.All insurance policies provided hereunder shall(i)contain a provision whereby the insurer agrees
to give the party not providing the insurance (A)not less than ten(10) days written notice before the insurance is
cancelled,or terminated as a result of non-payment of premiums,or(B)not less than thirty(30)days written notice
before the insurance is otherwise cancelled or terminated,(ii)be written on an occurrence basis,and(iii)be maintained
with companies either rated no less than A-VII as to Policy Holder's Rating in the current edition of A.M. Best's
Insurance Guide or otherwise reasonably acceptable to the other party.
d. Certificates. Upon the other Party's request each Party shall deliver the other Party certificates of insurance
evidencing the above required coverage. A Party's receipt,review or acceptance of such certificate shall in no way
limit or relieve the other Party of the duties and responsibilities to maintain insurance as set forth in this Agreement.
e. Deductibles. Unless and to the extent that a claim is covered by an indemnity set forth in this Agreement,each Party
shall be responsible for the payment of its own deductibles.
16. Ownership;Option to Purchase.
a. Ownership of System. Throughout the Term(except as otherwise permitted in Section 19), Seller shall be the legal
and beneficial owner of the System at all times,including all Environmental Attributes(unless otherwise specified on
Exhibit 1),and the System shall remain the personal property of Seller and shall not attach to or be deemed a part of,
or fixture to,the Facility or the Premises. Each of the Seller and Purchaser agree that the Seller(or the designated
assignee of Seller permitted under Section 19) is the tax owner of the System and all tax filings and reports will be
filed in a manner consistent with this Agreement. The System shall at all times retain the legal status of personal
property as defined under Article 9 of the Uniform Commercial Code. Purchaser covenants that it will use
commercially reasonable efforts to place all parties having an interest in or a mortgage,pledge,lien,charge,security
interest,encumbrance or other claim of any nature on the Premises on notice of the ownership of the System and the
legal status or classification of the System as personal property. If there is any mortgage or fixture filing against the
Premises which could reasonably be construed as prospectively attaching to the System as a fixture of the Premises,
Purchaser shall provide a disclaimer or release from such lienholder. If Purchaser is the fee owner of the Premises,
Purchaser consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate
records are customarily filed in the jurisdiction where the Facility is located. If Purchaser is not the fee owner,
Purchaser will obtain such consent from such owner. Upon request, Purchaser agrees to deliver to Seller a non-
disturbance agreement in a form reasonably acceptable to Seller from the owner of the Facility(if the Facility is leased
by Purchaser),any mortgagee with a lien on the Premises,and other Persons holding a similar interest in the Premises.
To the extent that Purchaser does not own the Premises or Facility,Purchaser shall provide to Seller immediate written
notice of receipt of notice of eviction from the Premises or Facility or termination of Purchaser's lease of the Premises
and/or Facility.
b. Option to Purchase. At the end of the 10th, 15th,20th and 25th Contract Years,and at the end of the Initial Term and
each Additional Term,so long as Purchaser is not in default under this Agreement,Purchaser may purchase the System
from Seller on any such date for a purchase price equal to the Fair Market Value of the System.Purchaser must provide
a notification to Seller of its intent to purchase at least ninety(90)days and not more than one hundred eighty(180)
days prior to the end of the applicable Contract Year or the Initial Term or Additional Term, as applicable, and the
purchase shall be complete prior to the end of the applicable Contract Year or the Initial Term or Additional Term,as
applicable. Any such purchase shall be on an as-is,where-is basis,and Seller shall not provide any warranty or other
guarantee regarding the performance of the System, provided, however, that Seller shall assign to Purchaser any
manufacturers warranties that are in effect as of the purchase,and which are assignable pursuant to their terms. If the
Contract Year 10 purchase option is exercised, Purchaser must take assignment of the Environmental Attributes
contract on an as-is,where-is basis and replace any security required in the Environmental Attributes contract.
c. Determination of Fair Market Value."Fair Market Value"means,in Seller's reasonable determination,the greater
of: (i) the amount that would be paid in an arm's length, free market transaction, for cash, between an informed,
willing seller and an informed willing buyer,neither of whom is under compulsion to complete the transaction,taking
into account,among other things,the age,condition and performance of the System and advances in solar technology,
provided that installed equipment shall be valued on an installed basis,shall not be valued as scrap if it is functioning
and in good condition and costs of removal from a current location shall not be a deduction from the valuation,and
(ii)the present value(using a discount rate of eight percent 8%)of all associated future income streams expected to
be received by Seller arising from the operation of the System for the remaining term of the Agreement including but
not limited to the expected price of electricity,Environmental Attributes,and Tax Credits and factoring in future costs
and expenses associated with the System avoided. Seller shall determine Fair Market Value within thirty(30)days
after Purchaser has exercised its option to Purchase the System. Seller shall give written notice to Purchaser of such
determination,along with a full explanation of the calculation of Fair Market Value,including without limitation,an
explanation of all assumptions,figures and values used in such calculation and factual support for such assumptions,
figures and values.If Purchaser reasonably objects to Seller's determination of Fair Market Value within thirty(30)
days after Seller has provided written notice of such determination, the Parties shall select a nationally recognized
independent appraiser with experience and expertise in the solar photovoltaic industry to determine the Fair Market
Value of the System. Such appraiser shall act reasonably and in good faith to determine the Fair Market Value of the
System based on the formulation set forth herein,and shall set forth such determination in a written opinion delivered
to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest
error. The costs of the appraisal shall be borne by the Parties equally. Upon purchase of the System,Purchaser will
assume complete responsibility for the operation and maintenance of the System and liability for the performance of
the System,and Seller shall have no further liabilities or obligations hereunder.
17. Indemnification and Limitations of Liability.
a. General. Each Party(the"Indemnifying Party")shall defend,indemnify and hold harmless the other Party and the
directors, officers, shareholders, partners, members, agents and employees of such other Party, and the respective
affiliates of each thereof(collectively, the "Indemnified Parties"), from and against all loss, damage, expense,
liability and other claims, including court costs and reasonable attorneys' fees (collectively, "Liabilities")resulting
from any third party actions relating to the breach of any representation or warranty set forth in Section 14 and from
injury to or death of persons,and damage to or loss of property to the extent caused by or arising out of the negligent
acts or omissions of,or the willful misconduct of,the Indemnifying Party(or its contractors,agents or employees)in
connection with this Agreement; provided, however, that nothing herein shall require the Indemnifying Party to
indemnify the Indemnified Party for any Liabilities to the extent caused by or arising out of the negligent acts or
omissions of, or the willful misconduct of, the Indemnified Party. This Section 17(a) however, shall not apply to
liability arising from any form of hazardous substances or other environmental contamination, such matters being
addressed exclusively by Section 17(c).
b. Notice and Participation in Third Party Claims. The Indemnified Party shall give the Indemnifying Party written
notice with respect to any Liability asserted by a third party (a"Claim"), as soon as possible upon the receipt of
information of any possible Claim or of the commencement of such Claim. The Indemnifying Party may assume the
defense of any Claim,at its sole cost and expense,with counsel designated by the Indemnifying Party and reasonably
satisfactory to the Indemnified Party. The Indemnified Party may,however,select separate counsel if both Parties are
defendants in the Claim and such defense or other form of participation is not reasonably available to the Indemnifying
Party. The Indemnifying Party shall pay the reasonable attorneys' fees incurred by such separate counsel until such
time as the need for separate counsel expires. The Indemnified Party may also, at the sole cost and expense of the
Indemnifying Party, assume the defense of any Claim if the Indemnifying Party fails to assume the defense of the
Claim within a reasonable time. Neither Party shall settle any Claim covered by this Section 17(b) unless it has
obtained the prior written consent of the other Party,which consent shall not be unreasonably withheld or delayed.
The Indemnifying Party shall have no liability under this Section 17(b) for any Claim for which such notice is not
provided if that the failure to give notice prejudices the Indemnifying Party.
c. Environmental Indemnification. Seller shall not introduce, deposit, store, or otherwise cause to be present any
Hazardous Substance upon the Premises, Property, or Facility; provided, however, that Seller shall have no
responsibility with respect to Hazardous Substances existing as of the date of this Agreement.Seller shall indemnify,
defend and hold harmless all of Purchaser's Indemnified Parties from and against all Liabilities arising out of or
relating to the existence at,on,above,below or near the Premises,Property,or Facility,of any Hazardous Substance
(as defined in Section 17(c)(i))to the extent deposited,spilled or otherwise caused by Seller or any of its contractors
or agents. For purposes of clarification, Seller's duty of indemnification shall not apply with respect to Hazardous
Substances existing as of the date of this Agreement. Purchaser shall indemnify, defend and hold harmless all of
Seller's Indemnified Parties from and against all Liabilities arising out of or relating to the existence at,on, above,
below or near the Premises of any Hazardous Substance,except to the extent deposited,spilled or otherwise caused
by Seller or any of its contractors or agents. Seller shall promptly notify the Purchaser if it becomes aware of any
Hazardous Substance on or about the Premises,Property,or Facility, or the Premises/Property/Facility generally or
any deposit, spill or release of any Hazardous Substance on the Premises, Property, or Facility. Purchaser shall
promptly notify Seller if it becomes aware of any Hazardous Substance on or about the Premises, or the Premises
generally,or any deposit,spill or release of any Hazardous Substance on the Premises.
i. "Hazardous Substance"means any chemical,waste or other substance(A)which now or hereafter becomes
defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic
pollutants," "pollution," "pollutants," "regulated substances," or words of similar import under any laws
pertaining to the environment, health, safety or welfare, (B) which is declared to be hazardous, toxic, or
polluting by any Governmental Authority, (C)exposure to which is now or hereafter prohibited, limited or
regulated by any Governmental Authority, (D) the storage, use, handling, disposal or release of which is
restricted or regulated by any Governmental Authority,or(E)for which remediation or cleanup is required
by any Governmental Authority.
d. Limitations on Liability.
i. No Consequential Damages. Except with respect to indemnification for third party claims pursuant to this
Section 17 and damages that result from the willful misconduct of a Party, neither Party nor its directors,
officers, shareholders, partners,members, agents and employees subcontractors or suppliers shall be liable
for any indirect,special, incidental,exemplary,or consequential loss or damage of any nature arising out of
their performance or non-performance hereunder even if advised of such. The Parties agree that(1)in the
event that Seller is required to recapture any Tax Credits or other tax benefits as a result of a breach of this
Agreement by Purchaser, such recaptured amount shall be deemed to be direct and not indirect or
consequential damages, and(ii) in the event that Seller is retaining the Environmental Attributes produced
by the System,and a breach of this Agreement by Purchaser causes Seller to lose the benefit of sales of such
Environmental Attributes to third parties, the amount of such lost sales shall be direct and not indirect or
consequential damages.
ii. Actual Damages. Except with respect to indemnification for third party claims pursuant to Section 17 and
damages that result from the willful misconduct of an indemnifying party, Seller's aggregate liability under
this Agreement arising out of or in connection with the performance or non-performance of this Agreement
shall not exceed the total payments made(or, as applicable,projected to be made)by Purchaser under this
Agreement. The provisions of this Section (17)(d)(ii)shall apply whether such liability arises in contract,
tort(including negligence),strict liability or otherwise.
18. Force Majeure.
a. "Force Majeure" means any event or circumstances beyond the reasonable control of and without the fault or
negligence of the Party claiming Force Majeure. It shall include, without limitation, failure or interruption of the
production, delivery or acceptance of electricity due to: an act of god;war(declared or undeclared); sabotage; riot;
insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction or embargo; civil
strike,work stoppage,slow-down,or lock-out;explosion;fire;earthquake;abnormal weather condition or actions of
the elements;hurricane;flood;lightning;wind;drought;the binding order of any Governmental Authority(provided
that such order has been resisted in good faith by all reasonable legal means); the failure to act on the part of any
Governmental Authority(provided that such action has been timely requested and diligently pursued);unavailability
of electricity from the utility grid,equipment,supplies or products(but not to the extent that any such availability of
any of the foregoing results from the failure of the Party claiming Force Majeure to have exercised reasonable
diligence);and failure of equipment not utilized by or under the control of the Party claiming Force Majeure.
b. Except as otherwise expressly provided to the contrary in this Agreement,if either Party is rendered wholly or partly
unable to timely perform its obligations under this Agreement because of a Force Majeure event,that Party shall be
excused from the performance affected by the Force Majeure event(but only to the extent so affected)and the time
for performing such excused obligations shall be extended as reasonably necessary; provided, that: (i) the Party
affected by such Force Majeure event,as soon as reasonably practicable after obtaining knowledge of the occurrence
of the claimed Force Majeure event,gives the other Party prompt oral notice,followed by a written notice reasonably
describing the event;(ii)the suspension of or extension of time for performance is of no greater scope and of no longer
duration than is required by the Force Majeure event;and(iii)the Party affected by such Force Majeure event uses all
reasonable efforts to mitigate or remedy its inability to perform as soon as reasonably possible. The Term shall be
extended day for day for each day performance is suspended due to a Force Majeure event.
c. Notwithstanding anything herein to the contrary,the obligation to make any payment due under this Agreement shall
not be excused by a Force Majeure event that solely impacts Purchaser's ability to make payment.
d. If a Force Majeure event continues for a period of one hundred eighty(180)days or more within a twelve(12)month
period and prevents a material part of the performance by a Party hereunder,then at any time during the continuation
of the Force Majeure event,the Party not claiming the Force Majeure shall have the right to terminate this Agreement
without fault or further liability to the other Party(except for amounts accrued but unpaid).
19. Assignment and Financing.
a. Assignment. This Agreement may not be assigned in whole or in part by Purchaser without the prior written consent
of Seller,which consent shall not be unreasonably withheld or delayed. Seller may,without the prior written consent
of Purchaser, (i) assign, mortgage, pledge or otherwise collaterally assign its interests in this Agreement and the
System to any person purchasing or a Financing Party,(ii)directly or indirectly assign this Agreement and the System
to an affiliate or subsidiary of Seller,(iii)assign this Agreement and the System to any entity through which Seller is
obtaining financing or capital for the System and(iv)assign this Agreement and the System to any person succeeding
to all or substantially all of the assets of Seller(provided that Seller shall be released from liability hereunder as a
result of any of the foregoing permitted assignments only upon assumption of Seller's obligations hereunder by the
assignee and proof of such assignment and assumption being provided in writing to Purchaser). In the event of any
such assignment and assumption of obligations by the assignee,the Seller shall be released from all its liabilities and
other obligations under this Agreement. However, any assignment of Seller's right and/or obligations under this
Agreement, shall not result in any change to Purchaser's rights and obligations under this Agreement. Purchaser's
consent to any other assignment shall not be unreasonably withheld if Purchaser has been provided with reasonable
proof that the proposed assignee (x) has comparable experience in operating and maintaining photovoltaic solar
systems comparable to the System and providing services comparable to those contemplated by this Agreement; (y)
has the financial capability to maintain the System and provide the services contemplated by this Agreement in the
manner required by this Agreement;and(z)the corporate authorities of the City of Canton have approved a new lease
agreement pursuant to Illinois law and naming the assignee as the new tenant on substantially the same terms and
conditions as the lease agreement attached hereto. This Agreement shall be binding on and inure to the benefit of the
successors and permitted assignees.
b. Financing. The Parties acknowledge that Seller may obtain construction and long-term financing or other credit
support from one or more Financing Parties. "Financing Parties"means person or persons purchasing the System or
providing construction or permanent financing to Seller in connection with construction, ownership,operation and
maintenance of the System, or if applicable, means, if applicable, any person to whom Seller has transferred the
ownership interest in the System,subject to a leaseback of the System from such person.Both Parties agree in good
faith to consider and to negotiate changes or additions to this Agreement that may be reasonably requested by the
Financing Parties; provided,that such changes do not alter the fundamental economic terms of this Agreement. In
connection with an assignment pursuant to Section 19(a)(i)-(iv),Purchaser agrees to execute any consent,estoppel or
acknowledgement in form and substance reasonably acceptable to such Financing Parties.
c. Successor Servicing. The Parties further acknowledge that in connection with any construction or long term financing
or other credit support provided to Seller or its affiliates by Financing Parties,that such Financing Parties may require
that Seller or its affiliates appoint a third party to act as backup or successor provider of operation and maintenance
services with respect to the System and/or administrative services with respect to this Agreement(the"Successor
Provider"). Purchaser agrees to accept performance from any Successor Provider so appointed so long as such
Successor Provider performs in accordance with the terms of this Agreement.
d. Liens/Encumbrances. Seller acknowledges and agrees that the Premises,Property. and Facility are not permitted
under Illinois law to be encumbered with any mortgages.Seller shall not cause or permit any security interest,lien,or
other encumbrance to attach to the Premises,Property,or the Facility at any time.
20. Confidentiality and Publicity.
a. Confidentiality. To the extent permitted by Applicable Law,which shall include the Freedom of Information Act(5
ILCS 140/1 et seg.)and Open Meetings Act(5 ILCS 120/1 et seq.),if either Party provides confidential information,
including business plans,strategies,financial information,proprietary,patented,licensed,copyrighted or trademarked
information, and/or technical information regarding the design, operation and maintenance of the System or of
Purchaser's business ("Confidential Information") to the other or, if in the course of performing under this
Agreement or negotiating this Agreement a Party learns Confidential Information regarding the facilities or plans of
the other,the receiving Party shall(a)protect the Confidential Information from disclosure to third parties with the
same degree of care accorded its own confidential and proprietary information, and (b) refrain from using such
Confidential Information,except in the negotiation and performance of this Agreement, including but not limited to
obtaining financing for the System. Notwithstanding the above, a Party may provide such Confidential Information
to its, officers, elected/appointed officials, attorneys, directors, members, managers, employees, agents, contractors
and consultants (collectively,"Representatives"), and affiliates, lenders, and potential assignees of this Agreement
(provided and on condition that such potential assignees be bound by a written agreement or legal obligation restricting
use and disclosure of Confidential Information).Each such recipient of Confidential Information shall be informed by
the Party disclosing Confidential Information of its confidential nature and shall be directed to treat such information
confidentially and shall agree to abide by these provisions. In any event, each Party shall be liable(with respect to
the other Party)for any breach of this provision by any entity to whom that Party improperly discloses Confidential
Information. The terms of this Agreement (but not its execution or existence) shall be considered Confidential
Information for purposes of this Section 20(a),except as set forth in Section 20(b)or except to the extent required to
be disclosed under the Illinois Freedom of Information Act(5 ILCS 140/)All Confidential Information shall remain
the property of the disclosing Party and shall be returned to the disclosing Party or destroyed after the receiving Party's
need for it has expired or upon the request of the disclosing Party. Each Party agrees that the disclosing Party would
be irreparably injured by a breach of this Section 20(a)by the receiving Party or its Representatives or other person to
whom the receiving Party discloses Confidential Information of the disclosing Party and that the disclosing Party may
be entitled to equitable relief, including injunctive relief and specific performance, in the event of a breach of the
provision of this Section 20(a). To the fullest extent permitted by applicable law,such remedies shall not be deemed
to be the exclusive remedies for a breach of this Section 20(a),but shall be in addition to all other remedies available
at law or in equity. In the event a Party is served with a judicial or administrative order(which shall include any
subpoena issued by a court or an administrative agency)or receives a request pursuant to the Freedom of Information
Act(5 ILCS 140/1 et seq.), that Party shall promptly provide the other Party with a copy of said order or request,
however,nothing herein shall be deemed to bar either Party from providing the information requested by such order
or request within the time provided in the order or by applicable law, unless an order is issued by a court or an
administrative agency which quashes the order or request to produce the requested information.
b. Permitted Disclosures. Notwithstanding any other provision in this Agreement, neither Party shall be required to
hold confidential any information that(i) becomes publicly available other than through the receiving Party, (ii) is
required to be disclosed to a Governmental Authority under applicable law or pursuant to a validly issued subpoena
(but a receiving Party subject to any such requirement shall promptly notify the disclosing Party of such requirement
to the extent permitted by applicable law), (iii) is independently developed by the receiving Party; (iv) becomes
available to the receiving Party without restriction from a third party under no obligation of confidentiality; (v) is
discussed,disclosed,or voted upon during an open meeting of the Canton City Council;(vi)necessary for determining
the assessment or levying of real estate taxes, including but not limited to the application for or maintaining of any
tax-exempt status; or is (vii) kept, recorded or published by the City in regards to any official city records (e.g.
ordinances or resolutions). If disclosure of information is required by a Governmental Authority,the disclosing Party
shall, to the extent permitted by applicable law, notify the other Party of such required disclosure promptly upon
becoming aware of such required disclosure and shall cooperate with the other Party in efforts to limit the disclosure
to the maximum extent permitted by law.
21. Goodwill and Publicity. Neither Party shall use any name,trade name, service mark or trademark of the other Party in any
promotional or advertising material without the prior written consent of such other Party. The Parties shall use reasonable
efforts to coordinate and cooperate with each other when making public statements and announcements related to the execution
and existence of this Agreement.
22. Miscellaneous Provisions
a. Choice of Law. The law of the State of Illinois shall govern this Agreement without giving effect to conflict of laws
principles.
b. Forum and Attorneys'Fees. Any lawsuit arising from or relating to this Agreement shall be brought and adjudicated
in the Ninth Judicial Circuit of Illinois,Fulton County,which shall be the sole and exclusive jurisdiction and venue
for any such disputes.The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable
attorneys' fees and costs.
c. Notices. All notices under this Agreement shall be in writing and shall be by personal delivery,facsimile transmission,
electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and deemed
received upon personal delivery, acknowledgment of receipt of electronic transmission,the promised delivery date
after deposit with overnight courier, or five (5) days after deposit in the mail. Notices shall be sent to the person
identified in this Agreement at the addresses set forth in this Agreement or such other address as either party may
specify in writing. Each party shall deem a document faxed, emailed or electronically sent in PDF form to it as an
original document.
d. Survival. Provisions of this Agreement that should reasonably be considered to survive termination of this Agreement
shall survive. For the avoidance of doubt, surviving provisions shall include, without limitation, Section 4
(Representations and Warranties), Section 7(h) (No Warranty), Section 15(b) (Insurance Coverage), Section 17
(Indemnification and Limits of Liability), Section 20(Confidentiality and Publicity), Section 22(a)(Choice of Law),
Section 22(b)(Arbitration and Attorneys'Fees), Section 22(c)(Notices), Section 22(g)(Comparative Negligence),
Section 22(h)(Non-Dedication of Facilities),Section 22(j)(Service Contract),Section 22(k)(No Partnership) Section
22(1) (Full Agreement, Modification, Invalidity, Counterparts, Captions) and Section 22(n) (No Third Party
Beneficiaries).
e. Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any
instruments and documents and to take such other actions as may be necessary or reasonably requested by the other
Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of
obligations other than those provided for in this Agreement,to give full effect to this Agreement and to carry out the
intent of this Agreement.
f. Right of Waiver. Each Party, in its sole discretion, shall have the right to waive, defer or reduce any of the
requirements to which the other Party is subject under this Agreement at any time(other than with respect to and/or
relating to the obligation to make any payment due under this Agreement);provided,however that neither Party shall
be deemed to have waived,deferred or reduced any such requirements unless such action is in writing and signed by
the waiving Party. No waiver will be implied by any usage of trade,course of dealing or course of performance.A
Party's exercise of any rights hereunder shall apply only to such requirements and on such occasions as such Party
may specify and shall in no event relieve the other Party of any requirements or other obligations not so specified. No
failure of either Party to enforce any term of this Agreement will be deemed to be a waiver. No exercise of any right
or remedy under this Agreement by Purchaser or Seller shall constitute a waiver of any other right or remedy contained
or provided by law. Any delay or failure of a Party to exercise,or any partial exercise of,its rights and remedies under
this Agreement shall not operate to limit or otherwise affect such rights or remedies. Any waiver of performance
under this Agreement shall be limited to the specific performance waived and shall not,unless otherwise expressly
stated in writing,constitute a continuous waiver or a waiver of future performance.
g. Comparative Negligence. It is the intent of the Parties that where negligence is determined to have been joint,
contributory or concurrent,each Party shall bear the proportionate cost of any Liability.
h. Non-Dedication of Facilities. Nothing herein shall be construed as the dedication by either Party of its facilities or
equipment to the public or any part thereof. Neither Party shall knowingly take any action that would subject the other
Party,or other Party's facilities or equipment,to the jurisdiction of any Governmental Authority as a public utility or
similar entity. Neither Party shall assert in any proceeding before a court or regulatory body that the other Party is a
public utility by virtue of such other Party's performance under this agreement. If Seller is reasonably likely to become
subject to regulation as a public utility,then the Parties shall use all reasonable efforts to restructure their relationship
under this Agreement in a manner that preserves their relative economic interests while ensuring that Seller does not
become subject to any such regulation. If the Parties are unable to agree upon such restructuring,Seller shall have the
right to terminate this Agreement without further liability, and Seller shall remove the System in accordance with
Section 11 of this Agreement.
Estoppel. Either Party hereto,without charge,at any time and from time to time,within ten(10)business days after
receipt of a written request by the other party hereto, shall deliver a written instrument, duly executed,certifying to
such requesting party,or any other person specified by such requesting Party: (i)that this Agreement is unmodified
and in full force and effect,or if there has been any modification,that the same is in full force and effect as so modified,
and identifying any such modification;(ii)whether or not to the knowledge of any such party there are then existing
any offsets or defenses in favor of such party against enforcement of any of the terms, covenants and conditions of
this Agreement and,if so,specifying the same and also whether or not to the knowledge of such party the other party
has observed and performed all of the terms,covenants and conditions on its part to be observed and performed,and
if not,specifying the same;and(iii)such other information as may be reasonably requested by the requesting Party.
Any written instrument given hereunder may be relied upon by the recipient of such instrument,except to the extent
the recipient has actual knowledge of facts contained in the certificate.
j. Service Contract. The Parties intend this Agreement to be a "service contract" within the meaning of Section
7701(e)(3) of the Internal Revenue Code of 1986. Purchaser will not take the position on any tax return or in any
other filings suggesting that it is anything other than a purchase of electricity from the System.
k. No Partnership. No provision of this Agreement shall be construed or represented as creating a partnership,trust,
joint venture,fiduciary or any similar relationship between the Parties. No Party is authorized to act on behalf of the
other Party,and neither shall be considered the agent of the other.
Full Agreement,Modification,Invalidity,Counterparts,Captions. This Agreement,together with any Exhibits,
completely and exclusively states the agreement of the Parties regarding its subject matter and supersedes all prior
proposals,agreements,or other communications between the Parties,oral or written,regarding its subject matter. This
Agreement may be modified only by a writing signed by both Parties. If any provision of this Agreement is found
unenforceable or invalid,such unenforceability or invalidity shall not render this Agreement unenforceable or invalid
as a whole. In such event,such provision shall be changed and interpreted so as to best accomplish the objectives of
such unenforceable or invalid provision within the limits of applicable law. This Agreement may be executed in any
number of separate counterparts and each counterpart shall be considered an original and together shall comprise the
same Agreement. The captions or headings in this Agreement are strictly for convenience and shall not be considered
in interpreting this Agreement.
m. Forward Contract. The transaction contemplated under this Agreement constitutes a"forward contract"within the
meaning of the United States Bankruptcy Code, and the Parties further acknowledge and agree that each Party is a
"forward contract merchant"within the meaning of the United States Bankruptcy Code.
n. No Third Party Beneficiaries. Except for assignees, Financing Parties, and Successor Providers permitted under
Section 19,this Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto and shall not
imply or create any rights on the part of,or obligations to,any other Person.
End of Exhibit 4
Exhibit 5
SOLAR SYSTEM SITE LEASE AGREEMENT
This Solar System Site Lease Agreement(the"Agreement")made and entered into as of the day of ,2023
(the "Effective Date"), by and between, the CITY OF CANTON, an Illinois Municipal Corporation ("Lessor"), and
, a Pennsylvania Limited Liability Company ("Lessee"). Lessee and Lessor are at times collectively referred to
hereinafter as the"Parties"or individually as the"Party."
RECITALS
A. Lessor and Lessee have entered into a solar purchase power agreement("PPA"),by which Lessee will construct and operate
a solar power facility on the Property(described below)owned by Lessor.
B. Under the terms of the PPA, Lessor will purchase 100% of the electricity generated by the solar power facility solely for
behind-the meter use by Lessor for public purposes or for public buildings/facilities.
C. The Parties are entering into this Agreement in order for Lessor to provide the requisite rights in Lessee to utilize the Property
for purposes of constructing,installing,operating,maintaining,replacing,and removing its solar power facility("Permitted Use").
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confirmed by Lessor, Lessor and Lessee
hereby agree as follows:
1. Lease
Lessor,owner of the property described on Exhibit A("Property"),hereby leases to Lessee("Lease")the portion of the Property shown
and described on Exhibit A-1 (the"Premises")solely for purposes of building,owning,operating,maintaining,replacing and removing
a solar energy generating facility (the"Generating Facility")on the Premises, including any related interconnection equipment and
any facilities or equipment appurtenant thereto as Lessee may from time to time require for the Permitted Use.Lessor also hereby grants
and conveys unto Lessee the right to ingress and egress to and from the Site and the Generating Facility,and rights across,over under
and above the Property as reasonably necessary to provide access to and services reasonably required for Lessee's installation and
operation of the Generating Facility and Lessee's performance under the PPA,provided said access and services shall not unreasonably
interfere with Lessor's use of its Property as a water treatment plant. Lessor shall not do or cause,or permit any other person or party
to cause, any interference with the Generating Facility's access to sunlight that naturally arrive to the solar panels.The rights granted
hereunder shall run with and burden the Property for the term of this Agreement.
2. Lease Term;Rent
The Lease term shall commence on the Effective Date("Lease Commencement Date") and shall terminate upon termination of the
PPA or earlier termination as provided herein;provided that Lessor shall permit Lessee to have access to the Property and Site following
termination in order to fulfil Lessee's removal and restoration obligations under Section 6 of this Agreement.
At any time during Lease Term,Lessee shall have the right to terminate the Agreement(the"Lessee's Termination Right"),provided
that Lessee shall remain obligated to remove the Generating Facility and restore the Site as provided in Section 6 of this Agreement and
subject to the terms and conditions of the PPA.
Lessee shall pay Lessor annual rent in the amount of One Dollar($1.00)during the Term(the"Annual Rent"),prorated for any partial
year, with the first payment due within thirty (30) days after, and subsequent payments due on each anniversary of, the Lease
Commencement Date.
3. Solar Rights;Lessor Rights;Zoning
Lessor covenants it shall not cause or permit any structure,vegetation, activity,or land use to cast a shadow on Lessee's solar power
facility. Lessee may remove from the Premises, and areas immediately adjacent to the Site,trees, structures or other obstructions on
Lessor's Property that may impair or reduce the electric power output of the Generating Facility,and may trim or remove and to keep
trimmed or remove dead,diseased,weak or leaning trees or limbs.Lessor reserves the right to use or authorize others to use the Property
in any manner not inconsistent with or which will not interfere with the rights granted herein,provided,however,that Lessor shall not,
nor shall permit others to,disturb the Generating Facility, including any related interconnection equipment, in any way without prior
written approval of the Lessee.Lessee shall,with Lessor's reasonable support,have the right to rezone the Site or obtain the necessary
zoning permits as necessary or desirable for the Permitted Use.
All electric power generated by the Generating Facility shall be used by Lessor for its own behind-the-meter use.Under no
circumstances is Lessee authorized to sell or otherwise transfer any of the electric power output to any other persons or entities.
4. Lessee Ownership
Lessee or its affiliate,successor or assignee shall be the exclusive owner of the Generating Facility and the electricity(kWh)generated
therefrom(until it is delivered to Lessor),and the owner of all certificates,credits,tax and other benefits,emissions reductions,green
tags,offsets,and allowances attributable to the electricity generation.Lessor shall have no security interest or other interest in any of
the foregoing.
5. Lessor's Representations,Warranties,and Covenants
Lessor is the owner of fee simple title of the Property and has full authority to enter into,execute,deliver and perform this Agreement.
Lessor knows of no circumstances or commitments to third parties that may adversely affect the Generating facility(including activities
that may adversely affect the Generating Facility's exposure to sunlight).Any grant by Lessor of a mortgage or other security interest
in the Property shall be subject to this Agreement and Lessee's rights hereunder.As long as Lessee is not in breach of this Agreement,
Lessee shall have the quiet use and enjoyment of the Site in accordance with the terms of this Agreement without any interference of
any kind by Lessor or any person claiming through Lessor. There are no hazardous materials present at the Site and Lessor has no
knowledge of any violation of environmental laws.
6. Removal and Restoration
Upon expiration of the Term,Lessee shall at its sole cost restore the Site to substantially the same condition as it was as of the Lease
Commencement Date,normal wear and tear excluded,by removing from the Site the Generating Facility and any associated equipment
or other personal property owned by Lessee;providect however, that Lessee may leave in place any foundation, cables, conduits or
similar equipment,if such foundation or equipment is located at least three(3)feet underground.
7. Liability;Indemnity
Each Party shall indemnify, defend and hold harmless the other Party from any claim for liability for property damages and person
injury or death resulting from the negligence or willful misconduct of the indemnifying Party,the breach of this Agreement,or,in the
case of Lessee, the operation of the Generating Facility.Neither Party shall be liable to the other Party for incidental, consequential,
indirect,special or punitive damages.
8. Assignment;Financing
Lessee may assign all of its rights,duties or obligations under this Agreement without the prior written consent of Lessor as follows:(i)
to one or more of its affiliates, (ii)to any present or future purchaser of the power generated by the Generating Facility, (iii)to any
person or party succeeding to all or substantially all of the assets of Lessee, (iv)to a successor entity in a merger or acquisition
transaction,or(v)to one or more affiliates or third parties in connection with a sale-and-leaseback or other financing transaction.Lessor
will recognize any third party to whom the rights of Lessee under this Agreement have been assigned,as the proper and lawful lessee
of the Agreement.
Lessee shall have the right during the Term to mortgage, pledge or otherwise encumber Lessee's interest in this Agreement, the
Generating Facility, and its leasehold estate in the Site,together with all of Lessee's improvements constructed thereon,pursuant to a
mortgage,deed of trust,sublease,indenture,commercial facilities agreement or such other related and customary instruments necessary
or desirable to facilitate any lawful financing of the Generating Facility or any future buildings or other improvements.
9. Default
Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances listed below shall be deemed
to be the"Defaulting Party",the other Party shall be deemed to be the"Non-Defaulting Party",and each event of default shall be a
"Default Event":
i. Failure of a Party to pay any amount due and payable under this Agreement or the PPA,other than an amount that is
subject to a good faith dispute,within ten(10)days following receipt of written notice from the Non-Defaulting Party
of such failure to pay("Payment Default");
ii. failure of a Party to substantially perform any other material obligation under this Agreement or the PPA within thirty
(30)days following receipt of written notice from the Non-Defaulting Party demanding such cure;provided,that such
thirty(30)day cure period shall be extended if and to the extent reasonably necessary to cure the Default Event,if the
Defaulting Party initiates such cure within the thirty(30)day period and continues such cure to completion;
iii. if any representation or warranty of a Party under this Agreement or the PPA proves at any time to have been incorrect
in any material respect when made and is material to the transactions contemplated hereby, if the effect of such
incorrectness is not cured within thirty(30) days following receipt of written notice from the Non-Defaulting Party
demanding such cure;provided,that such thirty(30)day cure period shall be extended if and to the extent reasonably
necessary to effectuate such cure;
iv. a Party becomes insolvent or is a party to a bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or any general assignment for the benefit of creditors or other similar
arrangement or any event occurs or proceedings are taken in any jurisdiction with respect to the Party which has a
similar effect,and, if any such bankruptcy or other proceedings were initiated by a third party, if such proceedings
have not been dismissed within sixty(60)days following receipt of a written notice from the Non-Defaulting Party
demanding such cure
Subject to the notice periods set forth above, and in the event of a Default Event, the Non-Defaulting Party (a) may, upon notice,
terminate this Lease and Lessee shall promptly surrender possession of the Premises to Lessor,and Lessor may enter upon and into the
Property to take possession thereof,with or without process of law and(b)may pursue any remedy under this Agreement,at law or in
equity,including an action for damages.Upon termination due to Lessee's Default Event,Lessee shall at its sole cost restore the Site to
substantially the same condition as it was as of the Lease Commencement Date,normal wear and tear excluded,by removing from the
Premises the Generating Facility and any associated equipment or other personal property owned by Lessee;provided, however, that
Lessee may leave in place any foundation, cables, conduits or similar equipment, if such foundation or equipment is located at least
three(3)feet underground.
10. Miscellaneous
This Agreement shall be governed by,and interpreted and construed in accordance with,the laws of the State of Illinois,without regard
to conflicts of law principles. In the event of a dispute,either Party may require that a non-binding mediation take place. Any lawsuit
arising from or relating to this Agreement shall be brought and adjudicated in the Ninth Judicial Circuit of Illinois,Fulton County,which
shall be the sole and exclusive jurisdiction and venue for any such disputes. The prevailing party in any dispute arising out of this
Agreement shall be entitled to reasonable attorneys'fees and costs.
No alterations not permitted by this Agreement or the PPA shall be made to the Premises by Lessee without the expressed written
consent of the Lessor.
The insurance obligations of the Parties hereunder shall be governed by the terms and conditions of the PPA.Except as set forth in the
PPA or this Agreement,no utilities or insurance(general liability,fire and casualty,dram shop,and contents)are furnished as a part of
this Agreement,and Lessee shall be responsible for paying for any and all costs for same to the Premises.
Lessee and its successors, assigns, nominees, employees, agents, members, managers, contractors, and invitees shall comply with all
applicable laws,rules and regulations regarding its use of the Premises and operation of the Generating Facility located thereon.
A Party shall be excused from performance under this Agreement on account of any delays due to war,riot, insurrection,terrorist act,
governmental order or any other event or circumstances which are beyond the control of the performing Party ("Force Majeure").
Neither Party shall be in default under this Agreement for failure to perform on account of Force Majeure. The time period for such
performance shall be extended for each day performance is delayed by Force Majeure.
Lessee shall have the right to assign,apportion,or otherwise transfer any or all of its rights,benefits,privileges,and interests arising in
this Agreement in accordance with the terms of Section 19 of the PPA.Without limiting the generality of the foregoing,the rights and
obligations of the Parties shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns.
This Agreement contains the entire agreement of the Parties with respect to the subject matter hereto and supersedes any prior written
or oral agreement with respect to the matters described herein.This Agreement may be amended only in writing signed by Lessee and
Lessor or their respective successors in interest.
In the event any portion of this Lease should need to be revised in order to cause the Property(including the Premises)to be exempt
from property taxes or any other taxes that could be assessed to Lessor,Lessee agrees to reasonably cooperate with and agree to any
such modifications provided they do not affect the terms and conditions of the PPA or otherwise adversely affect Lessee's rights or
obligations under this Agreement or the PPA.
Lessor agrees to execute a Memorandum of this Agreement,which Lessee may record with the local recorder of deeds.This Agreement
may be provided to the Fulton County Supervisor of Assessments, or any other public body or official, for real estate tax purposes,
including but not limited to the application for or maintaining of any tax-exempt status.
IN WITNESS WHEREOF,the parties have executed this Solar System Site Lease Agreement on the day and year first above written.
City of Canton
an Illinois municipal corporation
By:
Name:
Title:
, a Pennsylvania limited liability
company
By:
Name:
Title:
Exhibit A
Description of the Property
A part of the Northeast and Northwest Quarters of Section 30, Township 7 North, Range 5 East of the Fourth
Principal Meridian, Fulton County, Illinois, more particularly described as follows:
Beginning at a stone found at the Center of said Section 30;thence North 01 degrees 38 minutes 22 seconds East,
a distance of 890.99 feet along the west line of said Northeast Quarter of Section 30 to the southwest corner of
Lake View Addition as shown on Document No. 1462755 in Slide 496; thence along the southerly, easterly and
northerly boundary lines of said Lake View Addition for the following courses bearing North 86 degrees 39
minutes 02 seconds East,a distance of 499.09 feet;thence North 78 degrees 44 minutes 03 seconds East,a distance
of 336.37 feet; thence North 01 degrees 34 minutes 44 seconds East, a distance of 81.57 feet; thence North 89
degrees 55 minutes 48 seconds East, a distance of 61.46 feet; thence 47.90 feet, along a curve to the right having
a radius of 10.00 feet and the chord of said curve bears South 42 degrees 50 minutes 12 seconds East, a chord
length of 13.58 feet;thence South 04 degrees 23 minutes 48 seconds West, a distance of 110.90 feet;thence South
67 degrees 44 minutes 51 seconds East, a distance of 127.90 feet;thence North 15 degrees 46 minutes 34 seconds
East, a distance of 175.79 feet; thence North 19 degrees 01 minutes 52 seconds East, a distance of 158.50 feet;
thence North 12 degrees 17 minutes 05 seconds West,a distance of 82.86 feet;thence North 38 degrees 48 minutes
07 seconds West, a distance of 61.35 feet; thence North 53 degrees 21 minutes 05 seconds West, a distance of
59.13 feet;thence North 76 degrees 41 minutes 16 seconds West,a distance of 43.46 feet;thence South 59 degrees
05 minutes 29 seconds West, a distance of 148.55 feet; thence South 58 degrees 55 minutes 57 seconds West, a
distance of 145.71 feet; thence South 63 degrees 19 minutes 09 seconds West, a distance of 130.62 feet; thence
South 72 degrees 44 minutes 05 seconds West, a distance of 92.90 feet; thence South 79 degrees 21 minutes 03
seconds West,a distance of 104.26 feet;thence North 85 degrees 56 minutes 51 seconds West,a distance of 99.76
feet; thence North 87 degrees 57 minutes 31 seconds West, a distance of 99.42 feet; thence North 84 degrees 45
minutes 05 seconds West, a distance of 99.27 feet; thence North 74 degrees 20 minutes 02 seconds West, a
distance of 102.23 feet to said west line; thence leaving said boundary lines of Lake View Addition and along
said west line bearing South 01 degrees 38 minutes 22 seconds West, a distance of 128.31 feet to the southeast
corner of the City of Canton property as described in Book 464 on Page 499; thence along the southerly and
westerly lines of said City of Canton property as described in said Book 464 on Page 499 and in Book 464 on
Page 444 and Book 469 on Page 308 for the following courses bearing North 89 degrees 01 minutes 51 seconds
West, a distance of 321.96 feet; thence North 44 degrees 01 minutes 52 seconds West, a distance of 257.50 feet;
thence North 00 degrees 58 minutes 08 seconds East, a distance of 480.00 feet; thence North 89 degrees 01
minutes 52 seconds West, a distance of 197.00 feet; thence South 00 degrees 58 minutes 08 seconds West, a
distance of 350.00 feet; thence North 89 degrees 01 minutes 52 seconds West, a distance of 242.50 feet; thence
North 00 degrees 58 minutes 08 seconds East, a distance of 190.00 feet; thence North 89 degrees 01 minutes 52
seconds West, a distance of 250.00 feet; thence South 00 degrees 58 minutes 08 seconds West, a distance of
420.00 feet; thence North 89 degrees 51 minutes 52 seconds West, a distance of 292.50 feet; thence North 00
degrees 55 minutes 16 seconds East, a distance of 249.30 feet; thence North 89 degrees 49 minutes 56 seconds
West, a distance of 540.00 feet;thence North 00 degrees 39 minutes 52 seconds East, a distance of 263.00 feet to
a concrete marker found; thence North 89 degrees 46 minutes 21 seconds West, a distance of 204.72 feet to a
concrete marker found; thence North 00 degrees 59 minutes 15 seconds East, a distance of 611.04 feet to a
concrete marker found; thence North 89 degrees 52 minutes 43 seconds East, a distance of 747.13 feet to a
concrete marker found; thence North 01 degrees 28 minutes 22 seconds East, a distance of 366.96 feet to a
concrete marker found on the north line of said Section 30; thence leaving said southerly and westerly lines of
said City of Canton property and along said north line bearing South 89 degrees 51 minutes 21 seconds East, a
distance of 1837.74 feet to a line near the shoreline of Canton Lake; thence along said line for the following
courses bearing South 17 degrees 39 minutes 45 seconds West, a distance of 7.57 feet; thence South 39 degrees
05 minutes 39 seconds West, a distance of 22.55 feet; thence South 19 degrees 33 minutes 14 seconds West, a
distance of 198.33 feet; thence South 02 degrees 30 minutes 49 seconds East, a distance of 10.78 feet; thence
South 76 degrees 35 minutes 40 seconds East, a distance of 6.63 feet; thence North 74 degrees 46 minutes 56
seconds East, a distance of 49.79 feet; thence North 49 degrees 19 minutes 15 seconds East, a distance of 46.89
feet; thence North 78 degrees 23 minutes 20 seconds East, a distance of 145.72 feet; thence North 52 degrees 43
minutes 03 seconds East, a distance of 48.29 feet;thence North 39 degrees 08 minutes 04 seconds East,a distance
of 54.21 feet; thence North 81 degrees 10 minutes 49 seconds East, a distance of 49.86 feet; thence North 82
degrees 48 minutes 19 seconds East, a distance of 55.83 feet; thence North 77 degrees 42 minutes 04 seconds
East, a distance of 18.23 feet; thence North 66 degrees 41 minutes 48 seconds East, a distance of 24.00 feet;
thence North 72 degrees 36 minutes 48 seconds East,a distance of 58.34 feet;thence South 87 degrees 00 minutes
21 seconds East,a distance of 50.30 feet;thence North 80 degrees 08 minutes 35 seconds East,a distance of 88.37
feet;thence North 70 degrees 17 minutes 38 seconds East,a distance of 59.80 feet to said north line;thence South
89 degrees 51 minutes 21 seconds East, a distance of 235.14 feet along said north line; thence South 25 degrees
11 minutes 25 seconds East, a distance of 7.20 feet; thence South 74 degrees 44 minutes 15 seconds East, a
distance of 41.09 feet;thence South 42 degrees 47 minutes 37 seconds East,a distance of 40.21 feet;thence South
58 degrees 26 minutes 53 seconds East, a distance of 79.57 feet;thence South 54 degrees 36 minutes 05 seconds
East, a distance of 37.88 feet; thence South 47 degrees 32 minutes 50 seconds East, a distance of 85.80 feet;
thence South 63 degrees 18 minutes 18 seconds East,a distance of 39.93 feet;thence North 52 degrees 48 minutes
33 seconds East, a distance of 32.05 feet; thence North 20 degrees 21 minutes 10 seconds East, a distance of
114.31 feet; thence North 18 degrees 10 minutes 40 seconds East, a distance of 61.93 feet to said north line;
thence South 89 degrees 51 minutes 21 seconds East, a distance of 168.43 feet along said north line to the west
line of Lot 21-A in the Lake Wind Resubdivision of Lots 20, 21 & 22; thence along the westerly, southerly and
easterly boundary lines of said Lake Wind Resubdivision for the following courses bearing South 12 degrees 12
minutes 09 seconds East, a distance of 33.68 feet;thence South 21 degrees 52 minutes 01 seconds East,a distance
of 88.75 feet; thence North 79 degrees 03 minutes 38 seconds East, a distance of 89.69 feet; thence North 43
degrees 38 minutes 38 seconds East, a distance of 87.08 feet; thence South 89 degrees 53 minutes 22 seconds
East, a distance of 105.00 feet; thence North 00 degrees 06 minutes 38 seconds East, a distance of 34.72 feet to
said north line; thence leaving said westerly, southerly and easterly boundary lines and along said north line
bearing South 89 degrees 51 minutes 21 seconds East, a distance of 507.38 feet to the northwest corner of Lot 37
in said Lake Wind Addition;thence along the outer boundary lines of Lots 32-37 in said Lake Wind Addition for
the following courses bearing South 45 degrees 00 minutes 39 seconds West, a distance of 69.80 feet; thence
North 74 degrees 02 minutes 21 seconds West, a distance of 139.50 feet; thence South 21 degrees 04 minutes 38
seconds West, a distance of 100.94 feet; thence South 37 degrees 31 minutes 34 seconds West, a distance of
264.90 feet; thence South 41 degrees 38 minutes 39 seconds East, a distance of 18.49 feet; thence South 07
degrees 45 minutes 12 seconds West, a distance of 24.46 feet; thence South 46 degrees 25 minutes 09 seconds
East, a distance of 53.14 feet; thence North 84 degrees 00 minutes 58 seconds East, a distance of 73.26 feet;
thence South 60 degrees 40 minutes 56 seconds East,a distance of 26.41 feet;thence North 70 degrees 59 minutes
59 seconds East, a distance of 50.98 feet; thence North 21 degrees 49 minutes 18 seconds East, a distance of
123.57 feet; thence North 70 degrees 09 minutes 07 seconds East, a distance of 162.90 feet; thence North 26
degrees 17 minutes 01 seconds East, a distance of 70.60 feet; thence North 52 degrees 27 minutes 35 seconds
East, a distance of 87.33 feet; thence North 07 degrees 30 minutes 29 seconds East, a distance of 92.59 feet to
said north line; thence leaving said outer boundary lines and along said north line South 89 degrees 51 minutes
21 seconds East,a distance of 10.00 feet to a railroad spike found at the northeast corner of said Section 30;thence
South 01 degrees 08 minutes 57 seconds West, a distance of 443.35 feet along the east line of said Northeast
Quarter of Section 30 to the northeast corner of Old Beach Addition as shown on Document No. 1778527 in Slide
539; thence along the northerly, westerly and southerly boundary lines of said Old Beach Addition for the
following courses bearing North 88 degrees 51 minutes 00 seconds West, a distance of 66.99 feet; thence North
57 degrees 09 minutes 32 seconds West, a distance of 27.21 feet;thence North 82 degrees 50 minutes 02 seconds
West, a distance of 243.17 feet; thence South 07 degrees 41 minutes 48 seconds West, a distance of 92.03 feet;
thence South 46 degrees 54 minutes 38 seconds West,a distance of 68.99 feet;thence North 60 degrees 02 minutes
56 seconds West, a distance of 56.33 feet; thence South 65 degrees 47 minutes 06 seconds West, a distance of
24.94 feet;thence South 39 degrees 40 minutes 57 seconds West,a distance of 65.35 feet;thence South 15 degrees
01 minutes 57 seconds West, a distance of 59.85 feet; thence South 74 degrees 07 minutes 48 seconds West, a
distance of 88.50 feet; thence South 63 degrees 07 minutes 03 seconds West, a distance of 67.24 feet; thence
South 48 degrees 39 minutes 08 seconds West, a distance of 74.44 feet; thence South 57 degrees 10 minutes 17
seconds West,a distance of 74.95 feet;thence South 25 degrees 28 minutes 00 seconds West, a distance of 79.02
feet; thence South 00 degrees 17 minutes 16 seconds West, a distance of 42.59 feet; thence South 24 degrees 14
minutes 47 seconds East,a distance of 36.82 feet;thence South 30 degrees 22 minutes 03 seconds East,a distance
of 87.75 feet; thence North 73 degrees 56 minutes 43 seconds East, a distance of 123.97 feet; thence South 15
degrees 11 minutes 24 seconds East, a distance of 111.94 feet; thence North 74 degrees 20 minutes 57 seconds
East, a distance of 256.75 feet; thence North 77 degrees 19 minutes 27 seconds East, a distance of 85.61 feet;
thence South 01 degrees 09 minutes 00 seconds West, a distance of 200.00 feet; thence South 22 degrees 57
minutes 21 seconds East, a distance of 197.35 feet; thence South 01 degrees 09 minutes 00 seconds West, a
distance of 200.00 feet; thence North 77 degrees 19 minutes 27 seconds East, a distance of 196.34 feet to said
east line; thence leaving said northerly, westerly and southerly boundary lines of said Old Beach Addition and
along said east line bearing South 01 degrees 08 minutes 53 seconds West, a distance of 1152.38 feet to a mag
nail found at the southeast corner of said Northeast Quarter of Section 30; thence North 89 degrees 21 minutes
48 seconds West, a distance of 2665.07 feet to the point of beginning, containing 198.322 acres more or less.
Excepting from the above description Lots 23-28 in Lake Wind Addition.
Subject to all easements of record and to the rights, if any, of the public for roadway purposes for Dal Bar Road
and any roadway running to the existing subdivisions adjoining the above described property.
Exhibit A-1
Description of the Premises
[Parties to agree upon with final approved design]