HomeMy WebLinkAboutCDC/2009-54
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RESOLUTION NO. CDC/2009-54
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE EXECUTION OF A SOLAR POWER PURCHASE
AGREEMENT, GUARANTY AGREEMENT AND A PHOTOVOLTAIC
SYSTEM SITE LEASE AGREEMENT FOR CERTAIN BUILDING AREAS
AND AUTHORIZING THE GRANT OF $1,400,000 TO THE SCRIP, INC., A
NON-PROFIT CORPORATION, FOR THE FINANCING, ACQUISITION
AND INSTALLATION OF A PHOTOVOLTAIC SOLAR POWER SYSTEM
ON THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO-OWNED BUILDING LOCATED AT 201 NORTH "E"
STREET
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is a
11 community redevelopment agency duly created, established and authorized to transact business and
12 exercise its powers, all under and pursuant to the California Community Redevelopment Law (the
13 "CRL"), codified under Division 24, Part I of the California Health and Safety Code commencing at
14 Section 33000, et seq.; and
15 WHEREAS, the Agency recognizes the financial and environmental benefits to acquire and
16 install a photovoltaic solar power system on the Agency building roof for the property located at
17 201 North "E" Street (the "Project"); and
18 WHEREAS, SCRIP, Inc., a non-profit corporation ("SCRIP"), is controlled by the Agency
19 and functions as an extension of the governmental and redevelopment activities of the Agency and
20 will be become the lender for the Project with the funds to be granted to SCRIP pursuant to this
21 Resolution and will cause to be formed one or more limited liability companies to thus assume
22 additional roles in the financing structure to provide for the Federal Solar Tax Credits as referenced
23 below; and
24 WHEREAS, the Agency anticipates a reduction in operating expenses due to reduced utility
25 costs of approximately $3,721,500 over the 25-year life of the Project; and
26 WHEREAS, the Agency will use the installation of a photovoltaic solar power system as a
27 demonstration project for other Agency- and City-owned facilities, as well as other public and
28 private facilities and buildings within the City; and
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CDC/2009-54
1 WHEREAS, the Agency has structured the financing of the Project to access the 30%
2 Federal Solar Tax Credit reducing the Agency's project cost by $755,833.
3 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
4 CITY OF SAN BERNARDlNO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
5 FOLLOWS:
6 Section 1. The Community Development Commission of the City of San Bernardino
7 ("Commission") hereby approves the transfer of $ I ,400,000 of Agency tax increment revenues to
8 the SCRIP, Inc., a Non-profit corporation, for the purposes of funding a loan and grant of equity for
9 the Project on behalf of the Agency and to cause to be formed one or more limited liability
10 companies that will be controlled in whole or in part by SCRIP as participants in the financing of
11 the Project to establish the taxable basis for the benefit of the Agency to thus provide for the receipt
12 of the anticipated funding from the Federal Solar Tax Credits. The Commission hereby authorizes
13 the Interim Executive Director to execute a Solar Power Purchase Agreement, Guaranty Agreement
14 and a Photovoltaic System Site Lease Agreement, as such agreements are attached to this Resolution
15 as Exhibits "A", "B" and "C", on behalf of the Agency together with such technical and conforming
16 changes as may be recommended by the Interim Executive Director of the Agency and approved by
17 the Agency Counsel.
18 Section 2.
19 Commission.
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This Resolution shall take effect from and after its date of adoption by this
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cnC/2009-54
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE EXECUTION OF A SOLAR POWER PURCHASE
AGREEMENT, GUARANTY AGREEMENT AND A PHOTOVOLTAIC
SYSTEM SITE LEASE AGREEMENT FOR CERTAIN BUILDING AREAS
AND AUTHORIZING THE GRANT OF $1,400,000 TO THE SCRIP, INC., A
NON-PROFIT CORPORATION, FOR THE FINANCING, ACQUISITION
AND INSTALLATION OF A PHOTOVOLTAIC SOLAR POWER SYSTEM
ON THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO-OWNED BUILDING LOCATED AT 201 NORTH "E"
STREET
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Conuuunity
9 Development Commission of the City of San Bernardino at a ;oint regular
meeting
10 thereof, held on the 8th day of September ,2009, by the following vote to wit:
21 The foregoing Resolution is hereby approved this 9th day of September
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26 Approved as to Form:
27 L/i. j
28 By: 'A:~~~ \
,2009.
Patrie J. Morris, Cha
unity Development Conuuission
of the City of San Bernardino
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SOLAR POWER PURCHASE AGREEMENT
between
RDA SOLAR I, LLC
and
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
September 8'., 2009
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SOLAR POWER PURCHASE AGREEMENT
This SOLAR POWER PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of September 8th, 2009 (the "Effective Date"), between RDA SOLAR I, LLC, a
California limited liability company ("Provider"), and REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, a public body, corporate and politic, established and existing
pursuant to California Heath & Safety Code Section 33000, et seq., ("Host"; and, together with
Provider, each, a "Party" and together, the "Parties").
WITNESSETH:
WHEREAS, Host owns the Premises (as hereafter defined);
WHEREAS, Host desires that Provider install and operate a solar photovoltaic system at
the Premises for the purpose of providing Solar Power (as hereafter defined), and Provider is
willing to undertake to do the same;
WHEREAS, Provider desires to sell, and Host desires to purchase, such Solar Power at
the Premises, pursuant to the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the mutual promises set forth below, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
1. DEFINITIONS.
I. I Definitions. In addition to other terms specifically defined elsewhere in this
Agreement, where capitalized, the following words and phrases shall be defined as
follows:
"Affiliate" means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such first Person. For the
purposes of this definition, "control" and its derivatives mean, with respect to any
Person, the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise. "Control" may be deemed to exist
notwithstanding that a Person owns or holds, directly or indirectly, less than 50% of
the beneficial equity interest in another Person.
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Applicable Law" means, with respect to any Person, any constitutional provision,
law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision,
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certificate, holding, injunction, registration, license, franchise, permit, authorization,
guideline, Governmental Approval, consent or requirement of any Governmental
Authority having jurisdiction over such Person or its property, enforceable at law or
in equity, including the interpretation and administration thereof by such
Governmental Authority.
"Business Dav" means any day other than Saturday, Sunday or any other day on
which banking institutions in New York, New York are required or authorized by
Applicable Law to be closed for business.
"Commercial Operation Date" has the meanmg set forth in Section 3.3(c) of this
Agreement.
"Completion Notice" has the meaning set forth in Section 3.3(b) of this Agreement.
"Confidential Information" has the meaning set forth in Section 15.1 of this
Agreement.
"Contract Price" has the meaning set forth in Section 6.1 of this Agreement.
"Effective Date" has the meaning set forth in the preamble to this Agreement.
"Emergencv Condition" means an imminent threat requiring immediate action to
prevent or mitigate the loss or impairment of life, health, property or essential public
services which is directly related to the System and does not originate from and is not
caused by the Local Electric Utility.
"Environmental Attributes" has the meanmg set forth m Section 5.2 of this
Agreement.
"Expiration Date" has the meaning set forth in Section 2.1 of this Agreement.
"Fair Market Value" means, with respect to any tangible asset or service, the price
that would be negotiated in an arm's-length, free market transaction, for cash,
between an informed, willing seller and an informed, willing buyer, neither of whom
is under compulsion to complete the transaction. Fair Market Value of the System
will be determined pursuant to Section 2.3.
"Force Maieure Event" has the meaning set forth in Section 10.1 of this Agreement.
"Governmental Approval" means any approval, consent, franchise, permit, certificate,
resolution, concession, license, or authorization issued by or on behalf of any
applicable Governmental Authority.
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"Governmental Authority" means any federal, state, regional, county, town, city, or
municipal government, whether domestic or foreign, or any department, agency,
bureau, or other administrative, regulatory or judicial body of any such government.
"Host" has the meaning set forth in the preamble to this Agreement.
"Host Default" has the meaning set forth in Section 11.2(a) of this Agreement.
"Host Indemnified Parties" has the meaning set forth in Section 16.1 of this
Agreement.
"Indemnified Partv" has the meaning set forth in Section 16.3(a) of this Agreement.
"Indemnified Persons" means the Host Indemnified Parties or the Provider
Indemnified Parties, as the context requires.
"IndemnifYing Partv" has the meaning set forth in Section 16.3(a) of this Agreement.
"Installer" SPG Solar, Inc. a California corporation.
"Installation Work" means the construction and installation of the System and the
start-up, testing and acceptance (but not the operation and maintenance) thereof, all
performed by or for Provider at the Premises.
"Invoice Date" has the meaning set forth in Section 6.2 of this Agreement.
"Invoice Period" means the period between the current and next Invoice Date.
"Lease" has the meaning set forth in Section 2.5(k) of this Agreement.
"Lender" has the meaning set forth in Section 13.2 of this Agreement.
"Liens" has the meaning set forth in Section 7 .1 (d) of this Agreement.
"Local Electric Utilitv" means the local electric distribution owner and operator
providing electric distribution and interconnection services to Host at the Premises.
"Maximum Monthlv Production" means the amounts described in Schedule 5 of
Exhibit A.
"Minimum Monthlv Production" means the amounts described 10 Schedule 5 of
Exhibit A.
"Monitoring Equioment" has the meaning set forth in Section 3.5 of this Agreement.
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"Notice of Claim" has the meaning set forth in Section 16.3(a) of this Agreement.
"Option Price" has the meaning set forth in Section 2.3(a) of this Agreement.
"Partv" or "Parties" has the meaning set forth in the preamble to this Agreement.
"Person" means an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture,
firm, or other entity, or a Governmental Authority.
"Premises" means the premises described in Schedule I of Exhibit A.
"Provider" has the meaning set forth in the preamble to this Agreement.
"Provider Default" has the meaning set forth in Section I 1.1 (a) of this Agreement.
"Provider Indemnified Parties" has the meaning set forth in Section 16.2 of this
Agreement.
"Reiection Notice" has the meaning set forth in Section 3.3(b) of this Agreement.
"Representatives" has the meaning set forth in Section 15.1 of this Agreement.
"Solar Insolation" or "Insolation" means the amount of k WHs per square meter
falling on a particular location, as published by the National Renewable Energy
Laboratory.
"Solar Pavment" has the meaning set forth in Section 6.1 of this Agreement.
"Solar Power" means the supply of on-site electrical energy output from the System.
"Svstem" means the integrated assembly of photo voltaic panels, mounting assemblies,
inverters, converters, metering, lighting fixtures, transformers, ballasts, disconnects,
combiners, switches, wiring devices and wiring, more specifically described in
Schedule 2 of Exhibit A and interconnected with the Local Electric Utility, owned by
Provider and installed at the Premises.
"Svstem Acceptance Testing" has the meaning set forth III Section 3.3(a) of this
Agreement.
"Svstem Installation Period" means the period from (and including) the date that
Provider (or its subcontractors) commence physical installation of the System on the
Premises to (but excluding) the Commercial Operation Date.
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"Svstem Ooerations" means the operation, maintenance and repair of the System
performed by or for Provider during the Term, as more particularly described in
Section 4.1.
"Svstem Test Requirements" has the meanmg set forth m Section 3.3(b) of this
Agreement.
"Term" has the meaning set forth in Section 2.1 of this Agreement.
1.2 Interoretation. The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement. Words in
this Agreement that import the singular connotation shall be interpreted as plural, and
words that import the plural connotation shall be interpreted as singular, as the
identity of the parties or objects referred to may require. The words "include",
"includes", and "including" mean include, includes, and including "without
limitation" and "without limitation by specification". The words "hereof', ~'herein",
and "hereunder" and words of similar import refer to this Agreement as a whole and
not to any particular provision of this Agreement. Except as the context otherwise
indicates, all references to "Exhibits", "Articles" and "Sections" refer to Exhibits,
Articles and Sections of this Agreement.
2. TERM AND TERMINATION.
2.1 Term. The term (the "Term") of this Agreement shall commence on the Effective
Date and shall continue for a period of ten (10) years after the Commercial Operation
Date. The date on which this Agreement terminates is hereafter referred to as the
"Expiration Date."
2.2 Substitution of Premises. If Host ceases to conduct business operations at and/or
vacates the Premises prior to the Expiration Date, then Host shall have the option to
provide Provider with a mutually agreeable substitute premises located within the
same Local Electric Utility district as the terminated System or in a location with
similar insolation and Local Electric Utility rates. If such a site is not immediately
available, Host shall work with Provider in good faith to provide one when it
becomes available or renegotiate a different site in a different territory. Host shall
provide at least sixty (60) days' written notice prior to the date on which it desires to
effect such substitution. In connection with such substitution, Host shall execute an
amended agreement that shall have all of the same terms as this Agreement (including
warranties) other than the "Effective Date" and 'Term" of such amended agreement,
the latter of which shall be the remainder of the Term of this Agreement, and the
amended agreement shall be deemed to be a continuation of this Agreement without
termination. Host shall also provide any new Host, owner, lessor, or mortgagee
consents or releases required by Provider's lender in connection with the substitute
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Premises. Host shall pay all costs associated with relocation of the System including
all costs and expenses incurred by or on behalf of Provider in connection with
removal of the System from the existing Premises and installation and testing of the
System at such substitute premises and all applicable interconnection fees and
expenses at the substitute premises, as well as costs of new title search and other out
of pocket expenses connected to preserving and refiling the security interest of
Provider's lender in the System, with said costs not to exceed the costs as if System
were installed at the original location. Provider shall remove or shall cause the
removal of, the System from the vacated Premises prior to the termination of Host's
ownership, lease, or rights to use such Premises. Provider will not be required to
restore the Premises to its prior condition but shall leave the Premises in a reasonably
neat order to the reasonable satisfaction of Host.
2.3 Purchase Option.
(a) Price; Exercise. So long as no Host Default has occurred, Provider grants to Host
an option to purchase the System on the Expiration Date for a purchase price (the
"Option Price") equal to the greater of (i) $113,375, or (ii) the Fair Market Value
of the System, as determined pursuant to this Section 2.3. Not less than sixty (60)
days prior to the Expiration Date, Host may provide written notice to Provider of
Host's intent to exercise its option to purchase the System. Upon receipt of
Host's notice, Provider shall specify the Option Price in writing, and Host shall
then have a period of thirty (30) days after notification to confirm or retract its
decision to exercise the purchase option. In the event Host confirms its exercise
of the purchase option, (i) the Parties will promptly execute all documents
necessary to (A) cause title to the System to pass to Host, free and clear of any
Liens on the Expiration Date, and (B) assign all warranties for the System to Host,
and (ii) Host will pay the Option Price to Provider, such payment to be made in
accordance with any previous written instructions delivered to Host for payments
under this Agreement. Thereafter, the System will be owned and operated by
Host at its sole cost and expense. In the event Host retracts its exercise of, or does
not timely confirm, the purchase option, the provisions of this Agreement shall be
applicable as if this Section 2.3 were not included in this Agreement.
(b) Fair Market Value. The Fair Market Value of the System shall be determined by
the mutual agreement of Host and Provider; provided, however, if Host and
Provider cannot mutually agree to a Fair Market Value within ten (\0) days of the
need to determine Fair Market Value, then the Parties shall each select a
nationally recognized independent appraiser with experience and expertise in the
solar photovoltaic industry. Such appraisers shall select a third a nationally
recognized independent appraiser with experience and expertise in the solar
photovoltaic industry who shall act reasonably and in good faith to determine Fair
Market Value and shall set forth such determination in a written opinion delivered
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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.
2.4 Removal of Svstem at Expiration. Upon the expiration or earlier termination of this
Agreement according to its terms (provided Host does not exercise its purchase
option pursuant to Section 2.3), Provider shall, at Provider's expense, remove, or
cause the removal of, all of its tangible property comprising the System from the
Premises on a mutually convenient date but in no case later than sixty (60) days after
the Expiration Date. The Premises shall be returned to its original condition, except
for System mounting pads or other support structures and ordinary wear and tear. For
purposes of Provider's removal of the System, Host's covenants pursuant to Section
7.2 shall remain in effect until the date of actual removal of the System. Provider
shall leave the Premises in neat and clean order to the reasonable satisfaction of Host.
If Provider fails to remove or commence substantial efforts to remove the System by
such agreed upon date, Host shall have the right, at its option, to remove the System
to a public warehouse and restore the Premises to its original condition (other than
System mounting pads or other support structures and ordinary wear and tear) at
Provider's cost.
2.5 Conditions Precedent. The following are conditions of this Agreement that, if not
met prior to commencement of the Installation Work on the System, will, at
Provider's election, render this Agreement null, void and of no further force or effect.
(a) Electrical Interconnection. There is a suitable electrical interconnection point of
sufficient capacity to accommodate the System as designed located within 500
feet of the planned location of the System as described in Schedules I and 2. of
Exhibit A.
(b) Obstructions. For any underground placement of electrical cable or conduit, there
are no rocks or other obstructions that would prevent ordinary trenching
equipment to be used for the installation of underground electrical cable from
providing a trench of sufficient depth to comply with National Electrical Code.
(c) Site Conditions. There exist no other unknown site conditions or construction
requirements that would materially increase the cost of Installation Work or
would adversely affect the electricity production from the System as designed.
(d) SubsidvIRebate. A rebate or subsidy in an amount designated in Schedule 3 of
Exhibit A is available to Provider from the state, local utility, or other source for
the installation of the System and is reserved for the System as designed.
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(e) Tax Code. There is no material adverse change in the federal tax code that would
adversely affect the economics ofthe installation for Provider and its investors.
(I) Creditworthiness. There is no material adverse change that affects the
creditworthiness of Host or the ability to obtain credit-committee approval of
Lender or Provider's investors.
(g) Ownership. Host has delivered (i) an Acknowledgement and Confirmation, in
substantially the form of Exhibit B attached hereto, and (ii) a release or
acknowledgment from any mortgagee of the Premises to establish the priority of
Provider's Lender's security interest in the System.
(h) Financing. Provider shall have received a commitment from Provider's Lender
for financing of the System on terms and conditions reasonably satisfactory to
Provider.
(i) Subordinate Financing. Provider shall have received a commitment from Host for
subordinate financing of the System on terms and conditions reasonably
satisfactory to Provider.
0) Put Option. Provider and Host shall have executed an Option Agreement on
terms and conditions reasonably satisfactory to Provider.
(k) Lease. Provider and Host shall have entered into a lease agreement for the
locations in which the System will be installed (the "Lease").
(I) Installment Contract. Provider and Installer shall have executed an installment
contract on terms and conditions reasonably satisfactory to Provider and Installer
shall have provided guaranties of its obligations under the installment contract
and performance of the System on terms and conditions reasonably satisfactory to
Provider.
(m) Interconnection Agreement. Both Parties agree to the applicable Local Electric
Utility interconnection agreement. In the event that either or both Parties do not
agree to any terms or conditions in such utility interconnection agreement, Host
and Provider shall work in good faith to address such terms and conditions in a
separate agreement between the Parties.
(n) Monitoring Agreement. A System monitoring agreement as more fully described
in Section 3.5 hereof shall have been entered into on terms and conditions
reasonably satisfactory to Provider.
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(0) Solar Access Easements. Such solar access easements as more fully described in
Section 3.4 hereof as desired by Provider have been entered into on terms and
conditions reasonably satisfactory to Provider.
(P) Opinions. Such opinions of Host as Provider reasonably requests shall have been
provided in the form reasonably satisfactory to Provider.
(q) Installation Site Structural Integritv. The structural integrity of the installation
sites, as is, are sufficient to accommodate the System. In making this
determination, Host shall, at its sole cost and expense, hire or provide a structural
engineer to verifY and confirm each of the locations' abilities to support the
System and Installation Work. If, in Host's reasonable judgment, such
investigation reveals that the structural integrity of the locations are, as is,
sufficient to accommodate the System, Host shall then provide Provider with a
copy of all reports, studies and other documentation created with respect to said
structural investigation. Provider shall have thirty (30) days to review and
evaluate all reports, studies and confirm its intention to proceed with the
Installation Work on the System.
(r) Other. Such other documents as reasonably requested by Provider shall have
been executed and/or furnished.
2.6 Right to Terminate this Agreement. At any time during the Term of this Agreement,
if Provider (with Host's assistance to the extent necessary) is unable to reserve and
receive a rebate or subsidy in an amount not less than the amount stated in Schedule 3
of Exhibit A, said rebate or subsidy being made available from the state, local utility
or other source for the installation of the System as designed, Provider has the
unilateral right to terminate this Agreement and, in the case where the Installation
Work has been initiated or substantially completed, remove any and all System
infrastructure or components pursuant to Section 2.4.
3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.
3.1 Installation Work. Pursuant to the Lease, Host will grant to Provider the right to use
portions of the Premises upon which to locate the System. Provider will cause the
System to be designed, engineered, installed and constructed substantially in
accordance with the terms of this Agreement. Host shall have the right to review and
approve all construction plans including engineering evaluations of the impact of the
System on (i) the structural integrity and strength of the locations on the Premises in
which the System is to be installed, and (ii) the then current Local Electric Utility's
equipment and service. Provider shall request the Installer to perform the Installation
Work at the Premises between the hours of 7:00 a.m. and 5;00 p.m., Monday through
Friday, in a manner that minimizes inconvenience to and interference with Host's and
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Host's invitees' and customers' use of the Premises to the extent commercially
practical. During installation of the System, Host shall permit Provider to post a sign
or banner on or in front of Host's building.
3.2 Approvals: Permits. Host shall assist Provider in obtaining necessary approvals from
the Local Electric Utility, including the submission of applications for
interconnection of the System with the Local Electric Utility. During the tie-in to the
electrical system, Host will shut down any electrical service to its buildings.
(a) Changes and Additions Required by Local Electric Utility Not Directly Related to
System. If the Local Electric Utility fails to approve the interconnection of the
System or requires equipment in addition to that shown in Schedule 2 of Exhibit
A and such equipment is not directly related to the System, Host, at its sole cost
and expense, may make such changes and additions as necessary to meet the
Local Electric Utility's requirements, provided however, that Host must, within
thirty (30) days of the Local Electric Utility's failure to approve interconnection,
notify Provider as to whether it will make such changes and additions. If Host
declines to make the changes and additions or fails to notify Provider of its
decision to make or not make the changes and additions within the thirty (30) day
notification period, Provider may, at Provider's option, immediately terminate this
Agreement. If Provider elects not to terminate this Agreement pursuant to this
Section, Host shall assist Provider in obtaining approval for a modified System
that will likely succeed in obtaining the Local Electric Utility's approval for
intercOllllection.
(b) Changes and Additions Required by Local Electric Utility Directly Related to
System. If the Local Electric Utility fails to approve the interconnection of the
System or requires equipment in addition to that shown in Schedule 2 of Exhibit
A and such equipment is directly related to the System, Provider, at its sole cost
and expense, may make such changes and additions as necessary to meet the
Local Electric Utility's requirements and as reasonably approved by Host,
provided, however, that Provider must, within thirty (30) days of the Local
Electric Utility's failure to approve interconnection, notifY Host as to whether it
will make such changes and additions. If Provider declines to make the changes
and additions or fails to notifY Host of its decision to make or not make the
changes and additions within the thirty (30) day notification period, Host may, at
Host's option, immediately terminate this Agreement. If Host elects not to
terminate this Agreement pursuant to this Section, Host shall assist Provider in
obtaining approyal for a modified System that will likely succeed in obtaining the
Local Electric Utility's approval for interconnection.
(c) Governmental Approvals. Host shall assist Provider in obtaining the necessary
local Governmental Approyals, which may include provision by Host of electrical
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drawings and structural drawings at Provider's sole cost and expense. Host shall
ensure that the Premises is ready for municipal and utility inspection within 30-
days of completion of the installation of the System. If any applicable
Governmental Authority does not provide the necessary Governmental
Approvals, Provider may, at Provider's option, immediately terminate this
Agreement subsequent to such notification from such Governmental Authority
that the application for permits have not been accepted or permits have been
denied. Host, at its sole cost and expense, shall have the option to make necessary
repairs or changes to the existing electrical structure of the Premises so that
Premises are eligible for state subsidy or rebate funding. In the event Host
decides not to make necessary changes or repairs to the existing electrical
structure of the Premises and the System has been installed, Host shall at its sole
discretion have the right to relocate the System to another Premises, subject to the
same terms and conditions set forth in Section 2.2 (Substitution of Premises) or
assist Provider and Installer in obtaining approval for a modified System that will
likely succeed in obtaining the necessary Local Government Approvals.
3.3 Svstem Acceptance Testing.
(a) Testing. Provider shall conduct testing of the System ("Svstem Acceptance
Testing"). Provider shall notifY Host not less than seven (7) days prior to the
anticipated date of System Acceptance Testing. Host shall have the right, but not
the obligation, to be present at and observe the System Acceptance Testing, at
Host's sole cost.
(b) Results. If the results of such System Acceptance Testing indicate that the
System is capable of generating electric energy for four (4) continuous hours (the
"Svstem Test Reauirements"), using such instruments and meters as have been
installed for such purposes, and the System has been approved for interconnected
operation by the Local Electric Utility, then Provider shall send a written notice to
that effect to Host (a "Completion Notice"), accompanied by a copy of the results
of the System Acceptance Testing. Host shall have fifteen (15) Business Days
after its receipt of the Completion Notice to review the System Acceptance
Testing results. If the System Acceptance Testing indicates that the System fails
to meet the System Test Requirements and Host provides Provider with a detailed
notice of such failure (a "Reiection Notice") within such fifteen (15) Business
Day period, then Provider shall promptly remedy at Provider's cost the relevant
specified failure and conduct new System Acceptance Testing until the System
Acceptance Testing indicates that the System meets the System Test
Requirements. In each such case, Provider shall send a new Completion Notice to
Host with a copy of the results of the new System Acceptance Testing as provided
above and the foregoing procedures shall be repeated.
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(c) Commercial Ooeration Date. Absent Provider's receipt of a timely Rejection
Notice from Host pursuant to Section 3.3(b), the "Commercial Operation Date"
shall be the fifteenth (15th) Business Day after the date of Host's receipt of the
Completion Notice.
3.4 Solar Access Easement. Host will use reasonable efforts to secure a solar access
easement for the System, and to prevent other buildings, structures or flora from
overshadowing or otherwise blocking access ofthe sunlight to the System.
3.5 Internet Connection. Provider shall install a wireless monitoring system separate
from any Host system in order to connect the System monitoring equipment
("Monitoring Equioment") to the necessary intranet and/or internet networks so that it
is possible for Provider to remotely monitor the production by the System.
4. SYSTEM OPERATIONS.
4.1 Provider as Owner and Ooerator. The System will be owned and operated by or for
Provider at its sole cost and expense. "Svstem Ooeration" means all actions,
including monitoring and maintaining the System, necessary for Provider to fulfill its
covenants under Section 7.1. Any repair or maintenance of the System will be
completed by or for Provider, at its sole cost and expense, for Provider's benefit as
legal and beneficial owner of the System.
4.2 Malfunctions and Emergencies.
(a) Malfunctions. Host and Provider each shall notify the other within twenty-four
(24) hours following their discovery of any material malfunction in the operation
of the System or of their discovery of an interruption in the supply of Solar
Power. Provider and Host shall each designate personnel and establish
procedures such that each Party may provide notice of such conditions requiring
Provider's repair or alteration at all times, twenty-four (24) hours per day,
including weekends and holidays. Provider and Host each shall notify the other
Party upon the discovery of an Emergency Condition in the System.
(b) Emergencies. If an Emergency Condition exists, Provider shall promptly dispatch
the appropriate personnel immediately to perform the necessary repairs or
corrective action in an expeditious and safe manner. For routine and emergency
repairs, Host shall contact Provider with contacts for each listed in attached
Schedule 4 of Exhibit A.
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4.3 Metering.
(a) Maintenance and Testing. Provider shall install and maintain a utility grade
kilowatt-hour (kWh) meter for the measurement of electrical energy provided by
the System. Upon Host's written request, Provider shall furnish a copy of all
technical specifications and accuracy calibrations for the meter and test the meter
upon Host's request.
(b) Adiustments. If testing of the metering equipment pursuant to Section 4.3(a)
indicates that such equipment is in error by more than 2%, then Provider shall
promptly repair or replace such equipment. Provider shall make a corresponding
adjustment to the records of the amount of electrical energy provided by the
System delivered based on such test results for (i) the actual period of time when
such error caused inaccurate meter recordings, if that period can be determined to
the mutual satisfaction of the Parties, or (ii) if such period cannot be so
determined, then a period equal to one-half of the period from the later of the date
of the last previous test confirming accurate metering or the date the meter was
placed into service, but not to exceed two (2) years.
5. DELIVERY OF SOLAR POWER.
5.1 Purchase Requirement. Host agrees to purchase one hundred percent (100%) of the
Solar Power of the System during the Term. Neither Party may claim that by this
Agreement, Provider is an electric utility subject to regulation as an electric utility or
subject to regulated electricity rates. Provider shall not claim to be providing electric
utility services to Host.
5.2 Environmental Attributes. Etc. Host's purchase of Solar Power does not include
Environmental Attributes or any other attributes of ownership of the System, except
that renewable energy credits, green tags, tradable renewable credits and Green-e@
credits may be purchased by Host on the Commercial Operation Date pursuant to a
separate bill of sale. Except as provided in the foregoing sentence, Environmental
Attributes shall be retained by Provider. For purposes of this Agreement,
"Environmental Attributes" shall include carbon trading credits, renewable energy
credits or certificates, emissions reduction credits, investment credits, production tax
credits, emissions allowances, green tags, tradable renewable credits, and Green-e@
products. To avoid any conflicts with fair trade rules regarding claims of solar or
renewable energy use, Host, if engaged in commerce and/or trade, shall submit to
Provider for approval any press releases regarding Host's use of solar or renewable
energy and shall not submit for publication any such releases without the written
approval of Provider. Approval shall not be unreasonably withheld, and Provider's
review and approval shall be made in a timely manner to permit Host's timely
publication. Host and Provider may by mutual written agreement set forth specific
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statements that may be used by Host in any press releases that address Host's use of
solar or renewable energy.
5.3 Title to Svstem. Throughout the duration of this Agreement, Provider shall be the
legal and beneficial owner of the System at all times, including all Enviromnental
Attributes, other than the renewable energy credits, green tags, tradable renewable
credits and Green-e@ credits purchased by Host, and the System shall remain the
personal property of Provider and shall not attach to or be deemed a part of, or fixture
to, the Premises. The System shall at all times retain the legal status of personal
property as defined under Article 9 of the Uniform Commercial Code. Host
covenants that it will use reasonable commercial efforts to place all parties having an
interest in or lien upon the real property comprising 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 ofthe premises, Host shall provide a disclaimer or release from the lienholder.
Host consents to the filing of a disclaimer of the System as a fixture of the Premises
in the office where real estate records are customarily filed in the jurisdiction of the
Premises and shall execute such acknowledgments and other evidences of Provider's
ownership of the System as Provider may request from time to time, and pay the cost
of the filing or recording of the same as the case may be whenever Provider deems
desirable, and will do such other acts and things as Provider may reasonably request
in order to effectuate fully the intent ofthis Section.
6. PRICE AND PAYMENT.
6.1 Consideration. Host shall pay to Provider a monthly payment (the "Solar Pavment")
for the Solar Power produced by the System during each month of the Term in the
amount set forth on Schedule 5 of Exhibit A; provided, however, that in any month in
which less the Minimum Monthly Production for such month as set forth in Schedule
~ of Exhibit A is delivered, the Solar Payment shall be reduced by $.14 cents per kWh
delivered less than the Minimum Monthly Production for such month, and in any
month in which more than the Maximum Monthly Production as set forth in Schedule
~ of Exhibit A is delivered, the Solar Payment shall be increased by $.14 cents per
kWh delivered more than the Maximum Monthly Production for such month and
provided further that any shortfall below the Minimum Monthly Production as set
forth in Schedule 5 of Exhibit A that arises solely as a result of a Force Majeure
Event shall not be taken into account for purposes of this sentence. The sum of all
Solar Payments paid (and remaining to be paid) less any reductions or increases in
accordance with the preceding sentence during the Term shall be the "Contract Price"
under this Agreement. Except as may be otherwise expressly provided in this
Agreement, no other fees or charges shall be due from Host to Provider.
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6.2 Pavrnent. Provider shall invoice Host on a monthly basis (each, an "Invoice Date"),
commencing on the tenth day of the month to occur after the Commercial Operation
Date, for the Solar Payment in respect of such Invoice Period. The first invoice shall
include any production that occurred prior to the initial Invoice Date. The last
invoice shall be pro rated, as necessary, to include production only through the
Expiration Date of this Agreement.
6.3 Time ofPavment. Host shall pay all amounts due hereunder within five (5) days after
the applicable Invoice Date.
6.4 Method of Pavment. Host shall make all payments under this Agreement by wire
transfer to the account designated by Provider. All payments that are not paid when
due (i) shall be accompanied by a late charge in the amount of five percent (5%) of
the Solar Payment or $25, whichever is greater, and (ii) shall bear interest accruing
from the date becoming past due until paid in full at a rate per annum equal to the
lesser of (a) five percent (5%) and (b) the maximum rate allowed by Applicable Law,
provided that Host has received five (5) days to cure such late payment. All
payments made hereunder shall be made free and clear of any tax, levy, assessment,
duties or other charges and not subject to reduction, withholding, set-off, or
adjustment of any kind. Upon receipt of written direction and instructions from
Provider and Provider's Lender, all payments to be made by Host to Provider under
this Agreement shall be made directly to the Lender or its agent designated in a
writing addressed to Host from time to time.
6.5 Payment Disoutes. If a dispute arises with respect to any invoice submitted or any
payment owed by one Party to the other Party hereunder, the Parties shall attempt to
resolve such dispute amicably. During the time a dispute is pending, the disputing
Party shall not be deemed in default under this Agreement and the Parties shall not
suspend the performance of their respective obligations hereunder, including payment
of undisputed amounts owed hereunder.
6.6 Put Reserve. Host shall establish a separate reserve account maintained at an FDIC
insured banking institution approved by Provider for the purpose of securing its
payment of the Solar Payments (the "Reserve Account"). On the first Business Day
of each month commencing on January 1,2010 and terminating on June 30, 2014,
Provider shall deposit into the Reserve Account a monthly amount equal to $1,712.
Host hereby assigns to Provider and grants a security interest in all of Host's right, title
and interest in and to the Reserve Account and in and to (a) all books and records
relating thereto, whether presently existing or hereafter created, (b) all of the existing
and future proceeds of any of the foregoing, or any other disposition of the foregoing,
including but not limited to, any interest payment or other distribution of cash or
property in respect thereof; and (c) any existing and future rights incidental to the
ownership of any of the foregoing. Without Provider's specific prior written consent,
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which consent shall be granted in Provider's sole discretion, Host shall neither withdraw
funds from the Reserve AccoWlt nor sell nor offer to sell nor otherwise transfer nor
encumber any portion of the Reserve AccoWlt. Host will cause the banking institution at
which the Reserve AccoWlt is held to execute and deliver an AccoWlt Control
Agreement in the form approved by Provider for the purpose of, perfecting the security
interest granted by Host to Provider herein. In the event that Provider exercises its right
Wlder that certain Put Option Agreement by and between Provider and Host dated as of
the date hereof, Host may withdraw funds in the Reserve AccoWlt to satisfy its
obligations thereWlder.
7. GENERAL REPRESENTATIONS.
7.1 Provider's Representations. As a material inducement to Host's execution and
delivery of this Agreement, Provider covenants and agrees to the following:
(a) Svstem Condition. Provider shall take all reasonable actions to ensure that the
System is capable of providing Solar Power at a commercially reasonable
continuous rate.
(b) Governmental Approvals. While providing the Installation Wark, Solar Power,
and System Operations, Provider shall obtain and maintain and secure all
Governmental Approvals, licenses, and permits required to be obtained and
maintained and secured by Provider and to enable Provider to perform such
obligations. Provider shall deliver copies of all Governmental Approvals
obtained pursuant to this section to Host.
(c) Health and Safetv. Provider shall take all necessary and reasonable safety
precautions with respect to providing the Installation Work, Solar Power, and
System Operations that shall comply with all Applicable Laws pertaining to the
health and safety of persons and real and personal property. Provider shall
immediately report to Host any death, lost time injury, or property damage to
Host's property that occurs on the Premises.
(d) Liens. Provider shall not directly or indirectly cause, create, incur, assume or
suffer to exist any mortgage, pledge, lien (including mechanics', labor or
materialmen's lien), charge, security interest, encumbrance or claim of any nature
("Liens") on or with respect to the Premises or any interest therein, other than
Liens on the System granted to Provider's Lender. Provider also shall pay
promptly before a fine or penalty may attach to the Premises any taxes, charges or
fees of whatever type of any relevant Governmental Authority, relating to any
work performed hereunder by Provider ar its agents and subcontractors on the
Premises. If Provider breaches its obligations Wlder this Section, it shall (i)
immediately notify Host in writing, (ii) promptly cause such Lien to be
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discharged and released of record without cost to Host, and (Hi) defend and
indemnify Host against all costs and expenses (including reasonable attorneys'
fees and court costs at trial and on appeal) incurred in discharging and releasing
such Lien.
(e) No Infringement. The System and Provider's services hereunder, including the
Installation Work, Solar Power and System Operations, shall not infringe any
third party's intellectual property or other proprietary rights.
(I) Timelv Services. Provider will perform its obligations hereunder in a timely,
professional and workmanlike manner in accordance with all Applicable Laws,
regulations, rules and ordinances.
(g) Consents and Aoorovals. Provider shall assist Host in obtaining, maintaining, and
securing necessary approvals, permits, and authorizations related to the
installation of the System by providing any authorizations needed for the above
and signing applications for permits, local utility grid interconnection applications
and rebate. applications and processing. Provider shall ensure that any
authorizations required of Provider are provided in a timely manner. To the
extent that only Provider is authorized to obtain or issue any necessary approvals,
permits, rebates or other financial incentives, Provider shall deliver to Host copies
of said consents, approvals, permits, and authorizations relating to the
performance of Provider's obligations and the rights granted by Provider
hereunder and that are required by the terms, conditions or provisions of any
restriction or any agreement or instrument to which Provider is a party or by
which Provider is bound.
7.2 Host's Reoresentations. As a material inducement to Provider's execution and
delivery of the Agreement, Host covenants and agrees as follows:
(a) Health and Safety. Host shall at all times maintain the Premises consistent with
all Applicable Laws pertaining to the health and safety of persons and property.
(b) Security. Host shall provide and take reasonable measures for security of the
System, including commercially reasonable monitoring of the Premises' alarms.
(c) Notice of Damage. Host shall promptly notify Provider of any matters it is aware
of pertaining to any damage to or loss of the use of the System or that could
reasonably be expected to adversely affect the System.
(d) Liens. Host shall not directly or indirectly cause, create, incur, assume or suffer
to exist any Liens on or with respect to the System or any interest therein. If Host
breaches its obligations under this Section, it shall immediately notify Provider in
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writing, shall promptly cause such Lien to be discharged and released of record
without cost to Provider, and shall indemnify Provider against all costs and
expenses (including reasonable attorneys' fees and court costs at trial and on
appeal) incurred in discharging and releasing such Lien.
(e) Consents and Approvals. Host shall assist Provider in obtaining, maintaining, and
securing necessary approvals, permits, and authorizations related to the
installation of the System by providing any authorizations needed for the above
and signing applications for permits, local utility grid interconnection applications
and rebate applications and processing. Host shall ensure that any authorizations
required of Host are provided in a timely manner. To the extent that only Host is
authorized to obtain or issue any necessary approvals, permits, rebates or other
financial incentives, Host shall deliver to Provider copies of said consents,
approvals, permits, and authorizations relating to the performance of Host's
obligations and the rights granted by Host hereunder and that are required by the
terms, conditions or provisions of any restriction or any agreement or instrwnent
to which Host is a party or by which Host is bound.
(t) Access to Premises. During the performance of the Installation Work, System
Operations or removal of the System pursuant to Section 2.4, Article 10 or
Section 11.2(b), Host shall provide Provider with access to the Premises as
reasonably necessary to allow Provider to perform the Installation Work, System
Operations and System removal, including ingress and egress rights to the
Premises for Provider and its employees, contractors and sub-contractors and
access to electrical panels and conduits to interconnect or disconnect the System
with the Premises' electrical wiring. Host shall provide Provider and Installer
with all reasonably necessary access to the Premises and System during the Term
of this Agreement and for so long as needed after termination to remove the
System pursuant to the applicable provisions herein. Host and its authorized
representatives shall at all times have access to and the right to observe the
Installation Work or System removal but shall not interfere or handle any
Provider equipment or the System without written authorization from Provider
except in accordance with Section 11.1 (c); provided, however, in the event of a
material malfunction or emergency as specified in Section 4.2, Host shall be
permitted to take those actions necessary to prevent injury as specified in Section
11.I(c).
(g) Temporary Storage Soace During Installation or Removal. Host shall use its best
efforts to 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 the
Installation Work, System Operations or System removal, and access for rigging
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and material handling. Host shall provide Provider a reasonable area for
construction laydown.
(h) Financial Statements. During the Term of this Agreement, Host shall deliver to
Provider Host's annual internally prepared financial statements within 15 days
after each calendar year end during the term of the Loan. Host acknowledges that
these financial statements may be provided to Provider's Lender if so required.
8. WARRANTIES.
8.1 Warranties Relatin2 to A2reement Validitv. In addition to any other representations
and warranties contained in this Agreement, each Party represents and warrants to the
other as of the Effective Date that:
(a) Or2anization. It is duly organized and validly existing and in good standing in the
jurisdiction of its organization.
(b) Authoritv. It has the full right and authority to enter into, execute, deliver, and
perform its obligations under this Agreement.
(c) Aooroval. It has taken all requisite corporate or other action to approve the
execution, delivery, and performance of this Agreement.
(d) Enforceabilitv. This Agreement constitutes its legal, valid and binding obligation
enforceable against such Party in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other similar laws now or hereafter in effect relating to creditors' rights generally.
(e) Liti2ation. There is no litigation, action, proceeding or investigation pending or,
to the best of its knowledge, threatened before any court or other Governmental
Authority by, against, affecting or involving any of its business or assets that
would affect its ability to carry out the transactions contemplated herein.
(I) Conflicts. Its execution and performance of this Agreement and the transactions
contemplated hereby do not constitute a breach of any term or provision of, or a
default under, (i) any contract or agreement to which it or any of its Affiliates is a
Party or by which it or any of its Affiliates or its or their property is bound, (ii) its
organizational documents, or (iii) any Applicable Laws.
8.2 ReQuisite Standards. The System shall be installed with due care by qualified
employees, representatives, agents or contractors of Provider and shall conform to
applicable industry standards and practices and Applicable Law. If Provider fails to
meet any of the foregoing standards, Provider shall perform at its own cost, and
without additional charge to Host, the professional services necessary to correct errors
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and omissions, including any necessary replacement of the System, that are caused by
Provider's failure to comply with the above standard so that the System is capable of
providing Solar Power at a reasonably continuous rate.
8.3 EXCLUSION OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN
SECTIONS 3.1 AND 7.1 AND THIS ARTICLE 8, THE INSTALLATION WORK,
SYSTEM OPERATIONS, AND SOLAR POWER PROVIDED BY PROVIDER TO
HOST PURSUANT TO THIS AGREEMENT SHALL BE "AS-IS WHERE-IS." NO
OTHER WARRANTY TO HOST OR ANY OTHER PERSON, WHETHER
EXPRESS, IMPLIED OR STATUTORY, IS MADE AS TO THE INSTALLATION,
DESIGN, DESCRIPTION,QUALITY, MERCHANTABILITY, COMPLETENESS,
USEFUL LIFE, FUTURE ECONOMIC VIABILITY, OR FITNESS FOR ANY
PARTICULAR PURPOSE OF THE SYSTEM, THE SOLAR POWER OR ANY
OTHER SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS
TO ANY OTHER MATTER, ALL OF WHICH ARE EXPRESSLY DISCLAIMED
BY PROVIDER.
9. TAXES AND GOVERNMENTAL FEES.
9.1 Host Obligations. Host shall reimburse and pay for any taxes, fees or charges
imposed or authorized by any Governmental Authority and paid by Provider due to
Provider's sale of the Solar Power to Host (other than income taxes imposed upon
Provider). Provider shall notify Host in writing with a detailed statement of such
amounts, which shall be invoiced by Provider and payable by Host. Host shall timely
report, make filings for, and pay any and all sales, use, income, gross receipts, or
other taxes, and any and all franchise fees or similar fees assessed against it due to its
purchase of the Solar Power. This Section 9.1 excludes taxes specified in Section 9.2.
9.2 Provider Obligations. Subject to Section 9.1 above, Provider shall be responsible for
all income, gross receipts, ad valorem, personal property or real property or other
similar taxes and any and all franchise fees or similar fees assessed against it due to
its ownership of the System. If Host is assessed any taxes or fees related to the
existence of the System on the Premises, Host shall immediately notify Provider.
Hosr and Provider shall cooperate in contesting such assessment; orovided, however,
that Host shall pay such taxes to avoid any penalties on such assessments subject to
reimbursement by Provider. If, after resolution of the matter, a tax is imposed upon
Host related to the improvement of real property by the existence of the System on
the Premises, Provider shall reimburse Host for such tax. Provider shall not be
obligated for any taxes payable by or assessed against Host based on or related to
Host's overall income or revenues.
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10. FORCE MAJEURE.
10.1 Definition. "Force Maieure Event" means any act or event that prevents the affected
Party from performing its obligations in accordance with this Agreement, if such act
or event is beyond the reasonable control, and not the result of the fault or negligence,
of the affected Party and such Party had been unable to overcome such act or event
with the exercise of due diligence (including the expenditure of reasonable sums).
Subject to the foregoing conditions, "Force Majeure Event" shall include the
following acts or events: (a) natural phenomena, such as storms, hurricanes, floods,
lightning and earthquakes; (b) explosions or fires arising from lightning or other
causes unrelated to the acts or omissions of the Party seeking to be excused from
performance; (c) acts of war or public disorders, civil disturbances, riots, insurrection,
sabotage, epidemic, terrorist acts, or rebellion; (d) action by a Governmental
Authority, including a moratorium on any activities related to this Agreement; and (e)
the impossibility for one of the Parties, despite its reasonable efforts, to obtain, in a
timely manner, any Governmental Approval necessary to enable the affected Party to
fulfill its obligations in accordance with this Agreement, provided that the delay or
non-obtaining of such Governmental Approval is not attributable to the Party in
question and that such Party has exercised its reasonable efforts to obtain such Permit.
10.2 Excused Performance. Except as otherwise specifically provided in this Agreement,
neither Party shall be considered in breach of this Agreement or liable for any delay
or failure to comply with the Agreement, if and to the extent that such delay or failure
is attributable to the occurrence of a Force Majeure Event; orovided that the Party
claiming relief under this Article 10 shall immediately (a) notify the other Party in
writing of the existence of the Force Majeure Event, (b) exercise all reasonable efforts
necessary to minimize delay caused by such Force Majeure Event, (c) notiry the other
Party in writing of the cessation or termination of said Force Majeure Event and (d)
resume performance of its obligations hereunder as soon as practicable thereafter.
10.3 Termination in ConseQuence of Force Maieure Event. If a Force Majeure Event shall
have occurred that has affected Provider's performance of its obligations hereunder
and that has continued for a period of one hundred twenty (120) consecutive days or
one hundred eighty (180) days in the aggregate, then Host shall be entitled to
terminate this Agreement upon thirty (30) days' prior written notice to Provider. If at
the end of such thirty (30) day period such Force Majeure Event shall still continue,
this Agreement shall automatically terminate. Upon such termination for a Force
Majeure Event, neither Party shall have any liability to the other, subject to Section
18.6 (Survival). By mutual agreement of the Parties, any System damaged or
destroyed by a Force Majeure Event may be replaced by Provider within the time
frames set forth above and subsequent to replacement and upon commencement of
operation of the replacement System all terms and conditions of this Agreement will
remain in effect, including the remaining Term of this Agreement.
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11. DEFAULT.
11.1 Provider Defaults and Host Remedies.
(a) Provider Defaults. The following events shall be defaults with respect to Provider
(each, a "Provider Default"):
1. Provider shall (A) apply for or consent to the appointtnent of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property; (B) admit in writing its inability, or be generally
unable, to pay its debts as such debts become due; (C) make a general assignment
for the benefit of its creditors; (D) commence a voluntary case under any
bankruptcy law; (E) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding up, or composition or
readjusttnent of debts; (F) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against Provider in an involuntary case
under any bankruptcy law; or (0) take any corporate or other action for the
purpose of effecting any of the foregoing;
ll. a proceeding or case shall be commenced without the application or consent of
Provider in any court of competent jurisdiction seeking (A) its liquidation,
reorganization, dissolution or winding-up or the composition or readjusttnent of
debts or, (B) the appointtnent of a trustee, receiver, custodian, liquidator or the
like of Provider under any bankruptcy law, and such proceeding or case shall
continue undefended, or any order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect for a period
of ninety (90) days; and
iii. Provider breaches any material term of this Agreement including but not limited
to Provider's representations herein and (A) if such breach can be cured within
thirty (30) days after Host's notice of such breach and Provider fails to so cure, or
(B) Provider fails to commence and pursue said cure within such thirty (30) day
period if, using its best efforts, a longer cure period is needed.
(b) Host's Remedies.
1. If a Provider Default described in Section J 1.1 (a)(i) or J 1.1 (a)(ii) has occurred,
Host may terminate this Agreement upon at least fifteen (15) days' prior written
notice to Provider and will have no further obligations under this Agreement;
ll. If a Provider Default described in Section Il.l(a)(iii) has occurred and is
continuing, Host may terminate this Agreement immediately upon the expiration
22
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DRAFT - 08-25-2009
of the respective grace periods set forth in such provisions and will have no
further obligations under this Agreement; and
iii. If a Provider Default described in Section I Uta) has occUlTed and is continuing,
Host may exercise any remedy it may have at law or equity or under this
Agreement including but not limited to the termination of this Agreement and will
have no further obligations under this Agreement.
(c)
Actions to Prevent Iniurv. If any Provider Default creates an imminent risk of
damage or injury to any Person or any Person's property, then, in addition to any
other right or remedy that Host may have, Host may (but shall not be obligated to)
take such action as Host deems appropriate to prevent such damage or injury.
Such action may include disconnecting and removing all or a portion of the
System at Provider's cost and expense. Host shall not bear any liability or incur
any costs for damages with respect to the removal, transport, or storage of the
System, provided, however, that such damages are not due to Host negligence.
11.2
Host Defaults and Provider's Remedies.
(a)
Host Default. The following events shall be defaults with respect to Host (each, a
"Host Default"):
1. Host shall (A) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property; (B) admit in writing its inability, or be generally
unable, to pay its debts as such debts become due; (C) make a general assignment
for the benefit of its creditors; (D) commence a voluntary case under any
bankruptcy law; (E) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding up, or composition or
readjustment of debts; (F) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against Host in an involuntary case
under any bankruptcy law; or (0) take any corporate or other action for the
purpose of effecting any oflhe foregoing;
11. a proceeding or case shall be commenced without the application or consent of
Host in any court of competent jurisdiction seeking (A) its liquidation,
reorganization, dissolution or winding-up or the composition or readjustment of
debts or (B) the appointment of a trustee, receiver, custodian, liquidator or the like
of Host under any bankruptcy law, and such proceeding or Case shall continue
undefended, or any order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect for a period of
ninety (90) or more days;
23
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DRAFT - 08-25-2009
iii. Host breaches any material term of this Agreement if (A) such breach can be
cured within thirty (30) days after Provider's notice of such breach and Host fails
to so cure, or (B) Host fails to commence and pursue said cure within such thirty
(30) day period if a longer cure period is needed;
IV. Host fails to pay Provider any amount due Provider under this Agreement within
five (5) days from receipt of notice from Provider of such past due amount; and
v. Host refuses to sign authorizations needed to obtain any rebate or subsidy
contemplated in Section 2.5 or refuses to sign or purposefully breaches any term
of the interconnection agreement required by the Local Electrical Utility for
interconnection of the System.
(b) Provider's Remedies.
1. If a Host Default described in Section 11.2(aXi) or I I .2(a)(ii) has occurred, this
Agreement shall terminate immediately;
11. If a Host Default described in Section 11.2(a)(iii), 11.2(a)(iv) or I1.2(a)(v) has
occurred and is continuing, Provider may terminate this Agreement immediately
upon the expiration of the respective grace periods set forth in such provisions;
and
iii. If a Host Default described in Sections 11.2(a) has occurred and is continuing, in
addition to any other remedy hereunder, (A) Provider may (i) cease the provision
of all Solar Power, and (ii) remove the System from the Premises in compliance
with the conditions of Section 2.4 herein, and (B) Provider may exercise any other
remedy it may have at law or equity or under this Agreement.
(c) Actions to Prevent Iniurv. If any Host Default creates an inuninent risk of
damage or injury to any Person or any Person's property, then in any such case, in
addition to any other right or remedy that Provider. may have, Provider may (but
shall not be obligated to) take such action as Provider deems appropriate to
prevent such damage or injury. Such action may include disconnecting and
removing all or a portion of the System, in compliance with the conditions of
Section 2.4 herein, or suspending the supply of Solar Power to Host, provided,
however, that Provider shall use commercially reasonable efforts to provide Host
with reasonable notice of such disconnection or removal or suspension of supply.
11.3 RemovalofSvstem. Upon any termination of this Agreement pursuant Section 11.2,
Provider will remove the System pursuant to Section 2.4 hereof, absent any purchase
of the System by Host pursuant to Section 2.3 hereof.
24
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DRAFT - 08-25-2009
12. LIMITATION OF LIABILITY. NEITHER PARTY NOR ANY OF ITS INDEMNIFIED
PERSONS SHALL BE LIABLE TO THE OTHER PARTY OR ITS INDEMNIFIED
PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR
CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE
OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN
CONNECTION WITH THIS AGREEMENT. NOTWITHSTANDING ANY PROVISION
OF THIS AGREEMENT TO THE CONTRARY, A PARTY'S MAXIMUM LIABILITY
TO THE OTHER PARTY, EXCEPT INDEMNITY OBLIGATIONS IN RESPECT OF
PERSONAL INJURY, PROPERTY DAMAGE, BREACH OF CONFIDENTIAL
INFORMATION, AND INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS,
UNDER THIS AGREEMENT SHALL BE LIMITED, IN THE AGGREGATE, TO THE
CONTRACT PRICE.
13. ASSIGNMENT.
13.1 Assignment. Host shall not sell, transfer, pledge or assign its interests in this
Agreement without Provider's prior written consent, which consent shall not be
unreasonably withheld or delayed. Host shall not sell, transfer, pledge or assign its
interests in the Premises, or any part thereof, unless such sale, transfer, pledge or
assignment is made subject to this Agreement. Provider shall not be prohibited from
selling, transferring, pledging or assigning its interests in this Agreement.
13.2 Lender Accommodations. Host acknowledges that Provider will be financing the
acquisition and installation of the System with financing accommodations from one
or more [mancial institutions and that Provider's obligations will be secured by,
among other collateral, a pledge or collateral assignment of this Agreement and a first
security interest in the System. In order to facilitate such necessary financing, and
with respect to any such financial institutions of which Provider has notified Host in
writing (a "Lender"), Host agrees as follows:
(a) Consent to Collateral Assignment. Host acknowledges the collateral assignment
by Provider to the Lender, of Provider's right, title and interest in and to this
Agreement.
(b) Rillhts Uoon Event of Default. Notwithstaoding any contrary term of this
Agreement:
1. The Lender, as collateral assignee, shall be entitled to exercise, in the place and
stead of Provider, any and all rights and remedies of Provider under this
Agreement in accordance with the terms of this Agreement and only in the event
of Provider's or Host's default. Lender shall also be entitled to exercise all rights
and remedies of secured parties generally with respect to this Agreement and the
System.
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DRAFT - 08-25-2009
11. The Lender shall have the right, but not the obligation, to pay all sums due under
this Agreement and to perform any other act, duty or obligation required of
Provider thereunder or cause to be cured any default of Provider thereunder in the
time and manner provided by the terms of this Agreement. Nothing herein
requires the Lender to cure any default of Provider under this Agreement or
(unless the Lender has succeeded to Provider's interests under this Agreement) to
perform any act, duty or obligation of Provider under this Agreement, but Host
hereby gives it the option to do so.
iii. Upon the exercise of remedies under its security interest in the System, including
any sale thereof by the Lender, whether by judicial proceeding or under any
power of sale contained therein, or any conveyance from Provider to the Lender
(or any assignee of the Lender) in lieu thereof, the Lender shall give notice to
Host of the transferee or assignee of this Agreement. Any such exercise of
remedies shall not constitute a default under this Agreement.
IV. Upon any rejection or other termination of this Agreement pursuant to any
process undertaken with respect to Provider under the United States Bankruptcy
Code, at the request of Lender made within ninety (90) days of such termination
or rejection, Host shall enter into a new agreement with Lender or its assignee
having the same terms and conditions as this Agreement.
v. At no time during the Term of this Agreement, shall Provider or Lender have any
lien interest whatsoever in the real property or building to which the System is
attached.
(c) Rieht to Cure.
1. Neither Host nor Lender will exercise any right to terminate or suspend this
Agreement unless it shall have given the other Party prior written notice of its
intent to terminate or suspend this Agreement, as required by this Agreement,
specifying the condition giving rise to such right, and the Lender shall not have
caused to be cured the condition giving rise to the right of termination or
suspension within thirty (30) days after such notice or (if longer) the periods
provided for in this Agreement; Drovided that if such Provider Default reasonably
cannot be cured by the Lender within such period and the Lender commences and
continuously pursues cure of such default within such period, such period for cure
will be extended for a reasonable period of time under the circumstances, such
period not to exceed additional ninety (90) days. The Parties' respective
obligations will otherwise remain in effect during any cure period.
ii. If the Lender or its assignee (including any purchaser or transferee), pursuant to
an exercise of remedies by the Lender, shall acquire title to or control of
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DRAFT - 08-25-2009
Provider's assets and shall, within the time periods described in Section 13.2(c)(i)
above, cure all defaults under this Agreement existing as of the date of such
change in title or control in the manner required by this Agreement and which are
capable of cure by a third person or entity, then such person or entity shall no
longer be in default under this Agreement, and this Agreement shall continue in
full force and effect.
14. NOTICES.
14.1 Notice Addresses. Unless otherwise provided in this Agreement, all notices and
communications concerning this Agreement shall be in writing and addressed to the
other Party as follows:
14.2
If to Provider:
RDA SOLAR I, LLC
201 North "E" Street, Suite 30]
San Bernardino, CA 9240]
With a copy 10:
And:
Greystone Renewable Energy Manager LLC
clo Greystone & Co. Inc.
Attention: General Counsel
Carnegie Hall Tower
152 West 57th Street, 60th Floor
New York, NY 10019
Facsimile: (2]2) 649-9701
And:
Nixon Peabody LLP
Attention: Michael J. Goldman
401 Ninth Street, N.W., Suite 900
Washington, D.C. 20004
Telephone: (202) 585-8000
Facsimile: (202) 585-8080
And:
Law Office of Mark D. Foster
Attention: Mark D. Foster
4835 LBJ Freeway, Suite 424
Dallas, Texas 75244
Telephone No: (214) 363-9599
Facsimile No.: (2]4) 363-9551
27
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DRAFT - 08-25-2009
If to Host:
Redevelopment Agency of the City of San Bernardino
Attention: Emil A. Marzullo, Interim Executive Director
201 North "E", Street, Suite 301
San Bernardino, CA 92401-1520
Telephone: (909) 663.1044
Facsimile: (909) 888-9413
With a copy to:
Lewis Brisbois Bisgaard & Smith, LLP
Attention: Tim Sabo
650 East Hospitality Lane, Suite 600
San Bernardino, CA 92408
Telephone: (909) 387-1130
Facsimile No: (909) 387-1138
sabo(a)lbbslaw.com
or at such other address as may be designated in writing to the other Party.
14.3 Notice. Any notice provided for in this Agreement shall be in writing, shall contain
the information required by this Agreement to be communicated to any Person, and
shall be (a) personally delivered to such Person, (b) sent by registered or certified
mail, postage prepaid, to such Person at the address of such Person specified in this
Agreement, (c) sent by a nationally recoguized overuight delivery service to such
Person at the address of such Person specified in this Agreement, (d) sent by
facsimile transmission to such Person at the facsimile number specified in this
Agreement, or (e) sent as an attachment to an e-mail in customary format to such
Person at the e-mail address specified in this Agreement. Notice shall be deemed to
have been given three (3) Business Days after the date of mailing when sent by
registered or certified mail, postage prepaid, one (I) Business Day after delivery by
the sender to a nationally recognized courier delivery service for overnight delivery,
or upon actual confirmation by the recipient for personal, facsimile or e-mail delivery.
14.4 Notices of Default. Host will deliver to the Lender, concurrently with delivery
thereof to Provider, a copy of each notice of default given by Host under this
Agreement, inclusive of a reasonable description of Provider default. No such notice
will be effective absent delivery to the Lender. Host will not mutually agree with
Provider to terminate this Agreement without the written consent ofthe Lender.
14.5 Address for Invoices. All invoices under this Agreement shall be sent to the address
provided by Host. Invoices shall be sent by regular first class mail postage prepaid.
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DRAFT - 08-25-2009
15. CONFIDENTIALITY.
15.1 Confidentiality Obligation. 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 Host'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. Notwithstanding the above, a Party may provide such Confidential
Information to its, officers, directors, members, managers, employees, agents,
contractors and consultants (collectively, "Reoresentatives"), and Affiliates, lenders,
and potential assignees of this Agreement (provided and on condition that such
potential assignees be bound by a written agreement restricting use and disclosure of
Confidential Information), in each case whose access is reasonably necessary to the
negotiation and performance of this Agreement. 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 Article, except as set forth in Section 15.3. 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. The receiving Party shall notifY the
disclosing party immediately upon discovery of any suspected unauthorized use or
disclosure of Confidential Information or any other breach of this Agreement by the
receiving party, and cooperate with the disclosing party in every reasonable way to
help the disclosing party regain possession of the Confidential Information and
prevent its further use or disclosure. Notwithstanding anything herein to the contrary,
the Parties agree that they (and each employee, representative, or other agent of such
Party) may disclose to any and all Persons the tax treatment and tax structure of the
transaction and any transactions proposed or entered into by and between the Parties
and all materials of any kind (including opinions or other tax analysis) that are
provided to the Parties relating to such tax treatment or tax structure.
15.2 Permitted Disclosures. Notwithstanding any other provision herein, neither Party
shall be required to hold confidential any information that (a) becomes publicly
available other than through the receiving Party; (b) is required to be disclosed by a
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DRAFT - 08-25-2009
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; (c) is independently developed by the
receiving Party; or (d) becomes available to the receiving Party without restriction
from a third party under no obligation of confidentiality.
15.3 Goodwill and Publicitv. Neither Party shall use the 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 coordinate and cooperate
with each other when making public announcements related to the execution and
existence of this Agreement, and each Party shall have the right to promptly review,
comment upon, and approve any publicity materials, press releases, or other public
statements by the other Party that refer to, or that describe any aspect of, this
Agreement; provided that no such publicity releases or other public statements
(except for filings or other statements or releases as may be required by Applicable
Law) shall be made by either Party without the prior written consent of the other
Party. At no time will Provider acquire any rights whatsoever to any trademark., trade
name, service mark, logo or other intellectual property right belonging to Host.
15.4 Enforcement of Confidentiality Obligation. Each Party agrees that the disclosing
Party would be irreparably injured by a breach of this Article 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 any breach of the provisions of this Article. To the fullest extent permitted
by Applicable Law, such remedies shall not be deemed to be the exclusive remedies
for a breach of this Article, but shall be in addition to all other remedies available at
law or in equity.
16. INDEMNITY.
16.1 Provider's Indemnitv. Provider agrees that it shall indemnify, defend and hold
harmless Host, its permitted successors and assigns and their respective directors,
officers, members, shareholders and employees (collectively, the "Host Indemnified
Parties") from and against any and all Losses incurred by the Host Indemnified
Parties to the extent arising from or out of the following: (a) any claim for or arising
out of any injury to or death of any Person or loss or damage to property of any
Person to the extent arising out of Provider's negligence, recklessness, or willful
misconduct, including without limitation, the actions or omissions of Provider's
onsite employees and/or subcontractors; (b) any infringement of patents or the
improper use of other proprietary rights by Provider or its employees or
representatives that may occur in connection with the performance of the Installation
Work or Solar Power and the ownership and use of the System; or (c) material breach
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of Provider's representations. Provider shall not, however, be required to reimburse
or indemnify any Host Indemnified Party for any Loss to the extent such Loss is due
to the negligence, recklessness or willful misconduct of any Host Indemnified Party.
16.2 Host's Indemnitv. Host agrees that it shall indemnify, defend and hold harmless
Provider, its permitted successors and assigns and their respective directors, officers,
members, shareholders and employees (collectively, the "Provider Indemnified
Parties") from and against any and all Losses incurred by the Provider Indemnified
Parties to the extent arising from or out of the following: (a) any claim for or arising
out of any injury to or death of any Person or loss or damage to property of any
Person to the extent arising out of Host's negligence or willful misconduct, including
without limitation, the actions or omissions of Host's onsite employees and/or
subcontractors; or (b) any loss or damage to the Provider arising out of or resulting
from the actions or inactions of the Host. Host shall not, however, be required to
reimburse or indemnify any Provider Indemnified Party for any Loss to the extent
such Loss is due to the negligence, recklessness or willful misconduct of any Provider
Indemnified Party.
16.3 Indemnification Procedure.
(a) Notice. Whenever any claim arises for indemnification under this Agreement, the
Person who has the right to be indemnified (the "Indemnified Partv") shall notify
the Person who has the indemnification obligation (the "Indemnifying Partv") in
writing as soon as practicable (but in any event prior to the time by which the
interest of the Indemnifying Party will be materially prejudiced as a result of its
failure to have received such notice) after the Indemnified Party has knowledge of
the facts constituting the basis for such claim (the "Notice of Claim"). Such
Notice of Claim shall specify all facts known to the Indemnified Party giving rise
to such indemnification right and the amount or an assessment of the amount of
the liability arising therefrom.
(b) Third Partv Claims. If the facts giving rise to any such indemnification shall
involve any actual or threatened claim or demand by any third party (including an
inquiry or audit by any Governmental Authority with respect to any period in
whole or in part prior to the date of this Agreement) against the Indemnified Party
or any possible claim or demand by the Indemnified Party against any such third
party, the Indemnifying Party shall (without prejudice to the right of the
Indemnified Party to participate at its expense through counsel of its own
choosing) defend such claim in the name of the Indemnified Party at the
Indemnifying Party's expense and through counsel of its own choosing. The
Parties shall cooperate in the defense or prosecution thereof and shall furnish such
records, information and testimony and attend such conferences and discovery as
reasonably requested in connection therewith.
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DRAFT - 08-25-2009
(c) Settlement: Judgment. Notwithstanding the Indemnifying Party's obligation to
assume and conduct the defense of a claim for indemnification with counsel of its
choice, the Indemnifying Party will not consent to the entry of any judgment or
enter into any settlement with respect to a claim for indemnification without the
prior written consent of the Indemnified Party (not to be unreasonably withheld)
unless the judgment or proposed settlement involves the payment of money
damages and does not impose an injunction or other equitable relief upon the
Indemnified Party or any acknowledgment of the validity of any claim. Until the
Indemnifying Party assumes the defense of a claim of indemnification arising out
of a third party claim, the Indemnified Party may defend against the third party
claim in any manner it may deem reasonably appropriate at the Indemnifying
Party's cost and expense; provided that in no event shall the Indemnified Party
consent to the entry of any judgment or enter into any settlement with respect to
the third party claim without the prior written consent of the Indemnifying Party
(not to be unreasonably withheld).
(d) Indemnification Pavrnents. At the time that the Indemnifying Party makes any
indemnity payment under this Agreement, the indemnification payment shall be
adjusted such that the indemnification payment, will result in the Indemnified
Party receiving an amount equal to such indemnity payment, after taking into
account (i) all national, state, and local income taxes that are actually payable by
the Indemnified Party with respect to the receipt of such indemnity payment, and
(ii) all national, state, and local income tax deductions allowable to the
Indemnified Party for any items of loss and deduction for which the Indemnified
Party is being indemnified.
17. INSURANCE.
I7.1 Generallv. Host shall maintain the following insurance coverages in full force and
effect throughout the Term: (a) Workers' Compensation Insurance as may be from
time to time required under applicable federal and state law, and (b) Commercial
General Liability Insurance with limits of not less than $5,000,000 general aggregate,
$2,000,000 per occurrence. Additionally, Host shall carry adequate property loss
insurance, including loss of rents, terrorism, inflation, on the Premises which shall
cover System and builder's risk coverage for the System, each providing replacement
cost coverage in an amount equal to 100% of replacement costs. The amount and
terms of insurance coverage will be determined at Provider's sole discretion.
17.2 Certificates of Insurance. Host shall furnish current certificates evidencing that the
insurance required under Section 17.1 is being maintained. Host's insurance policies
provided hereunder shall contain a provision whereby the insurer agrees to give
Provider thirty (30) days' written notice before the insurance is cancelled or
materially altered.
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DRAFf - 08-25-2009
17.3 Additional Insureds. Host's insurance policy shall be written on an occurrence basis
and shall include Provider as an additional insured as its interest may appear.
I 7.4 Insurer Oualifications. All insurance maintained hereunder shall be maintained with
companies either rated no Jess than A- as to Policy Holder's Rating in the current
edition of Best's Insurance Guide (or with an association of companies each of the
members of which are so rated) or having a parent company's debt to policyholder
surplus ratio of I : I.
18. MISCELLANEOUS.
18.1 IntelITation: Exhibits. This Agreement, together with the Exhibits and Schedules
attached hereto, constitutes the entire agreement and understanding between Provider
and Host with respect to the subject matter hereof and supersedes all prior agreements
relating to the subject matter hereof, which are of no further force or effect. The
Exhibits and Schedules attached hereto are integral parts hereof and are made a part
of this Agreement by reference. In the event of a conflict between the provisions of
this Agreement and those of any Exhibit, the provisions of this Agreement shall
prevail, and such Exhibit or Schedule shall be corrected accordingly.
18.2 Amendments. This Agreement may only be amended, modified or supplemented by
an instrument in writing executed by duly authorized representatives of Provider and
Host.
18.3 Industry Standards. Except as otherwise set forth herein, for the purpose of this
Agreement the normal standards of performance within the solar photo voltaic power
generation industry in the relevant market shall be the measure of whether a Party's
performance is reasonable and timely. Unless expressly defined herein, words having
well-known technical or trade meanings shall be so construed.
18.4 Cumulative Remedies. Except as set forth to the contrary herein, any right or remedy
of Provider or Host shall be cumulative and without prejudice to any other right or
remedy, whether contained herein or not.
18.5 Limited Effect of Waiver. The failure of Provider or Host to enforce any of the
provisions of this Agreement, or the waiver thereof, shall not be construed as a
general waiver or relinquishment on its part of any such provision, in any other
instance or of any other provision in any instance.
18.6 Survival. The obligations under Sections 2.4 (Removal of System), Section 7.1(d)
(Provider Representations), Sections 7.2(d), (e), (I) and (g) (Host Representations),
Section 8.3 (Exclusion of Warranties), Article 9 (Taxes and Governmental Fees),
Article 12 (Limitation of Liability), Article 14 (Notices), Article 15 (Confidentiality),
33
P:IA&a1das\Agcnd.ro AttachmenllllAg.:nd. Atw:bll1UQ\Aacnda Attadunents\ApmlI-AlMnd 2OO9I09.oa-09 1'bol0000000c Solar Power PurdIuc.-..- Draft.doI:
DRAFT - 08-25-2009
Article 18 (Miscellaneous), or pursuant to other provisions of this Agreement that, by
their sense and context, are intended to survive termination of this Agreement shall
survive the expiration or termination of this Agreement for any reason.
18,7 Severability. If any term, covenant or condition in this Agreement shall, to any
extent, be invalid or unenforceable in any respect under Applicable Law, the
remainder of this Agreement shall not be affected thereby, and each term, covenant or
condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by Applicable Law and, if appropriate, such invalid or unenforceable
provision shall be modified or replaced to give effect to the underlying intent of the
Parties and to the intended economic benefits of the Parties.
18,8 Relation of the Parties. The relationship between Provider and Host shall not be that
of partners, agents, landlord/tenant or joint ventures for one another, and nothing
contained in this Agreement shall be deemed to constitute a partnership, lease
agreement or agency agreement between them for any purposes, including federal
income tax purposes, Provider and Host, in performing any of their obligations
hereunder, shall be independent contractors or independent parties and shall discharge
their contractual obligations at their own risk.
18.9 Successors and Assil!lls. This Agreement and the rights and obligations under this
Agreement shall be binding upon and shall inure to the benefit of Provider and Host
and their respective permitted successors and assigns,
18.10 Counteroarts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument
18.11 Facsimile Deliverv. This Agreement may be duly executed and delivered by a Party
by execution and facsimile delivery or delivery sent as an attachment to an e-mail in
customary format of the signature page of a counterpart to the other Party, and, if
delivery is made by facsimile or sent as an attachment to an e-mail in customary
format, the executing Party shall promptly deliver, via overnight delivery, a complete
original counterpart that it has executed to the other Party, but this Agreement shall
be binding on and enforceable against the executing Party whether or not it delivers
such original counterpart.
18,12 Attornevs' Fees. If any legal action or other proceeding is brought for the
enforcement of this Agreement or because of an alleged dispute, default,
misrepresentation, or breach in connection with any of the provisions of this
Agreement, except as expressly excluded in this Agreement, the successful or
prevailing Party shall be entitled to recover reasonable attorneys' fees, expenses
expert witness fees, and other costs incurred in that action or proceeding in addition
to any other relief to which it may be entitled
34
P'\.Agmdal~ Altlcbmenu.\ApDdJI M.dmlentslApDda Attachmenl$\AamM-Amend 2009\09.oS-09l'llo1ovollaie Solar Power Purd_ AarM'-' Draft,doc
DRAFT - 08-25-2009
18.13 Equitable Relief. The parties recognize and agree that there is no adequate remedy at
law for a breach of Section 7 or Section 15 that such a breach would irreparably harm
the non-breaching party and that the non-breaching party is entitled to seek equitable
relief (including, without limitation, injunctions with respect to any such breach or
potential breach) in addition to any other remedies available at law or equity.
18.14 Subcontractors. Provider may perform services and System Installation through
subcontractors it chooses and who will be bound by this Agreement. Provider
acknowledges and agrees that it shall be solely responsible and liable for its
subcontractors and its subcontractors shall be subject to the terms of this Agreement.
18.15 Governing Law. 1bis Agreement shall be interpreted and governed by the laws of the
state where the System is located, without regard to conflict oflaws provisions.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
35
P:\Ajendalv.,a;cnd.l AnxhmelUlAgcnda Atucbm.ellf5\Aa1l'l'Kla Artaclllllltlti\Airmls-Amend 2009109-08-09 Phocovolt&ie SolAr Power Purthue ~ Draft.doc
IN WITNESS WHEREOF and in confirmation of their consent to the terms and
conditions contained in this Agreement and intending to be legally bound hereby, Provider and
Host have executed this Agreement as of the Effective Date.
PROVIDER:
RDA Solar I, LLC,
a California limited liability company
By: Sustainable Communities Reinvestment
Partnership, LLC,
a California limited liability company
Its: Managing Member
Date:
By:
Name:
Title:
HOST:
Redevelopment Agency of the City of San
Bernardino,
a public body, corporate and politic
Dated:
By:
Emil A. Marzullo, Interim Executive Director
Approved as to Form and Legal Content:
\ /~.c*
Agency Counsel
P \All~nd.5~nd& Atta~lunenu\Apnda AnaclunenulA&cnda Att&chmmtJ'lAMnnu.-Amclld 1OO9I09.(l8..(l9l'holcnolqic Sol. Power Pun:ha.R Ajreemem Drlftiloc
This Exhibit consists of four (4) schedules and relates to the Solar Power Purchase
Agreement, dated as of September _, 2009 (as amended, supplemented or otherwise modified
from time to time, the "Al/Teement"), between REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, ("Host") and RDA Solar I, LLC ("Provider"). Capitalized terms used and
not otherwise defined herein have the meanings ascribed thereto in the Agreement.
I. Schedule I Descriotion of the Premises. The Premises for the installation of the System
provided pursuant to this Agreement are described in Schedule I to this Exhibit A.
2. Schedule 2 Descriotion of Svstem. The System to be installed in the Premises subject to
this Agreement shall be as described in Schedule 2 to this Exhibit A.
3. Schedule 3 Rebate/Subsidv. The amount of the rebate or subsidy available to Provider
from the state, local utility, or other source for the installation of the System shall be as
specified in Schedule 3 to this Exhibit A.
4. Schedule 4 Emer2encv Contact Information. Emergency Contact Information for each
Party shall be as specified in Schedule 4 to this Exhibit A.
5. Schedule 5 Solar Pavrnent. The amount of the Solar Payments, the Minimum Monthly
Production and the Maximum Monthly Production shall be as specified in Schedule 5 to
this Exhibit A.
P'~\Agerlda An.dIrnents~M.~hmeml\AaCnda AnKhmenl$\Aanm....Nncnd 2009\09.Ql1-09 Pll.otovlllu.i~ Solar Power Pun:!IuI! A8mmtnl Droll. dox
Sche:dule I
bescnutioDoftbe I'remues
PARCEL NO. lA:
THAT PORTION OF BLOCK 13, CITY OF SAN BERNARDINO, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 7 PAGE 1 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF "E" STREET WITH THE NORTH
LINE OF "2ND" STREET AS DESCRIBED IN THAT CERTAIN DEED TO THE CITY OF SAN
BERNARDINO RECORDED MAY 21,1970 IN BOOK 7447. PAGE 275 OFFICIAL RECORDS OF
SAID COUNTY;
THENCE SOUTH 89' 56' 00" EAST ALONG SAID NORTH LINE, 111.67 FEET;
THENCE NORTH 45' 04' 11" EAST, 9.90 FEET;
THENCE NORTH 0' 04' ll" EAST, 112.21 FEET;
THENCE NORTH IS' 04' 11" EAST, 100.46 FEET;
THENCE NORTH 0' 04' 11" EAST, 111.75 FEET TO A LINE PARALLEL WITH AND DISTANT
225.92 FEET SOUTHERLY MEASURED AT RIGHT ANGLES, FROM THAT CERTAIN COURSE
RECITED AS "NORTH 89' 55' 49" WEST 206.48 FEET" IN THE BOUNDARY DESCRIBED IN
DEED TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
CALIFORNIA RECORDED JUNE 4, 1970 IN BOOK 7455 PAGE 214 OFFICIAL RECORDS OF
SAID COUNTY;
THENCE NORTH 89' 55' 49" WEST ALONG SAID PARALLEL LINE 137.19 FEET TO SAID EAST
LINE OF "E" STREET;
THENCE SOUTH 30 57' 51" WEST ALONG SAID EAST LINE 116.07 FEET;
THENCE CONTINUING ALONG SAID EAST LINE SOUTH 0' 02' 25" EAST 212.20 FEET TO THE
POINT OF BEGINNING.
ALSO KNOWN AS PARCEL NO. 27 OF PARCEL MAP NO. 688 IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 25 OF PARCEL MAPS, PAGES 47 TO 58 INCLUSNE, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
P:\Agendu~ Anao:nmcnlSIJ.senda AtuI~hmeru\Aaenda Att""hmenll\Aafmts.-Ammd. 2009109.(11.09 PhoiovolWc Solar PGW~ Purc"- AgrtemC:lll DfaI'ldoc:
PARCEL NO. lB:
TOGETHER WITH AN EASEMENT FOR VEHICULAR INGRESS AND EGRESS OVER THAT
PORTION OF SAID BLOCK 13 DESCRIBED AS FOLLOWS:
COMMENCING AT SAID INTERSECTION OF THE EAST LINE OF "E" STREET WITH THE
NORTH LINE OF "2ND" STREET;
THENCE SOUTH 89" 56' 00" EAST ALONG SAID NORTH LINE] 11.67 FEET TO THE TRUE
POINT OF BEGINNING;
THENCE NORTH 45" 04' II" EAST ALONG THE EAST LINE OF THE ABOVE DESCRIBED
PARCEL 9.90 FEET;
THENCE CONTINUING ALONG SAID EAST LINE NORTH 00 04' II" EAST, 112.21 FEET;
THENCE CONTINUING ALONG SAID EAST LINE NORTH 15004' \1" EAST, 100.46 FEET;
THENCE CONTINUING ALONG SAID EAST LINE NORTH 00 04' 11" EAST, ] I.75 FEET TO THE
NORTH LINE OF SAID PARCEL;
THENCE SOUTH 890 55' 49" EAST ALONG THE EASTERLY PROLONGATION OF SAID NORTH
LINE 30.50 FEET;
THENCE SOUTH 00 04' 11" WEST, 138.74 FEET;
THENCE SOUTH ISO 04' II" WEST, 113.98 FEET;
THENCE SOUTH 00 04' II" WEST, 79.16 FEET TO SAID NORTH LINE OF "2ND" STREET;
THENCE NORTH 890 57' 00" WEST, 34.00 FEET TO THE POINT OF BEGINNING.
END OF LEGAL DESCRIPTION
P:\Agend.u\Agen<b. An.I(b!nenu\..r\aenlb An.cltmero\A.sendl Mal:hmentl\Agrml...Arnend2Oll9\D'il-Ol-09Ph<xovolta.icSot.Po"'erPurt!laM~DfaIl,doc
sciie.r.iie1
l>escrliltlonof Svstem
Equipment and Services
Ouantitv
I
1392
I
I
_. ~~.~~_r.ioti.C!n
S,,:tCon PVS-~50 (208)
Sanyo HIP-195BA3 .
~n_e~gy Re~om~erc~)nc. Monitoring Soluti~~ an~.,I5~?S~
SunLink Mounting System
Related Services and Deliverables.
o California State Sales Tax
o 20 Year Manufacturer's Performance Warranty on Solar Modules
o 10-Year Warranty on All Inverters and Transformers (if built into inverter)
C IS-Year OEM SunLink Support System Warranty
C SPG 10- Y ear Installation Warranty with Annual System Inspections (10 years)
C PV Panels and Inverters with a Minimum Total Rating of245.215 AC-CEC kilowatts
o All Electrical Switch Gear Preparation to Accept Solar System
o All Electrical Connectors, Cabling & Components Nec. for a Complete Solar System
o Complete Electrical Engineering Services Including Diagrams
o Complete Structural Engineering Services Including Diagrams
o Planning and Design Review Services Including All Meetings with Building Department
o All Building Permit and Utility Processing Costs
o Utility Interconnect Agreement Processing Services
o Rebate Application Processing & Coordination
o Incentive Program Inspections Coordination
o Local Building and Electrical Inspections Coordination
o Secure Storage Facility at Job Site for All PV System Equipment and Supplies
o Project Manager / Foreman
o Lavatory Facilities at Job Site, if needed
o System Operation and Safety Manuals and Customer Training
o Final PV System "As-Built" schematics
o Final Cleanup to "broom clean" condition
P\.Agm1u\Apncl&AltIt:hnlerlI.\AgeIId.Anacbmenl~AltIt:IuncntIv.armU-Amend.2009109-0'.09Photovolui'SobrPowerPurehase~DnfI_dllC
Schectiiiej
RebatelSubsidv
SAN BERNARDINO UTILITY REBATE PAYMENT SCHEDULE
System Size: 245.214
System Annual Production: 462,921 (100%)
Protected Proiected Year End
.!2.IR Rebate (kWh) Rebate
January 1, 2010 6,386 29,025
February 1, 2010 6,253 28,423
March 1, 2010 7,852 35,691
April 1, 2010 7,984 36,293
May 1, 2010 9,319 42,357
June 1, 2010 10,907 49,579
July 1, 2010 10,775 48,977
August 1, 2010 10,643 48,375
September 1,
2010 9,319 42,357
October 1, 2010 7,984 36,293
November 1,
2010 7,720 35,089
December 1,
2010 6,650 30,229 $101,791.70
January 1, 2011 6,354 28,880
February 1, 2011 6,222 28,281
March 1, 2011 7,813 35,513
April 1, 2011 7,945 36,112
May 1, 2011 9,120 41,455
June 1, 2011 10,853 49,331
July 1, 2011 10,721 48,732
August 1, 2011 10,589 48,133
September 1,
2011 9,272 42,145
October 1, 2011 7,945 36,112
November 1,
2011 7,681 34,914
December 1,
2011 6,617 30,078 $101,130.74
January 1, 2012 6,322 28,736
Yr. 1 Prod: 462,921
Yr. 2 Prod: 460,606
Yr. 3 Prod: 458,303
Yr. 4 Prod: 456,012
Yr. 5 Prod: 453 732
P:\AjcndaslAJeDda Anachmmu'lA&-'- Anachmcnu\Agendro M1Khmenli\AaJ:mts-Amend 2009~..()UI9 PboIOYOlr.ic Solar Powt!r Pw1:hasc Aareemem Draft,doc
February 1, 2012 6,191 28,140
March 1, 2012 7,774 35,335
April 1, 2012 7,905 35,931
May 1, 2012 9,074 41,247
June 1, 2012 10,799 49,084
July 1, 2012 10,667 48,488
August 1, 2012 10,536 47,893
September 1,
2012 9,226 41,935
October 1, 2012 7,905 35,931
November 1,
2012 7,643 34,739
December 1,
2012 6,584 29,927 $100,625.09
January 1, 2013 6,290 28,592
February 1, 2013 6,160 27,999
March 1, 2013 7,735 35,159
April 1, 2013 7,865 35,751
May 1, 2013 9,029 41,041
June 1, 2013 10,745 48,839
July 1, 2013 10,614 48,246
August 1, 2013 10,484 47,653
September 1,
2013 9,180 41,725
October 1, 2013 7,865 35,751
November 1,
2013 7,604 34,566
December 1,
2013 6,551 29,778 $100,121.96
January 1, 2014 6,259 28,449
February 1, 2014 6,129 27,859
March 1, 2014 7,696 34,983
April 1, 2014 7,826 35,573
May 1, 2014 8,984 40,836
June 1, 2014 10,691 48,595
July 1, 2014 10,561 48,005
August 1, 2014 10,431 47,415
September 1,
2014 9,134 41,516
October 1, 2014 7,826 35,573
November 1,
2014 7,566 34,393
December 1,
2014 6,518 29,629 $99,621.35
P;~'ndoA1t&chmenl$v.,Imd.aAllao:luM!lII\Aaenda~\A8nnU"Amend2009\09-OI-09P11ocovoltaitSolarPD_~AIr'=C1I>CQt0r.f\_doc
Schedule 4
Emel1!encv Contact Information
Michael Johnson
National Development Council
3 Hart Lane
Mill VaUev. CA 94941
Miohnson44i1ilmac,com
(0) (415) 380-9601
(n (415) 686-5586
p.\AjjerIclu~ Atlac:bmmlJ\Ajjend. Alhdmlenl.\Aac:nda An.Ittunenu\Agmns-AJnead 1009\09.01.09 Pholovolt&io SobrPower1'lll'dwe ~mcntDrlfl.doc
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EXHIBIT B
Acknowledlmlent and Confirmation
Pursuant to Section 2.5(g) of that certain Solar Power Purchase Agreement, dated as of
September _, 2009 (as amended, supplemented or otherwise modified from time to time, the
"Al!reement"), between SAN BERNARDINO REDEVELOPMENT AGENCY ("Host") and
RDA SOLAR I, LLC ("Provider"), Host hereby acknowledges and confirms:
1. That throughout the duration of the Agreement, Provider shall be the legal and
beneficial owner of the System at all times, including all Environmental Attributes, provided that
the renewable energy credits, green tags, tradable renewable credits and Green-e@ credits may
be purchased by Host in accordance with the Agreement, and the System shall remain the
personal property of Provider and shall not attach to or be deemed a part of, or fixture to, the
Premises.
2. That the System shall at all times retain the legal status of personal property as
defined under Article 9 of the Uniform Commercial Code.
3. That Host will use reasonable commercial efforts to place all parties having an
interest in or lien upon the real property comprising the Premises on notice of the ownership of
the System and the legal status or classification of the System as personal property and 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, Host shall provide a disclaimer
or release from the lienholder.
4. That Host consents to the filing of a disclaimer of the System as a fixture of the
Premises in the office where real estate records are customarily filed in the jurisdiction of the
Premises and shall execute such acknowledgments and other evidences of Provider's
ownership of the System as Provider may request from time to time, and pay the cost of the
filing or recording of the same as the case may be whenever Provider deems desirable, and will
do such other acts and things as Provider may reasonably request in order to effectuate fully the
intent of this Section.
~\AgaId&I\Aaellok ~brnclr!s\AaendI AttacIunenuoIApnda An.clImellb\Awmlo-Ametld 2009\09-08-09 PhoIovoltaic Sol&rPowerPurdwe....-- Drafl_doc
Capitalized terms used and not otherwise defined herein have the meanings ascribed
thereto in the Agreement.
RDA SOLAR!, LLC,
a California limited liability Company
By: Sustainable Communities Reinvestment
Partnership, LLC,
a California limited liability company
Its: Managing Member
By:
Name:
Title:
P.\Agendu\Aacndl AlIachmmts\Asend. "n..cllm~ AnachmenulAsnnlJ-knead 2009109-01..09 PIIoIovollaic SoW Power Purcl'\Is.t Aareanem: Draft,doc
r; ftD ~f"U
, "l'~-'
~
DRAFT
GUARANTY
1
L DRAFT;
_~.,,~.. t
~
This Guaranty (this "Guaranty"), dated and effective as of September 8'", 2009, is made
by the Redevelopment Agency of the City of San Bernardino, a public body, corporate and
politic (the "Guarantor").
Recitals
WHEREAS, Sustainable Communities Reinvestment Partnership, LLC, a California
limited liability company (the "Managing Member") is the managing member of Master Tenant
2008-B LLC, a Delaware limited liability company (the "Company") and of RDA Solar I LLC, a
California limited liability company (the "Lessor"); and
WHEREAS, the Guarantor is an affiliate of the Managing Member; and
WHEREAS, Greystone Renewable Energy Fund 2008-A LLC, a Delaware limited
liability company (the "Investor Member"), and the Managing Member are the only members of
the Company; and
WHEREAS, the Company is operating pursuant to that certain Operating Agreement
dated as of the date hereof (the "Operating Agreement"); and
WHEREAS, the Lessor was formed to construct a 243 kW photovoltaic solar power
system (the "Energy Systems") in accordance with the provisions of that certain Development
Agreement dated as of even date herewith between the Guarantor and Lessor in a manner that
will qualifY for the energy credit under Section 48 of the Code; and
WHEREAS, the Company was formed for the purpose of leasing the Energy Systems
from the Lessor pursuant to that certain Master Lease dated as of the date hereof (the "Master
Lease"); and
WHEREAS, the Lessor and the Company have executed or will execute that certain Pass-
Through Agreement (the "Pass Through Agreement") of even date herewith pursuant to which
the Lessor will elect under Section 50 of the Code to pass through to the Tenant the Energy
Credits to which the Lessor is otherwise entitled as a result of the installation of the Energy
Systems following the purchase of such Energy Systems and the assumption of the associated
agreements from Lessor; and
WHEREAS, the Managing Member, under the Operating Agreement, represents,
warrants and covenants, among other things, that it will use diligent efforts to operate the Energy
Systems as required by the Code in order to qualifY for and maintain the Energy Credits and
other tax benefits anticipated in connection therewith; and
WHEREAS, the Guarantor will benefit from the installation and operation of the Energy
Systems and has agreed to provide certain guaranties. . ..-...~,r'j\.
~~.",. ~'
..~~ ~t\..~~ ~
~~.\) r ~
\' <<.<~,...
\; ,,'
,. -;.-;"
I'lAgendul.A,aencll AnKbmenu~.Alw;lunenulA&cndaAIUCbmCTJu\AlIJ1II\I-Amcrld2OO9lO9-08-09Pllotowolt&icGu.-amy Agreement Dr.ttIX>C ... ~"-'
.,
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Guarantor hereby agrees for the benefit of the Investor Member as
follows:
I. Covenants, ReDresentations and Warranties.
Guarantor represents and warrants to the Investor Member as follows:
(a) the execution, delivery and performance by it of this Guaranty does not
and will not contravene or conflict with any law, order, rule, regulation, writ, injunction or
decree now in effect of any government, governmental instrumentality or court or tribunal
having jurisdiction over it, or any contractual restriction binding on or affecting it:
(b) the execution, delivery and performance by it of this Guaranty does not
and will not conflict with or result in a breach of the terms or provisions of any indenture,
agreement or instrument to which it is a party, or by which it is bound, or to which it is subject,
or constitute a default thereunder;
(c) with the assistance of counsel of its choice, it has read and reviewed this
Guaranty and such other documents as it and its counsel deemed necessary or desirable to read;
(d) it is a public body, corporate and politic and is formed and existing under
the laws of the State of California and has the full power and authority to enter into and perform
its obligations under this Guaranty; and
(e) it has duly authorized, executed and delivered this Guaranty, and this
Guaranty is fully enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and other laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether a proceeding is sought in
equity or at law).
2. Guarantv.
(a) Guarantor shall unconditionally guarantee due payment, performance and
fulfillment of any and all of the Managing Member's obligations (i) related to any Recapture
Event as set forth in Section 5.01 (e) of the Operating Agreement, (ii) related to any repurchase
obligation as set forth in Section 5.05 of the Operating Agreement, (iii) to fund Excess
Development costs and to make Operating Deficit Loans pursuant to Sections 8.09(a) and (b),
respectively, of the Lessor Operating Agreement, (iv) to make Operating Deficit Loans pursuant
to Section 8.09(b) of the Operating Agreement, and (v) with respect to the exercise of the Put
Option as set forth in Section 9.05 of the Operating Agreement.
(bj The Guarantor's obligations under Section 2(a) shall expire upon the last
day of the fourth year following the year in which the Recapture Period for the Energy Credits
shall have ended.
2
P.\Aaendas\Aamdl. AttaclunmtS\AatDdlA1taduncnU\Aacnda AtlKbmemav.,rmu-AIMnd 2OlI9\09-01..()9 Pl>otovoltaic Guarmly A&recmo:rrt Ihft,DQC
3. Attornevs' Fees and EXDenses. The Guarantor shall reimburse the Investor
Member for all reasonable attorneys' fees and expenses which the Investor Member pays or
incurs in connection with enforcing this Guaranty, including, without limitation, all costs,
attorneys' fees and expenses incurred by the Investor Member in connection with any
insolvency, bankruptcy, reorganization, arrangement or other similar proceedings involving the
Guarantor which affect the exercise by the Investor Member of its rights and remedies
hereunder. Any and all such costs, attorneys' fees and expenses not so paid shall bear interest at
an annual interest rate equal to the lesser of (i) 18%, or (ii) the highest rate permitted by
applicable law, from the date incurred by the Investor Member until paid by the Guarantor.
4. Direct aDd Primary Obli!!:ations. The Guarantor agrees that if the obligations
guaranteed by this Guaranty are not fully and timely paid or performed according to the tenor
thereof, whether by acceleration or otherwise, Guarantor shall immediately upon receipt of
written demand therefor from the Investor Member pay all amounts due or performance
obligations hereby guaranteed in like manner as if the obligations constituted the direct and
primary obligations of the Guarantor. The Guarantor shall not have any right of subrogation as a
result of any payment or performance hereunder or any other payment made or performance by
the Guarantor on account of the amounts or obligations due hereunder, and the Guarantor hereby
waives, releases and relinquishes any claim based on any right of subrogation, any claim for
unjust enrichment or any other theory that would entitle the Guarantor to a claim against the
Company based on any payment made or performance hereunder or otherwise on account of the
amounts or obligations due hereunder.
5. CODtinuin!!: and Irrevocable Oblil!:ations. This Guaranty and the obligations of
the Guarantor hereunder shall be continuing and irrevocable until all amounts have been satisfied
in full. Notwithstanding the foregoing or anything else set forth herein, and in addition thereto,
if at any time all or any part of any payment received by the Investor Member from the
Guarantor under or with respect to this Guaranty is or must be rescinded or returned for any
reason whatsoever (including, but not limited to, determination that said payment was a voidable
preference or fraudulent transfer under insolvency, bankruptcy or reorganization laws), then the
Guarantor's obligations hereunder shall, to the extent of the payment rescinded or returned, be
deemed to have continued in existence, notwithstanding such previous receipt of payment by the
Investor Member, and the Guarantor's obligations hereunder shall continue to be effective or be
reinstated as to such payment, all as though such previous payment to the Investor Member had
never been made. The provisions of the foregoing sentence shall survive termination of this
Guaranty, and shall remain a valid and binding obligation of the Guarantor until satisfied.
6. No Dischar!!:e. The Guarantor acknowledges that the Investor Member is a
member of the Company. Guarantor agrees that the exercise by the Investor Member, of any of
its rights or remedies under the Operating Agreement for Managing Member's failure to fulfill its
obligations related to any Recapture Event set fonh in Section 5.0l{e) or obligations as set fonh
in Sections 5.05 and 9.05 of the Operating Agreement shall not serve to reduce or discharge the
liability of the Guarantor hereunder, except to the extent of any recovery actually realized by the
Investor Member in cash; vrovided, however that the Investor Member shall have no obligation
to exercise any of its rights or remedies under the Operating Agreement. The Guarantor waives
and releases any claim it may now or hereafter have against the Investor Member based on any
theory or cause of action that conflicts with the agreements of the parties set fonh in this
Section 6.
3
P.\Ag1:ndu\~ Atw;bmcnulAgmdl. Anachments\AaMda Anacbmems\ApmtJ-Amtlld ZOO9\09~ PholovoltaK: Guaranly Aar-nt Ihft.DOC
7. Other Indebtedness Subordinated. Any payments or obligations owing under
the Operating Agreement to the Managing Member and/or the Guarantor shall be subordinate to
the obligations of the Guarantor to the Investor Member under this Guaranty.
8. Waiver and Estoppel. Guarantor hereby graots to the Investor Member, in its
absolute discretion and without notice to the Guarantor, the power and authority to deal in any
lawful manner with the obligations guaranteed hereby. Without limiting the generality of the
foregoing, the Guarantor knowingly waives and agrees that it will be estopped from asserting
any argument to the contrary as follows: (a) any and all notice of acceptance of this Guaranty or
of the creation, renewal or accrual of any of the obligations or liabilities hereunder indemnified
against, either now or in the future; (b) protest, presentment, demand for payment, notice of
default or nonpayment, notice of protest or default; (c) any and all notices or formalities to which
it may otherwise be entitled, including, without limitation, notice of the graoting of any
indulgences or extensions of time of payment of any of the liabilities and obligations hereunder
and hereby indemnified against; (d) any promptness in making any claim or demand hereunder;
(e) the defense of the statute of limitations in any action hereunder or in any action for the
collection of amounts payable hereunder; (I) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of any other person or persons or the failure to
file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding)
of any other person or persons; (g) any defense based upon an election of remedies which
destroys or otherwise impairs any or all of the subrogation rights of the Investor Member or the
right of the Investor Member to proceed against any other person for reimbursement, or both;
(h) any duty or obligation of the Investor Member to perfect, protect, retain or enforce any
security for the payment of amounts payable by the Guarantor's hereunder or to proceed against
anyone or more persons as a condition to proceeding against the Guarantor; and (i) to the extent
it may be waived, any principle or provision oflaw, statutory or otherwise, which is or might be
in conflict with the terms and provisions of this Guaranty. No delay or failure on the part of the
Investor Member in the exercise of any right or remedy against any other party against whom the
Investor Member may have any rights shall operate as a waiver of any agreement or obligation
contained herein, and no single or partial exercise by the Investor Member of any rights or
remedies hereunder shall preclude other or further exercise thereof or other exercise of any other
right or remedy. No provision of this Guaranty or right of the Investor Member hereunder can be
waived, nor can the Guarantor be released from its obligations hereunder, except by a writing
duly executed by the Investor Member. This Guaranty may not be modified, amended, revised,
revoked, terminated, changed or varied in any way whatsoever, except by the express terms of a
writing duly executed by the Guarantor and the Investor Member.
9. Notices. All notices, demands, requests or other communications to be sent by
one party to the other hereunder or required by law shall be in writing, shall be sent by certified
mail, postage prepaid, return receipt requested, or by overnight courier, or by hand delivery, and
shall be effective as of the date on which it is received or would have been received but for the
refusal of the addressee to accept delivery, and shall be addressed as follows:
4
P.~ AniduMol~AnaclImentt\ApndaAl:lar:Mlmt5IAarmI...Amend2Q091.09..01..C9Pllolavoltait GuInnty .....rneRl~DOC
To the Investor Member:
Greystone Renewable Energy Fund 2008-A LLC
Attention: Matthew James
152 West 57th Street, 60th Floor
New York, NY 10019
Facsimile: (212) 649-970]
And copies to:
Nixon Peabody, LLP
Attention: Michael J. Goldman
401 Ninth Street, NW, Suite 900
Washington, DC 20004
Facsimile: (202) 585-8080
Greystone Renewable Energy Manager LLC
clo Greystone & Co., Inc.
Camegie Hall Tower
Attention: General Counsel
152 West 57th Street, 60th Floor
NewYork,NY 10019
Facsimile: (212) 896-9155
To Guarantor:
Redevelopment Agency of the
City of San Bernardino
Attention: Emil A. Marzullo, Interim Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
Phone: (909) 663-1044
Facsimile: (909) 888-9413
And a copy to:
Lewis Brisbois Bisgaard & Smith, LLP
Attention: Tim Sabo
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Phone: (909) 387-1130
Facsimile: (909) 387-1138
By giving to the other party hereto at least fifteen (15) business days' written notice thereof in
accordance with the provisions hereof, the parties hereto shall have the right from time to time to
change their respective addresses and each shall have the right to specify as its address any other
address within the United States of America.
5
P:lA&endas'lAvl>lla Artac:hmentslAgmda Auad1memslA&endl Attadllnenu\AarmlS-Amead 2009'\09.Q8.Q9 PlloIovolt.i<: QuaBnly A&r=1MtIl: DrIft,DCM:
10. Assil!nment. If the Interest of the Investor Member is transferred and the person
to whom the Interest is transferred is admitted as a member to the Company, all in accordance
with the Operating Agreement, this Guaranty shall automatically be assigned therewith, to such
person without the need of any express assignment, and, when so assigned, the Guarantor shall
be bound as set forth herein to the assignee(s) without in any manner affecting the Guarantor's
liability.
\1. Goveminl! Law. This Guaranty shall be governed by and construed in
accordance with the laws of the State of California (the "State") without regard to principles of
conflicts of law, except to the extent that any of such laws may now or hereafter be preempted by
Federal law, in which case, such Federal law shall so govern and be controlling. In any action
brought under or arising out of this Guaranty, the Guarantor hereby consents to the jurisdiction
of any competent court within the State and consent to service of process by any means
authorized by the laws of the State. Except as provided in any other written agreement now or at
any time hereafter in force between the Investor Member and the Guarantor, this Guaranty shall
constitute the entire agreement of Guarantor with the Investor Member with respect to the
subject matter hereof, and no representation, understanding, promise or condition concerning the
subject matter hereof shall be binding upon the Investor Member and the Guarantor unless
expressed herein.
12. Duration. The Guarantor hereby agrees that this Guaranty, shall remain in full
force and effect at all times hereinafter until paid and/or performed in full subject to the
limitations and expiration periods set forth herein, notwithstanding any action or undertakings by
or against the Investor Member and the Guarantor in any proceeding in the United States
Bankruptcy Court, including, without limitation, any proceeding relating to valuation of
collateral, election or imposition of secured or unsecured claim status upon claims by the
Investor Member pursuant to any Chapter of the Bankruptcy Code or the RuIes of Bankruptcy
Procedure, as same may be applicable from time to time. Except as otherwise provided in
Section 2(b) hereof, the Guarantor acknowledges that it may not be possible to determine the
existence of liability hereunder until after such time as the IRS is prohibited from assessing
additional tax liability against the Investor Member for any year in which it claimed Tax Credits,
which may be at a point in time subsequent to when the Investor Member has disposed of its
Company Interest.
13. Miscellaneous.
(a) Should anyone or more provisions of this Guaranty be determined to be
illegal or unenforceable, all other provisions shall nevertheless be effective.
(b) When the context and construction so require, all words used in the
singular herein shall be deemed to have been used in the plural, and the masculine shall include
the feminine and neuter and vice versa. The word "person," as used herein, shall include any
individual, company, ftrm, association, limited liability company, corporation, trust or other legal
entity of any kind whatsoever.
(c) All headings in this Guaranty are for convenience of reference only and
are not intended to qualifY the meaning of any provision of this Guaranty.
6
P \r\imda'\Asenda Altaclu",,"u\Agtn(b Atta<:luncnts\.A.aendl Anw:hments\AgrmIs.-Amnd 2009:\09-01-09 PIIoI(lvolllli~ ~ty Aar~mmt Draft_DOC
(d) The obligations of the Guarantor contained herein are undertaken solely
and exclusively for the benefit of the Investor Member and its permitted successors and assigns,
and no other person or entities shall have any standing to enforce such obligations or be deemed
to be beneficiaries of such obligations.
(e) TIris Guaranty may be executed in any number of counterparts, each of
which shall be effective only upon delivery and thereafter shall be deemed to be an original, and
all of which, when taken together, shall be one and the same instrument, with the same effect as
if all parties hereto had signed the same signature page. Any signature page of this Guaranty
may be detached from any counterpart of this Guaranty without impairing the legal effect of any
signatures thereon and may be attached to another counterpart of this Guaranty identical in form
hereto but having attached to it one or more additional signature pages.
(f) Capitalized terms used in this Guaranty and not specifically defined herein
shall have the meanings assigned to them in the Operating Agreement dated of even date
herewith.
{ signatures begin on the following page J
7
P.V.'flldlll~AnachmettslA&end.ArtIlCllm~AttK"hmenll\Aif1Ilb-Amend2009I09..o8-09Pbotovoll~cG.walltyA;renDc'"Dnft.DOC
DRAFT
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the date first
above written.
Guarantor:
Redevelopment Agency of the City of San
Bernardino,
a public body, corporate and politic
Dated:_
By:
Emil A. Marzullo, Interim Executive Director
Approved as to F rm and Legal Content:
P:\Agendas\Agcnda Altachmettb:~ Attachmcnts\Agenda Attaclunents\Agrmts-Amend 2009\09,,{)S-09 PhOlovoltaic Guaranty Agreemenl Draft.DOC
.....,?")
/~'
,.p:~~ ~ f~] LESSOR DRAFT - AUGUST 25, 2009
" ~
- ~/ PHOTOVOLTAIC SYSTEM SITE LEASE AGREEMENT
'.~r
This PHOTOVOLTAIC SYSTEM SITE LEASE AGREEMENT (the "Al!reement" or
the "Lease") made and entered into this 8th day of September, 2009 (the "Effective Date"), by
and between REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public
body, corporate and politic, established and existing pursuant to California Health & Safety Code
Section 33000, et seq., ("Lessor"), and RDA SOLAR I, LLC, a California limited liability
company (the "Lessee"). Lessor and Lessee are sometimes referred to individually as a "f!!!y"
and collectively hereinafter as the "Parties."
RECITALS
A. Lessee is the developer, owner, and operator of solar energy generation equipment
and facilities suitable for delivery of electrical energy to be used on the Property identified
below, and to be delivered to the Lessor for use at Lessor's business premises.
B. Lessor is the owner of (i) certain real property located in San Bernardino County,
California more particularly described on Exhibit A attached hereto and incorporated herein by
this reference (the "Propertv"), and (ii) structures on the Property consisting of one building,
on the rooftop of which solar energy generation equipment will be installed as shown on the site
plan as more particularly described on Exhibit B attached hereto and incorporated herein by this
reference (the "Premises").
C. Lessee desires to obtain (i) an exclusive lease of the Premises for purposes of
constructing, installing, owning and operating Solar Facilities (as defined below) and with the
specifications set forth in Exhibit C attached hereto and incorporated herein by this reference,
and (ii) an easement over the Property for purposes of transmission, access to and egress from,
installation and repair of the Solar Facilities.
D. Lessor desires to lease the Premises to Lessee for the purposes set forth in Reeltal
C above and to grant to Lessee such access, light and interconnection easements as necessary for
such purposes on the terms and conditions herein contained;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, Lessee and Lessor
hereby agree as follows:
AGREEMENT
1. Definitions. Capitalized terms not otherwise defined herein shall have the meaning set
forth below:
1.1
Agreement.
"Access Easement" has the definition set forth III Section 3.1 of this
I
~.
~~~.
\) ~
~
J>~nda'\As<:nda A1ucltmcnu\A,eend. .-.n.ehmtlltl\Apndl. Anaclmmut~Amelld 2009\09-08-09 PholovoIlaic Sy.em Sit. Lc:ue AiI'_ClIt DRAFTdoc
LESSOR DRAFT - AUGUST 25, 2009
1.2 "Commencement Date" means the date of initial commercial operation of
the Solar Facilities.
1.3 "Commencement of Construction" or "Commence Construction" means
with respect to the Solar Facilities on the Premises, the earlier of the delivery of the
Photovoltaic Facilities or any components thereof to the Premises, or the commencement of
construction of the Solar Facilities.
1.4 "Dav" means business days; that is, days other than state or national holidays
and weekends.
1.5 "Environmental Attributes" means any and all environmental benefits, air
quality credits, emissions reductions, offsets, and allowances, howsoever entitled, directly or
indirectly attributable to the generation from the Solar System and its displacement of
conventional energy. Environmental Attributes include but are not limited to: (I) any benefit
accruing from the renewable nature of the generation's motive source, (2) any avoided
emissions of pollutants to the air, soil or water (such as sulfur oxides (SOx), nitrogen oxides
(NOx), and carbon monoxide (CO)), (3) any avoided emissions of carbon dioxide (C02),
methane (CH4) and other greenhouse gases (GHGs) that may contribute to the actual or
potential threat of altering the Earth's climate by trapping heat in the atmosphere, (4) any
property rights that may exist with respect to the foregoing attributes howsoever entitled, (5)
displacements of energy generation by fossil fuel sources, and (6) any reporting rights to
these avoided emissions such as Green Tag Reporting Rights.
1.6 "Environmental Incentives" include, but are not limited to, (i) federal, state
or local production tax credits associated with the construction or operation of the energy
projects; (ii) any other financial incentives in the form of credits, reductions, or allowances
associated with the Solar System that are applicable to a local, state or federal income
taxation obligation, (iii) grants or subsidies in support of renewable energy, (iv) emission
reduction credits encumbered or used by the Solar Facilities for compliance with local, state,
or federal operating and/or air quality permits, and all rebates, benefits, reductions, tax
deductions, offsets, and allowances and entitlements of any kind, howsoever entitled,
resulting from the Environmental Attributes or the installation and operation of the Solar
Facilities.
1.7 "Initial Term" shall have the meaning set forth in Section 5 hereof.
1.8 "Interconnection Facilities" means the facilities for connecting the Solar
Facilities to the electrical system of the building on which the Solar Facilities are located.
1.9 "Lender" means Sustainable Communities Reinvestment Partnership, Inc., a
California non profit corporation.
I. I 0 "Lessee Indemnitees" means Lessee, its officers, agents and employees.
1.1 I "Lessor Indemnitees" means Lessor, its directors, its officers, agents
employees, attorneys and volunteers.
2
PIA&et\d.u\Aplldl~l\AgendaAltachmenrs~nd1 A1t.dun~nl$\AgmIIs.Amend2009\09.()8:-09Photovo1tai<:SystemSilel..ca...AjrwmentDRAFTdQl:
LESSOR DRAFT - AUGUST 25, 2009
1.12 [Reserved]
J.13 [Reserved]
1.14 "Ooerations" shall have the meaning set forth in Section 4.1 hereof.
1.15 "Photovoltaic Facilities" shall mean any photoelectric cells designed for the
generation of electrical power from solar radiation, including without limitation, the
associated support structure, braces, wiring, and related equipment.
1.16 "Solar Facilities" shall have the meaning set forth in Section 4.1 (b) hereof.
1.17 "Renewal Term" shall have the meaning set forth in Section 5 hereof.
1.18 "Taxes" means all real estate or personal property taxes, possessory interest
taxes, business or license taxes or fees, service payments in lieu of such taxes or fees, annual
or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any
kind which are assessed, levied, charged, confirmed, or imposed by any public authority due
to Lessee's occupancy and use of the Premises (or any portion or component thereof).
1.19 "Term" means the Initial Term and one or more Renewal Term, as set forth
in Section 5 hereof.
1.20 "Transfer" shall mean the sale, lease, assignment, mortgage, pledge or
otherwise alienation or encumbrance of any property, and "Transferred" means the past tense
of Transfer.
2. Lease of Premises. Lessor does hereby lease the Premises to Lessee for the Term in
accordance with the terms and conditions set forth herein
3. Easements.
3.1 Access Easement. Lessor hereby grants to Lessee, for the Term, a non-
exclusive easement to access the Premises across or through the Property, including any
building or structure below the Premises, passage through which is necessary or convenient
to gain access to the Solar Facilities or the Premises (the "Access Easement"). Without
limiting the foregoing grant, Lessor covenants that the Access Easement may be used to
achieve all the purposes set forth in Section 4 of this Agreement.
3.2 Solar Easement. Lessor hereby grants to Lessee, for the Term, a non-
exclusive Solar Easement on the Premises, as more specifically set forth in Section 13.2 of
this Agreement.
3.3 Notice. Except as may be required by an emergency, Lessee will give Lessor
reasonable written or telephonic notice before any entry onto the Property or Premises by
Lessee's employees, agents or contractors. In the event of Lessee's entry due to an
emergency, Lessee will promptly notify Lessor of its entry and the nature of the emergency.
3
P.\Agmdu\Agenda l\nachsnentJ\Aa:endil ~hmellll\AaeNll Altacltmc:ntl\Aannts-Amend 2009\09-08-09 PhOlOv.,lu.ic Syaem Site ~ ~enl DIUFT.dor;
LESSOR DRAFT - AUGUST 25, 2009
4. Use ofthe Pronertv.
4.1 Permitted Uses. Lessee shall have the right to occupy and use the Premises
to serve as the site for the Solar Facilities and the use thereof for solar energy conversion, for
the collection and transmission of electric power, and for related and incidental purposes and
activities (collectively, the "Operations"), including, without limitation:
(a) conducting studies of solar energy and other meteorological data;
(b) constructing, reconstructing, erecting, installing, improving, replacing,
relocating and removing from time to time, and maintaining, using, monitoring and
operating, existing, additional or new (i) Photovoltaic Facilities, (ii) electrical
transmission and distribution facilities, including without limitation, overhead and
underground transmission, distribution or collector lines, circuit breakers, meters,
conduit, footings, poles, crossarms, guy lines, anchors, cabling and wires, (iii) overhead
and underground control, communications and radio relay systems, (iv) interconnection
and/or switching facilities, transformers and inverters, (v) control boxes and computer
monitoring hardware, (vi) utility installation, (vii) safety protection facilities, (viii) signs
and fences, and (ix) other improvements, fixtures, facilities, machinery and equipment
associated or connected with the generation, conversion, storage, switching, metering,
step-up, step-down, transmission, distribution, conducting, wheeling, sale or other use or
conveyance of electricity (all of the foregoing, including the Photovoltaic Facilities,
collectively the "Solar Facilities");
(c) generating, producing, inverting, transforming, and transmitting energy;
and
(d) undertaking any other lawful activities, whether accomplished by Lessee
or a third party authorized by Lessee, that Lessee determines are necessary, helpful,
appropriate or convenient in connection with, incidental to, or to accomplish any of the
foregoing purposes.
4.2 Lessee's Exercise of Ri2bts. Lessee may construct and install the Solar
Facilities on the Premises in the manner Lessee deems reasonable and appropriate, provided,
however, that Lessee will carry out the activities set forth in this Section 4 in such a manner
as will not unreasonably interfere with Lessor's use, operation, or maintenance of the
Property. Nothing expressly or impliedly contained in this Agreement shall be construed as
requiring Lessee to generate or sell to Lessor any minimum or maximum amount of electrical
energy from the Premises.
5. Term. The term of the Lease shall be composed of the Initial Term, and one or more
Renewal Terms (collectively, the "Term"). The Lease shall commence on the Effective Date
and shall, unless earlier terminated pursuant to Section 15 of this Agreement, terminate twenty
(20) years from the Commencement Date (the "Initial Term"). Lessee may extend the term of
the Lease for up to two successive terms of five (5) years (each a "Renewal Term"), by
delivering notice of such extension to Lessor not less than sixty (60) days prior to the end of the
Initial Term and the first Renewal Term, as the case may be.
4
P:\Aaendu\AlIenda ^1tac:hmcnulAa~' Anachr\ltlUl\Agelld& ArUchJnenll\AJmrls-Amend 2009~'..()9l'bOlO~oh,.;~ Sy5tcm Sile l.n~ Agr~CIll DRAFT.oo.
LESSOR DRAFT - AUGUST 25, 2009
6. Pavments to Lessor. Lessee shall pay Lessor as annual rent the sum of one dollar
($1.00) for each calendar year during the Initial Tenn and during any Renewal Tenn of the
Lease. The rent for the first calendar year of the Tenn shall be due and payable on the Effective
Date and annually thereafter on the same day and month.
7. Exclusive Riehts. Lessee shall have the sole and exclusive right to convert all of the
solar resources of, and to conduct the Operations on, the Premises. Lessor shall not grant any
rights in the Premises purporting to pennit others to conduct the Operations on the Premises in
derogation of Lessee's sole and exclusive rights and privileges hereunder. Without the prior
written consent of Lessee, Lessor shall not (i) waive any right available to Lessor or grant any
right or privilege subject to the consent of Lessor by law or contract, including without limitation
any environmental regulation, land use ordinance or zoning regulation, with respect to setback
requirements, or other restrictions and conditions respecting the placement of the Solar Facilities
on the Premises or (ii) grant, confinn, acknowledge, recognize or acquiesce in any right claimed
by any other person to conduct the Operations on the Premises, and Lessor agrees to give Lessee
notice of any such claims and to cooperate with Lessee in resisting and disputing such claims.
8. Ouiet Eniovment. Lessor covenants and agrees that Lessee, provided it remains in
compliance with its obligations under this Agreement, shall lawfully and quietly have, hold,
occupy and enjoy the System Facilities and the appurtenant rights thereto in accordance with the
tenns hereof throughout the entire tenn of this Agreement free from any claim of any entity or
person of superior title thereto without hindrance to, interference with or molestation of Lessee's
use and enjoyment thereof, whether by Lessor or any of its agents, employees or independent
contractors.
9. Desil!D and Construction of Solar Facilities: Acknowledement of Lessor.
9.1 Desism and Construction. Lessor hereby consents to the construction by the
Lessee of the Solar Facilities. Lessee shall provide to Lessor a construction schedule, and
Lessee and Lessor shall coordinate construction of the Solar Facilities so as to minimize
disruption to the Property and to Lessor's activities thereon.
9.2 Acknowledllment and Warranty Bv Lessor. Lessor acknowledges that the
installation of all or a portion of the Solar Facilities may require physically mounting and
adhering the Photovoltaic Facilities to the roof of a building where the Premises is located, or
to the ground or a combination thereof. Lessor has provided data to the Lessee concerning
the weight bearing capability, construction specifications and condition of the roof and load
bearing structures of the Premises and warrants that such data is accurate to the best of
Lessor's knowledge.
10. Maintenance of Premises.
10.1 Maintenance. Lessee shall, for the Tenn of this Agreement, at Lessee's sole
cost and expense, maintain the Solar Facilities and all areas of the Premises used by Lessee
in Lessee's Operations, in accordance with all applicable laws, rules, ordinances, orders, and
regulations of all governmental agencies.
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LESSOR DRAFT - AUGUST 25, 2009
10.2 Clean Condition. Lessee shall not unreasonably clutter the Premises or the
Property and shall promptly collect and dispose of any and all of Lessee's refuse and trash.
10.3 Roof ReDlacement. In the event Lessor deems it necessary to repair or
replace the roof or other structure upon which the Solar Facilities is installed, Lessor shall
notify Lessee of Lessor's intent to perform said work not less than 60 days prior to the
commencement of the work. If the repair or replacement work will require removal of the
Solar Facilities or the relocation of the Solar Facilities equipment and support structures to
some other portion of the roof or structure upon which the Solar Facilities is installed during
the work, Lessee shall remove and replace the Solar Facilities at Lessor's expense except as
provided herein. Lessor shall also be responsible for such other costs, lost revenue and
expenses incurred by Lessee as a result of any such removal or relocation of the Solar
Facilities as are specified in the Solar Power Purchase Agreement (the "Power Purchase
Agreement"). The expense of removal or relocation and reinstallation of the Solar Facilities
for the purposes of this Section ] 0.3 shall be based upon the labor rates then in effect for
service and maintenance of the Solar Facilities and/or other solar installations subject to
contract(s) with Lessee plus costs incurred by Lessee for equipment and materials.
11. OwnershiD of ImDrovements. The Solar Facilities shall not be deemed to be permanent
fixtures (even if permanently affixed to the Premises) and shall be and remain the sole property
of Lessee. Without limiting the generality of the foregoing, Lessor hereby waives any statutory
or common law lien that it might otherwise have in or to the Solar Facilities or any part thereof
and agrees that, notwithstanding the occurrence of an event of default under this Agreement
beyond all applicable notice and cure periods (including those granted to Lender or its designee),
Lessee may remove the Solar Facilities from the Premises. Within the ninety (90)-day period
afrer receipt by Lender of a notice that the Lease has been terminated prior to the expiration date
(or such longer time as may be reasonably necessary to remove the Solar Facilities from Lessor's
Property), Lender or Lessee may remove the Solar Facilities from the Premises.
]2. Security. All security measures reasonably necessary, in Lessee's opinion, shall be
provided for the Solar Facilities. Such measures may, but not necessarily will, include warning
signs, closed and locked gates, and other measures appropriate and reasonable to protect against
damage or destruction of the Solar Facilities or injury or damage to persons or property resulting
from the Solar Facilities and Operations.
]3. Lessor's ReDresentations and Warranties: No Interference. Lessor represents and
warrants to Lessee that there are no circumstances known to Lessor and no commitments to third
parties that may damage, impair or otherwise adversely affect the Solar Facilities or their
function by blocking sunlight from the Photovoltaic System. Lessor covenants that Lessor has
lawful title to the Property and the Premises free and clear of all liens, security interests and
encumbrances other than those listed on Exhibit E attached hereto and incorporated herein, and
full right to enter into this Agreement and that Lessee shall have quiet and peaceful possession of
the Premises throughout the Term of this Agreement.
13.1 No Interference. Lessor hereby agrees, for itself, its agents, employees,
representatives, successors and assigns, that it will not initiate or conduct activities that it
knows or reasonably should know may damage, impair or otherwise adversely affect the
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Solar Facilities or their functions, including, without limitation, activities that may adversely
affect the Photovoltaic Facilities exposure to sunlight. Lessor further covenants for itself, its
agents, employees, representatives, successors and assigns that it will not (i) materially
interfere with or prohibit the free and complete use and enjoyment by Lessee of its rigbts
granted under this Agreement, (ii) take any action which will materially interfere with the
availability and accessibility of solar radiation over and above the Premises, (Hi) take any
action that will or may materially interfere with the transmission of electric, electromagnetic
or other forms of energy to or from the Premises, (iv) take any action that may impair
Lessee's access to the Premises for the purposes specified in this Agreement, (v) plant or
maintain any vegetation or erect or maintain any structure which will, during dayligbt, cast a
shadow on the Photovoltaic Facilities, or (vi) take any action that may impair Lessee's access
to any portion of the Solar Facilities.
13.2 Solar Facilities Prooertv of Lessee; Transfer of Prooertv. Lessor
acknowledges and agrees that Lessee is the exclusive owner and operator of the Solar
Facilities, that no portion or component of the Solar Facilities is a fixture, and the Solar
Facilities may not be Transferred with the fee interest or leasehold rigbts to the Property
(except those leasehold rights granted hereunder). Lessor shall give Lessee at least fifteen
(15) days written notice prior to any Transfer of all or any portion of the Property identifYing
the transferee, the portion of Property to be Transferred and the proposed date of Transfer.
Lessor agrees that this Agreement and the easements granted in Section 3 of this Agreement
shall run with the land and survive any Transfer of the Property.
13.3 Lessee Rie:hts to Electridtv and Environmental Attributes. Lessor
acknowledges that Lessee or its affiliate or transferee is the exclusive owner of electricity
(kWh) generated by the Solar Facilities and of the Environmental Attributes and
Environmental Incentives of and arising from the Solar Facilities. Subject to applicable
federal, state, municipal and local laws, statutes, codes, ordinances, regulations, or rules, as
amended from time to time (collectively, the "Laws"), without the express written consent of
Lessee, Lessor shall not make or publish any statement or notice regarding any
Environmental Incentive relating to the Solar Facilities or any Environmental Attribute of the
Solar Facilities or the energy output from the Solar Facilities; provided. however that for so
long as there is a Power Purchase Agreement in full force and effect between Lessee and
Lessor, Lessor may make such public statements as Lessor deems reasonable and
commercially appropriate regarding the use of renewable energy for Lessor's facilities and
business operation and such public statements as are required buy applicable Laws.
14. Permits and Governmental Aoorovals. Lessee shall be responsible for obtaining at its
sole cost and expense any governmental approvals necessary for the construction and operation
of the Solar Facilities, including but not limited to any zoning variances, building permits,
approvals, environmental statements, licenses or authority from any county, state or federal
authority (collectively, "Permits") and shall pay all costs associated therewith. Lessor shall
cooperate with Lessee as necessary to obtain any governmental approvals, at no cost or expense
to Lessee, provided that Lessee shall reimburse Lessor for its reasonable out-of-pocket expense
directly incurred in connection with such cooperation. Lessor hereby gives its consent to any
action taken by Lessee in applying for any and all Permits Lessee finds necessary or desirable for
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LESSOR DRAFT - AUGUST 25, 2009
the operation of the Solar Facilities, and Lessor hereby appoints Lessee its agent for applying for
such Permits.
15. Termination and Abandonment.
15.1 Surrender by Lessee. Subject to Section 17 below, but notwithstanding any
other provisions of this Agreement, Lessee shall have the right at any time to quitclaim and
surrender to Lessor all of Lessee's right, title and interest in and to the Property and the
Premises by executing and delivering to Lessor, or placing on record, a quitclaim and
surrendering to Lessor all of the Premises and by paying to Lessor on or before the effective
date of such termination a sum equal to all rent and royalties accruing to the time of
surrender.
15.2 Abandonment: Lessor's Ril!ht to Terminate Al!reement. If the Premises
are abandoned (as defined below) by Lessee, Lessor shall have the right to terminate this
Agreement upon thirty (30) days' prior written notice to Lessee. For the purpose of this
Section, "abandonment" shall mean cessation of use of the Solar Facilities for a period of
four (4) consecutive months other than as a result of (i) events of Force Majeure, (il) the
expiration of any power purchase agreement between Lessee and; provided, however, that
Lessee (including for purposes of this Section 15.2 any assignee of Lessee) shall not actively
be pursuing entry into a new agreement for the sale of electrical energy generated by the
Solar Facilities, or (iii) loss of transmission or interconnection capabilities theretofore
available to the Solar Facilities, if such are deemed necessary for continued operation of the
Solar Facility by the Lessee, provided that Lessee shall not actively be pursuing alternate
transmission or interconnection capability. Abandonment of the Premises by Lessee shall
constitute a default by Lessee hereunder.
15.3 Hold Over. At the end of the Initial Term, or any extension thereof,
should Lessee hold over for any reason, it is agreed that in the absence of a written agreement to
the contrary, that tenancy shall be from month-to month only and not a renewal of this
Agreement, nor an extension for any further Term. Lessee shall pay to Lessor a minimum
monthly payment of rent for each month rent in an amount equal to one sixth (1/6th) of the
annual payment of rent paid by Lessee for the year prior to the expiration date of this Agreement.
16. Default.
16.1 The occurrence of any of the following shall be an "Event of Default":
16.1.1 The failure by Lessee to pay any rents due and payable hereunder within
ten (10) days from receipt of written notice from Lessor that such amounts are due;
16.1.2 The failure by Lessee to perform any of the other terms and conditions of
this Lease and fail to remedy the same within forty-five (45) days after receipt of notice from
Lessor to do so.
16.2 Remedies in the Event of Default. Upon the occurrence and continuation of
any Event of Default by the Lessee hereunder:
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LESSOR DRAFT - AUGUST 25, 2009
16.2.1 Lessor may continue this Lease in effect as long as Lessor does not
terminate Lessee's right to possession, and Lessor shall have the right to collect rent, plus
accrued interest, if any, when due.
16.2.2 Lessor may cure any default by Lessee after Lessee's cure period has
expired. If Lessor at any time by reason of Lessee's default, pays any sum or does any act that
requires the payment of any sum, the sum paid by Lessor shall be due immediately from Lessee
to Lessor as additional rent hereunder, together with any interest due.
16.2.3 Subject to the requirement for notice and right to cure set forth
hereinabove, Lessor may terminate Lessee's right to possession of Lessor's Property and the
premises upon twenty (20) days prior written notice to Lessee. No act by Lessor other than the
giving of such prior written notice to Lessee shall terminate this Lease.
(a) Upon termination, and subject to Lessor's compliance with the
requirements of applicable laws, Lessor has the right to recover from Lessee the unpaid
rent plus interest on overdue amounts plus all other fees, charges and amounts due under
the Lease.
(b) Lessor shall not terminate this Lease by reason of the nonpayment
of rent if Lessee in good faith disputes the amount of rent claimed by Lessor and if,
within the period of cure set forth in Section 16. I above, Lessee pays to Lessor the
undisputed portion of such rent, provided that any award in favor of Lessor shall include
interest on the amount of unpaid rent at the per annum rate of eight percent (8%).
(c) Following Lessor's delivery of a notice of default, which default
remains uncured, Lessee may at any time surrender Lessor's Premises to Lessor pursuant
to Section 17.
17. Surrender and Restoration.
17.1 Surrender. Upon any termination, surrender, or expiration of this
Agreement, Lessee shall remove the Solar Facilities and all of Lessee's improvements and
shall peaceably deliver up to Lessor possession of the Premises and the Property or any part
thereof, and other rights granted by this Agreement, and shall execute, at Lessor's request, a
quitclaim deed evidencing such surrender and conveyance, to be recorded in the records of
San Bernardino County, California.
17.2 Restoration. Upon any termination, surrender or expiration of this
Agreement, Lessee shall restore the Premises and the Property to its approximate condition at
the Effective Date, taking into account ordinary and reasonable wear and tear since the
Effective Date, and shall repair any damage, to the extent reasonably practicable, to the
Premises and/or the Property as a result of any removal of the Solar Facilities under this
Section. Said restoration shall be completed within one year of the termination, surrender, or
expiration.
18. Insurance.
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LESSOR DRAFT - AUGUST 25, 2009
18.1 Liabilitv Insurance. At all times during the Term of this Agreement, Lessee
shall, at its own cost and expense, obtaln and maintain in effect; (a) comprehensive general
liability insurance, covering all aspects of Lessee's Operations, naming Lessor as an
additional insured thereunder, with bodily injury and property damage coverage, of at least
Two Million Dollars ($2,000,000) combined single limit, and (b) environmental impairment
liability insurance of at least Two Million Dollars ($2,000,000) combined single limit.
18.2 Builders' Risk. [Reserved]
18.3 Workers ComDensation. Lessee sball have workers compensation insurance
covering its employees, and sball require any of Lessee's subcontractors engaging in
Operations to have workers compensation insurance as required by law.
18.4 Certifieates. Lessee shall provide to Lessor certificates evidencing such
coverages prior to Lessee commencing Operations and thereafter once per year during the
Term.
18.5 Inereased Insurance Policv Covera!!e. In the event that Lessor determines,
in Lessor's reasonable judgment, that the limits of the public liability, property damage, or
products liability insurance or any other insurance policy whether or not then carried by
Lessee are materially less than the amount or type of insurance typically carried by owners or
tenants of properties located in San Bernardino, California, which are similar to and operated
for similar purposes as the Property and the Premises, Lessor may elect to require Lessee to
increase the amount of specific coverage, change the type of policy carried, or both. If
Lessor so elects, Lessee shall be notified in writing of the specific change in policy amount
or type required and shall have thirty (30) days after the date of Lessor's notice to effect the
change I amount or type of policy. Any adjustment pursuant to this subsection may be made
not more often than every two (2) years unless otherwise agreed by Lessor and Lessee.
19. Liabilitv: Indemnitv.
19.1 Lessee Indemnitv. Lessee shall indemnify, defend, protect and hold harmless
Lessor, its parent, directors officers, agents and employees (the "Lessor Indemnitees") of
and from any claim, demand, lawsuit, or action or liability of any kind for injury to or death
of persons, including, but not limited to, employees of Lessee or Lessor, and damage or
destruction of property, including, but not limited to, property of Lessee, any utility company
or Lessor, or other loss or damage incurred by Lessor, arising out of (a) grossly negligent acts
or omissions or wilful misconduct of Lessee, its agents, officers, directors, employees or
contractors; or (b) the material breach by Lessee of any of its obligations under this
Agreement. The obligation to indemnify shall extend to and encompass all costs incurred by
Lessor and any Lessor Indemnitee in defending such claims, demands, lawsuits or actions,
including, but not limited to, attorney, witness and expert witness fees, and any other
litigation related expenses. Lessee's obligations pursuant to this Section 19.1 shall not
extend to claims, demands, lawsuits or actions for liability to the extent attributable to the
negligence or wilful misconduct of Lessor, the Lessor Indemnitees, or their respective
contractors, successors or assigns, or to the acts of third parties. Lessee shall pay any cost
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LESSOR DRAFT - AUGUST 25, 2009
that may be incurred by Lessor or the Lessor Indemnitees in enforcing this indemnity,
including reasonable attorneys' fees, court costs, witness fees and consultant fees.
19.2 Lessor Indemnitv. Lessor shall indemnify, defend and hold harmless Lessee,
its officers, agents and employees (the "Lessee Iodemoitees") of and from any claim,
demand, lawsuit, action of any kind or liability for injury to or death of persons, including,
but not limited to, employees of Lessee or of Lessor, and damage or destruction of property,
including, but not limited to, property of either Lessee or of Lessor, or other loss or damage
incurred by Lessee, arising out of: (i) grossly negligent acts or omissions or wilful
misconduct of Lessor, its agents, officers, directors, employees or contractors; or (ii) the
material breach by Lessor of any of its obligations under this Agreement. The obligation to
indemnify shall extend to and encompass all costs incurred by Lessee and any Lessee
Indemnitee in defending such claims, demands, lawsuits or actions, including, but not limited
to, attorneys, witness and expert witness fees, and any other litigation related expenses.
Lessor's obligations pursuant to this Section 19.2 shall not extend to claims, demands,
lawsuits or actions for liability to the extent attributable to the negligence or willful
misconduct of Lessee, the Lessee Indemnitees, or their respective contractors, successors or
assigns, or the acts of third-parties. Lessor shall pay any cost that may be incurred by Lessee
or the Lessee Indemnitees in enforcing this indemnity, including reasonable attorneys' fees,
court costs, witness fees and consultant fees.
19.3 No CooseQoeotial Damal!es. Notwithstanding any provlslOn in this
Agreement to the contrary, neither Lessee nor Lessor shall be liable to the other for
incidental, consequential, special, punitive or indirect damages, including without limitation,
loss of use, loss of profits, cost of capital or increased operating costs, arising out of this
Agreement whether by reason of contract, indemnity, strict liability, negligence, intentional
conduct, breach of warranty or from breach of this Agreement. The foregoing provision shall
not prohibit Lessee or Lessor from seeking and obtaining general contract damages or
equitable relief for a breach of this Agreement.
19.4 Hazardous Materials.
19.4.1 Lessor's Oblil/:atioos. Lessor shall not violate, and shall indemnify
Lessee for, from and against any claims, costs, damages, fees or penalties arising from a
violation (past, present or future) by Lessor or Lessor's agents or contractors of, any federal,
state or local law, ordinance, order, or regulation relating to the generation, manufacture,
production. use, storage, release or threatened release, discharge, disposal, transportation or
presence of any substance, material or waste which is now or hereafter classified as hazardous or
toxic, or which is regulated under current or future federal, state or local laws or regulations, on
or under the Premises.
19.4.2 Lessee's Oblil!atioos. Lessee shall not violate, and shall indemnify
Lessor against, any claims, costs, damages, fees or penalties arising from a violation by Lessee
or Lessee's agents or contractors of any federal, state or 10ca1law, ordinance, order, or regulation
relating to the generation, manufacture, production. use, storage, release or threatened release,
discharge, disposal, transportation or presence of any substance, material or waste which is now
II
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or hereafter classified as hazardous or toxic, or which is regulated under current or future federal,
state or local laws or regulations, on or under the Property.
19.5 Waiver. The express remedies and measures of damages provided for in this
Agreement shall be the sole and exclusive remedies for a party hereunder and all other
remedies or damages at law or in equity are hereby waived.
20. Taxes.
20.1 Pavment of Taxes. Lessee shall pay all real estate or personal property taxes,
other ad valorem taxes arising from or relating to Lessee's leasehold interest, business or
license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license
or use fees, excises, assessments, bonds, levies, fees or charges of any kind which are
assessed, levied, charged, confirmed, or imposed by any public authority due to Lessee's
occupancy and use of the Premises (or any portion or component thereof) ("Taxes"), except
(i) real and personal property taxes relating to the Property on which the Premises is situated,
(ii) inheritance or estate taxes imposed upon or assessed against the Premises, or any part
thereof or interest therein, (Iii) taxes computed upon the basis of the net income or payments
derived from the Premises by Lessor or the owner of any interest therein, and (iv) taxes, fees,
service payments, excises, assessments, bonds, levies, fees or charges of any kind which are
adopted by any public authority after the date hereof. Lessor shall pay all amounts in
connection with clauses (i), (ii), (Iii) and (iv) of this Section 20.1.
20.2 Lessee's Ril!ht to Contest. Lessee may contest the legal validity or amount
of any Taxes, assessments, or other charges for which it is responsible under this Agreement,
and may institute such proceedings as it considers necessary. Lessee shall bear all expenses
in pursuing such contest or proceeding. With respect to any Taxes for which Lessee is
responsible that may constitute a lien on the Permises and/on the Property, Lessee shall
promptly pay such Taxes unless the proceeding in which it contests such tax shall operate to
prevent or stay the collection of the Taxes so contested or unless Lessee removes any such
lien by bonding or otherwise. Lessor agrees to render to Lessee all reasonable assistance, at
no cost or expense whatsoever to Lessor, in contesting the validity or amount of any Taxes,
assessments or charges, including joining in the signing of any reasonable protests or
pleadings which Lessee may reasonably deem advisable to file; provided, however, that
Lessee shall reimburse Lessor for its reasonable attorneys' fees incurred in connection with
providing such assistance.
21. Assilmment. Except as provided in this Section 21, neither party shall have the right to
assign any of its rights, duties or obligations under this Agreement without the prior written
consent of the other party, which consent may not be unreasonably withheld or delayed. Lessee
may assign any of its rights, duties or obligations under this Agreement (i) to one or more of its
affiliates, (ii) to one or more third parties in connection with a sale-and-leaseback or other
financing transaction, (iii) to any present or future purchaser of the power generated by the Solar
Facilities, (iv) to any person or entity succeeding to all or substantially all of the assets of Lessee,
or (v) to a successor entity in a merger or acquisition transaction. For the sake of clarity, the
Parties hereby acknowledge that the sale or transfer by Lessee to a third party of equity
ownership interests in Lessee, including any such sale or transfer that results in a change in
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LESSOR DRAFT - AUGUST 25, 2009
control of the Lessee, shall not constitute a transfer or assignment of this Agreement that requires
the prior written consent of the Lessor, and no consent of the Lessor shall be required in
connection with or as a condition to any sale or transfer of equity ownership interests in the
Lessee.
22. Consent to Loan.
22.1 Consent. Lessee or an assignee may from time to time, without the prior
written consent of Lessor, encumber the interest of Lessee or an assignee in this Agreement
and the rights granted hereunder by one or more loans, provided that any loan and all rights
acquired under it shall be subject to each and all of the covenants, conditions and restrictions
stated in this Lease and to all rights and interests of Lessor and further provided, that Lessee
or an assignee shall promptly upon the execution of any loan deliver a true copy thereof to
Lessor. Without limiting the generality of the foregoing nothing contained in such loan shall
release or be deemed to relieve Lessee from full and faithful observance and performance of
the terms, covenants and conditions herein contained to be observed and performed by
Lessee or from any liability for the non-observance or non-performance of any of the terms
and conditions hereof, nor be deemed to constitute a waiver of any rights of Lessor
hereunder, except as expressly provided for herein.
22.2 Statement bv Lessor. At the request of Lessee or a Lender, Lessor (a) shall
execute, acknowledge and deliver to such Lessee or Lessee's Lender, a written statement
declaring: (i) either that the Agreement is unmodified and in full force and effect, or the
manner in which the Agreement had been modified and whether the Agreement as so
modified is in full force and effect; (ii) the dates to which Lessee's monetary obligations
hereunder have been paid in advance; (iii) whether Lessee is or is not then in default
hereunder; and (iv) whether any past defaults have been fully cured and (b) enter into an
estoppel and consent agreement recognizing the rights of the Lenders of Lessee as may be
reasonably requested by Lenders of Lessee.
22.3 Statement bv Lessee. At the request of Lessor, Lessee shall execute,
acknowledge and deliver to Lessor a written statement declaring: (i) either that this
Agreement is unmodified and whether the Agreement as so modified is in full force and
effect; (ii) whether the Lessor is or is not then in default hereunder; and (iii) whether any past
defaults of Lessor have been fully cured.
22.4 Protection of Lender. Any Lender to Lessee hereunder shall for so long as
its loan is in existence and until the lien thereof has been extinguished be entitled to the
following protections:
22.4.1 No Amendment. Lessor shall not agree to any amendment, mutual
termination or modification or accept any surrender of this Agreement, nor shall any such
amendment, termination, modification or surrender be effective, without the written consent of
such Lender.
22.4.2 Notice of Default. Notwithstanding any default by Lessee under this
Agreement, Lessor shall have no right to terminate this Lease unless and until Lessor shall first
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LESSOR DRAFT - AUGUST 25, 2009
have given such Lender a second written notice of Lessee's defuult and failure to cure same
within the period(s) specified in Section 16 and thereafter afforded such Lender an opportunity to
cure such default within the period(s) specified in Section 16 and such Lender shall have failed
to effect the cure of such default within the period(s) specified in Section 16.
22.4.3 Ril!ht to Perform. Such Lender shall have the right at any time to pay
any rent due hereunder and to perform or cause to be performed any other obligation of Lessee at
or within the time such payment or performance is required under this Agreement. Nothing in
this Agreement shall be construed to obligate such Lender to cure any default of Lessee.
22.4.4 Ril!ht to Cure. Such Lender shall be entitled to remedy any default under
this Lease in the manner and on the same terms as granted to Lessee in Section 16 of this Lease.
22.4.5 Foreclosure. If Lessee's First Lender (meaning the Lender that recorded
first in time) becomes the assignee of this Lease by means of foreclosure or transfer in lieu
thereof, such First Lender shall be personally liable under this Agreement only for the period
First Lender remains a Lessee hereunder, provided that any subsequent assignee or Lessee shall
assume and agree to be bound by all the terms and conditions of this Agreement.
22.4.6 Termination of Al!reement. If this Agreement shall terminate prior to
the expiration of the Term for any reason, including without limitation by operation of law or
because of a failure to cure a default pursuant to Section 16, Lessor shall enter into a new
agreement in recordable form with the Lender that holds the most senior lien against Lessee's
leasehold estate and demands such new agreement within thirty (30) days following receipt of
Lessor's notice of termination. Such new agreement shall contain the same terms and provisions
as this Agreement. Lessor's obligation to enter into a new agreement as provided herein is
conditioned upon the cure of any and all defaults under this Agreement other than defaults, if
any, that are unique to the defaulting Lessee which cannot be cured by the payment of money or
the acts of the curing Lender.
22.4.7 Assil!nment Followinl! Foreclosure or Termination. In the event (i)
that any Lender acquires the Lessee's leasehold estate hereunder following judicial foreclosure
of, or exercise of the power of sale contained in, any Loan Agreement or by a Transfer in lieu
thereof; or (ii) any Lender enters into a new lease, such Lender shall have the right to assign or
transfer this Agreement or any such new lease, one time ouly, to any person or entity without
Lessor's consent, provided notice of such assignment is given to Lessor. The liability of such
Lender under this Lease or any such new lease shall cease upon the assignment, provided that the
assignee agrees to perform each and every obligation of the Lessee under this Agreement or such
new agreement and that there is no default under this Agreement or any such new agreement.
The right of such Lender to assign this Agreement or any such new lease as provided herein is
conditioned upon the cure of any and all defaults under this Agreement as of the time of such
assignment.
22.5 Nondisturbance. Lessor shall timely perform all of its covenants contained
in any and every obligation which is the subject of an encumbrance on Lessor's Property
prior to the encumbrance effected hereby. On request by Lessee, Lessor shall obtain a
Nondisturbance, Recognition and Attornment Agreement substantially in the form attached
14
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LESSOR DRAFT - AUGUST 25, 2009
hereto and incorporated herein as Exhibit D. or such other form approved by Lessee and the
beneficiary of any such prior encumbrance providing that in the event of enforcement of the
encumbrance or lien, the validity and effectiveness of this Agreement shall be maintained as
an encumbrance on the Property according to its terms.
23. Estonnel Certificate. From time to time, upon written request by Lessee, Lessor shall
provide within fifteen (15) days thereafter an estoppel certificate attesting, to the knowledge of
Lessor, of Lessee's compliance with the terms of this Agreement or detailing any known issues
of noncompliance.
24. Notice.
24.1 Writiol!. All notices given or permitted to be given hereunder shall be in
writing.
24.2 Deliverv. Notice is considered given either (i) when delivered in person to
the recipient named below, (ii) when sent by email or facsimile with reasonable electronic
confirmation of receipt by the addressee, or (iii) three (3) business days after deposit in the
United States mail-in a sealed envelope or container, postage and postal charges prepaid,
addressed by name and addressed to the party or person intended as follows:
Notice to Lesser:
RDA SOLAR I, LLC
20 I North "E" Street, Suite #30 I
San Bernardino, CA 9240 I
With copies to:
Nixon Peabody LLP
Attention: Michael J. Goldman
401 Ninth Street, N.W., Suite 900
Washington, D.C. 20004
And
Law Office of Mark D. Foster
4835 LBJ Freeway, Suite 424
Dallas, Texas 75244
Notice to Lessor:
San Bernardino Redevelopment Agency
Attention: Emil A. Marzullo, Interim Executive Director
201 North "E" Street, Suite #301
San Bernardino, California 92401- I 520
Phone: (909) 663-1044
With copies to:
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LESSOR DRAFT - AUGUST 25, 2009
Lewis, Brisbois, Bisgaard & Smith, LLP
Attention: Tim Sabo
650 East Hospitality Lane, Suite 600
San Bernardino, CA 92408-3508
Phone: (909) 387-1130
And:
Greystone Renewable Energy Manager LLC
c/o Greystone & Co. Inc.
Carnegie Hall Tower
Attention: General Counsel
152 West 57th Street, 60th Floor
New York, NY 10019
Facsimile: (212) 649-9701
24.3 ChaD!!e of Recinient or Address. Either party may, by notice given at any
time or from time to time, require subsequent notices to be given to another individual
person, whether a party or an officer or representative, or to a different address, or both.
Notices given before actual receipt of notice of change shall not be invalidated by the change.
25. Further Assurances. Upon the receipt of a written request from the other Party, each
Party shall execute such additional documents, instruments and assurances and take such
additional actions as are reasonably necessary and desirable to carry out the terms and intent
hereof. Neither Party shall unreasonably withhold, condition or delay its compliance with any
reasonable request made pursuant to this section.
26. No Partnershin or Sale. Nothing contained in this Agreement shall be deemed or
construed by the Parties or by any third person to create the relationship of principal and agent,
partnership, joint venture, buyer and seller of electrical energy, or any other association between
Lessor and Lessee, other than the relationship of Lessor and lessee.
27. Miscellaneous.
27.1 Waiver. The waiver by either party of any breach of any term, condition, or
provision herein contained shall not be deemed to be a waiver of such term, condition, or
provision, or any subsequent breach of the same, or any other term, condition, or provision
contained herein.
27.2 Headin!!s. The headings in this Agreement are solely for convenience and
ease of reference and shall have no effect on interpreting the meaning of any provision of this
Agreement.
27.3 Memorandum. Lessor and Lessee agree to execute a memorandum of this
Agreement, substantially in the form attached as Exhibit F hereto and incorporated herein,
and to record same upon the request of either party.
16
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LESSOR DRAFT - AUGUST 25, 2009
27.4 Amendments. This Agreement may be amended only in writing signed by
Lessee and Lessor or their respective successors in interest.
27.5 DisDutes and Cboice of Law: Attornevs Fees. In the event of a dispute
arising from or related to this Agreement, the prevailing party in any proceeding to enforce
this Agreement or to resolve the dispute shall be entitled to recover its expenses incurred in
the proceeding, including reasonable attorneys' fees, court costs, witness fees and consultant
fees. This Agreement shall be construed in accordance with the laws of the State of
California without regard to its conflict of laws principles.
27.6 Foree Maieure. Notwithstanding any other provision of this Agreement,
Lessee's obligations under this Agreement (exclusive of payments of rent) shall be
suspended and excused, and the T eno and any other time periods set forth herein shall
continue and be Initial for a like period of time, while (a) Lessee is hindered or prevented, in
whole or in part, from (i) conducting Operations or (ii) complying with any teno, covenant,
condition or provision of this Agreement, by: strikes, lockouts or other labor disturbances;
delays in transportation; inability to secure labor or materials in the open market; acts of God
or the elements, including without limitation, fire, flood, washout, perils at sea, lightning,
earthquake or accidents; conditions arising out or attributable to acts of war, civil
disturbances or riots; acts or failures to act of Lessor; tbe effects of any law, statute, decree,
ordinance, rule or regulation; the failure of any governmental authority to issue any penoit,
entitlement, approval or authorization within a reasonable period of time after an application
for the same has been submitted; or any other matter or condition beyond the reasonable
control of Lessee, whether or not similar to the matters or conditions herein specifically
enumerated.
27.7 Countemarts. This Agreement may be executed in one or more
counterparts, which shall together constitute one and the same agreement. Facsimile
signatures shall have the same effect as original signatures, and each party consents to the
admission in evidence of a facsimile or photocopy of this Agreement in any court or
arbitration proceedings between the parties.
27.8 Bindinl!: Effect. This Agreement and the rights, privileges, duties and
obligations of the Parties as set forth herein shall inure to the benefit of and be binding upon
each of the Parties, together with their respective successors and assigns.
27.9 Entire Mreement. This Agreement represents the full and complete
agreement between the Parties with respect to the subject matter contained herein and
supersedes all prior written and oral agreements between the Parties with respect to said
subject matter.
SIGNATURE PAGES FOLLOW
17
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LESSOR DRAFT - AUGUST 25, 2009
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year
first above written.
LESSEE:
RDA Solar I, LLC,
a California limited liability company
By: Sustainable Commwlities Reinvestment
Partnership, LLC,
a California limited liability company
Its: Managing Member
Date
By:
Name:
Title:
LESSOR
Redevelopment Agency
of the City of San Bernardino,
a public body, corporate and politic
Date
By:
Emil A. Marzullo, Interim Executive Director
Approved as to Form and Legal Content:
\~
Agency Co
18
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LESSOR DRAFT - AUGUST 25, 2009
EXHIBn.A
(LEGAL DESCRIPTION OF PROPERTY)
PARCELNO.IA:
THAT PORTION OF BLOCK 13, CITY OF SAN BERNARDINO, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 7 PAGE I OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF "E" STREET WITH THE NORTH
LINE OF "2ND" STREET AS DESCRIBED IN THAT CERTAIN DEED TO THE CITY OF SAN
BERNARDINO RECORDED MAY 21,1970 IN BOOK 7447. PAGE 275 OFFICIAL RECORDS OF
SAID COUNTY;
THENCE SOUTH 890 56' 00" EAST ALONG SAID NORTH LINE, 1] 1.67 FEET;
THENCE NORTH 450 04' 11" EAST, 9.90 FEET;
THENCE NORTH 00 04' II" EAST, 112.21 FEET;
THENCE NORTH 15004' II" EAST, 100.46 FEET;
THENCE NORTH 00 04' II" EAST. 1Il.75 FEET TO A LINE PARALLEL WITH AND DISTANT
225.92 FEET SOUTHERLY MEASURED AT RIGHT ANGLES, FROM THAT CERTAIN COURSE
RECITED AS "NORTH 890 55' 49" WEST 206.48 FEET" IN THE BOUNDARY DESCRIBED IN
DEED TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
CALIFORNIA RECORDED JUNE 4, 1970 IN BOOK 7455 PAGE 2]4 OFFICIAL RECORDS OF
SAID COUNTY;
THENCE NORTH 890 55' 49" WEST ALONG SAID PARALLEL LINE 137.19 FEET TO SAID EAST
LINE OF "E" STREET;
THENCE SOUTH 30 57' 5]" WEST ALONG SAID EAST LINE 116.07 FEET;
THENCE CONTINUING ALONG SAID EAST LINE SOUTH 00 02' 25" EAST 212.20 FEET TO THE
POINT OF BEGINNING.
ALSO KNOWN AS PARCEL NO. 27 OF PARCEL MAP NO. 688 IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 25 OF PARCEL MAPS. PAGES 47 TO 58 INCLUSIVE, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
Exhibit A
LESSOR DRAFT - AUGUST 25,2009
PARCEL NO.IB:
TOGETHER WITH AN EASEMENT FOR VEHICULAR INGRESS AND EGRESS OVER THAT
PORTION OF SAID BLOCK 13 DESCRIBED AS FOLLOWS:
COMMENCING AT SAID INTERSECTION OF THE EAST LINE OF "E" STREET WITH THE
NORTH LINE OF "2ND" STREET;
THENCE SOUTH 89' 56' 00" EAST ALONG SAID NORTH LINE 111.67 FEET TO THE TRUE
POINT OF BEGINNING;
THENCE NORTH 45' 04' 1]" EAST ALONG THE EAST LINE OF THE ABOVE DESCRIBED
PARCEL 9.90 FEET;
THENCE CONTINUING ALONG SAID EAST LINE NORTH 00 04' II" EAST, ] 12.21 FEET;
THENCE CONTINUING ALONG SAID EAST LINE NORTH ]5004' I]" EAST, 100.46 FEET;
THENCE CONTINUING ALONG SAID EAST LINE NORTH 00 04']]" EAST, ] 1.75 FEET TO THE
NORTH LINE OF SAID PARCEL;
THENCE SOUTH 890 55' 49" EAST ALONG THE EASTERLY PROLONGATION OF SAID NORTH
LINE 30.50 FEET;
THENCE SOUTH 00 04' II" WEST, 138.74 FEET;
THENCE SOUTH ]5004' ] I" WEST, 113.98 FEET;
THENCE SOUTH 0' 04' ] I" WEST, 79.16 FEET TO SAID NORTH LINE OF "2ND" STREET;
THENCE NORTH 89' 57' 00" WEST, 34.00 FEET TO THE POINT OF BEGINNING.
END OF LEGAL DESCRIPTION
Exhibit A
LESSOR DRAFT - AUGUST 25, 2009
~JIDUI.B
(DIAGRAM OF TIlE PREMISES)
Exhibit B
LESSOR DRAFT - AUGUST 25, 2009
uunm:.C
(SOLAR FACILITIES SPECIFICATIONS)
Equipment and Services
OuantilV
I
1392
1
1
I?~s~~p~i~~
Sat~on PVS-250 (208)
Slll1Yo HIP: 195BAJ
Ene~gy ~~c~~!1.1~r.,?~.~c, Monitoring Solution and Kjos~
SunJ,.ink ~Eunting System
Related Services and Deliverables,
D California State Sales Tax
D 20 Year Manufacturer's Performance Warrant)' on Solar Modules
D 10-Year Warrant)' on All Inverters and Transformers (if built into inverter)
D 15-Year OEM SunLink Support System Warran!)'
D SPG IO-Year lnstallation Warrant)' with Annual System Inspections (10 years)
D PV Panels and Inverters with a Minimum Total Rating of245.215 AC-CEC kilowatts
D All Electrical Switch Gear Preparation to Accept Solar System
D All Electrical Connectors, Cabling & Components Nee, for a Complete Solar System
D Complete Electrical Engineering Services Including Diagrams
D Complete Structural Engineering Services Including Diagrams
D Planning and Design Review Services Including All Meetings with Building Department
D All Building Permit and Utili!)' Processing Costs
o Utility Interconnect Agreement Processing Services
D Rebate Application Processing & Coordination
o Incentive Program Inspections Coordination
D Local Building and Electrical Inspections Coordination
D Secure Storage Facilit)' at Job Site for All PV System Equipment and Supplies
D Project Manager I Foreman
o Lavatory Facilities at Job Site, if needed
D System Operation and Safe!)' Manuals and Customer Training
D Final PV System "As-Built" schematics
o Final Cleanup to "broom clean" condition
Exhibit C
LESSOR DRAFT - AUGUST 25, 2009
EXHIJIlT D
(NONDlSTURBANCE, RECOGNITION AND AlTORNMENT AGREEMENT)
Exhibit D
LESSOR DRAFT - AUGUST 25, 2009
EXHIBlT E
EXISTING LIST OF LIENS, SECURITY INTERESTS AND OTHER ENCUMBRANCES
ON THE PROPERTY AND THE PREMISES
Exhibit E
LESSOR DRAFT - AUGUST 25, 2009
EXHIBIT F
FORM OF MEMORANDUM OF LEASE
PHOTOVOLTAIC SYSTEM SITE LEASE AGREEMENT
Exhibit F