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HomeMy WebLinkAbout299-23 RESOLUTION113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 299-23 File Number: 2023-1458 ENTEGRITY ENERGY PARTNERS (SOLAR SERVICES AGREEMENT): A RESOLUTION TO APPROVE A 25 YEAR SOLAR SERVICES AGREEMENT WITH ENTEGRITY ENERGY PARTNERS, LLC THAT IS ANTICIPATED TO OFFSET 6,538,454 KWH OF THE CITY'S ANNUAL ELECTRICITY CONSUMPTION FROM SOUTHWESTERN ELECTRIC POWER COMPANY AND PRODUCE AN ESTIMATED $7 MILLION IN SAVINGS OVER THE LIFE OF THE CONTRACT WHEREAS, the City adopted the Energy Action Plan in January of 2018 that was created to build a policy, program, and project framework that would initiate actions leading to an increasingly sustainable natural resource and energy efficient community; and WHEREAS, a major goal of the action plan is to achieve 100% local government clean energy by the year 2030; and WHEREAS, in 2019, the City entered into a solar services agreement to build 5MW solar arrays with battery storage at each of the two City wastewater treatment plants; and WHEREAS, in 2022, the City entered into an Energy Savings Performance Contract with Johnson Controls Inc. that audited facilities energy use and identified energy efficiency improvements; and WHEREAS, Act 278 passed by the 94th General Assembly in 2023 has overhauled the net metering policy in Arkansas and the project must meet the September 30, 2024 deadline for interconnection approval from SWEPCO; and WHEREAS, the City issued a request for proposals for a new solar array development on July 9, 2023, and the City's selection committee selected Entegrity Energy Partners for the project; and WHEREAS, Fayetteville Environmental Director Peter Nierengarten has fully disclosed his indirect financial interest in this contract because his wife is Vice President for Sustainability of Entegrity Energy Partners and Director Niergengarten's immediate supervisor, Chief of Staff Susan Norton, approves of this contract and will ensure that it will not adversely affect his regular employment duties. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas, being aware of the indirect financial interest of Director Nierengarten in this contract, hereby determines that it is in the best interests of Fayetteville to enter into this contract and authorizes Mayor Jordan to sign the 25 year Solar Services Agreement with Entegrity Energy Partners, LLC that is anticipated to offset 6,538,454 kWh of the City's annual electricity consumption from Southwestern Page 1 Resolution: 299-23 File Number. 2023-1458 Electric Power Company and produce an estimated $7 million in savings over the life of the contract. PASSED and APPROVED on December 19, 2023 Page 2 Attest: �'' • •obi Y Kara Paxton, City Cl rk Treasurer r ; FAYET i ��• :,� CITY OF FAYETTEVILLE ARKANSAS MEETING OF DECEMBER 19, 2023 TO: Mayor Jordan and City Council THRU: Chris Brown, Public Works Director Paul Becker, Chief Financial Officer Susan Norton, Chief of Staff FROM: Chris McNamara, Sustainability Project Manager DATE: CITY COUNCIL MEMO SUBJECT: Solar Services Agreement with Entegrity Energy Partners RECOMMENDATION: 2023-1458 Staff recommends approval of the Solar Services Agreement with Entegrity Energy Partners. The contract initiates construction of a 3.77 MW solar array that will offset 6,538,454 kWh of the City's annual electricity consumption from Southwestern Electric Power Company and produce $7million in savings over the 25yr contract. BACKGROUND: The City of Fayetteville adopted the Energy Action Plan in January of 2018. This plan was created to build a policy, program, and project framework that would initiate actions leading to an increasingly sustainable natural resource and energy efficient community. A major goal of the action plan is to achieve 100% local government clean energy by 2030. In 2019 the City entered into a solar services agreement to build 51MW solar arrays with battery storage at each of the two City wastewater treatment plants. The combined 10MW wastewater treatment plant solar energy projects brought the City governments' clean energy consumption up from 16% to over 72% and is projected to save over $6 million dollars during the 20-year life of the project. In 2022 the City entered into an Energy Savings Performance Contract with Johnson Controls Inc. that audited facilities energy use and identified energy efficiency improvements. These facility improvement projects began in Fall 2022 and will result in a 27% reduction in energy consumption. Act 278 passed by the 94th General Assembly in 2023 has overhauled the net metering policy in Arkansas. To take advantage of the current net metering with 1:1 rate structure and the grandfathering term, any renewable energy projects that are under development will have to meet the utility interconnection agreement deadline of Sept 30, 2024. The City issued an RFP for solar array development on 7/9/2023 received three responses, interviewed two candidates and selected Entegrity Energy Partners on 9/28/2023. Since selection Entegrity has been reviewing the City's SWEPCO bills and account rate structures to design an appropriately sized solar Mailing address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 array that will produce the highest savings for the City. DISCUSSION: The proposed Solar Services Agreement between the City of Fayetteville and Entegrity Energy Partners will establish a 25yr contract to purchase all energy produced from the solar array at an initial price of $0.057/kWh that escalates 1 % annually. A 1 % annual escalation is under the average 2.5% annual cost increase for electricity purchased from SWEPCO. This 1 % annual escalation will produce a balanced savings profile across the contract term. The contract can be extended two times for an additional 10 years. Entegrity will provide periodic bill and rate review during the contract to continue to optimize the highest savings across the City's 250+ SWEPCO accounts. Electricity produced from the solar array will offset SWEPCO accounts in descending order starting with those accounts that produce highest savings first and proceed to next highest savings until all solar production is utilized. Approval of this agreement is time sensitive as the project must meet the Sept 30, 2024 deadline for interconnection approval from SWEPCO. Swift approval by City Council will ensure that project continues to have plenty of time for development to meet the deadline. However, the City has negotiated in the contract that at any time prior to the submission of the interconnection application, the City may terminate this agreement, provided that City pay provider for any direct costs incurred as of the date of termination in connection with the development of the project. This safety measure ensures that if the deadline is not met the City can exit the agreement and cancel the project. Solar array size is currently 3.77MW but can be changed until the design is submitted to SWEPCO. If City staff and Entegrity identify additional opportunities for savings that adjust array size then a change order will be submitted to the Mayor for approval. The City has the option to purchase the array and take over ownership on either of the seventh (7th), fourteenth (14th), or twenty-first (21 st) anniversary of the Commercial Operation Date. BUDGET/STAFF IMPACT: Project does not have a cost for development. The City agrees to pay a $/kWh for all solar energy produced. These solar energy credits will be applied to City accounts with SWEPCO to offset billed consumption. Solar credits will be applied to accounts producing the most savings and proceed until all credits are used. Before commercial operation date, Entegrity will provide a list of accounts to offset. City staff will determine which funds will pay for solar energy costs based on offset accounts. ATTACHMENTS: SRF (#3), Solar Services Agreement Signed (#4), Solar Services Agreement —Signed - UPDATED (#5) Mailing address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 == City of Fayetteville, Arkansas y 113 West Mountain Street Fayetteville, AR 72701 (479)575-8323 - Legislation Text File #: 2023-1458 Solar Services Agreement with Entegrity Energy Partners A RESOLUTION TO APPROVE A 25 YEAR SOLAR SERVICES AGREEMENT WITH ENTEGRITY ENERGY PARTNERS, LLC THAT IS ANTICIPATED TO OFFSET 6,538,454 KWH OF THE CITY'S ANNUAL ELECTRICITY CONSUMPTION FROM SOUTHWESTERN ELECTRIC POWER COMPANY AND PRODUCE AN ESTIMATED $7 MILLION IN SAVINGS OVER THE LIFE OF THE CONTRACT WHEREAS, the City adopted the Energy Action Plan in January of 2018 that was created to build a policy, program, and project framework that would initiate actions leading to an increasingly sustainable natural resource and energy efficient community; and WHEREAS, a major goal of the action plan is to achieve 100% local government clean energy by the year 2030; and WHEREAS, in 2019, the City entered into a solar services agreement to build 5MW solar arrays with battery storage at each of the two City wastewater treatment plants; and WHEREAS, in 2022, the City entered into an Energy Savings Performance Contract with Johnson Controls Inc. that audited facilities energy use and identified energy efficiency improvements; and WHEREAS, Act 278 passed by the 94th General Assembly in 2023 has overhauled the net metering policy in Arkansas and the project must meet the September 30, 2024 deadline for interconnection approval from SWEPCO; and WHEREAS, the City issued a request for proposals for a new solar array development on July 9, 2023, and the City's selection committee selected Entegrity Energy Partners for the project; and WHEREAS, Fayetteville Environmental Director Peter Nierengarten has fully disclosed his indirect financial interest in this contract because his wife is Vice President for Sustainability of Entegrity Energy Partners and Director Niergengarten's immediate supervisor, Chief of Staff Susan Norton, approves of this contract and will ensure that it will not adversely affect his regular employment duties. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas, being aware of the indirect financial interest of Director Nierengarten in this contract, hereby determines that it is in the best Page 1 Resolution: 299-23 File Number. 2023-1458 interests of Fayetteville to enter into this contract and authorizes Mayor Jordan to sign the 25 year Solar Services Agreement with Entegrity Energy Partners, LLC that is anticipated to offset 6,538,454 kWh of the City's annual electricity consumption from Southwestern Electric Power Company and produce an estimated $7 million in savings over the life of the contract. Page 2 Chris McNamara Submitted By City of Fayetteville Staff Review Form 2023-1458 Item ID 12/19/2023 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item 12/1/2023 SUSTAINABILITY/RESILIENCE (631) Submitted Date Division / Department Action Recommendation: Staff recommends approval of the Solar Services Agreement with Entegrity Energy Partners. The contract initiates construction of a 3.77 MW solar array that will offset 6,538,454 kWh of the City's annual electricity consumption from Southwestern Electric Power Company and produce $7million in savings over the 25yr contract. Budget Impact: xxxx. xxx. xxxx-5 310.10 Multiple Account Number Fund N/A N/A Project Number Budgeted Item? Yes Does item have a direct cost? No Is a Budget Adjustment attached? No Purchase Order Number: Change Order Number: Original Contract Number: Comments: Total Amended Budget Expenses (Actual+Encum) Available Budget Item Cost Budget Adjustment Remaining Budget Project Title $ 1,706,942.00 $ 1,184,830.59 522,111,41 e. 522,111.41 Previous Ordinance or Resolution # Approval Date: V20221130 SOLAR SERVICES AGREEMENT between Entegrity Energy Partners, LLC as Provider and City of Fayetteville as Buyer INDEX Section 1 DEFINITIONS 2 TERM 3 PLANNING, INSTALLATION AND OPERATION OF PROJECT 4 SALE OF ELECTRIC ENERGY 5 PAYMENT AND BILLING; LIMITS ON BUYER OBLIGATIONS; EVENT OF NON -APPROPRIATION 6 SUPPLEMENTAL POWER, NET METERING, AND RECS 7 PERMITS AND OWNERSHIP OF PROJECT 8 PURCHASE OPTION 9 SHUTDOWNS 10 TAXES II [RESERVED] 12 COOPERATION, SOLAR ACCESS, FUTURE IMPROVEMENTS 13 PRESS RELEASES AND CONFIDENTIALITY 14 REPRESENTATIONS AND WARRANTIES 15 FORCE MAJEURF, 16 PROVIDER DEFAULT AND BUYER REMEDIES 17 BUYER DEFAULT AND PROVIDER REMEDIES 18 COLLATERAL ASSIGNMENT, FINANCING PROVISIONS 19 CHANGE IN LAW 20 LIMITATIONS ON DAMAGES, LIABILITY, AND REMEDIES; DISCLAIMER 21 DISPUTE RESOLUTION 22 NOTICES 23 MISCELLANEOUS EXHIBIT A - USABLE ELECTRICITY PURCHASE RATES EXHIBIT B - DESCRIPTION OF SITE EXHIBIT C — DESCRIPTION OF PROJECT EXHIBIT D - PURCHASE OPTION PURCHASE PRICE SCHEDULE FA SOLAR SERVICES AGREEMENT THIS SOLAR SERVICES AGREEMENT ("Agreement') is made and entered into on as of (the "Effective Date"), by and between Entegrity Energy Partners, LLC ("Provider"), and City of Fayetteville (`Buyer"). J+7TNESSETH. WHEREAS, Provider controls (whether by lease, ownership, option or otherwise) that certain real property located in the State of Arkansas, as more particularly described in Exhibit B attached hereto (the "Site"), and Buyer and Provider desire for the development, design, construction, operation and maintenance by Provider of one or more solar powered electric generating project on the Site to be owned by Provider and for Buyer to purchase from Provider, at a fixed rate, the electric energy produced by the Project; WHEREAS, Provider desires to sell to Buyer the electric energy produced by such facilities at a fixed rate and Buyer desires to purchase from Provider the electric energy produced by such facilities; and WHEREAS, Provider and Buyer now desire to enter into this Agreement to memorialize their agreements regarding such solar alternative energy facilities and electric energy. NOW, THEREFORE, in consideration of the premises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, Provider and Buyer hereby agree as follows: 1. Definitions. The following capitalized terms shall have the meanings set forth below as used in this Agreement: (a) The tern "Affiliate" means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, "control' of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. (b) The tern "Agreement" means this Solar Services Agreement, including all exhibits attached hereto, as the same may be amended from time to time in accordance with the provisions - hereof. (c) The tern "Applicable Law" means any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, registration, license, franchise, permit, authorization, or guideline issued by a Governmental Authority that is applicable to a Party to this Agreement or the transaction described herein. Applicable Law also includes an approval, consent or requirement of any Governmental Authority having jurisdiction over such Party or its property, enforceable at law or in equity. 91 (d) The term "Billing" means the revenue grade meter(s) of Provider located at the Site to measure the output of the Project at the Point of Delivery as identified in Exhibit C. (e) The term "Business Day" means a day other than Saturday, Sunday, or other day on which commercial banks in Little Rock, Arkansas are authorized or required by law to be closed. (f) The term `Buyer" has the meaning assigned to it in the introductory paragraph hereof. (g) The term "Change in Law" means that after the date of this Agreement, an Applicable Law is amended, modified, nullified, suspended, repealed; found unconstitutional or unlawful, or changed or affected in any material respect by any Applicable Law. Change in Law does not include changes in federal or state income tax laws. Change in Law does include material changes in the interpretation of an Applicable Law. (h) The term "Commercial Operation Date" means the date, which shall be specified by Provider to Buyer pursuant to Section 3, when the Project is physically complete and has successfully completed all performance tests and satisfies the interconnection requirements of the Electric Utility. (i) The term "Confidential Information" means information of a confidential or proprietary nature. Provider shall notify Buyer in writing of any information that Provider contends may provide an advantage to competitors if disclosed. Such information shall include, but not be limited to, any documentation, records, listing, notes, data, computer disks, files or records, memoranda, designs, financial models, accounts, reference materials, trade -secrets, prices, strategic partners, marketing plans, strategic or other plans, financial analyses, customer names or lists, project opportunities and the like, provided however that Confidential Information does not include information which (i) was in the possession of the receiving Party before receipt from the disclosing Party; (ii) is or becomes publicly available other than as a result of unauthorized disclosure by the receiving Party; (iii) is received by the receiving Party from a third party not known by the receiving Party with the exercise of reasonable diligence to be under an obligation of confidentiality respecting the information; or (iv) is independently developed by the receiving Party without reference to information provided by the disclosing Party. Notwithstanding the term defined above, the Parties acknowledge that the Buyer is or may become subject to the disclosure requirements of the Arkansas Freedom of Information Act ("FOIA"). The parties acknowledge and agree that Provider believes that Exhibits A, C, and D may contain confidential information, trade secrets, and/or competitive information exempt from disclosure obligations under "FOIA". Buyer agrees to promptly notify Provider of any receipt of a request for information under FOIA or any other similar disclosure law, related to the Project or this Agreement. 0) The term "Dispute" means a controversy or claim arising out of or relating to this Agreement. (k) The term "Electric Utility" means Southwestern Electric Power Company and its successors and assigns. (1) The term "Environmental Attributes" means Renewable Energy Certificates, carbon trading credits, emissions reductions credits, emissions allowances, green tags, Green-e certifications, or other entitlements, certificates, products, or valuations attributed to the Project and its displacement of conventional energy generation, or any other entitlement pursuant to any federal, state, or local program applicable to renewable energy sources, whether legislative or regulatory in origin, as amended from time to time, and excluding, for the avoidance of doubt, any Tax Attributes. (m) The term "Event of Non -Appropriation" shall have the meaning set forth in Section 5(g) hereof. (n) The term "Fair Market Value" means the price that would be paid in an arm's length, free market transaction, in cash, between an informed, willing seller and an informed, willing buyer (who is neither a lessee in possession nor a used equipment or scrap dealer), neither of whom is under compulsion to complete the transaction, taking into account, among other things, the age and performance of the Project and advances in solar technology, provided that installed equipment shall be valued on an installed basis and costs of removal from a current location shall not be a deduction from the valuation. (o) The term "Financing Party' means a Project Lessee or Lender or tax equity investor admitted as a direct or indirect member of Provider. (p) The term "Fiscal Year" shall mean the fiscal year of Buyer, which Buyer represents and warrants is January 1 to December 31. (q) The term "Force Majeure 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, Force Majeure Event may include but are not limited to the following acts or events: (i) extraordinary wind storms, hail, tornados, hurricanes, floods, lightning strikes, and earthquakes; (ii) explosions or fires arising from lightning strikes or other causes unrelated to the acts or omissions of the Party seeking to be excused from performance and unrelated to any defect in materials or equipment of Provider; (iii) acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, epidemic, pandemic, official actions of any Governmental Authority, terrorist acts, or rebellion; and (iv) spikes or labor disputes. Force Majeure Events shall not include equipment failures or acts or omissions of agents, suppliers or subcontractors, except to the extent such acts or omissions arise from a Force Majeure Event. Neither changes in prices for Usable Electricity nor changes in available solar energy resulting from cloud cover or other natural events constitute Force Majeure Events. (r) The terns "Governmental Authority" means any international, national, federal, provincial, state, municipal, county, regional or local government, administrative, judicial or regulatory entity operating under any Applicable Laws and includes any department, commission, bureau, board, administrative agency or regulatory body of any government with authority over the parties to this Agreement or this transaction. 5 (a) The term "Initial Period" has the meaning provided in Section 2. (t) The term "hrstaller" means the Provider or any person or entity designated by Provider to install a Project on a Site. (u) The term "Land Registry" means the office where real estate records for a Site are customarily filed. (v) The term "Lender" means persons providing construction or permanent financing to Provider in connection with installation of the Project. (w) The term "Liens" has the meaning provided in Section 7(c). (x) The term "Losses" means any and all losses, liabilities, claims, demands, suits, causes of action, judgments, awards, damages, cleanup and remedial obligations, interest, fines, fees, penalties, costs, and expenses (including all attorney's fees and other costs and expenses incurred in defending any such claims or matters). (y) The term "Operations Period" has the meaning provided in Section 2 (z) The term "Operations Year" means a twelve (12) month period beginning at 12:00 am on an anniversary of the Commercial Operation Date and ending at 11:59 pm on the day immediately preceding the next anniversary of the Commercial Operation Date, provided that the first Operations Year shall begin on the Commercial Operation Date. (aa) The term "Party" means either Buyer or Provider, as the context shall indicate, and "Parties" means both Buyer and Provider. (bb) The term "Point of Delivery" has the meaning set forth in Section 4(a). (cc) The term "Project" means an integrated system for the generation of Usable Electricity from solar energy consisting of the photovoltaic panels and associated equipment to be installed on each of the Sites in accordance with this Agreement, and includes equipment and cabling required to connect to the Point of Delivery. (dd) The term "Project Lessee" means, if applicable, any Person to whom Provider transferred or leased a Project. (cc) The term "Provider" has the meaning assigned to it in the introductory paragraph hereof, and all permitted successors and assigns. (ft) The term "Relocation Event" means the relocation of a Project, starting at the shutdown of the Project pursuant to such relocation, and ending at the commercial operation of the Project when such relocated Project is reinstalled at a new location, as determined by the Provider in its reasonable discretion. M (gg) The term "Renewable Energy Certificate" or "REC" means a certificate, credit, allowance, green tag, or other trausferable'indicia, howsoever entitled, created by an applicable program or certification authority indicating generation of a particular quantity of energy, or product associated with the generation of a megawatt -hour (MWh) from a renewable energy source by a renewable energy project. (hli) The term "Site" means the real property upon which the Project is developed. (ii) The term "Solar Services" means the services Provider provides to Buyer hereunder. 6j) The term "Tax Attributes" means the investment tax credits (including any grants or payments in lieu thereof) and any tax deductions or other benefits under the Internal Revenue Code or applicable federal, state, or local law available as a result of the ownership and operation of a Project or the output generated by a Project (including, without limitation, tax credits (including any grants or payments in lieu thereof) and accelerated and/or bonus depreciation.) (kk) The term "Term" shall have the meaning provided in Section 2 hereof. (11) The tern "Usable Electricity" means alternating current electrical energy meeting the specifications described in Exhibit C, as measured by the Billing Meter at the Point of Delivery. 2. Term. (a) Term. This Agreement shall consist of an Initial Period and an Operations Period. As used herein, "Term" shall mean all of the Initial Period and the Operations Period, unless the Provider or Buyer terminates the Agreement prior to the end of the Initial Period pursuant to the terms of this Agreement. (b) Initial Period. The Initial Period will begin on the Effective Date and will terminate on the earlier of (i) the Commercial Operation Date or (ii) the date the Agreement is terminated pursuant to the provisions of Section 3. (c) Operations Period. If applicable, the Operations Period will commence on the Commercial Operation Date and will terminate at 11:59 p.m. on the 25"' anniversary of the Commercial Operation Date unless earlier terminated in accordance with this Agreement; provided, however the Operations Period will automatically renew for two (2) additional five (5) consecutive year periods immediately following the Operations Period unless Buyer or Provider shall provide written notice to the other Party of its intention not to extend the Agreement at least one hundred eighty (180) days prior to the end of the Operations Period or any applicable automatic five (5) year extension period, as the case may be. 3. Planning, Installation and Operation of Project. (a) Site Assessment and Planning. During the Initial Period, Provider shall have the right, at its own expense, to identify and assess the suitability of each Site for the Project to be located on such Site and shall act diligently in conducting such assessment. The assessment shall include the right to inspect the physical condition of the Site; to apply for any building permits or other governmental authorizations necessary for the construction of the Project; to arrange interconnections with the Electric Utility; to make any applications to the appropriate Public Service Commission or other agencies for receipt of payments for the Project; to apply to any other governmental agencies or other persons for grants or other determinations necessary for the construction of or receipt of revenues from the Project; to execute a binding lease or close on an option or purchase of the Site, as applicable; or to make any other investigation or determination necessary for the financing, construction, operation or maintenance of the Project. (b) Termination of Agreement during the hnitial Period. At any time during the Initial Period, Provider shall have the right to cease development of the Project on a Site and unilaterally terminate this Agreement, for any reason, including but not limited to material increases in Provider's costs to provide the Solar Services. If Provider gives Buyer notice of such determination, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Parties shall not be released from any payment or other obligations arising under this Agreement prior to the delivery of the notice; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. At any time prior to the submission of the interconnection application and the payment associated therewith to the Electrical Utility, Buyer may terminate this Agreement, provided that Buyer pay Provider for any direct costs incurred as of the date of termination in connection with the development of the Project. If Buyer gives Provider notice of such determination and makes the associated payment set forth above, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Buyer shall not be released from any payment or other obligations arising under this Agreement prior to the delivery of the notice; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. If material increases in Provider's costs to provide the Solar Services are the reason for Provider's termination of this Agreement during the Initial Period, Provider shall propose an Amendment to this Agreement for Buyer's consideration prior to exercising its right to terminate during the Initial Period. Such Amendment shall set forth (i) the reasons Provider's costs to provide the Solar Services have materially increased during the Initial Period, (ii) the extent Provider's costs to provide the Solar Services have materially increased during the Initial Period, and (iii) Provider's proposed adjustment to the Usable Electricity Purchase Rate schedule in Exhibit A to reflect such material changes in Provider's costs. Such Amendment shall be delivered by written notice pursuant to Section 22. If Provider proposes an Amendment pursuant to this Section, Provider and Buyer may negotiate an adjustment in the Usable Electricity Purchase Rate to reflect any material increases in Provider's costs to provide the Solar Services, and in the event Buyer and Provider are unable to agree upon a reasonable adjustment within thirty (30) days after Provider has delivered a proposed Amendment to Buyer in accordance with this Section, either Party may terminate the Agreement. If either Party gives notice of such determination, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Parties shall not be released from any payment or other obligations arising under this Agreement prior to 0 the delivery of the notice; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. (c) Commencement of Construction, Modification of Design. Provided that either party does not terminate this Agreement pursuant to this Section 3, Provider will use commercially reasonable efforts to commence installing the Project on the applicable Site within one hundred eighty (180) days of the Provider obtaining necessary approvals of the Project from the Electric Utility and any Governmental Authority. (i) As of the Effective Date, Provider anticipates that each Project shall consist of the components and shall have the designs attributed to such Project in Exhibit C attached hereto. (ii) Notwithstanding subsection (i) above, Provider has the right to modify the design of each Project, including the selection of the components in the Project, in its reasonable discretion. (d) Contractors. Provider shall use licensed contractors to perform the work of installing, operating, and maintaining the Project. Provider shall be responsible for the conduct of Installers and Provider's subcontractors, and Buyer shall have no contractual relationship with Installers or Provider's subcontractors in connection with the work on the Project. (e) Status Reports. Provider shall give Buyer regular updates, on a reasonable schedule requested by Buyer, on the progress of installation of the Project and shall notify Buyer of when Provider will commence testing of a Project. Buyer shall have the right to have its representatives present during the construction and testing process, but subject to reasonable written rules and procedures as may be established by Provider and Installer. After Provider has determined, in its reasonable judgment, that a Project meets the requirements of the Electric Utility and the Arkansas Public Service Commission, has been installed in accordance with all Applicable Laws, has successfally completed all performance tests, and is capable of producing Usable Electricity on a continuous basis, Provider shall notify Buyer that.mstallation of the Project is complete and shall specify the Commercial Operation Date for such Project, which may be immediately upon delivery of such notice to Buyer. All Usable Electricity produced by a Project prior to the Commercial Operation Date shall be delivered to Buyer at the Point of Delivery after appropriate safety testing and Buyer shall pay for all such Usable Electricity at the rate applicable to the first Operations Year. (f) Standard of Operation. Provider shall design, obtain permits, install, operate, and maintain a Project so as to keep it in good condition and repair, in compliance with all Applicable Laws and in accordance with the generally accepted practices of the electric industry, in general, and the solar generation industry, in particular. Such work shall be at Provider's sole expense. Except for emergency situations or unplanned outages, Provider shall cause the work to be performed at times so as to minimize disruption of the Project during peak sunlight times, to the extent reasonably possible. 9 (g) System Shut Down. Provider may shut down the Project at any time in order to perfonn required emergency repairs to the Project. At other times, Provider shall give Buyer advance notice of the shutdown as may be reasonable under the circumstances. Provider shall have no obligation to reimburse Buyer for costs of purchasing Usable Electricity that would have been produced by the Project but for such shutdown. Provider shall not schedule shutdowns during peak periods of electric generation and periods when peak energy and demand prices are charged by the Electric Utility, except as may be required in accordance with prudent electric industry safety practices in the event of equipment malfunction. 4. Sale of Electric Enerey. (a) Sale of Usable Electricity. Throughout the Operations Period, subject to the terms and conditions of this Agreement, Provider shall sell to Buyer and Buyer shall buy from Provider all Usable Electricity produced by the Project, whether or not Buyer is able to use all such Usable Electricity. The Point of Delivery of the Usable Electricity shall be as indicated in Exhibit C. Titre to and risk of loss with respect to the Usable Electricity shall transfer from Provider to Buyer at the Point of Delivery. (b) Delivery of Usable Electricity. The Usable Electricity from the Project shall be delivered from Provider to Buyer at the Point of Delivery per the specifications set forth in Exhibit C and otherwise in compliance with all requirements of the Electric Utility. (c) Limits on Obligation to Deliver. Provider does not warrant or guarantee the amount of electric energy to be produced by the limits on Project for any hourly, daily, monthly, annual or other period. Provider is not a utility or public service company and does not assume any obligations of a utility or public service company to supply Buyer's electric requirements, other than the obligations under this Agreement. At the time of this Agreement, Provider is not subject to rate review by governmental authorities. (d) Meter Testing. Provider shall install one or more Billing Meter(s) at the Site, as Provider deems appropriate, to measure the output of the Project at the Point of Delivery. Provider shall provide Buyer with reasonable access to the metered energy output data collected by Provider. Provider shall install an Interval Data Recorder (IDR) with industry standard telemetry at each Project. Provider shall conduct tests of the Billing Meter(s) at such times as it deems appropriate in accordance with industry standards, but not less than once in any two-year period. Buyer shall pay for any independent testing of the Billing Meter(s) in excess of such minimum testing schedule that Buyer deems necessary, except if, after such testing, the Billing Meter is shown to be in error in Provider's favor by more than two percent (2%), Provider shall pay for the cost of such test and shall make corresponding adjustments to the records of the amount of electrical energy provided by the Project delivered based on the period that is half -way in between the date of this testing and the last testing date of the Billing Meter. If there is an error of less than or equal to two percent (2%) no billing adjustments will be made. In the event there is an error of greater than two percent (2%), Provider shall adjust the next invoice to be provided to Buyer under Section 5(b) hereof, to either charge the Buyer additional amounts for energy produced over the stated Billing Meter amount during the applicable period at the applicable rate or provide Buyer a credit against future billing for energy produced under the stated Billing Meter- amount during the applicable period, 10 provided, however, that any deficiencies or credits not theretofore applied or satisfied at the expiration or earlier termination of the Operations Period shall be settled in cash. 5. Payment and Billing; Limits on Buyer Obligations; Event of Non - Appropriation (a) Rates. Buyer shall pay Provider for Usable Electricity produced by each Project at the rates set forth in Exhibit A attached hereto. (b) Billing. Buyer shall pay for the Usable Electricity produced by each Project quarterly in arrears, promptly after the end of each quarter from the start of operational production. Provider shall provide Buyer with an invoice setting forth the quantity of Usable Electricity produced by the Project in such quarter, the applicable rates for such, and the total amount due, which shall be the product of the quantities and the applicable rates. (c) Invoice Delivery. Invoices shall be in writing and shall be either (i) delivered by hand; (ii) mailed by first-class, registered or certified mail, return receipt requested, postage prepaid; (iii) delivered by a recognized overnight or personal delivery service;; or (iv) transmitted by email if receipt of such transmission by email is specifically acknowledged by the recipient (automatic responses not being sufficient for acknowledgement) and with a hard copy to follow, addressed as follows: City of Fayetteville 113 West Mountain Street Fayetteville, AR, 72701 (d) Payment. Went. Buyer shall pay each invoice within thirty (30) days of receipt of the invoice. Payments shall be made by electronic funds transfer to an account designated by Provider or by Direct Deposit of funds into Provider's bank account or by check if electronic transfer or direct deposit are not available. Provider shall designate the account in the invoice or in a written notice delivered to Buyer. (f) Disputed Invoices. If Buyer objects to all or a portion of an invoice, Buyer shall, on or before the date payment of the invoice is due, (i) pay the undisputed portion of the invoice, and (ii) provide an itemized statement of its objections setting forth in reasonable detail the basis for its objections. If Buyer does not object prior to the date payment of any invoice is due, Buyer shall be obligated to pay the full amount of such invoices but Buyer may subsequently object to such invoice and, if such objection proves to be correct, receive a refund of the disputed amount; provided, however, that Buyer may not object to any invoice more than twelve (12) months after the date on which such invoice is rendered. (g) Payment Limitations. If, during the term of this Agreement including any extensions, Buyer is bound or deemed bound by the provisions of any State of Arkansas laws concerning the sufficiency of Buyer appropriations and the legal ability of Buyer to enter into binding contracts and agreements with annual obligations in excess of annual Buyer appropriations ("Appropriation Bound") the provisions of Sections 5(0-0) of the Agreement shall control. If Buyer is Appropriation Bound, Provider and Buyer hereby expressly acknowledge and agree that the obligation of Buyer to pay invoices for Usable Electricity in any Fiscal Year under this Agreement or otherwise would be legally binding to the extent of amounts appropriated for and legally available to Buyer for such purposes during such Fiscal Year. The parties hereto acknowledge that all payments made by Buyer under this Agreement will constitute currently budgeted expenditures. The parties hereto acknowledge that all payments made by Buyer under this Agreement will not constitute a general obligation debt, an indebtedness, or a multiple -Fiscal Year direct or indirect debt or other financial obligation of Buyer within the meaning of any constitutional or statutory provision or limitation. Buyer represents to Provider, and the parties hereto acknowledge that, Buyer is Appropriation Bound. (h) Event of Non -Appropriation. If Buyer is Appropriation Bound, if by the first day of any Fiscal Year Buyer has failed for any reason to obtain an appropriation of sufficient legally available amounts to be used by Buyer to pay invoices for Usable Electricity that will be due hereunder for and during the next ensuing Fiscal Year, then an Event of Non -Appropriation shall be deemed to have occurred on the first calendar day thereafter (an "Event of Non - Appropriation"). However, the parties hereto hereby agree that no Event of Non -Appropriation shall be deemed to have occurred if the foregoing failure set forth in this subsection (g) is cured on or before the thirty-first (31 ") day of such Fiscal Year in which such Event of Non -Appropriation shall be deemed to have occurred by the enactment of an appropriation providing sufficient legally available amounts to Buyer, or Buyer otherwise making sufficient money available, to pay invoices for Usable Electricity that will be due hereunder for and during the next ensuing Fiscal Year. (i) Present Expectation. If Buyer becomes Appropriation Bound, it is the present expectation of Buyer that the applicable budgetary entity, within the limits of available funds and revenues, will make an appropriation of a sufficient amount to fund Buyer's obligations hereunder during each Fiscal Year of the Term; provided, however, this expectation of Buyer shall not be binding upon any future applicable budgetary entity in any future Fiscal Year, except to the extent of any previously appropriated funds. Buyer shall use reasonable good faith efforts to have funds properly budgeted in the general operating expense section of the budget (and not a specific line item), appropriated, allotted, or otherwise made available for this Agreement (including obtaining legislative and other authorizations for use of such winds) and to satisfy such conditions in a timely manner. 0) Notice of Event of Non -Appropriation. In the case of an Event of Non - Appropriation, Buyer shall promptly give notice of such Event of Non -appropriation (the "NAE Notice"). Notwithstanding the occurrence of any Event of Non -Appropriation or the delivery of the NAE Notice, Buyer will not interrupt or impair the delivery of Usable Electricity or jeopardize Provider's sale, transfer or other monetization of Environmental Attributes, RECs or Tax Attributes. Following receipt by Provider of an NAE Notice, Provider, in its sole discretion, (i) may terminate this Agreement, or (ii) may continue to operate the Project and deliver the Usable Electricity to a third party or utility company without payment by Buyer therefore during the applicable Fiscal Year (and each Fiscal Year thereafter until an appropriation is made). Under the circumstances of (ii), other than with respect to the obligation to make payment for energy delivered, all obligations of Buyer under this Agreement shall remain in full force and effect. Should Buyer receive an appropriation for this Agreement during the continuation of the Event of Non- 12 Appropriation, before termination under option (i) has been exercised, Buyer shall pay such monies to Provider as to make Provider whole for any amounts due and owing under this Agreement to the extent appropriated, and upon payment such Event of Non -Appropriation shall be nullified. (k) Within thirty (30) days of Provider's receipt of the NAE Notice, Provider shall give notice to Buyer of Provider's election among options (i) and (ii) under subsection (i) above. If Provider does not provide notice to Buyer of Provider's election under this subsection 0) within such period, Provider shall be deemed to have elected option (ii) under subsection (i) above, provided that, if Provider elects or is deemed to have elected option (ii) it may subsequently change its election at any time upon prior written notice to Purchaser. 6. Supplemental Power, Net Metering and RECs. (a) Back-up and Supplemental Usable Electricity. Except as otherwise provided herein, throughout the Term, Buyer shall be responsible for obtaining all of its requirements for electric energy in excess of the amounts produced by the Project. Provider shall have no obligation to obtain or pay for such supplemental or back-up Usable Electricity. (b) Net Metering & Utility Credits. At any time that electric production from the Project is greater than Buyer's requirements at such time, Buyer shalt nevertheless pay Provider for all the Usable Electricity produced by the Project at the rates and in the manner provided in this Agreement. Buyer shall be entitled to receive, to the extent permitted by Applicable Law, any credits or payments due from the Electric Utility as a result of net metering from the Project, except during an Event of Non -Appropriation. Upon Buyer's written request and not to exceed twice per year, Provider or its duly authorized contractor shall provide reasonable assistance to Buyer in reviewing the applicable bills, credits and payments received from the Electric Utility. (c) Interconnection. Provider shall be responsible for arranging the interconnection of the Project with Buyer's distribution system in a manner that includes bi-directional or "net metering" if applicable. It is further understood that all cost associated with establishing the interconnection between the Project and the electric utility pursuant to Net -Metering Rule 3.01 are solely the responsibility of the Provider. (d) Solar Program Incentives. Provider shall receive all payments and benefits available under any incentive/benefits solar program. Buyer shall provide reasonable assistance to Provider in preparing all applications and other documents necessary for Provider to receive such payments/benefits, including designating Provider as the customer for purposes thereof or assigning payments/benefits therefrom to Provider. If Buyer receives any payments under any such incentive/benefits solar program or other programs in respect of the Project, it shall promptly pay them over to Provider. Buyer's obligation to make any payments to Provider under this paragraph (d) is limited to any payments actually received by Buyer. (e) Ownership of Tax Attributes. Provider shall be the owner of any Tax Attributes that may arise as a result of the operation of the Project and shall be entitled to transfer such Tax Attributes to any person. Buyer shall provide reasonable assistance to Provider in preparing all documents necessary for Provider to receive such Tax Attributes, and if Buyer is deemed to be the 13 owner of any such Tax Attributes, Buyer shall assign the same (or the proceeds thereof) to Provider. If Buyer receives any payments in respect of such Tax Attributes, it shall promptly pay them over to Provider. (f) Environmental Attributes. Buyer shall be the owner of any Environmental Attributes that may arise as a result of the operation of the Project and shall be entitled to transfer such Envirommental Attributes to any person. _ (g) Capacity & Ancillary Services. Provider shall be entitled to receive any payments for electric capacity or ancillary services that may become available as a result of the construction or operation of the Project. Buyer shall provide reasonable assistance to Provider in preparing all documents necessary for Provider to receive such payments, and if Buyer is deemed to be the owner or provider of such capacity or services, then Buyer shall assign the same to Provider. If Buyer receives any payments in respect of capacity or such services then Buyer shall promptly pay them over to Provider. (h) Provider Is Not A Utility. Neither Party shall assert that Provider is an electric utility or public service company or similar entity that has a duty to provide service, is subject to rate regulation, or is otherwise subject to regulation by any governmental authority as a result of Provider's obligations or performance under this Agreement. (i) Grid charges. Buyer shall be responsible for paying any grid charge authorized pursuant to Ark. Code Ann. §23-18-607 or any other Applicable Law. 7. Permits and Ownership of Project. (a) Permits. Provider shall pay for and obtain all approvals from governmental entities necessary for the construction and operation of the Project, including land use permits, building permits, demolition and waste disposal permits and approval. (b) System Ownership. Except as provided in Section 8, Provider or Financing Party shall be the legal and beneficial owner of the Project at all times. Buyer disclaims any right, title and interest in and to the Project. The Project is personal property and shall not attach to or be deemed a part of, or fixture to, the Site. The Project shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code as in effect in the state of the Site. Buyer and/or Provider shall make any necessary filings to disclaim the Project as a fixture of the Site in the appropriate Land Registry to place all interested parties on notice of the ownership of the Project by Provider. (c) Liens. To the extent permitted by Applicable Law, each Party shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien, (including mechanics', labor or materialman's lien), charge, security interest, encumbrance or claim of any nature, including claims by Governmental Authorities for taxes (collectively referred to as "Liens" and each, individually, a "Lien") on or with respect to the interests of the other in the Project. 8. Purchase Option 14 (a) Purchase Option. Buyer shall have the right to purchase the Project and Provider's rights in the Site from Provider upon the terms set forth in this Section 8(a) (the "Purchase Option") on either of the seventh (7°1), fourteenth (10% or twenty-first (21") anniversary of the Commercial Operation Date ("Purchase Option Period(s)") by providing to Provider written notice of Buyer's election to purchase the Project and Provider's rights in the Site (the "Purchase Option Notice") no later than the date which is twelve (12) months prior to the respective Purchase Option Period (the "Purchase Option Notice Deadline"). If the Purchase Option is elected by Buyer timely sending to Provider the Purchase Option Notice prior to the Purchase Option Notice Deadline, the closing shall occur (i) within the three (3) month period immediately following the respective Purchase Option Period or a time and date mutually agreeable to Buyer and Provider (the "Purchase Option Closing Date"). The purchase price to be paid to Provider by Buyer for the Project and Provider's rights in the Site on the Purchase Option Closing Date shall be the greater of (i) Fair Market Value of the Project and Provider's rights in the Site and (ii) the purchase price for the Project and Provider's rights in the Site on the respective Purchase Option Period as set forth on Exhibit D hereto (the "Purchase Option Purchase Price"). Within one hundred twenty (120) days of Provider's receipt of the Purchase Option Notice, Provider shall give Buyer an appraisal of the Fair Market Value of the Project and Provider's rights in the Site as of the date of the sale. Buyer may, but is not obligated to, accept such appraisal. If Buyer does not accept such appraisal within fifteen (15) days of receiving the appraisal from Provider, the Parties shall meet to discuss the appraisal. If the parties are unable to reach agreement within twenty (20) days of the Buyer's receipt of the appraisal from Provider, the Parties will be deemed to enter into a dispute for purposes of Section 21 and shall follow the procedures in Section 21 for resolution of the dispute. Notwithstanding the foregoing, in the event that Provider enters into a tax equity investment financing transaction in connection with funding the installation of the Project, the process of determining the Fair Market Value of the Project and Provider's rights in the Site in this Agreement shall be undertaken by a mutually acceptable nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry acting reasonably and in good faith to determine the Fair Market Value of the Project and Provider's rights in the Site and shall be undertaken consistently with the terms of such transaction so that the process for determining Fair Market Value under this Agreement shall be the same as provided in the agreements for such tax equity investment financing transaction. Buyer shall be responsible for all appraisal fees. (b) Transfer of Ownership. Upon Buyer's notice that it elects to exercise the option set forth in Section 8(a) above, Provider shall prepare and deliver to Buyer a set of records on the operation and maintenance history of the Project, including a summary of known defects. Upon payment of the Purchase Option Purchase Price, Provider shall deliver, or cause to be delivered, to Buyer a bill of sale conveying the Project to Buyer and an assignment or lease/easement or special warranty deed, as applicable, with respect to Provider's rights in the Site. Such bill of sale, assignment of lease/easement, and/or special warranty deed shall not contain any warranties other than a warranty against any defects in title arising through Provider. Provider shall use all reasonable efforts to transfer any remaining manufacturer's warranties on the Project, or portions thereof, to Buyer. (c) Operation & Maintenance After Sale. Prior to the effective date of Buyer's purchase of the Project and Provider's rights in the Site under Section 8(a), Buyer and Provider shall discuss 15 entering into an operation and maintenance agreement under which Provider shall perform all or a portion of the operation and maintenance requirements of the Project following Buyer's purchase of the Project and Provider's rights in the Site. However, neither Party shall be tinder an obligation to enter into such an agreement. (d) No Survival of Purchase Option. The options for Buyer to purchase the Project and Provider's rights in the Site under Section 8(a) shall not survive the termination of this Agreement. 9. Shutdowns. (a) Provider Safety Shutdown. In addition to the right of Provider to shut down the Project for maintenance as provided in Section 3(g), Provider may shutdown any or all Project if Provider, in the exercise of reasonable judgment, believes Site conditions or activities of persons on the Site may interfere with the safe operation of a Project. Provider shall give Buyer notice of a shutdown immediately upon becoming aware of the potential for such conditions or activities. Provider shall use commercially reasonable efforts to restore Site conditions so as to not interfere with the safe operation of the Project and to reduce, to the greatest extent practicable, the duration of the shutdown. hn the event of such a shutdown, unless the shutdown was caused by the act or omission of Buyer or any party under Buyer's control, Buyer shall not be required to pay Provider any amounts for Usable Electricity that Buyer would have purchased but for the shutdown. (b) System Disruptions. In the event that any act or omission of Buyer, Buyer's employees, Affiliates, or agents results in a disruption or outage in a Project's production, then, in either case, Buyer shall reimburse Provider for all costs and expenses incurred by Provider to repair the Project or restore suchProject's production to normal operating condition and Buyer will pay Provider an amount equal to the sum of (A) payments that Buyer would have made to Provider hereunder for Usable Electricity that would have been produced by the Project following such outage or disruption; (B) revenues that Provider would have received with respect to the Project under any incentives/benefits solar program and any other assistance program with respect to electric energy that would have been produced following such outage or disruption; and (C) revenues from Environmental Attributes that Provider would have received with respect to electric energy that would have been produced by the Project following such outage or disruption. Determination of the amount of electric energy that would have been produced following such outage or disruption shall be based, during the first Operations Year, on the estimated levels of production and, after the first Operations Year, based on actual operation of the Project in the same period in the previous Operations Year, unless Provider and Buyer mutually agree to an alternative methodology. 10. Taxes. (a) Income Taxes. Provider shall be responsible income taxes associated with payments from Buyer to Provider for Usable Electricity from the Project. Provider (and/or Financing Party), as owner of the Project, shall be entitled to all Tax Attributes with respect to the Project. (b) Sales Taxes. Buyer shall be responsible for all taxes, fees, and charges, including sales, use, and gross receipts taxes, imposed or authorized by any Governmental Authority on the 16 sale of electric energy by Provider to Buyer. Buyer shall timely report, make filings for, and pay any and all such taxes assessed directly against it and shall reimburse Provider for any and all such taxes assessed against and paid by Provider. (c) Personal Property Taxes. Provider shall be responsible for all personal property taxes for personal property which comprises a part of the Project and which is owned by Provider. (d) Real Property Taxes. Buyer shall not be responsible for real property taxes for any real property which comprises a part of the Project and which is not owned by Buyer. (e) Tax Contests. Each Party has the right to contest taxes in accordance with Applicable Law and the terms of encumbrances against the Site. Each Party shall use all reasonable efforts to cooperate with the other in any such contests of tax assessments or payments. In no event shall either Party postpone during the pendency of an appeal of a tax assessment the payment of taxes otherwise due except to the extent such postponement in payment is bonded or otherwise secured in accordance with Applicable Law. (f) Paymentof Delinquent Taxes. In the event either Party fails to pay any taxes that may become a lien upon the other Party's property, such Party may pay such amounts and in such event shall be entitled to recover such paid amount from the other Party, together with interest thereon at the rate of one percent (1%) per month, compounded monthly, but not to exceed the maximum amount of seventeen percent (17%) per annum. (g) Reimbursement Deadline. Any reimbursement of taxes owing pursuant to this Section 10 shall be paid within twenty (20) days of receiving an invoice therefor from the Party who paid the taxes. 11. Reserved. 12. Cooperation The Parties acknowledge that the performance of each Parry's obligations under this Agreement will frequently require the assistance and cooperation of the other Party. Each Party therefore agrees, in addition to those provisions in this Agreement specifically providing for assistance from one Party to the other, that it will at all times during the Term cooperate with the other Party and provide all reasonable assistance to the other Party to help the other Party perform its obligations hereunder. During the Term, Buyer shall deliver to Provider: (i) its annual audited financial statements within 180 days after the end of each Fiscal Year, (ii) its annual budget for the succeeding Fiscal Year promptly following approval thereof, (iii) proof of appropriation of funds for payments due hereunder with its annual budget, and (iv) such other financial statements and information relating to the ability of Buyer to satisfy its obligations under this Agreement as may be reasonably requested by Provider from time to time. 17 13. Press Releases and Confidentiality. (a) Press Releases. The Parties acknowledge that they each desire to publicize information about this Agreement and the Project. The Parties therefore agree that each may make independent press releases about entering into this Agreement, the size and location of the Project, production values of the Project, the estimated savings ( including, but not limited to, financial and environmental attributes) as a result of the Project, the costs incurred by the City related to the Project, material aspects including, but not limited to, component descriptions and locations, and the identity of the other Party, with the prior written consent of the other Party, which consent will not be unreasonably withheld. However, the terms of this Agreement and information about the Project other than that described above constitutes Confidential Information, as defined below, and is subject to the remaining provisions of this Section 13. Both Parties have exclusive control over the content or their respective websites. Any press release will be reviewed by both Parties within 3 business days. If no changes have been requested after 3 business days for review either Party may issue the press release. Both Parties will review and agree to all media announcement and marketing publications before release. Nothing herein shall prevent Buyer from complying with its obligations under the Freedom of Information Act. (b) Limits on Disclosure of Confidential Information. Subject to the exceptions set forth below in Section 13(c), each Party agrees that, (i) without the consent of the other Party, it shall not disclose any Confidential Information received from the other Party to any other person and (ii) it shall use any Confidential Information received from the other Party only for the purpose of fulfilling its obligations under this Agreement. Notwithstanding the foregoing, the Parties may, and shall, disclose any information required to be disclosed under rules, regulations and contracts implementing any incentivesibenefits applicable to the Project which Provider elects to participate in or Tax Attributes required to be disclosed by any Governmental Authority under Applicable Law or pursuant to a validly issued subpoena or required filing. Notwithstanding the foregoing provision, the Parties acknowledge that the Buyer is subject to the disclosure requirements of the Arkansas Freedom of Information Act and the confidentiality of the Family Educational Rights and Privacy Act. (c) Permissible Disclosures. Buyer may publicly publish this Agreement and its exhibits and schedules in the event Buyer determines, in its sole discretion, that disclosure is required by any agreement to which Buyer is a party, or by applicable law or the rules of any public or private . regulatory body. Provider may provide this Agreement, and any correspondence, notices and other information related to this Agreement to any person who has provided or who is interested in providing construction or permanent financing, or any refinancing thereof, to Provider in connection with the Project. In addition, if a receiving Party is required by Applicable Law, validly issued subpoena, required filing, or the rules of any stock exchange or regulatory body, to disclose any Confidential Information provided by the disclosing Party, the receiving Party shall notify the disclosing Party prior to making any disclosure and shall use its reasonable efforts to cooperate with the disclosing Party, but at the expense of the disclosing Party. (d) Buyer acknowledges that Provider is an independent contractor and the Buyer has no ownership or control over Provider, a private entity. Provider has not agreed to act as a custodian of public records for the Buyer subject to the provisions of the Arkansas Freedom of Information Act, Ark. Code Ann. §25-19-101, et seq. Buyer further acknowledges and agrees that certain documents and information provided to Buyer pursuant to the terms and conditions of this Agreement may place Provider and Buyer at a competitive disadvantage if the information is disclosed by Buyer. In the event Buyer receives a request for disclosure pursuant to subpoena or other means, Buyer shall promptly provide notice of such request to Provider, and shall notify Provider of any records Buyer deems it is required under law to disclose, in order to give Provider the opportunity to seek an Attorney General Opinion or court order to prevent the disclosure. (e) Provider shall provide the Buyer with access to a Project monitoring application which will allow the Buyer to access the Project information for purposes of Buyer displaying and communicating the Project information to the public. The system monitoring application shall be updated at least daily. 14. Representations and Warranties. (a) Mutual Representations. Each Party hereby represents and warrants to the other, as of the Effective Date, that: (i) Organization. It is duly organized, validly existing and in good standing under the laws of its state of incorporation or formation, as applicable, and of the state in which the Sites are located, respectively, and has the power and authority to enter into this Agreement and to perform its obligations hereunder. (ii) No Conflict. The execution and delivery of this Agreement and the performance of and compliance with the provisions of this Agreement will not conflict with or constitute a breach of or a default under (1) its organizational documents; (2) any agreement or other obligation by which it is bound; and/or (3) any law or regulation. (iii) Enforceability. (1) Except as contemplated under Section 3(a), all actions required to be taken by or on the part of such Party necessary to make this Agreement effective have been duly and validly taken; (2) this Agreement has been duly and validly authorized, executed and delivered on behalf of such Party; and (3) this Agreement constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with its terms, subject to laws of bankruptcy, insolvency, reorganization, moratorium or other similar laws. (iv) No Material Litigation. There are no court orders, actions, suits or proceedings at law or in equity by or before any governmental authority, arbitral tribunal or other body, or threatened against or affecting it or brought or asserted by it in any court or before any arbitrator of any kind or before or by any governmental authority that could reasonably be expected to have a material adverse effect on it or its ability to perform its obligations under this Agreement, or the validity or enforceability of this Agreement. (b) Buyer Representations. In addition to the representations and warranties in Section 14(a), Buyer hereby represents and warrants to Provider, as of the Effective Date, that: 19 (i) Authorization. The execution and delivery of this Agreement by Buyer and the performance of its obligations hereunder have been duly authorized by all necessary official action. This Agreement is a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms. (ii) Financial Information. The financial information Buyer has provided to Provider presents fairly in all material respects the financial condition and results of operations of Buyer. (c) Provider Representations. In addition to the representations and warranties in Section 14(a), Provider hereby represents and warrants to Buyer that: (i) Before commencing performance of this Agreement Provider shall have become licensed or otherwise permitted to do business in the State of Arkansas and shall have provided proof and documentation of all required insurance and bonds pursuant to this Agreement. (ii) Provider shall make available, upon reasonable request, documents relating to its performance under this Agreement, including contracts and subcontracts it shall enter into; (iii) Provider shall use contractors and subcontractors who are qualified, licensed and bonded in this State to perform the work so subcontracted pursuant to the terms hereof, (iv) Provider has all requisite authority to the use of proprietary property, both tangible and intangible, contemplated by this Agreement; (v) The execution and delivery of this Agreement by Provider and the performance of its obligations hereunder have been duly authorized by all necessary official action. This Agreement is a legal, valid and binding obligation of Provider enforceable against Provider in accordance with its terms; and (vi) If requested by Buyer, the financial information Provider has provided to Buyer presents fairly in all material respects the financial condition and results of operations of Provider. 15. Force Majeure. (a) Excuse for Force Majeure Event. Except as provided in Section 15(b) or 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 this Agreement if and to the extent that such delay or failure is caused by the occurrence of a Force Majeure Event; provided that the Party claiming relief as a result of the Force Majeure Event shall promptly (i) notify the other Party in writing of the existence and details of the Force Majeure Event; (ii) exercise all reasonable efforts to minimize delay caused by such Force Majeure Event; (iii) notify the other Party in writing of the 17 cessation of such Force Majeure Event; and (iv) resume performance of its obligations hereunder as soon as practicable thereafter. (b) No ,Excuse for Payment for Prior Services. Obligations to make payments for services already provided shall not be excused by a Force Majeure Event. (c) Restoration. In the event of a casualty event, to the extent that such casualty event is attributable to the occurrence of a Force Majeure Event that destroys all or a substantial portion of a Site, Provider shall elect, within ninety (90) days of such event, whether it will restore the Site, which restoration will be at the sole expense of Provider. If Provider does not elect to restore the Site, then this Agreement will terminate. If Provider does elect to restore the Site, Provider shall provide notice of such election to Buyer, and thereafter following receipt of all necessary permits and approvals shall diligently restore the Site at its sole expense. In the event of termination of this Agreement pursuant to this Section 15(c), (i) the Parties shall not be released from any payment or other obligations arising under this Agreement prior to the casualty event; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, Provider shall restore the Site if a Force Majeure Event occurs during the first seven (7) years of the Operation Period. (d) Termination for Force Majeure Event. Notwithstanding anything to the contrary in this Agreement, if nonperformance that is the result of a Force Majeure Event continues beyond a continuous period of two hundred and seventy (270) days, then either Party shall have the right to terminate this Agreement upon thirty (30) days' notice to the other; provided, however, that Provider's restoration of the Site under Section 15(c) shall not be subject to the foregoing termination provision if during such 270-day period Provider has began restoration of the Site and is proceeding diligently, using commercially reasonable efforts, to complete such restoration without unreasonable delay. In the event of such a termination of this Agreement with respect to the Project, the Parties shall not be released from any payment or other obligation arising under this Agreement which accrued prior to the shutdown of the Project or Site, and the confidentiality and dispute resolution provisions of this Agreement shall survive the termination of this Agreement. 16. Provider Default and Buyer Remedies. (a) Provider Events of Default. Provider shall be in default of this Agreement if any of the following ("Provider Events of Default") shall occur: (i) Misrepresentation. Any representation or warranty by Provider under Section 14 hereof, is incorrect or incomplete in any material way, or omits to include any information necessary to make such representation or warranty not materially misleading, and such defect is not cured within fifteen (15) days after receipt of notice from Buyer identifying the defect. (ii) Abandonment During Installation. After commencement of installation of a Project, Provider abandons installation of the Project for thirty (30) consecutive days and fails to resume installation within thirty (30) days after receipt of notice from Buyer stating 21 that, in Buyer's reasonable determination, Provider has abandoned installation of the Project. (iii) Failure to Operate. After the Commercial Operation Date, Provider fails to deliver Usable Electricity for a period of ninety (90) consecutive days, which failure is not due to equipment failure, damage to the Project that can be remedied during such ninety (90) day period through the exercise or ordinary diligence, act of governmental authority, exercise of Provider's rights under this Agreement, or otherwise excused by the provisions of Section 15(b) (relating to Force Majeure Events); and Provider fails to resume operation within thirty (30) days after receipt of notice from Buyer stating that, in Buyer's reasonable determination, Provider has ceased operation of the Project; provided, however, that the cure period shall be extended by the number of calendar days during which Provider is prevented by circumstances beyond its control from taking curative action if Provider had begun curative action and was proceeding diligently, using commercially reasonable efforts, to complete such curative action. (iv) Obligation Failure. Provider fails to perform any obligation hereunder, such failure is material, such failure is not excused by the provisions of Section 15(b) (relating to Force Majeure Events), and such failure is not cured within: (A) ten (10) days if the failure involves a failure to make payment when due; or (B) sixty (60) days if the failure involves an obligation other than payment, after receipt of notice from Buyer identifying the failure. (v) Prohibited Acts. Provider takes any material action forbidden by this Agreement. (vi) Insolvency. Provider (A) applies for or consents to the appointment, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or a substantial portion of its property; (B) admits in writing its inability, or is generally unable, to pay its debts as such debts become due; (C) makes a general assignment for the benefit of its creditors; (D) commences a voluntary case under any bankruptcy law; (E) files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) acquiesces in, or fails to contest in a timely manner, any petition filed against Provider in an involuntary case under bankruptcy law or seeking to dissolve Provider under other Applicable Law; or (G) takes any action authorizing its dissolution. Prior to any event of Provider insolvency occurring after the fifth anniversary of the Commercial Operation Date for a Project, Provider shall offer to sell the Project at Fair Market Value to Buyer, unless prohibited by law. (b) Financing Party pportunity to Cure; Buyer Remedies. Upon an Event of Default by Provider, provided that Buyer complies with its obligations under Section 18 and Financing Party does not cure such Event of Default by Provider, Buyer may terminate this Agreement, seek to recover damages for costs of replacement Usable Electricity for the Project, and pursue other remedies available at law or equity. 17. Buyer Default and Provider Remedies. 22 (a) Buyer Events of Default. Buyer shall be in default of this Agreement if any of the following ("Buyer Events of Default") shall occur: (i) Misrepresentation. Any representation or warranty by Buyer under Section 14 hereof, is incorrect or incomplete in any material way, or omits to include any information necessary to make such representation or warranty not materially misleading, and such defect is not cured within fifteen (15) days after receipt of notice from Provider identifying the defect. (ii) . Obstruction. Buyer intentionally obstructs commencement of installation of any Project or fails to take any actions necessary for the interconnection of any Project, or fails to take Usable Electricity produced by any Project (except in the case of Excuse for Force Majeure Event), and fails to correct such action within its own power to do so within fifteen (15) days. (iii) Payment Failure. Buyer fails to make any payment due under the terms of this Agreement and fails to make such payment within thirty (30) days after the date when due. (iv) Obligation Failure. Buyer fails to perform any obligation hereunder, such failure is material, such failure is not excused by the provisions of Section 15(b) (relating to Force Majeure Events), and such failure is not cured within sixty (60) days if the failure involves an obligation other than payment, after receipt of notice from Provider identifying the failure. (v) Insolvency. Buyer (A) applies for or consents to the appointment, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or a substantial portion of its property; (B) admits in writing its inability, or be generally unable, to pay its debts as such debts become due; (C) makes a general assignment for the benefit of its creditors; (D) commences a voluntary case under any bankruptcy law; (E) files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) acquiesces in, or fails to contest in a timely manner, any petition filed against Buyer in an involuntary case under bankruptcy law or seeking to dissolve Buyer under other Applicable Law; or (G) takes any action authorizing its dissolution. (b) Default Damages. Upon an Event of Default by Buyer, Provider may remove any components of the Project located on a Site and/or pursue any and all other remedies available at law or in equity. 18. Collateral Assignment; Financing Provisions. (a) Financing Arrangements. To the extent permitted by law, Provider may pledge, grant security interests, assign, or otherwise encumber its interests in the Site, Project and this Agreement to any persons providing financing for the Project. Buyer acknowledges that Provider 23 will obtain construction financing for the Project from one or more third parties and that Provider may either obtain term financing secured by the Project or sell or assign the Project to a Financing Party or may arrange other financing accommodations from one or more financial institutions and may from time to time refinance, or exercise purchase options under, such transactions. Buyer acknowledges that in connection with such transactions Provider may secure Provider's obligations by, among other collateral, an assignment of this Agreement, in whole or in part, and a first security interest in the Project, including the Site. In order to facilitate such financing, and with respect to any lender or lessor, as applicable, Buyer agrees as follows: (i) Consent to Collateral Assignment. Buyer hereby consents to both of the sale or lease of the Project to a Financing Party and the collateral assignment to the Financing Party of the Provider's right, title and interest in and to this Agreement. (ii) Rights of Financing Party. Notwithstanding any contrary term of this Agreement: (A) Step -In Rights. The Financing Party, as owner or lessee of the Project, or as collateral assignee of this Agreement, 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. The Financing Party shall also be entitled to exercise all rights and remedies of owners or secured parties, generally with respect to this Agreement and the Project; (B) Opportunity to Cure Default. The Financing Party shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty or obligation required of 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 Financing Party to true any default of Provider under this Agreement or (unless the Financing Party has succeeded to Provider's interests under this Agreement) to perform any act, duty or obligation of Provider under this Agreement, but Buyer hereby gives it the option to do so; (C) Exercise of Remedies. Upon the exercise of remedies, including any sale of the Project by the Financing Party, whether by judicial proceeding or under any power of sale contained therein, or any conveyance from Provider to the Financing Party (or any assignee of the Financing Party as defined below) in lieu thereof, the Financing Party shall give notice to Buyer of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a default under this Agreement; (D) Cure of Bankruptcy Rejection. 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 Financing Party made within ninety (90) days of such termination or rejection, Buyer shall enter into a new agreement with Financing Party or its assignee(s) having the same terms and conditions as this Agreement. 24 (iii) Right to Cure. (A) Cure Period, If Financing Party provides Buyer with notice of its interest and with a notice address, Buyer will not exercise any right to terminate or suspend this Agreement unless it shall have given the Financing 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 Financing Party shall not have caused to be cured the condition giving rise to the right of termination or suspension within the periods for cure provided for in this Agreement.; provided that if such Provider default reasonably cannot be cured by the Financing Party within such period and the Financing Party 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 an additional ninety (90) days. The Parties' respective obligations will otherwise remain in effect during any cure period. (B) Continuation of Agreement. If the Financing Party or its assignee (including any purchaser or transferee), pursuant to an exercise of remedies by the Financing Party, shall acquire title to or control of Provider's assets and shall, within the time periods described in Section 18(a)(iii)(A) 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 shall no longer be in default under this Agreement, and this Agreement shall continue in full force and effect. (b) Financing Party a Third -Party Beneficiary. Buyer agrees and acknowledges that Financing Party is a third -party beneficiary of the provisions of this Section 18. (c) Entry to Consent to Assignment. Buyer agrees to execute any consents to assignment, payment direction letters, or acknowledgements as may be reasonably requested by Provider and/or Financing Party in connection with such financing of or sale of any or all of the Project. (d) Regardless of assignment, Provider, Provider's Affiliate, or a contractor thereof that is an experienced manager in the renewable energy industry of at least 25 MW of renewable energy assets will continue to operate and maintain the Project. For the avoidance of doubt, Entegrity Energy Partners LLC and/or an Affiliate thereof shall qualify as an experienced manager hereunder. 19. Change in Law. If there is any Change in Law subsequent to the Effective Date that results in a direct and material change in Provider's costs to provide the Solar- Services or Buyer's ability to obtain, or a material reduction in, any net metering credit or payment from the Electric Utility, Provider or Buyer shall promptly submit to the other party a written notice setting forth (i) the citation of the Change in Law, (ii) the manner in which such change materially increases Provider's costs to 25 provide the Solar Services or Buyer's ability to receive, or the material reduction in, the net metering credit or payment, and (iii) Provider's or Buyer's proposed adjustment to the kWh rates to reflect such material changes in Provider's costs or Buyer's ability to receive, or the material reduction in, the net metering credit or payment. Provider and Buyer agree to negotiate in good faith a commercially reasonable adjustment in the kWh rate to reflect the associated costs or values impacted by the Change in Law, and in the event Buyer and Provider are unable to agree upon a reasonable adjustment within thirty (30) days after written notice in accordance with this Section, such Dispute shall be resolved in accordance with Section 21 hereof. 20. Limitations on DamaEes, Liability, and Remedies; Disclaimer. (a) EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES SUBCONTRACTORS OR SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES (OTHER THAN AMOUNTS PAYABLE UNDER THIS AGREEMENT), LOST PROFITS, LOST BUSINESS OPPORTUNITY OR ANY BUSINESS INTERRUPTION), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF ADVISED OF SUCH. THE PARTIES AGREE THAT (1) IN THE EVENT THAT PROVIDER OR ITS INVESTORS LOSE OR ARE REQUIRED TO RECAPTURE ANY TAX ATTRIBUTES OR OTHER TAX BENEFITS AS A RESULT OF A BREACH OF THIS AGREEMENT BY BUYER, SUCH RECAPTURED AMOUNT SHALL BE DEEMED TO BE DIRECT AND NOT INDIRECT OR CONSEQUENTIAL DAMAGES, AND (II) IN THE EVENT THAT PROVIDER IS RETAINING THE ENVIRONMENTAL ATTRIBUTES PRODUCED BY THE PROJECT, AND A BREACH OF THIS AGREEMENT BY BUYER CAUSES PROVIDER TO LOSE THE BENEFIT OF SALES OF SUCH ENVIRONMENTAL ATTRIBUTES TO THIRD PARTIES, THE AMOUNT OF SUCH LOST SALES SHALL BE DIRECT AND NOT INDIRECT OR CONSEQUENTIAL DAMAGES. (b) PROVIDER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON- PERFORMANCE OF THIS AGREEMENT CANNOT EXCEED THE TOTAL PAYMENTS ACTUALLY MADE BY BUYER UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 20(B) WILL APPLY WHETHER SUCH LIABILITY OR CLAIM ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. (c) TO THE EXTENT THAT THIS AGREEMENT SETS FORTH SPECIFIC REMEDIES FOR ANY CLAIM OR LIABILITY, SUCH REMEDIES ARE THE AFFECTED PARTY'S SOLE AND EXCLUSIVE REMEDIES FOR SUCH CLAIM OR LIABILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. (d) EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO WARRANTY WITH RESPECT TO THE PROJECT OR THE PERFORMANCE OF PROVIDER'S OBLIGATIONS HEREUNDER, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A 26 PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, APPLIES UNDER THIS AGREEMENT. (e) NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO ALTER, LIMIT, OR OTHERWISE COMPROMISE THAT TORT IMMUNITY AFFORDED THE CITY OF FAYETTEVILLE UNDER THE CONSTITUTION AND STATUTES OF THE STATE OF ARKANSAS. 21. Dispute Resolution. (a) Negotiation Period. The Parties shall negotiate in good faith and attempt to resolve any dispute, controversy or claim arising out of or relating to this Agreement (a "Dispute") within thirty (30)-days after the date that a Party gives written notice of such Dispute to the other Party. (b) Mediation. If, after such negotiation in accordance with Section 21(a), the Dispute remains unresolved, either Party may request that a non -binding mediation take place. In such mediation, representatives of the Parties with authority to resolve the dispute shall meet for at least three (3) hours with a mediator whom they choose together. If the Parties are unable to agree on a mediator, then either Party is hereby empowered to request the American Arbitration Association to appoint a mediator. The mediator's fee and expenses shall be paid one-half by each Party. (c) Forum. The parties agree that all claims, demands or actions for loss, expense, damage, liability or other relief, either at law or in equity, arising out of or related to this Agreement must be brought before a court in Washington County, Arkansas having jurisdiction over such matter. 22. Notices. Delivery of Notices. All notices or other communications which may be or are required to be given by any party to any other party pursuant to this Agreement shall be in writing and shall be either (i) delivered by hand; (ii) mailed by first-class, registered or certified mail, return receipt requested, postage prepaid; (iii) delivered by a recognized overnight or personal delivery service; (iv) transmitted by facsimile (such transmission to be effective on the day of receipt if received prior to 5:00 pm local time on a business day or in any other case as of the next business day following the day of transmittal); or (v) transmitted by email if receipt of such transmission by email is specifically acknowledged by the recipient (automatic responses not being sufficient for acknowledgement), addressed as follows: If to Buyer: City of Fayetteville 113 West Mountain Street Fayetteville, AR, 72701 If to Provider: Entegrity Energy Partners, LLC 27 1403 East 6°i Street Little Rock, AR 72202 Notices shall be effective when delivered (or in the case of email, when acknowledged by the recipient) in accordance with the foregoing provisions, whether or not (except in the case of email transmission) accepted by, or on behalf of, the Party to whom the notice is sent. Each Party may designate by Notice in accordance with this section to the other Party a new address to which any notice may thereafter be given. 23. Miscellaneous. (a) Governing Law. This Agreement shall be governed by the laws of the State of Arkansas, without regard to its choice of law provisions, and applicable federal law. Any legal action or proceeding arising out of or relating to this Agreement must be conducted exclusively within the State of Arkansas and in no other jurisdiction. (b) Rules of Interpretation. Section headings are for convenience only and shall not affect the interpretation of this Agreement. References to sections are, unless the context otherwise requires, references to sections of this Agreement. The words "hereto", "hereof' and "hereunder" shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word "person" shall include individuals; partnerships; corporate bodies (including but not limited to corporations, limited partnerships and limited liability companies); non-profit corporations or associations; governmental bodies and agencies; and regulated utilities. The word "including" shall be deemed to be followed by the words "without limitation". In the event of any conflict between the text of this Agreement and the contents of an Exhibit hereto, the text of this Agreement shall govern. (c) Severability. If any non -material part of this Agreement is held to be unenforceable, the rest of the Agreement will continue in effect. If a material provision is determined to be unenforceable and the Party which would have been benefited by the provision does not waive its unenforceability, then the Parties shall negotiate in good faith to amend the Agreement to restore to the Party that was the beneficiary of such unenforceable provision the benefits of such provision. (d) Amendment and Waiver. This Agreement may only be amended by a writing signed by both Parties. Any waiver of any of the terms hereof shall be enforceable only to the extent it is waived in a writing signed by the Party against whom the waiver is sought to be enforced. Any waiver shall be effective only for the particular event for which it is issued and shall not constitute a waiver of a subsequent occurrence of the waived event nor constitute a waiver of any other provision hereof, at the same time or subsequently. (e) Assignment. Neither Party may assign, sell, transfer or in any other way convey its rights, duties or obligations under this Agreement, either in whole or in part, without the prior written consent of the other Party which consent shall not be unreasonably withheld or delayed, except that without consent of Buyer, Provider (i) may assign, in whole or in part, its rights and obligations hereunder to an Affiliate of Provider and (ii) may sell or collaterally assign this M Agreement in whole or in part as collateral, in accordance with Section 18. For purposes of this Section 23(e), assign, sell, transfer, or convey does not include any sale of all or substantially all of the assets of Provider or any merger of Provider with another person, whether or not Provider is the surviving entity from such merger, or any other change in control of Provider, provided any such surviving entity assumes all obligations of Provider, as appropriate, under this Agreement. Buyer agrees to execute any consents to assignment or acknowledgements as may be reasonably requested by Provider in connection with an assignment of this Agreement. (f) Provider Put Option. Buyer and Provider hereby expressly acknowledge and agree that Provider shall have the option to put the purchase of one or more Projects located on a Site to Buyer at the end of the Term for a purchase price which is equivalent to the Fair Market Value of the Project at such time. (g) THIS AGREEMENT IS NOT A LEASE — THIS AGREEMENT CONSTITUTES A SERVICE CONTRACT. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS NOT A LEASE AND THIS AGREEMENT SHALL NOT BE CONSTRUED AS A LEASE. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE AND FURTHER COVENANT, WARRANT, AND REPRESENT TO EACH OTHER THAT NEITHER PARTY WILL TAKE ANY ACTION WHATSOEVER TO TREAT OR CONSTRUE THIS AGREEMENT AS A LEASE. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS AN AGREEMENT TO SELL ELECTRIC ENERGY GENERATED FROM AN ALTERNATIVE ENERGY FACILITY AND THIS AGREEMENT SHALL BE DEEMED A SERVICE CONTRACT PURSUANT TO 26 U.S.C. SECTION 7701(e)(3)(A). THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE AND FURTHER COVENANT, WARRANT, AND REPRESENT TO EACH OTHER THAT EACH PARTY WILL TAKE ANY AND ALL ACTIONS NECESSARY TO INSURE THAT THIS AGREEMENT IS TREATED AND CONSTRUED AS A SERVICE CONTRACT SATISFYING THE REQUIREMENTS OF SERVICE CONTRACTS PURSUANT TO 26 U.S.C. SECTION 7701(e)(3)(A). THE PARTIES HERETO HEREBY FURTHER EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS INTENDED TO FULLY COMPLY WITH ACT 464 OF THE 2019 REGULAR SESSION OF THE 92`u GENERAL ASSEMBLY OF THE STATE OF ARKANSAS, EXPRESSLY INCLUDING, BUT NOT LIMITED TO, A.C.A SECTION 23-18-603(7)(C). (h) No Joint Venture. This Agreement does not create a joint venture, partnership or other form of business association between the Parties. (i) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of signature by fax, or scan delivered by email, receipt acknowledged, or electronic signature are effective to bind a Party hereto. (Signatures contained on following page) 29 (Signature Page to Solar Services Agreement) EXECUTED AND EFFECTIVE as of the Effective Date. BUYER: CITY OF FAYETTEVILLE By: _ Name: Title: PROVIDER: ENTEGRITY ENERGY PARTNERS, LLC Bv: Name: Michael Parker Title: President 30 EXHIBIT A CONFIDENTIAL USABLE ELECTRICITY PURCHASE RATE Year Solar Electric Rate ($/kWh); 1 $0.0570 2 $0.0576 3 $0.0581 4 $0.0587 5 $0.0593 6 $0.0599 7 $0.0605 8 $0.0611 9 $0.0617 10 $0.0623 11 $0.0630 12 $0.0636 13 $0.0642 14 $0.0649 15 $0.0655 16 $0.0662 17 $0.0668 18 $0.0675 19 $0.0682 20 $0.0689 21 $0.0696 22 $0.0702 23 $0.0709 24 $0.0717 25 $0.0724 31 EXHIBIT B DESCRIPTION OF SITE General Description: A portion of parcel in County, Arkansas. Final legal description to be determined by survey. 32 Pi.aject Description: Point of Delivery Solar Modules: Solar Racking System: Inverters: Billing Meter: Facility Capacity (DC): Facility Capacity (AC): Estimated Year- I Production: . EXHIBIT C CONFIDENTIAL DESCRIPTION OF PROJECT 33 EXHIBIT D CONFIDENTIAL PURCHASE OPTION PURCHASE PRICE SCHEDULE Seventh (7o,) Anniversary of Commercial Operation Date: The greater of (i) Fair Market Value of the Project and Provider's rights in the Site and (ii) Fourteenth (14tii) Anniversary of Commercial Operation Date: The neater of (i) Fair Market Value of the Project and Provider's rights in the Site and (ii) Twenty -First (21st) Anniversary of Commercial Operation Date: The neater of (i) Fair Market Value of the Project and Provider's rights in the Site and (ii) 34 SOLAR SERVICES AGREEMENT between Entegrity Energy Partners, LLC as Provider and City of Fayetteville as Buyer INDEX Section 1 DEFINITIONS 2 TERM 3 PLANNING, INSTALLATION AND OPERATION OF PROJECT 4 SALE OF ELECTRIC ENERGY 5 PAYMENT AND BILLING; LIMITS ON BUYER OBLIGATIONS; EVENT OF NON -APPROPRIATION 6 SUPPLEMENTAL POWER, NET METERING, AND RECS 7 PERMITS AND OWNERSHIP OF PROJECT 8 PURCHASE OPTION 9 SHUTDOWNS 10 TAXES II [RESERVED] 12 COOPERATION, SOLAR ACCESS, FUTURE IMPROVEMENTS 13 PRESS RELEASES AND CONFIDENTIALITY 14 REPRESENTATIONS AND WARRANTIES 15 FORCE MAJEURE 16 PROVIDER DEFAULT AND BUYER REMEDIES 17 BUYER DEFAULT AND PROVIDER REMEDIES 18 COLLATERAL ASSIGNMENT, FINANCING PROVISIONS 19 CHANGE IN LAW 20 LIMITATIONS ON DAMAGES, LIABILITY, AND REMEDIES; DISCLAIMER 21 DISPUTE RESOLUTION 22 NOTICES 23 MISCELLANEOUS EXHIBIT A — USABLE ELECTRICITY PURCHASE RATES EXHIBIT B — DESCRIPTION OF SITE EXHIBIT C — DESCRIPTION OF PROJECT EXHIBIT D — PURCHASE OPTION PURCHASE PRICE SCHEDULE 2 SOLAR SERVICES AGREEMENT THIS SOLAR SERVICES AGREEMENT ("Agreement") is made and entered into on as Of December 19, 2023 (the "Effective Date"), by and between Entegrity Energy Partners, LLC ("Provider"), and City of Fayetteville ("Buyer"). WITNESSETH.- WHEREAS, Provider controls (whether by lease, ownership, option or otherwise) that certain real property located in the State of Arkansas, as more particularly described in Exhibit B attached hereto (the "Site"), and Buyer and Provider desire for the development, design, construction, operation and maintenance by Provider of one or more solar powered electric generating project on the Site to be owned by Provider and for Buyer to purchase from Provider, at a fixed rate, the electric energy produced by the Project; WHEREAS, Provider desires to sell to Buyer the electric energy produced by such facilities at a fixed rate and Buyer desires to purchase from Provider the electric energy produced by such facilities; and WHEREAS, Provider and Buyer now desire to enter into this Agreement to memorialize their agreements regarding such solar alternative energy facilities and electric energy. NOW, THEREFORE, in consideration of the premises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, Provider and Buyer hereby agree as follows: 1. Definitions. The following capitalized terms shall have the meanings set forth below as used in this Agreement: (a) The term "Affiliate" means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. (b) The term "Agreement' means this Solar Services Agreement, including all exhibits attached hereto, as the same may be amended from time to time in accordance with the provisions hereof. (c) The term "Applicable Law" means any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, registration, license, franchise, permit, authorization, or guideline issued by a Governmental Authority that is applicable to a Party to this Agreement or the transaction described herein. Applicable Law also includes an approval, consent or requirement of any Governmental Authority having jurisdiction over such Party or its property, enforceable at law or in equity. 3 (d) The term `Billing Meter' means the revenue grade meter(s) of Provider located at the Site to measure the output of the Project at the Point of Delivery as identified in Exhibit C. (e) The term "Business Day' means a day other than Saturday, Sunday, or other day on which commercial banks in Little Rock, Arkansas are authorized or required by law to be closed. (f) The term `Buyer" has the meaning assigned to it in the introductory paragraph hereof. (g) The term "Change in Law" means that after the date of this Agreement, an Applicable Law is amended, modified, nullified, suspended, repealed, found unconstitutional or unlawful, or changed or affected in any material respect by any Applicable Law. Change in Law does not include changes in federal or state income tax laws. Change in Law does include material changes in the interpretation of an Applicable Law. (h) The term "Commercial Operation Date" means the date, which shall be specified by Provider to Buyer pursuant to Section 3, when the Project is physically complete and has successfully completed all performance tests and satisfies the interconnection requirements of the Electric Utility. (i) The term "Confidential Information" means information of a confidential or proprietary nature. Provider shall notify Buyer in writing of any information that Provider contends may provide an advantage to competitors if disclosed. Such information shall include, but not be limited to, any documentation, records, listing, notes, data, computer disks, files or records, memoranda, designs, financial models, accounts, reference materials, trade -secrets, prices, strategic partners, marketing plans, strategic or other plans, financial analyses, customer names or lists, project opportunities and the like, provided however that Confidential Information does not include information which (i) was in the possession of the receiving Party before receipt from the disclosing Party; (ii) is or becomes publicly available other than as a result of unauthorized disclosure by the receiving Party; (iii) is received by the receiving Party from a third party not known by the receiving Party with the exercise of reasonable diligence to be under an obligation of confidentiality respecting the information; or (iv) is independently developed by the receiving Party without reference to information provided by the disclosing Party. Notwithstanding the term defined above, the Parties acknowledge that the Buyer is or may become subject to the disclosure requirements of the Arkansas Freedom of Information Act ("FOIA"). The parties acknowledge and agree that Provider believes that Exhibits A, C, and D may contain confidential information, trade secrets, and/or competitive information exempt from disclosure obligations under "FOIA". Buyer agrees to promptly notify Provider of any receipt of a request for information under FOIA or any other similar disclosure law, related to the Project or this Agreement. 0) The term "Dispute" means a controversy or claim arising out of or relating to this Agreement. (k) The term `Electric Utility" means Southwestern Electric Power Company and its successors and assigns. (1) The tern `Environmental Attributes" means Renewable Energy Certificates, carbon trading credits, emissions reductions credits, emissions allowances, green tags, Green-e certifications, or other entitlements, certificates, products, or valuations attributed to the Project and its displacement of conventional energy generation, or any other entitlement pursuant to any federal, state, or local program applicable to renewable energy sources, whether legislative or regulatory in origin, as amended from time to time, and excluding, for the avoidance of doubt, any Tax Attributes. (m) The term "Event of Non -Appropriation" shall have the meaning set forth in Section 5(g) hereof. (n) The term "Fair Market Value" means the price that would be paid in an arm's length, free market transaction, in cash, between an informed, willing seller and an informed, willing buyer (who is neither a lessee in possession nor a used equipment or scrap dealer), neither of whom is under compulsion to complete the transaction, taking into account, among other things, the age and performance of the Project and advances in solar technology, provided that installed equipment shall be valued on an installed basis and costs of removal from a current location shall not be a deduction from the valuation. (o) The term "Financing Party" means a Project Lessee or Lender or tax equity investor admitted as a direct or indirect member of Provider. (p) The term "Fiscal Year" shall mean the fiscal year of Buyer, which Buyer represents and warrants is January 1 to December 31. (q) The term "Force Majeure 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, Force Majeure Event may include but are not limited to the following acts or events: (i) extraordinary wind storms, hail, tornados, hurricanes, floods, lightning strikes, and earthquakes; (ii) explosions or fires arising from lightning strikes or other causes unrelated to the acts or omissions of the Party seeking to be excused fiom performance and unrelated to any defect in materials or equipment of Provider; (iii) acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, epidemic, pandemic, official actions of any Governmental Authority, terrorist acts, or rebellion; and (iv) strikes or labor disputes. Force Majeure Events shall not include equipment failures or acts or omissions of agents, suppliers or subcontractors, except to the extent such acts or omissions arise from a Force Majeure Event. Neither changes in prices for Usable Electricity nor changes in available solar energy resulting from cloud cover or other natural events constitute Force Majeure Events. (r) The term "Governmental Authority" means any international, national, federal, provincial, state, municipal, county, regional or local government, administrative, judicial or regulatory entity operating under any Applicable Laws and includes any department, comimission, bureau, board, administrative agency or regulatory body of any government with authority over the parties to this Agreement or this transaction. (s) The term "Initial Period" has the meaning provided in Section 2. (t) The term "Installer" means the Provider or any person or entity designated by Provider to install a Project on a Site. (u) The term "Land Registry' means the office where real estate records for a Site are customarily filed. (v) The term "Lender" means persons providing construction or permanent financing to Provider in connection with installation of the Project. (w) The term "Liens" has the meaning provided in Section 7(c). (x) The term "Losses" means any and all losses, liabilities, claims, demands, suits, causes of action, judgments, awards, damages, cleanup and remedial obligations, interest, fines, fees, penalties, costs, and expenses (including all attorney's fees and other costs and expenses incurred in defending any such claims or matters). (y) The term "Operations Period" has the meaning provided in Section 2. (z) The term "Operations Year' means a twelve (12) month period beginning at 12:00 am on an anniversary of the Commercial Operation Date and ending at 11:59 pm on the day immediately preceding the next anniversary of the Commercial Operation Date, provided that the first Operations Year shall begin on the Commercial Operation Date. (aa) The term "Ta!:V" means either Buyer or Provider, as the context shall indicate, and "Parties" means both Buyer and Provider. (bb) The term "Point of Delivery" has the meaning set forth in Section 4(a). (cc) The term "Project" means an integrated system for the generation of Usable Electricity from solar energy consisting of the photovoltaic panels and associated equipment to be installed on each of the Sites in accordance with this Agreement, and includes equipment and cabling required to connect to the Point of Delivery. (dd) The term "Project Lessee" means, if applicable, any Person to whom Provider transferred or leased a Project. (cc) The term "Provider" has the meaning assigned to it in the introductory paragraph hereof, and all permitted successors and assigns. (ff) The term "Relocation Event" means the relocation of a Project, starting at the shutdown of the Project pursuant to such relocation, and ending at the commercial operation of the Project when such relocated Project is reinstalled at a new location, as determined by the Provider in its reasonable discretion. (gg) The term "Renewable Energy Certificate" or "REC" means a certificate, credit, allowance, green tag, or other transferable indicia, howsoever entitled, created by an applicable program or certification authority indicating generation of a particular quantity of energy, or product associated with the generation of a megawatt -hour (MWh) from a renewable energy source by a renewable energy project. (hh) The term "Site" means the real property upon which the Project is developed. (ii) The term "Solar Services" means the services Provider provides to Buyer hereunder. 0j) The term "Tax Attributes" means the investment tax credits (including any grants or payments in lieu thereof) and any tax deductions or other benefits under the Internal Revenue Code or applicable federal, state, or local law available as a result of the ownership and operation of a Project or the output generated by a Project (including, without limitation, tax credits (including any grants or payments in lieu thereof) and accelerated and/or bonus depreciation.) (kk) The term "Term" shall have the meaning provided in Section 2 hereof. (11) The term "Usable Electricity" means alternating current electrical energy meeting the specifications described in Exhibit C, as measured by the Billing Meter at the Point of Delivery. 2. Term. (a) Term. This Agreement shall consist of an Initial Period and an Operations Period. As used herein, "Term" shall mean all of the Initial Period and the Operations Period, unless the Provider or Buyer terminates the Agreement prior to the end of the Initial Period pursuant to the terms of this Agreement. (b) Initial Period. The Initial Period will begin on the Effective Date and will terminate on the earlier of (i) the Commercial Operation Date or (ii) the date the Agreement is terminated pursuant to the provisions of Section 3. (c) Operations Period. If applicable, the Operations Period will commence on the Commercial Operation Date and will terminate at 11:59 p.m. on the 25a' anniversary of the Commercial Operation Date unless earlier terminated in accordance with this Agreement; provided, however the Operations Period will automatically renew for two (2) additional five (5) consecutive year periods immediately following the Operations Period unless Buyer or Provider shall provide written notice to the other Party of its intention not to extend the Agreement at least one hundred eighty (180) days prior to the end of the Operations Period or any applicable automatic five (5) year extension period, as the case may be. 3. Planning, Installation and Operation of Project. (a) Site Assessment and Planning. During the Initial Period, Provider shall have the right, at its own expense, to identify and assess the suitability of each Site for the Project to be located on such Site and shall act diligently in conducting such assessment. The assessment shall include the right to inspect the physical condition of the Site; to apply for any building permits or other governmental authorizations necessary for the construction of the Project; to arrange interconnections with the Electric Utility; to make any applications to the appropriate Public Service Commission or other agencies for receipt of payments for the Project; to apply to any other governmental agencies or other persons for grants or other determinations necessary for the construction of or receipt of revenues from the Project; to execute a binding lease or close on an option or purchase of the Site, as applicable; or to make any other investigation or determination necessary for the financing, construction, operation or maintenance of the Project. (b) Termination of Agreement during the Initial Period. At any time during the Initial Period, Provider shall have the right to cease development of the Project on a Site and unilaterally terminate this Agreement, for any reason, including but not limited to material increases in Provider's costs to provide the Solar Services. If Provider gives Buyer notice of such determination, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Parties shall not be released from any payment or other obligations arising under this Agreement prior to the delivery of the notice; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. At any time prior to the submission of the interconnection application and the payment associated therewith to the Electrical Utility, Buyer may terminate this Agreement, provided that Buyer pay Provider for any direct costs incurred as of the date of termination in connection with the development of the Project. If Buyer gives Provider notice of such determination and makes the associated payment set forth above, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Buyer shall not be released from any payment or other obligations arising under this Agreement prior to the delivery of the notice; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. If material increases in Provider's costs to provide the Solar Services are the reason for Provider's termination of this Agreement during the Initial Period, Provider shall propose an Amendment to this Agreement for Buyer's consideration prior to exercising its right to terminate during the Initial Period. Such Amendment shall set forth (i) the reasons Provider's costs to provide the Solar Services have materially increased during the Initial Period, (ii) the extent Provider's costs to provide the Solar Services have materially increased during the Initial Period, and (iii) Provider's proposed adjustment to the Usable Electricity Purchase Rate schedule in Exhibit A to reflect such material changes in Provider's costs. Such Amendment shall be delivered by written notice pursuant to Section 22. If Provider proposes an Amendment pursuant to this Section, Provider and Buyer may negotiate an adjustment in the Usable Electricity Purchase Rate to reflect any material increases in Provider's costs to provide the Solar Services, and in the event Buyer and Provider are unable to agree upon a reasonable adjustment within thirty (30) days after Provider has delivered a proposed Amendment to Buyer in accordance with this Section, either Party may terminate the Agreement. If either Party gives notice of such determination, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Parties shall not be released from any payment or other obligations arising under this Agreement prior to the delivery of the notice; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. (c) Commencement of Construction, Modification of Design. Provided that either party does not terminate this Agreement pursuant to this Section 3, Provider will use commercially reasonable efforts to commence installing the Project on the applicable Site within one hundred eighty (180) days of the Provider obtaining necessary approvals of the Project from the Electric Utility and any Governmental Authority. (i) As of the Effective Date, Provider anticipates that each Project shall consist of the components and shall have the designs attributed to such Project in Exhibit C attached hereto. (ii) Notwithstanding subsection (i) above, Provider has the right to modify the design of each Project, including the selection of the components in the Project, in its reasonable discretion. (d) Contractors. Provider shall use licensed contractors to perform the work of installing, operating, and maintaining the Project. Provider shall be responsible for the conduct of Installers and Provider's subcontractors, and Buyer shall have no contractual relationship with Installers or Provider's subcontractors in connection with the work on the Project. (e) Status Reports. Provider shall give Buyer regular updates, on a reasonable schedule requested by Buyer, on the progress of installation of the Project and shall notify Buyer of when Provider will commence testing of a Project. Buyer shall have the right to have its representatives present during the construction and testing process, but subject to reasonable written rules and procedures as may be established by Provider and Installer. After Provider has determined, in its reasonable judgment, that a Project meets the requirements of the Electric Utility and the Arkansas Public Service Commission, has been installed in accordance with all Applicable Laws, has successfully completed all performance tests, and is capable of producing Usable Electricity on a continuous basis, Provider shall notify Buyer that installation of the Project is complete and shall specify the Commercial Operation Date for such Project, which may be immediately upon delivery of such notice to Buyer. All Usable Electricity produced by a Project prior to the Commercial Operation Date shall be delivered to Buyer at the Point of Delivery after appropriate safety testing and Buyer shall pay for all such Usable Electricity at the rate applicable to the first Operations Year. (f) Standard of Operation. Provider shall design, obtain permits, install, operate, and maintain a Project so as to keep it in good condition and repair, in compliance with all Applicable Laws and in accordance with the generally accepted practices of the electric industry, in general, and the solar generation industry, in particular. Such work shall be at Provider's sole expense. Except for emergency situations or unplanned outages, Provider shall cause the work to be performed at times so as to minimize disruption of the Project during peak sunlight times, to the extent reasonably possible. E (g) System Shut Down. Provider may shut down the Project at any time in order to perform required emergency repairs to the Project. At other times, Provider shall give Buyer advance notice of the shutdown as may be reasonable under the circumstances. Provider shall have no obligation to reimburse Buyer for costs of purchasing Usable Electricity that would have been produced by the Project but for such shutdown. Provider shall not schedule shutdowns during peak periods of electric generation and periods when peak energy and demand prices are charged by the Electric Utility, except as may be required in accordance with prudent electric industry safety practices in the event of equipment malfunction. 4. Sale of Electric Energy. (a) Sale of Usable Electricity. Throughout the Operations Period, subject to the terms and conditions of this Agreement, Provider shall sell to Buyer and Buyer shall buy from Provider all Usable Electricity produced by the Project. The Point of Delivery of the Usable Electricity shall be as indicated in Exhibit C. Title to and risk of loss with respect to the Usable Electricity shall transfer from Provider to Buyer at the Point of Delivery. (b) Delivery of Usable Electricity. The Usable Electricity from the Project shall be delivered from Provider to Buyer at the Point of Delivery per the specifications set forth in Exhibit C and otherwise in compliance with all requirements of the Electric Utility. (c) Limits on Obligation to Deliver. Provider does not warrant or guarantee the amount of electric energy to be produced by the limits on Project for any hourly, daily, monthly, annual or other period. Provider is not a utility or public service company and does not assume any obligations of a utility or public service company to supply Buyer's electric requirements, other than the obligations under this Agreement. At the time of this Agreement, Provider is not subject to rate review by governmental authorities. (d) Meter Testing. Provider shall install one or more Billing Meter(s) at the Site, as Provider deems appropriate, to measure the output of the Project at the Point of Delivery. Provider shall provide Buyer with reasonable access to the metered energy output data collected by Provider. Provider shall install an Interval Data Recorder (IDR) with industry standard telemetry at each Project. Provider shall conduct tests of the Billing Meter(s) at such times as it deems appropriate in accordance with industry standards, but not less than once in any two-year period. Buyer shall pay for any independent testing of the Billing Meter(s) in excess of such minimum testing schedule that Buyer deems necessary, except if, after such testing, the Billing Meter is shown to be in error in Provider's favor by more than two percent (2%), Provider shall pay for the cost of such test and shall make corresponding adjustments to the records of the amount of electrical energy provided by the Project delivered based on the period that is half -way in between the date of this testing and the last testing date of the Billing Meter. If there is an error of less than or equal to two percent (2%) no billing adjustments will be made. In the event there is an error of greater than two percent (2%), Provider shall adjust the next invoice to be provided to Buyer under Section 5(b) hereof, to either charge the Buyer additional amounts for energy produced over the stated Billing Meter amount during the applicable period at the applicable rate or provide Buyer a credit against future billing for energy produced under the stated Billing Meter amount during the applicable period, 10 provided, however, that any deficiencies or credits not theretofore applied or satisfied at the expiration or earlier termination of the Operations Period shall be settled in cash. 5. Payment and Billing; Limits on Buyer Obligations; Event of Non - Appropriation (a) Rates. Buyer shall pay Provider for Usable Electricity produced by each Project at the rates set forth in Exhibit A attached hereto. (b) Billing. Buyer shall pay for the Usable Electricity produced by each Project quarterly in arrears, promptly after the end of each quarter from the start of operational production. Provider shall provide Buyer with an invoice setting forth the quantity of Usable Electricity produced by the Project in such quarter, the applicable rates for such, and the total amount due, which shall be the product of the quantities and the applicable rates. (c) Invoice Delivery. Invoices shall be in writing and shall be either (i) delivered by hand; (ii) mailed by first-class, registered or certified mail, return receipt requested, postage prepaid; (iii) delivered by a recognized overnight or personal delivery service;; or (iv) transmitted by email if receipt of such transmission by email is specifically acknowledged by the recipient (automatic responses not being sufficient for acknowledgement) and with a hard copy to follow, addressed as follows: City of Fayetteville 113 West Mountain Street Fayetteville, AR, 72701 (d) Payment. Buyer shall pay each invoice within thirty (30) days of receipt of the invoice. Payments shall be made by electronic funds transfer to an account designated by Provider or by Direct Deposit of funds into Provider's bank account or by check if electronic transfer or direct deposit are not available. Provider shall designate the account in the invoice or in a written notice delivered to Buyer. (f) Disputed Invoices. If Buyer objects to all or a portion of an invoice, Buyer shall, on or before the date payment of the invoice is due, (i) pay the undisputed portion of the invoice, and (ii) provide an itemized statement of its objections setting forth in reasonable detail the basis for its objections. If Buyer does not object prior to the date payment of any invoice is due, Buyer shall be obligated to pay the full amount of such invoices but Buyer may subsequently object to such invoice and, if such objection proves to be correct, receive a refund of the disputed amount; provided, however, that Buyer may not object to any invoice more than twelve (12) months after the date on which such invoice is rendered. (g) Payment Limitations. If, during the term of this Agreement including any extensions, Buyer is bound or deemed bound by the provisions of any State of Arkansas laws concerning the sufficiency of Buyer appropriations and the legal ability of Buyer to enter into binding contracts and agreements with annual obligations in excess of annual Buyer appropriations ("Appropriation Bound") the provisions of Sections 5(f)-(j) of the Agreement shall control. If 11 Buyer is Appropriation Bound, Provider and Buyer hereby expressly acknowledge and agree that the obligation of Buyer to pay invoices for Usable Electricity in any Fiscal Year under this Agreement or otherwise would be legally binding to the extent of amounts appropriated for and legally available to Buyer for such purposes during such Fiscal Year. The parties hereto acknowledge that all payments made by Buyer under this Agreement will constitute currently budgeted expenditures. The parties hereto acknowledge that all payments made by Buyer under this Agreement will not constitute a general obligation debt, an indebtedness, or a multiple -Fiscal Year direct or indirect debt or other financial obligation of Buyer within the meaning of any constitutional or statutory provision or limitation. Buyer represents to Provider, and the parties hereto acknowledge that, Buyer is Appropriation Bound. (h) Event of Non -Appropriation. If Buyer is Appropriation Bound, if by the first day of any Fiscal Year Buyer has failed for any reason to obtain an appropriation of sufficient legally available amounts to be used by Buyer to pay invoices for Usable Electricity that will be due hereunder for and during the next ensuing Fiscal Year, then an Event of Non -Appropriation shall be deemed to have occurred on the first calendar day thereafter (an "Event of Non - Appropriation"). However, the parties hereto hereby agree that no Event of Non -Appropriation shall be deemed to have occurred if the foregoing failure set forth in this subsection (g) is cured on or before the thirty-first (3151) day of such Fiscal Year in which such Event of Non -Appropriation shall be deemed to have occurred by the enactment of an appropriation providing sufficient legally available amounts to Buyer, or Buyer otherwise making sufficient money available, to pay invoices for Usable Electricity that will be due hereunder for and during the next ensuing Fiscal Year. (i) Present Expectation. If Buyer becomes Appropriation Bound, it is the present expectation of Buyer that the applicable budgetary entity, within the limits of available funds and revenues, will make an appropriation of a sufficient amount to fund Buyer's obligations hereunder during each Fiscal Year of the Term; provided, however, this expectation of Buyer shall not be binding upon any future applicable budgetary entity in any future Fiscal Year, except to the extent of any previously appropriated funds. Buyer shall use reasonable good faith efforts to have funds properly budgeted in the general operating expense section of the budget (and not a specific line item), appropriated, allotted, or otherwise made available for this Agreement (including obtaining legislative and other authorizations for use of such funds) and to satisfy such conditions in a timely manner. 0) Notice of Event of Non -Appropriation. In the case of an Event of Non - Appropriation, Buyer shall promptly give notice of such Event of Non -appropriation (the "NAE Notice"). Notwithstanding the occurrence of any Event of Non -Appropriation or the delivery of the NAE Notice, Buyer will not interrupt or impair the delivery of Usable Electricity or jeopardize Provider's sale, transfer or other monetization of Environmental Attributes, RECs or Tax Attributes. Following receipt by Provider of an NAE Notice, Provider, in its sole discretion, (i) may terminate this Agreement, or (ii) may continue to operate the Project and deliver the Usable Electricity to a third party or utility company without payment by Buyer therefore during the applicable Fiscal Year (and each Fiscal Year thereafter until an appropriation is made). Under the circumstances of (ii), other than with respect to the obligation to make payment for energy delivered, all obligations of Buyer under this Agreement shall remain in full force and effect. Should Buyer receive an appropriation for this Agreement during the continuation of the Event of Non- 12 Appropriation, before termination under option (i) has been exercised, Buyer shall pay such monies to Provider as to make Provider whole for any amounts due and owing under this Agreement to the extent appropriated, and upon payment such Event of Non -Appropriation shall be nullified. (k) Within thirty (30) days of Provider's receipt of the NAE Notice, Provider shall give notice to Buyer of Provider's election among options (i) and (ii) under subsection (i) above. If Provider does not provide notice to Buyer of Provider's election under this subsection 0) within such period, Provider shall be deemed to have elected option (ii) under subsection (i) above, provided that, if Provider elects or is deemed to have elected option (ii) it may subsequently change its election at any time upon prior written notice to Purchaser. 6. Supplemental Power, Net Metering and RE' Cs. (a) Back-up and Supplemental Usable Electricity. Except as otherwise provided herein, throughout the Term, Buyer shall be responsible for obtaining all of its requirements for electric energy in excess of the amounts produced by the Project. Provider shall have no obligation to obtain or pay for such supplemental or back-up Usable Electricity. (b) Net Metering & Utility Credits. At any time that electric production from the Project is greater than Buyer's requirements at such time, Buyer shall nevertheless pay Provider for all the Usable Electricity produced by the Project at the rates and in the manner provided in this Agreement. Buyer shall be entitled to receive, to the extent permitted by Applicable Law, any credits or payments due from the Electric Utility as a result of net metering from the Project, except during an Event of Non -Appropriation. Upon Buyer's written request and not to exceed twice per year, Provider or its duly authorized contractor shall provide reasonable assistance to Buyer in reviewing the applicable bills, credits and payments received from the Electric Utility. (e) Interconnection. Provider shall be responsible for arranging the interconnection of the Project with Buyer's distribution system in a manner that includes bi-directional or "net metering" if applicable. It is further understood that all cost associated with establishing the interconnection between the Project and the electric utility pursuant to Net -Metering Rule 3.01 are solely the responsibility of the Provider. (d) Solar Program Incentives. Provider shall receive all payments and benefits available under any incentive/benefits solar program. Buyer shall provide reasonable assistance to Provider in preparing all applications and other documents necessary for Provider to receive such paymentsibenefits, including designating Provider as the customer for purposes thereof or assigning payments benefits therefrom to Provider. If Buyer receives any payments under any such incentive/benefits solar program or other programs in respect of the Project, it shall promptly pay them over to Provider. Buyer's obligation to make any payments to Provider under this paragraph (d) is limited to any payments actually received by Buyer. (e) Ownership of Tax Attributes. Provider shall be the owner of any Tax Attributes that may arise as a result of the operation of the Project and shall be entitled to transfer such Tax Attributes to any person. Buyer shall provide reasonable assistance to Provider in preparing all documents necessary for Provider to receive such Tax Attributes, and if Buyer is deemed to be the 13 owner of any such Tax Attributes, Buyer shall assign the same (or the proceeds thereof) to Provider. If Buyer receives any payments in respect of such Tax Attributes, it shall promptly pay them over to Provider. (f) Environmental Attributes. Buyer shall be the owner of any Environmental Attributes that may arise as a result of the operation of the Project and shall be entitled to transfer such Environmental Attributes to any person. (g) Capacity & Ancillary Services. Provider shall be entitled to receive any payments for electric capacity or ancillary services that may become available as a result of the construction or operation of the Project. Buyer shall provide reasonable assistance to Provider in preparing all documents necessary for Provider to receive such payments, and if Buyer is deemed to be the owner or provider of such capacity or services, then Buyer shall assign the same to Provider. If Buyer receives any payments in respect of capacity or such services then Buyer shall promptly pay them over to Provider. (h) Provider Is Not A Utility. Neither Party shall assert that Provider is an electric utility or public service company or similar entity that has a duty to provide service, is subject to rate regulation, or is otherwise subject to regulation by any governmental authority as a result of Provider's obligations or performance under this Agreement. (i) Grid charges. Buyer shall be responsible for paying any grid charge authorized pursuant to Ark. Code Ann. §23-18-607 or any other Applicable Law. 7. Permits and Ownership of Proiect. (a) Permits. Provider shall pay for and obtain all approvals from governmental entities necessary for the construction and operation of the Project, including land use permits, building permits, demolition and waste disposal permits and approval. (b) System Ownership. Except as provided in Section 8, Provider or Financing Party shall be the legal and beneficial owner of the Project at all times. Buyer disclaims any right, title and interest in and to the Project. The Project is personal property and shall not attach to or be deemed a part of, or fixture to, the Site. The Project shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code as in effect in the state of the Site. Buyer and/or Provider shall make any necessary filings to disclaim the Project as a fixture of the Site in the appropriate Land Registry to place all interested parties on notice of the ownership of the Project by Provider. (c) Liens. To the extent permitted by Applicable Law, each Party shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien, (including mechanics', labor or materialman's lien), charge, security interest, encumbrance or claim of any nature, including claims by Governmental Authorities for taxes (collectively referred to as "Liens" and each, individually, a "Lien") on or with respect to the interests of the other in the Project. 8. Purchase Option 14 (a) Purchase Option. Buyer shall have the right to purchase the Project and Provider's rights in the Site from Provider upon the terms set forth in this Section 8(a) (the "Purchase Option") on either of the seventh (7'h), fourteenth (14`h), or twenty-first (21") anniversary of the Commercial Operation Date ("Purchase Option Period(s)") by providing to Provider written notice of Buyer's election to purchase the Project and Provider's rights in the Site (the "Purchase Option Notice") no later than the date which is twelve (12) months prior to the respective Purchase Option Period (the "Purchase Option Notice Deadline"). If the Purchase Option is elected by Buyer timely sending to Provider the Purchase Option Notice prior to the Purchase Option Notice Deadline, the closing shall occur (i) within the three (3) month period immediately following the respective Purchase Option Period or a time and date mutually agreeable to Buyer and Provider (the "Purchase Option Closing Date"). The purchase price to be paid to Provider by Buyer for the Project and Provider's rights in the Site on the Purchase Option Closing Date shall be the greater of (i) Fair Market Value of the Project and Provider's rights in the Site and (ii) the purchase price for the Project and Provider's rights in the Site on the respective Purchase Option Period as set forth on Exhibit D hereto (the "Purchase Option Purchase Price"). Within one hundred twenty (120) days of Provider's receipt of the Purchase Option Notice, Provider shall give Buyer an appraisal of the Fair Market Value of the Project and Provider's rights in the Site as of the date of the sale. Buyer may, but is not obligated to, accept such appraisal. If Buyer does not accept such appraisal within fifteen (15) days of receiving the appraisal from Provider, the Parties shall meet to discuss the appraisal. If the parties are unable to reach agreement within twenty (20) days of the Buyer's receipt of the appraisal from Provider, the Parties will be deemed to enter into a dispute for purposes of Section 21 and shall follow the procedures in Section 21 for resolution of the dispute. Notwithstanding the foregoing, in the event that Provider enters into a tax equity investment financing transaction in connection with funding the installation of the Project, the process of determining the Fair Market Value of the Project and Provider's rights in the Site in this Agreement shall be undertaken by a mutually acceptable nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry acting reasonably and in good faith to determine the Fair Market Value of the Project and Provider's rights in the Site and shall be undertaken consistently with the terms of such transaction so that the process for determining Fair Market Value under this Agreement shall be the same as provided in the agreements for such tax equity investment financing transaction. Buyer shall be responsible for all appraisal fees. (b) Transfer of Ownership. Upon Buyer's notice that it elects to exercise the option set forth in Section 8(a) above, Provider shall prepare and deliver to Buyer a set of records on the operation and maintenance history of the Project, including a summary of known defects. Upon payment of the Purchase Option Purchase Price, Provider shall deliver, or cause to be delivered, to Buyer a bill of sale conveying the Project to Buyer and an assignment or lease/easement or special warranty deed, as applicable, with respect to Provider's rights in the Site. Such bill of sale, assignment of lease/easement, and/or special warranty deed shall not contain any warranties other than a warranty against any defects in title arising through Provider. Provider shall use all reasonable efforts to transfer any remaining manufacturer's warranties on the Project, or portions thereof, to Buyer. (c) Operation & Maintenance After Sale. Prior to the effective date of Buyer's purchase of the Project and Provider's rights in the Site under Section 8(a), Buyer and Provider shall discuss 15 entering into an operation and maintenance agreement under which Provider shall perform all or a portion of the operation and maintenance requirements of the Project following Buyer's purchase of the Project and Provider's rights in the Site. However, neither Party shall be under an obligation to enter into such an agreement. (d) No Survival of Purchase Option. The options for Buyer to purchase the Project and Provider's rights in the Site under Section 8(a) shall not survive the termination of this Agreement. 9. Shutdowns. (a) Provider Safety Shutdown. In addition to the right of Provider to shut down the Project for maintenance as provided in Section 3(g), Provider may shutdown any or all Project if Provider, in the exercise of reasonable judgment, believes Site conditions or activities of persons on the Site may interfere with the safe operation of a Project. Provider shall give Buyer notice of a shutdown immediately upon becoming aware of the potential for such conditions or activities. Provider shall use commercially reasonable efforts to restore Site conditions so as to not interfere with the safe operation of the Project and to reduce, to the greatest extent practicable, the duration of the shutdown, hi the event of such a shutdown, unless the shutdown was caused by the act or omission of Buyer or any party under Buyer's control, Buyer shall not be required to pay Provider any amounts for Usable Electricity that Buyer would have purchased but for the shutdown. (b) System Disruptions. In the event that any act or omission of Buyer, Buyer's employees, Affiliates, or agents results in a disruption or outage in a Project's production, then, in either case, Buyer shall reimburse Provider for all costs and expenses incurred by Provider to repair the Project or restore such Project's production to normal operating condition and Buyer will pay Provider an amount equal to the sum of (A) payments that Buyer would have made to Provider hereunder for Usable Electricity that would have been produced by the Project following such outage or disruption; (B) revenues that Provider would have received with respect to the Project under any incentives/benefits solar program and any other assistance program with respect to electric energy that would have been produced following such outage or disruption; and (C) revenues from Environmental Attributes that Provider would have received with respect to electric energy that would have been produced by the Project following such outage or disruption. Determination of the amount of electric energy that would have been produced following such outage or disruption shall be based, during the first Operations Year, on the estimated levels of production and, after the first Operations Year, based on actual operation of the Project in the same period in the previous Operations Year, unless Provider and Buyer mutually agree to an alternative methodology. 10. Taxes. (a) Income Taxes. Provider shall be responsible income taxes associated with payments from Buyer to Provider for Usable Electricity from the Project. Provider (and/or Financing Party), as owner of the Project, shall be entitled to all Tax Attributes with respect to the Project. (b) Sales Taxes. Buyer shall be responsible for all taxes, fees, and charges, including sales, use, and gross receipts taxes, imposed or authorized by any Governmental Authority on the 16 sale of electric energy by Provider to Buyer. Buyer shall timely report, make filings for, and pay any and all such taxes assessed directly against it and shall reimburse Provider for any and all such taxes assessed against and paid by Provider. (e) Personal Property Taxes. Provider shall be responsible for all personal property taxes for personal property which comprises a part of the Project and which is owned by Provider. (d) Real Property Taxes. Buyer shall not be responsible for real property taxes for any real property which comprises a part of the Project and which is not owned by Buyer. (e) Tax Contests. Each Party has the right to contest taxes in accordance with Applicable Law and the terms of encumbrances against the Site. Each Party shall use all reasonable efforts to cooperate with the other in any such contests of tax assessments or payments. In no event shall either Party postpone during the pendency of an appeal of a tax assessment the payment of taxes otherwise due except to the extent such postponement in payment is bonded or otherwise secured in accordance with Applicable Law. (f) Payment of Delinquent Taxes. In the event either Party fails to pay any taxes that may become a lien upon the other Party's property, such Party may pay such amounts and in such event shall be entitled to recover such paid amount from the other Party, together with interest thereon at the rate of one percent (1%) per month, compounded monthly, but not to exceed the maximum amount of seventeen percent (17%) per annum. (g) Reimbursement Deadline. Any reimbursement of taxes owing pursuant to this Section 10 shall be paid within twenty (20) days of receiving an invoice therefor from the Party who paid the taxes. 11. Reserved. 12. Cooperation The Parties acknowledge that the performance of each Party's obligations under this Agreement will frequently require the assistance and cooperation of the other Party. Each Party therefore agrees, in addition to those provisions in this Agreement specifically providing for assistance from one Party to the other, that it will at all times during the Term cooperate with the other Party and provide all reasonable assistance to the other Party to help the other Party perform its obligations hereunder. During the Term, Buyer shall deliver to Provider: (i) its annual audited financial statements within 180 days after the end of each Fiscal Year, (ii) its annual budget for the succeeding Fiscal Year promptly following approval thereof, (iii) proof of appropriation of funds for payments due hereunder with its annual budget, and (iv) such other financial statements and information relating to the ability of Buyer to satisfy its obligations under this Agreement as may be reasonably requested by Provider from time to time. 17 13. Press Releases and Confidentiality. (a) Press Releases. The Parties acknowledge that they each desire to publicize information about this Agreement and the Project. The Parties therefore agree that each may make independent press releases about entering into this Agreement, the size and location of the Project, production values of the Project, the estimated savings ( including, but not limited to, financial and environmental attributes) as a result of the Project, the costs incurred by the City related to the Project, material aspects including, but not limited to, component descriptions and locations, and the identity of the other Party, with the prior written consent of the other Party, which consent will not be unreasonably withheld. However, the terms of this Agreement and information about the Project other than that described above constitutes Confidential Information, as defined below, and is subject to the remaining provisions of this Section 13. Both Parties have exclusive control over the content or their respective websites. Any press release will be reviewed by both Parties within 3 business days. If no changes have been requested after 3 business days for review either Party may issue the press release. Both Parties will review and agree to all media announcement and marketing publications before release. Nothing herein shall prevent Buyer from complying with its obligations under the Freedom of Information Act. (b) Limits on Disclosure of Confidential Information. Subject to the exceptions set forth below in Section 13(c), each Party agrees that, (i) without the consent of the other Party, it shall not disclose any Confidential Information received from the other Party to any other person and (ii) it shall use any Confidential Information received from the other Party only for the purpose of fulfilling its obligations under this Agreement. Notwithstanding the foregoing, the Parties may, and shall, disclose any information required to be disclosed under rules, regulations and contracts implementing any incentives/benefits applicable to the Project which Provider elects to participate in or Tax Attributes required to be disclosed by any Governmental Authority under Applicable Law or pursuant to a validly issued subpoena or required filing. Notwithstanding the foregoing provision, the Parties acknowledge that the Buyer is subject to the disclosure requirements of the Arkansas Freedom of Information Act and the confidentiality of the Family Educational Rights and Privacy Act. (c) Permissible Disclosures. Buyer may publicly publish this Agreement and its exhibits and schedules in the event Buyer determines, in its sole discretion, that disclosure is required by any agreement to which Buyer is a party, or by applicable law or the rules of any public or private regulatory body. Provider may provide this Agreement, and any correspondence, notices and other information related to this Agreement to any person who has provided or who is interested in providing construction or permanent financing, or any refinancing thereof, to Provider in connection with the Project. In addition, if a receiving Party is required by Applicable Law, validly issued subpoena, required filing, or the rules of any stock exchange or regulatory body, to disclose any Confidential Information provided by the disclosing Party, the receiving Party shall notify the disclosing Party prior to making any disclosure and shall use its reasonable efforts to cooperate with the disclosing Party, but at the expense of the disclosing Party. (d) Buyer acknowledges that Provider is an independent contractor and the Buyer has no ownership or control over Provider, a private entity. Provider has not agreed to act as a custodian of public records for the Buyer subject to the provisions of the Arkansas Freedom of Information 113 Act, Ark. Code Ann. §25-19-101, et seq. Buyer further acknowledges and agrees that certain documents and information provided to Buyer pursuant to the terms and conditions of this Agreement may place Provider and Buyer at a competitive disadvantage if the information is disclosed by Buyer. In the event Buyer receives a request for disclosure pursuant to subpoena or other means, Buyer shall promptly provide notice of such request to Provider, and shall notify Provider of any records Buyer deems it is required under law to disclose, in order to give Provider the opportunity to seek an Attorney General Opinion or court order to prevent the disclosure. (e) Provider shall provide the Buyer with access to a Project monitoring application which will allow the Buyer to access the Project information for purposes of Buyer displaying and communicating the Project information to the public. The system monitoring application shalt be updated at least daily. 14. Representations and Warranties. (a) Mutual Representations. Each Party hereby represents and warrants to the other, as of the Effective Date, that: (i) Organization. It is duly organized, validly existing and in good standing under the laws of its state of incorporation or formation, as applicable, and of the state in which the Sites are located, respectively, and has the power and authority to enter into this Agreement and to perform its obligations hereunder. (ii) No Conflict. The execution and delivery of this Agreement and the performance of and compliance with the provisions of this Agreement will not conflict with or constitute a breach of or a default under (1) its organizational documents; (2) any agreement or other obligation by which it is bound; and/or (3) any law or regulation. (iii) Enforceability. (1) Except as contemplated under Section 3(a), all actions required to be taken by or on the part of such Party necessary to make this Agreement effective have been duly and validly taken; (2) this Agreement has been duly and validly authorized, executed and delivered on behalf of such Party; and (3) this Agreement constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with its terms, subject to laws of bankruptcy, insolvency, reorganization, moratorium or other similar laws. (iv) No Material Litigation. There are no court orders, actions, suits or proceedings at law or in equity by or before any governmental authority, arbitral tribunal or other body, or threatened against or affecting it or brought or asserted by it in any court or before any arbitrator of any kind or before or by any governmental authority that could reasonably be expected to have a material adverse effect on it or its ability to perform its obligations under this Agreement, or the validity or enforceability of this Agreement. (b) Buyer Representations. In addition to the representations and warranties in Section 14(a), Buyer hereby represents and warrants to Provider, as of the Effective Date, that: 19 (i) Authorization. The execution and delivery of this Agreement by Buyer and the performance of its obligations hereunder have been duly authorized by all necessary official action. This Agreement is a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms. (ii) Financial Information. The financial information Buyer has provided to Provider presents fairly in all material respects the financial condition and results of operations of Buyer. (c) Provider Representations. In addition to the representations and warranties in Section 14(a), Provider hereby represents and warrants to Buyer that: (i) Before commencing performance of this Agreement Provider shall have become licensed or otherwise permitted to do business in the State of Arkansas and shall have provided proof and documentation of all required insurance and bonds pursuant to this Agreement. (ii) Provider shall make available, upon reasonable request, documents relating to its performance under this Agreement, including contracts and subcontracts it shall enter into; (iii) Provider shall use contractors and subcontractors who are qualified, licensed and bonded in this State to perform the work so subcontracted pursuant to the terms hereof; (iv) Provider has all requisite authority to the use of proprietary property, both tangible and intangible, contemplated by this Agreement; (v) The execution and delivery of this Agreement by Provider and the performance of its obligations hereunder have been duly authorized by all necessary official action. This Agreement is a legal, valid and binding obligation of Provider enforceable against Provider in accordance with its terms; and (vi) If requested by Buyer, the financial information Provider has provided to Buyer presents fairly in all material respects the financial condition and results of operations of Provider. 15. Force Majeure. (a) Excuse for Force Majeure Event. Except as provided in Section 15(b) or 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 this Agreement if and to the extent that such delay or failure is caused by the occurrence of a Force Majeure Event; provided that the Party claiming relief as a result of the Force Majeure Event shall promptly (i) notify the other Party in writing of the existence and details of the Force Majeure Event; (ii) exercise all reasonable efforts to minimize delay caused by such Force Majeure Event; (iii) notify the other Party in writing of the 20 cessation of such Force Majeure Event; and (iv) resume performance of its obligations hereunder as soon as practicable thereafter. (b) No Excuse for Payment for Prior Services. Obligations to make payments for services already provided shall not be excused by a Force Majeure Event. (c) Restoration. In the event of a casualty event, to the extent that such casualty event is attributable to the occurrence of a Force Majeure Event that destroys all or a substantial portion of a Site, Provider shall elect, within ninety (90) days of such event, whether it will restore the Site, which restoration will be at the sole expense of Provider. If Provider does not elect to restore the Site, then this Agreement will terminate. If Provider does elect to restore the Site, Provider shall provide notice of such election to Buyer, and thereafter following receipt of all necessary permits and approvals shall diligently restore the Site at its sole expense. In the event of termination of this Agreement pursuant to this Section 15(c), (i) the Parties shall not be released from any payment or other obligations arising under this Agreement prior to the casualty event; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, Provider shall restore the Site if a Force Majeure Event occurs during the first seven (7) years of the Operation Period. (d) Termination for Force Majeure Event. Notwithstanding anything to the contrary in this Agreement, if nonperformance that is the result of a Force Majeure Event continues beyond a continuous period of two hundred and seventy (270) days, then either Party shall have the right to terminate this Agreement upon thirty (30) days' notice to the other; provided, however, that Provider's restoration of the Site under Section 15(c) shall not be subject to the foregoing termination provision if during such 270-day period Provider has begun restoration of the Site and is proceeding diligently, using commercially reasonable efforts, to complete such restoration without unreasonable delay. In the event of such a termination of this Agreement with respect to the Project, the Parties shall not be released from any payment or other obligation arising under this Agreement which accrued prior to the shutdown of the Project or Site, and the confidentiality and dispute resolution provisions of this Agreement shall survive the termination of this Agreement. 16. Provider Default and Buyer Remedies. (a) Provider Events of Default. Provider shall be in default of this Agreement if any of the following ("Provider Events of Default") shall occur: (i) Misrepresentation. Any representation or warranty by Provider under Section 14 hereof, is incorrect or incomplete in any material way, or omits to include any information necessary to make such representation or warranty not materially misleading, and such defect is not cured within fifteen (15) days after receipt of notice from Buyer identifying the defect. (ii) Abandonment During Installation. After commencement of installation of a Project, Provider abandons installation of the Project for thirty (30) consecutive days and fails to resume installation within thirty (30) days after receipt of notice from Buyer stating 21 that, in Buyer's reasonable determination, Provider has abandoned installation of the Project. (iii) Failure to Operate. After the Commercial Operation Date, Provider fails to deliver Usable Electricity for a period of ninety (90) consecutive days, which failure is not due to equipment failure, damage to the Project that can be remedied during such ninety (90) day period through the exercise or ordinary diligence, act of governmental authority, exercise of Provider's rights under this Agreement, or otherwise excused by the provisions of Section 15(b) (relating to Force Majeure Events); and Provider fails to resume operation within thirty (30) days after receipt of notice from Buyer stating that, in Buyer's reasonable determination, Provider has ceased operation of the Project; provided, however, that the cure period shall be extended by the number of calendar days during which Provider is prevented by circumstances beyond its control from taking curative action if Provider had begun curative action and was proceeding diligently, using commercially reasonable efforts, to complete such curative action. (iv) Obligation Failure. Provider fails to perform any obligation hereunder, such failure is material, such failure is not excused by the provisions of Section 15(b) (relating to Force Majeure Events), and such failure is not cured within: (A) ten (10) days if the failure involves a failure to make payment when due; or (B) sixty (60) days if the failure involves an obligation other than payment, after receipt of notice from Buyer identifying the failure. (v) Prohibited Acts. Provider takes any material action forbidden by this Agreement. (vi) Insolvency. Provider (A) applies for or consents to the appointment, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or a substantial portion of its property; (B) admits in writing its inability, or is generally unable, to pay its debts as such debts become due; (C) makes a general assignment for the benefit of its creditors; (D) commences a voluntary case under any bankruptcy law; (E) files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) acquiesces in, or fails to contest in a timely manner, any petition filed against Provider in an involuntary case under bankruptcy law or seeking to dissolve Provider under other Applicable Law; or (G) takes any action authorizing its dissolution. Prior to any event of Provider insolvency occurring after the fifth anniversary of the Commercial Operation Date for a Project, Provider shall offer to sell the Project at Fair Market Value to Buyer, unless prohibited by law. (b) Financing Party pportunity to Cure; Buyer Remedies. Upon an Event of Default by Provider, provided that Buyer complies with its obligations under Section 18 and Financing Party does not cure such Event of Default by Provider, Buyer may terminate this Agreement, seek to recover damages for costs of replacement Usable Electricity for the Project, and pursue other remedies available at law or equity. 17. Buyer Default and Provider Remedies. 22 (a) Buyer Events of Default. Buyer shall be in default of this Agreement if any of the following ("Buyer Events of Default") shall occur: (i) Misrepresentation. Any representation or warranty by Buyer under Section 14 hereof, is incorrect or incomplete in any material way, or omits to include any information necessary to make such representation or warranty not materially misleading, and such defect is not cured within fifteen (15) days after receipt of notice from Provider identifying the defect. (ii) Obstruction. Buyer intentionally obstructs commencement of installation of any Project or fails to take any actions necessary for the interconnection of any Project, or fails to take Usable Electricity produced by any Project (except in the case of Excuse for Force Majeure Event), and fails to correct such action within its own power to do so within fifteen (15) days. (iii) Payment Failure. Buyer fails to make any payment due under the terms of this Agreement and fails to make such payment within thirty (30) days after the date when due. (iv) Obligation Failure. Buyer fails to perform any obligation hereunder, such failure is material, such failure is not excused by the provisions of Section 15(b) (relating to Force Majeure Events), and such failure is not cured within sixty (60) days if the failure involves an obligation other than payment, after receipt of notice from Provider identifying the failure. (v) Insolvency. Buyer (A) applies for or consents to the appointment, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or a substantial portion of its property; (B) admits in writing its inability, or be generally unable, to pay its debts as such debts become due; (C) makes a general assignment for the benefit of its creditors; (D) commences a voluntary case under any bankruptcy law; (E) files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) acquiesces in, or fails to contest in a timely manner, any petition filed against Buyer in an involuntary case under bankruptcy law or seeking to dissolve Buyer under other Applicable Law; or (G) takes any action authorizing its dissolution. (b) Default Damages. Upon an Event of Default by Buyer, Provider may remove any components of the Project located on a Site and/or pursue any and all other remedies available at law or in equity. 18. Collateral Assignment, Financing Provisions. (a) Financing Arrangements. To the extent permitted by law, Provider may pledge, grant security interests, assign, or otherwise encumber its interests in the Site, Project and this Agreement to any persons providing financing for the Project. Buyer acknowledges that Provider 23 will obtain construction financing for the Project from one or more third parties and that Provider may either obtain term financing secured by the Project or sell or assign the Project to a Financing Party or may arrange other financing accommodations from one or more financial institutions and may from time to time refinance, or exercise purchase options under, such transactions. Buyer acknowledges that in connection with such transactions Provider may secure Provider's obligations by, among other collateral, an assignment of this Agreement, in whole or in part, and a first security interest in the Project, including the Site. In order to facilitate such financing, and with respect to any lender or lessor, as applicable, Buyer agrees as follows: (i) Consent to Collateral Assignment. Buyer hereby consents to both of the sale or lease of the Project to a Financing Party and the collateral assignment to the Financing Party of the Provider's right, title and interest in and to this Agreement. (ii) Rights of Financing Party. Notwithstanding any contrary term of this Agreement: (A) Step -In Rights. The Financing Party, as owner or lessee of the Project, or as collateral assignee of this Agreement, 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. The Financing Party shall also be entitled to exercise all rights and remedies of owners or secured parties, generally with respect to this Agreement and the Project; (B) Opportunity to Cure Default. The Financing Party shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty or obligation required of 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 Financing Party to cure any default of Provider under this Agreement or (unless the Financing Party has succeeded to Provider's interests under this Agreement) to perform any act, duty or obligation of Provider under this Agreement, but Buyer hereby gives it the option to do so; (C) Exercise of Remedies. Upon the exercise of remedies, including any sale of the Project by the Financing Party, whether by judicial proceeding or under any power of sale contained therein, or any conveyance from Provider to the Financing Party (or any assignee of the Financing Party as defined below) in lieu thereof, the Financing Party shall give notice to Buyer of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a default under this Agreement; (D) Cure of Bankruptcy Rejection. 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 Financing Party made within ninety (90) days of such termination or rejection, Buyer shall enter into a new agreement with Financing Party or its assignee(s) having the same terms and conditions as this Agreement. 24 (iii) Right to Cure. (A) Cure Period. If Financing Party provides Buyer with notice of its interest and with a notice address, Buyer will not exercise any right to terminate or suspend this Agreement unless it shall have given the Financing 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 Financing Party shall not have caused to be cured the condition giving rise to the right of termination or suspension within the periods for cure provided for in this Agreement.; provided that if such Provider default reasonably cannot be cured by the Financing Party within such period and the Financing Party 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 an additional ninety (90) days. The Parties' respective obligations will otherwise remain in effect during any cure period. (B) Continuation of Agreement. If the Financing Party or its assignee (including any purchaser or transferee), pursuant to an exercise of remedies by the Financing Party, shall acquire title to or control of Provider's assets and shall, within the time periods described in Section 18(a)(iii)(A) 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 shall no longer be in default under this Agreement, and this Agreement shall continue in full force and effect. (b) Financing Party a Third -Party Beneficiary. Buyer agrees and acknowledges that Financing Party is a third -party beneficiary of the provisions of this Section 18. (c) Entry to Consent to Assi mg Went. Buyer agrees to execute any consents to assignment, payment direction letters, or acknowledgements as may be reasonably requested by Provider and/or Financing Party in connection with such financing of or sale of any or all of the Project. (d) Regardless of assignment, Provider, Provider's Affiliate, or a contractor thereof that is an experienced manager in the renewable energy industry of at least 25 MW of renewable energy assets will continue to operate and maintain the Project. For the avoidance of doubt, Entegrity Energy Partners LLC and/or an Affiliate thereof shall qualify as an experienced manager hereunder. 19. Chanae in Law. If there is any Change in Law subsequent to the Effective Date that results in a direct and material change in Provider's costs to provide the Solar Services or Buyer's ability to obtain, or a material reduction in, any net metering credit or payment from the Electric Utility, Provider or Buyer shall promptly submit to the other party a written notice setting forth (i) the citation of the Change in Law, (ii) the manner in which such change materially increases Provider's costs to 25 provide the Solar Services or Buyer's ability to receive, or the material reduction in, the net metering credit or payment, and (iii) Provider's or Buyer's proposed adjustment to the kWh rates to reflect such material changes in Provider's costs or Buyer's ability to receive, or the material reduction in, the net metering credit or payment. Provider and Buyer agree to negotiate in good faith a commercially reasonable adjustment in the kWh rate to reflect the associated costs or values impacted by the Change in Law, and in the event Buyer and Provider are unable to agree upon a reasonable adjustment within thirty (30) days after written notice in accordance with this Section, such Dispute shall be resolved in accordance with Section 21 hereof. 20. Limitations on Damages, Liability, and Remedies; Disclaimer. (a) EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES SUBCONTRACTORS OR SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES (OTHER THAN AMOUNTS PAYABLE UNDER THIS AGREEMENT), LOST PROFITS, LOST BUSINESS OPPORTUNITY OR ANY BUSINESS INTERRUPTION), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF ADVISED OF SUCH. THE PARTIES AGREE THAT (1) IN THE EVENT THAT PROVIDER OR ITS INVESTORS LOSE OR ARE REQUIRED TO RECAPTURE ANY TAX ATTRIBUTES OR OTHER TAX BENEFITS AS A RESULT OF A BREACH OF THIS AGREEMENT BY BUYER, SUCH RECAPTURED AMOUNT SHALL BE DEEMED TO BE DIRECT AND NOT INDIRECT OR CONSEQUENTIAL DAMAGES, AND (II) IN THE EVENT THAT PROVIDER IS RETAINING THE ENVIRONMENTAL ATTRIBUTES PRODUCED BY THE PROJECT, AND A BREACH OF THIS AGREEMENT BY BUYER CAUSES PROVIDER TO LOSE THE BENEFIT OF SALES OF SUCH ENVIRONMENTAL ATTRIBUTES TO THIRD PARTIES, THE AMOUNT OF SUCH LOST SALES SHALL BE DIRECT AND NOT INDIRECT OR CONSEQUENTIAL DAMAGES. (b) PROVIDER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON- PERFORMANCE OF THIS AGREEMENT CANNOT EXCEED THE TOTAL PAYMENTS ACTUALLY MADE BY BUYER UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 20(B) WILL APPLY WHETHER SUCH LIABILITY OR CLAIM ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. (c) TO THE EXTENT THAT THIS AGREEMENT SETS FORTH SPECIFIC REMEDIES FOR ANY CLAIM OR LIABILITY, SUCH REMEDIES ARE THE AFFECTED PARTY'S SOLE AND EXCLUSIVE REMEDIES FOR SUCH CLAIM OR LIABILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. (d) EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO WARRANTY WITH RESPECT TO THE PROJECT OR THE PERFORMANCE OF PROVIDER'S OBLIGATIONS HEREUNDER, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A 26 PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, APPLIES UNDER THIS AGREEMENT. (e) NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO ALTER, LIMIT, OR OTHERWISE COMPROMISE THAT TORT IMMUNITY AFFORDED THE CITY OF FAYETTEVILLE UNDER THE CONSTITUTION AND STATUTES OF THE STATE OF ARKANSAS. 21. Dispute Resolution. (a) Negotiation Period. The Parties shall negotiate in good faith and attempt to resolve any dispute, controversy or claim arising out of or relating to this Agreement (a "Dispute") within thirty (30) days after the date that a Party gives written notice of such Dispute to the other Party. (b) Mediation. If, after such negotiation in accordance with Section 21(a), the Dispute remains unresolved, either Party may request that a non -binding mediation take place. In such mediation, representatives of the Parties with authority to resolve the dispute shall meet for at least three (3) hours with a mediator whom they choose together. If the Parties are unable to agree on a mediator, then either Party is hereby empowered to request the American Arbitration Association to appoint a mediator. The mediator's fee and expenses shall be paid one-half by each Party. (c) Forum. The parties agree that all claims, demands or actions for loss, expense, damage, liability or other relief, either at law or in equity, arising out of or related to this Agreement must be brought before a court in Washington County, Arkansas having jurisdiction over such matter. 22. Notices. Delivery of Notices. All notices or other communications which may be or are required to be given by any party to any other party pursuant to this Agreement shall be in writing and shall be either (i) delivered by hand; (ii) mailed by first-class, registered or certified mail, return receipt requested, postage prepaid; (iii) delivered by a recognized overnight or personal delivery service; (iv) transmitted by facsimile (such transmission to be effective on the day of receipt if received prior to 5:00 pm local time on a business day or in any other case as of the next business day following the day of transmittal); or (v) transmitted by email if receipt of such transmission by email is specifically acknowledged by the recipient (automatic responses not being sufficient for acknowledgement), addressed as follows: If to Buyer: City of Fayetteville 113 West Mountain Street Fayetteville, AR, 72701 If to Provider: Entegrity Energy Partners, LLC 27 1403 East 6"' Street Little Rock, AR 72202 Notices shall be effective when delivered (or in the case of email, when acknowledged by the recipient) in accordance with the foregoing provisions, whether or not (except in the case of email transmission) accepted by, or on behalf of, the Party to whom the notice is sent. Each Party may designate by Notice in accordance with this section to the other Party a new address to which any notice may thereafter be given. 23. Miscellaneous. (a) Governing Law. This Agreement shall be governed by the laws of the State of Arkansas, without regard to its choice of law provisions, and applicable federal law. Any legal action or proceeding arising out of or relating to this Agreement must be conducted exclusively within the State of Arkansas and in no other jurisdiction. (b) Rules of Interpretation. Section headings are for convenience only and shall not affect the interpretation of this Agreement. References to sections are, unless the context otherwise requires, references to sections of this Agreement. The words "hereto", "hereof' and "hereunder" shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word "person" shall include individuals; partnerships; corporate bodies (including but not limited to corporations, limited partnerships and limited liability companies); non-profit corporations or associations; governmental bodies and agencies; and regulated utilities. The word "including" shall be deemed to be followed by the words "without limitation". In the event of any conflict between the text of this Agreement and the contents of an Exhibit hereto, the text of this Agreement shall govern. (c) Severability. If any non -material part of this Agreement is held to be unenforceable, the rest of the Agreement will continue in effect. If a material provision is determined to be unenforceable and the Party which would have been benefited by the provision does not waive its unenforceability, then the Parties shall negotiate in good faith to amend the Agreement to restore to the Party that was the beneficiary of such unenforceable provision the benefits of such provision. (d) Amendment and Waiver. This Agreement may only be amended by a writing signed by both Parties. Any waiver of any of the terms hereof shall be enforceable only to the extent it is waived in a writing signed by the Party against whom the waiver is sought to be enforced. Any waiver shall be effective only for the particular event for which it is issued and shall not constitute a waiver of a subsequent occurrence of the waived event nor constitute a waiver of any other provision hereof, at the same time or subsequently. (e) Assignment. Neither Party may assign, sell, transfer or in any other way convey its rights, duties or obligations under this Agreement, either in whole or in part, without the prior written consent of the other Party which consent shall not be unreasonably withheld or delayed, except that without consent of Buyer, Provider (i) may assign, in whole or in part, its rights and obligations hereunder to an Affiliate of Provider and (ii) may sell or collaterally assign this m Agreement in whole or in part as collateral, in accordance with Section 18. For purposes of this Section 23(e), assign, sell, transfer, or convey does not include any sale of all or substantially all of the assets of Provider or any merger of Provider with another person, whether or not Provider is the surviving entity from such merger, or any other change in control of Provider, provided any such surviving entity assumes all obligations of Provider, as appropriate, under this Agreement. Buyer agrees to execute any consents to assignment or acknowledgements as may be reasonably requested by Provider in connection with an assignment of this Agreement. (f) Provider Put Option. Buyer and Provider hereby expressly acknowledge and agree that Provider shall have the option to put the purchase of one or more Projects located on a Site to Buyer at the end of the Term for a purchase price which is equivalent to the Fair Market Value of the Project at such time. (g) THIS AGREEMENT IS NOT A LEASE — THIS AGREEMENT CONSTITUTES A SERVICE CONTRACT. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS NOT A LEASE AND THIS AGREEMENT SHALL NOT BE CONSTRUED AS A LEASE. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE AND FURTHER COVENANT, WARRANT, AND REPRESENT TO EACH OTHER THAT NEITHER PARTY WILL TAKE ANY ACTION WHATSOEVER TO TREAT OR CONSTRUE THIS AGREEMENT AS A LEASE. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS AN AGREEMENT TO SELL ELECTRIC ENERGY GENERATED FROM AN ALTERNATIVE ENERGY FACILITY AND THIS AGREEMENT SHALL BE DEEMED A SERVICE CONTRACT PURSUANT TO 26 U.S.C. SECTION 7701(e)(3)(A). THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE AND FURTHER COVENANT, WARRANT, AND REPRESENT TO EACH OTHER THAT EACH PARTY WILL TAKE ANY AND ALL ACTIONS NECESSARY TO INSURE THAT THIS AGREEMENT IS TREATED AND CONSTRUED AS A SERVICE CONTRACT SATISFYING THE REQUIREMENTS OF SERVICE CONTRACTS PURSUANT TO 26 U.S.C. SECTION 7701(e)(3)(A). THE PARTIES HERETO HEREBY FURTHER EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS INTENDED TO FULLY COMPLY WITH ACT 464 OF THE 2019 REGULAR SESSION OF THE 92Nn GENERAL ASSEMBLY OF THE STATE OF ARKANSAS, EXPRESSLY INCLUDING, BUT NOT LIMITED TO, A.C.A SECTION 23-18-603(7)(C). (h) No Joint Venture. This Agreement does not create a joint venture, partnership or other form of business association between the Parties. (i) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of signature by fax, or scan delivered by email, receipt acknowledged, or electronic signature are effective to bind a Party hereto. (Signatures contained on following page) 29 (Signature Page to Solar Services Agreement) EXECUTED AND EFFECTIVE as of the Effective Date. BUYER: CITY OF FAYETTEVILLE By Na Tit PROVIDER: ENTEGRITY ENERGY PARTNERS, LLC Mchae( TarAk e By: t— �^, ker).7eC 18. 1 D23 12 19 CST) Name: Michael Parker Title: President 30 EXHIBIT A CONFIDENTIAL USABLE ELECTRICITY PURCHASE RATE Year Solar Electric Rate,($/kWh) 1 $0.0570 2 $0.0576 3 $0.0581 4 $0.0587 5 $0.0593 6 $0.0599 7 $0.0605 8 $0.0611 9 $0.0617 10 $0.0623 11 $0.0630 12 $0.0636 13 $0.0642 14 $0.0649 15 $0.0655 16 $0.0662 17 $0.0668 18 $0.0675 19 $0.0682 20 $0.0689 21 $0.0696 22 $0.0702 23 $0.0709 24 $0.0717 25 $0.0724 31 EXHIBIT B DESCRIPTION OF SITE General Description: A portion of parcel ® in ® County, Arkansas. Final legal description to be determined by survey. 32 EXHIBIT C CONFIDENTIAL DESCRIPTION OF PROJECT Project Description: Point of Delivery Solar Modules: ��- Solar Racking System: Inverters: Billing Meter: Facility Capacity (DC): Facility Capacity (AC): Estimated Year-1 Production: 33 EXHIBIT D CONFIDENTIAL PURCHASE OPTION PURCHASE PRICE SCHEDULE Seventh (7111) Anniversary of Commercial Operation Date: The greater of (i) Fair Market Value of the Project and Provider's rights in the Site and (ii) -; Fourteenth (14m) Anniversary of Commercial Operation Date: The greater of (i) Fair Market Value of the Project and Provider's rights in the Site and (ii) -; Twenty -First (21st) Anniversary of Commercial Operation Date: The greater of (i) Fair Market Value of the Project and Provider's rights in the Site and (ii) ®. 34 Assignment of Solar Services Agreement City of Fayetteville Staff Review Form 2024-0411 Item ID ARCHIVED N/A City Council Meeting Date-Agenda Item Only N/A for Non-Agenda Item Chris McNamara 6/24/2024 SUSTAINABILITY/RESILIENCE (631) Submitted By Submitted Date Division/ Department Action Recommendation: Staff recommends approval of ASSIGNMENT OF SOLAR SERVICES AGREEMENT with Entegrity Energy Partners LLC and BluePath Solar Fayetteville LLC. This agreement transfers project ownership responsibilities and liabilities from project developer, Entegrity Energy Partners, to financier, BluePath Solar Fayetteville LLC. Budget Impact: xxxx.xxx.xxxx-5310.10 Multiple Account Number Fund N/A N/A Project Number Project Title Budgeted Item? Yes Total Amended Budget $ 1,801,643.00 Expenses (Actual+Encum) $ 594,601.08 Available Budget S 1,207,041.92 Does item have a direct cost? No Item Cost $Is a Budget Adjustment attached? No Budget Adjustment $ - Remaining Budget 1,2.07,041.92 V20221130 Purchase Order Number: Previous Ordinance or Resolution# Res. 299-23 Change Order Number: Approval Date: 06/26/2024 Original Contract Number: Comments: CITY OF FAYETTEVILLE STAFF MEMO ARKANSAS TO: Lioneld Jordan, Mayor THRU: Susan Norton, Chief of Staff Paul Becker, Chief Financial Officer Kit Williams, City Attorney Chris Brown, Public Works Director FROM: Chris McNamara, Sustainability Project Manager DATE: 06/24/2024 SUBJECT: ASSIGNMENT OF SOLAR SERVICES AGREEMENT RECOMMENDATION: Staff recommends approval of ASSIGNMENT OF SOLAR SERVICES AGREEMENT with Entegrity Energy Partners LLC and BluePath Solar Fayetteville LLC. This agreement transfers project ownership responsibilities and liabilities from project developer, Entegrity Energy Partners, to financier, BluePath Solar Fayetteville LLC. BACKGROUND: On December 28th, 2023 the City of Fayetteville entered into a Solar Services Agreement (SSA) with Entegrity Energy Partners LLC for development of a 3.77MW ground mounted solar array. This project is an essential step in reaching the City's goal of 100% local government clean energy by 2030 that was established in the 2018 Energy Action Plan. This 3.77MW solar project is estimated to save the City $7 million over the life of the 25yr contract. DISCUSSION: Assignment of rights, title, benefit, privileges, interest, liabilities, and obligations established under the SSA from project developer to project financier is normal industry procedure and an essential step in project development. The City of Fayetteville requested the right to approve assignment of ownership to third parties as part of the project approval process. This assignment does not change any agreement established under the solar services agreement. It only transfers ownership to the financing company, Blue Path Solar. To deny assignment would effectively cancel the 3.77MW solar project. BUDGET/STAFF IMPACT: None Attachments: Sale & Assignment Agreement Mailing Address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 DocuSign Envelope ID:6A07CA8E-E31 B-4A44-A199-EB3302A6CF57 ESTOPPEL CERTIFICATE,ASSIGNMENT OF SOLAR SERVICES AGREEMENT, CONSENT TO ASSIGNMENT,NOTICE,AND AMENDMENT TO SOLAR SERVICES AGREEMENT This Estoppel Certificate, Assignment of Solar Services Agreement, Consent to Assignment, Notice, and Amendment to Solar Services Agreement (this "Agreement"), dated as of June 26, 2024 (the "Effective Date"), is made by and among City of Fayetteville ("Buyer"), Entegrity Energy Partners, LLC, an Arkansas limited liability company ("Assignor"), and BluePath Solar Fayetteville LLC, an Arkansas limited liability company ("Assignee") (each, a "Party,"and collectively,the"Parties"). WHEREAS,Assignor and Buyer are parties to that certain Solar Services Agreement dated as of December 28, 2023 (the"SSA")attached hereto as Exhibit A; WHEREAS,Assignor, in connection with the financing of the System under the SSA, desires to fully assign and delegate to Assignee all of its rights, title, benefit, privileges, interest, liabilities, and obligations in, to, and under the SSA, and Assignee desires to accept such assignment and delegation and to assume all such rights, title, benefit, privileges, interest, liabilities,and obligations, in accordance with the terms hereof; WHEREAS,Assignee will finance the System in part,with proceeds of a loan by City National Bank("Lender");and WHEREAS, the Parties desire to acknowledge this Agreement and the transactions contemplated hereby in accordance with the terms and conditions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, do hereby agree as follows: 1. Defined Terms. Unless otherwise defined herein, capitalized terms shall have the meanings given to them in the SSA. 2. Assignment. Effective as of the Effective Date, Assignor hereby assigns and delegates to Assignee all of its rights,title, benefit, privileges, interest, liabilities, and obligations in, to, and under the SSA arising on or after the Effective Date, free and clear of all liens, encumbrances, and claims, subject to the terms set forth below. 3. Assumption. Effective as of the Effective Date, Assignee hereby accepts such assignment from Assignor and assumes and agrees to observe and perform all of Assignor's duties, liabilities,and obligations arising under the SSA on or after the Effective Date. 4. No Prior Duties, Liabilities, or Obligations. Buyer and Assignor acknowledge and agree that as of the Effective Date, no duties, obligations, or liabilities have accrued or are outstanding in connection with the SSA and the SSA shall be assumed by Assignee without any prior duties,obligations,or liabilities. 1 DocuSign Envelope ID 6A07CA8E-E31B-4A44-A199-EB3302A6CF57 5. Acknowledgement and Acceptance. Effective as of the Effective Date,the Buyer: (1)acknowledges Assignor's assignment of all of its rights, title, benefit, privileges, interest, and obligations in,to, and under the SSA; (2)accepts Assignee's assumption of the duties, liabilities, and obligations of Assignor arising on or after the Effective Date under the SSA;and(3)fully and finally releases and discharges the Assignor from any and all of its duties, obligations, and liabilities arising under the SSA on or after the Effective Date. 6. Further Actions Necessary. Each of the Parties hereto covenants and agrees, at its own expense, to execute and deliver, at the request of another Party hereto, such further instruments of transfer and assignment and to take such other actions as such other Party may reasonably request to consummate more effectively the transactions contemplated by this Agreement. 7. Representations and Warranties of Buyer. The Buyer represents and warrants to the Assignor, the Assignee, and the Lender, as of the Effective Date: (a) Organization;Power and Authority. Buyer is validly organized and existing under the laws of the State of Arkansas, and has the power and authority to transact the business it transacts and proposes to transact, to execute this Agreement and the SSA and to perform its obligations hereunder and thereunder. (b) Authorizations, Enforceability. This Agreement and the SSA have been duly authorized, executed and delivered by Buyer and do not require any permits, approvals, resolutions, filings with, or consents of any entity or person (including any governmental authority)that have not previously been obtained or made. This Agreement and the SSA each constitute a legal, valid, and binding obligation of Buyer enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by(a)applicable bankruptcy,insolvency,reorganization,moratorium,or other similar laws affecting the enforcement of creditors' rights generally and(b)general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (c) No Default or Force Majeure Event. Buyer is not in breach of any of its obligations under the SSA,and to Buyer's knowledge, Assignor is not in breach of any of its obligations under the SSA and no event has occurred which with the passage of time or giving of notice or both would constitute a default, result in a loss of rights or permit termination,modification or acceleration under,or result in the creation of a lien,under the SSA. To Buyer's knowledge, no Force Majeure Event exists under the SSA. (d) No Adverse Proceedings. There is no litigation,action, suit, proceeding or investigation pending or (to Buyer's knowledge) threatened against Buyer or Assignor before or by any court, administrative agency, arbitrator or governmental authority, body or agency that, if adversely determined, individually or in the aggregate, (a)could materially adversely affect the performance by Buyer of its obligations under this Agreement or the SSA or that could modify or otherwise adversely affect any required approvals, filings, resolution or consents that have previouslybeen obtained or made, PP � g � (b)could have a material adverse effect on the condition(financial or otherwise), business 2 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 or operations of Buyer,or(c)questions the validity, binding effect or enforceability of this Agreement or the SSA,any action taken or to be taken pursuant hereto or thereto or any of the transactions contemplated hereby or thereby. (e) No Violations. The execution, delivery and performance by Buyer of this Agreement, the SSA, and the consummation of the transactions contemplated hereby and thereby, will not result in any violation of, breach of or default under any term of its formation or governance documents, or of any contract or agreement to which it is a party or by which it or its property is bound, or of any resolution, license, permit, franchise, judgment, injunction, order, law, rule or regulation applicable to it, other than any such violation, breach or default which could not reasonably be expected to have a material adverse effect on the rights and benefits of Assignee or Buyer's ability to perform its obligations, under, in respect of, or in connection with, this Agreement or the SSA. (f) SSA; No Other Agreements. A true and complete copy of the SSA is attached hereto as Exhibit E. Except as set forth herein, the SSA has not been amended or modified. The SSA is the only agreement between Buyer and Assignor with respect to the System and the only agreement entered into by Buyer in connection with the System. Each of the foregoing representations and warranties will survive the execution and delivery of this Agreement and the consummation of the transactions contemplated by the SSA. 8. Representations and Warranties of Assignor. Assignor represents and warrants to the Assignee and the Lender, as of the Effective Date: (a) Organization;Power and Authority. Assignor is a limited liability company organized and existing under the laws of the State of Arkansas and has the power and authority to transact the business it transacts and proposes to transact, to execute this Agreement and the SSA and to perform its obligations hereunder and thereunder. (b) Authorizations, Enforceability. This Agreement and the SSA have been duly authorized, executed and delivered by Assignor and do not require any permits, approvals, resolutions, filings with, or consents of any entity or person (including any governmental authority)that have not previously been obtained or made. This Agreement and the SSA each constitute a legal, valid, and binding obligation of Assignor enforceable against Assignor in accordance with its terms,except as such enforceability may be limited by(a)applicable bankruptcy, insolvency,reorganization,moratorium,or other similar laws affecting the enforcement of creditors' rights generally and(b)general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (c) No Default or Force Majeure Event. Assignor is not in breach of any of its obligations under the SSA, and to Assignor's knowledge, Buyer is not in breach of any of its obligations under the SSA and no event has occurred which with the passage of time or giving of notice or both would constitute a default, result in a loss of rights or permit termination, modification or acceleration under,or result in the creation of a lien,under the SSA. To Assignor's knowledge, no Force Majeure Event exists under the SSA. 3 DocuSign Envelope ID:6A07CA8E-E31 B-4A44-A199-EB3302A6CF57 (d) No Adverse Proceedings. There is no litigation, action, suit, proceeding or investigation pending or (to Assignor's knowledge) threatened against Assignor or Buyer before or by any court, administrative agency, arbitrator or governmental authority, body or agency that, if adversely determined, individually or in the aggregate, (a) could materially adversely affect the performance by Assignor of its obligations under this Agreement or the SSA or that could modify or otherwise adversely affect any required approvals, filings, resolution or consents that have previously been obtained or made, (b)could have a material adverse effect on the condition (financial or otherwise), business or operations of Assignor, or (c)questions the validity, binding effect or enforceability of this Agreement or the SSA, any action taken or to be taken pursuant hereto or thereto or any of the transactions contemplated hereby or thereby. (e) No Violations. The execution, delivery and performance by Assignor of this Agreement, the SSA, and the consummation of the transactions contemplated hereby and thereby, will not result in any violation of, breach of or default under any term of its formation or governance documents, or of any contract or agreement to which it is a party or by which it or its property is bound, or of any resolution, license, permit, franchise, judgment, injunction, order, law, rule or regulation applicable to it, other than any such violation, breach or default which could not reasonably be expected to have a material adverse effect on the rights and benefits of Assignee or Assignor's ability to perform its obligations, under, in respect of, or in connection with, this Agreement or the SSA. (f) SSA; No Other Agreements; No Liens. A true and complete copy of the SSA is attached hereto as Exhibit A. Except as set forth herein, the SSA has not been amended or modified. The SSA is the only agreement between Buyer and Assignor with respect to the System and the only agreement entered into by Assignor with Buyer or any other person in connection with the System. To Assignor's knowledge, the Buyer intends to honor the terms of the SSA. Assignor has good and marketable title to the SSA and is assigning the SSA to Assignee free and clear of all liens, encumbrances, and claims. Each of the foregoing representations and warranties will survive the execution and delivery of this Agreement and the consummation of the transactions contemplated by the SSA. 9. Lender. Lender will have all the rights of a Financing Party under the SSA. Without limiting any other rights of a Financing Party under the SSA, Buyer agrees that no amendment or modification to the SSA will be effective as against Lender unless Lender has agreed in writing to such amendment or modification. Buyer acknowledges and agrees that Lender is a third-party beneficiary of this Agreement. 10. Governing Law. The validity, interpretation, and performance of this Agreement and each of its provisions shall be governed by the applicable laws of the State of Arkansas, without regard to the application of such state's laws relating to conflicts of laws. The Parties agree that, in the event a Dispute is not otherwise resolved in accordance with Section 21(b) of the SSA, all claims, demands or actions for loss, expense, damage, liability or other relief, either at law or in equity, arising out of or related to this Agreement or the SSA must be brought before the court having jurisdiction over such matter. 4 DocuSign Envelope ID:6A07CA8E-E31 B-4A44-A199-EB3302A6CF57 11. Notices. From and after the Effective Date, all notices with respect to this Agreement shall be given and delivered to: Assignor: Entegrity Energy Partners,LLC 1403 East 6th Street Little Rock, AR 72202 Attn: Michael Parker, President Telephone: (479)659-7825 Email: Michael.ParkerANabholz.com Assignee: BluePath Solar Fayetteville LLC 921 E.Fort Avenue, Suite 120-125 Baltimore,MD 21230 Attn: Legal Telephone: (415) 549-0429 Email: legalRbluepathfinance.com Buyer: City of Fayetteville 113 West Mountain Street Fayetteville,AR 72701 Attn: Chris Brown, Public Works Director Telephone: (479) 575-8207 Email: cbrown@fayetteville-ar.gov 12.Assignments and Binding Effect. This Agreement shall be irrevocable and shall inure to the benefit of and shall be binding upon Assignor and Assignee and their respective successors,transferees and permitted assigns. 13. Counterparts. The Parties agree that this Agreement may be executed in counterparts and that,when taken together, such counterparts constitute but one agreement. [SIGNATURE PAGE FOLLOWS.] 5 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. ASSIGNOR: ENTEGRITY ENERGY PARTNERS, LLC By: a___ Name: Michael Parker Title: President ASSIGNEE: BLUEPATH SOLAR FAYETTEVILLE LLC LAkiCtUlti DocuSigned by: By: 492ASSEEFE93405 Name: Michael J.J. Cox Title: Chief Financial Officer BUYER: CITY OF AYETTEVILLE y: Name: Lione d Jor n Title: Mayor DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 EXHIBIT A SSA [See attached.] DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 SOLAR SERVICES AGREEMENT between Entegrity Energy Partners,LLC as Provider and City of Fayetteville as Buyer DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 INDEX Section 1 DEFINITIONS 2 TERM 3 PLANNING,INSTALLATION AND OPERATION OF PROJECT 4 SALE OF ELECTRIC ENERGY 5 PAYMENT AND BILLING; LIMITS ON BUYER OBLIGATIONS; EVENT OF NON-APPROPRIATION 6 SUPPLEMENTAL POWER,NET METERING,AND RECS 7 PERMITS AND OWNERSHIP OF PROJECT 8 PURCHASE OPTION 9 SHUTDOWNS 10 TAXES 11 [RESERVED] 12 COOPERATION, SOLAR ACCESS, FUTURE IMPROVEMENTS 13 PRESS RELEASES AND CONFIDENTIALITY 14 REPRESENTATIONS AND WARRANTIES 15 FORCE MAJEURE 16 PROVIDER DEFAULT AND BUYER REMEDIES 17 BUYER DEFAULT AND PROVIDER REMEDIES 18 COLLATERAL ASSIGNMENT,FINANCING PROVISIONS 19 CHANGE IN LAW 20 LIMITATIONS ON DAMAGES, LIABILITY, AND REMEDIES; DISCLAIMER 21 DISPUTE RESOLUTION 22 NOTICES 23 MISCELLANEOUS EXHIBIT A — USABLE ELECTRICITY PURCHASE RATES EXHIBIT B — DESCRIPTION OF SITE EXHIBIT C — DESCRIPTION OF PROJECT EXHIBIT D — PURCHASE OPTION PURCHASE PRICE SCHEDULE 2 DocuSign Envelope ID:6A07CA8E-E31 B-4A44-A199-EB3302A6CF57 SOLAR SERVICES AGREEMENT THIS SOLAR SERVICES AGREEMENT("Agreement") is made and entered into on as of December28, 2023 (the "Effective Date"), by and between Entegrity Energy Partners, LLC ("Provider"),and City of Fayetteville ("Buyer"). WITNESSETH: WHEREAS, Provider controls (whether by lease, ownership, option or otherwise) that certain real property located in the State of Arkansas, as more particularly described in Exhibit B attached hereto (the "Site"), and Buyer and Provider desire for the development, design, construction, operation and maintenance by Provider of one or more solar powered electric generating project on the Site to be owned by Provider and for Buyer to purchase from Provider, at a fixed rate,the electric energy produced by the Project; WHEREAS,Provider desires to sell to Buyer the electric energy produced by such facilities at a fixed rate and Buyer desires to purchase from Provider the electric energy produced by such facilities;and WHEREAS, Provider and Buyer now desire to enter into this Agreement to memorialize their agreements regarding such solar alternative energy facilities and electric energy. NOW, THEREFORE, in consideration of the premises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, Provider and Buyer hereby agree as follows: 1. Definitions. The following capitalized terms shall have the meanings set forth below as used in this Agreement: (a) The term "Affiliate" means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition,"control"of a Person means the power,directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. (b) The term"Agreement"means this Solar Services Agreement,including all exhibits attached hereto, as the same may be amended from time to time in accordance with the provisions hereof. (c) The term"Applicable Law" means any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, registration, license, franchise, permit, authorization, or guideline issued by a Governmental Authority that is applicable to a Party to this Agreement or the transaction described herein. Applicable Law also includes an approval, consent or requirement of any Governmental Authority having jurisdiction over such Party or its property,enforceable at law or in equity. 3 DocuSign Envelope ID:6A07CA8E-E31 B-4A44-A199-EB3302A6CF57 (d) The term"Billing Meter"means the revenue grade meter(s) of Provider located at the Site to measure the output of the Project at the Point of Delivery as identified in Exhibit C. (e) The term"Business Day"means a day other than Saturday,Sunday,or other day on which commercial banks in Little Rock,Arkansas are authorized or required by law to be closed. (f) The term "Buyer" has the meaning assigned to it in the introductory paragraph hereof. (g) The term "Change in Law" means that after the date of this Agreement, an Applicable Law is amended, modified, nullified, suspended, repealed, found unconstitutional or unlawful, or changed or affected in any material respect by any Applicable Law. Change in Law does not include changes in federal or state income tax laws. Change in Law does include material changes in the interpretation of an Applicable Law. (h) The term"Commercial Operation Date"means the date,which shall be specified by Provider to Buyer pursuant to Section 3, when the Project is physically complete and has successfully completed all performance tests and satisfies the interconnection requirements of the Electric Utility. (i) The term "Confidential Information" means information of a confidential or proprietary nature.Provider shall notify Buyer in writing of any information that Provider contends may provide an advantage to competitors if disclosed. Such information shall include, but not be limited to, any documentation, records, listing, notes, data, computer disks, files or records, memoranda,designs,financial models,accounts,reference materials,trade-secrets,prices,strategic partners, marketing plans, strategic or other plans, financial analyses, customer names or lists, project opportunities and the like,provided however that Confidential Information does not include information which(i)was in the possession of the receiving Party before receipt from the disclosing Party; (ii) is or becomes publicly available other than as a result of unauthorized disclosure by the receiving Party;(iii)is received by the receiving Party from a third party not known by the receiving Party with the exercise of reasonable diligence to be under an obligation of confidentiality respecting the information; or (iv) is independently developed by the receiving Party without reference to information provided by the disclosing Party.Notwithstanding the term defined above, the Parties acknowledge that the Buyer is or may become subject to the disclosure requirements of the Arkansas Freedom of Information Act ("FOIA"). The parties acknowledge and agree that Provider believes that Exhibits A, C, and D may contain confidential information, trade secrets, and/or competitive information exempt from disclosure obligations under"FOIA". Buyer agrees to promptly notify Provider of any receipt of a request for information under FOIA or any other similar disclosure law,related to the Project or this Agreement. (j) The term "Dispute" means a controversy or claim arising out of or relating to this Agreement. (k) The term "Electric Utility" means Southwestern Electric Power Company and its successors and assigns. 4 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 (1) The term"Environmental Attributes"means Renewable Energy Certificates,carbon trading credits, emissions reductions credits, emissions allowances, green tags, Green-e certifications,or other entitlements,certificates,products,or valuations attributed to the Project and its displacement of conventional energy generation,or any other entitlement pursuant to any federal, state,or local program applicable to renewable energy sources,whether legislative or regulatory in origin,as amended from time to time,and excluding,for the avoidance of doubt,any Tax Attributes. (m) The term"Event of Non-Appropriation"shall have the meaning set forth in Section 5(g)hereof. (n) The term"Fair Market Value"means the price that would be paid in an arm's length, free market transaction,in cash,between an informed,willing seller and an informed,willing buyer (who is neither a lessee in possession nor a used equipment or scrap dealer), neither of whom is under compulsion to complete the transaction, taking into account, among other things,the age and performance of the Project and advances in solar technology, provided that installed equipment shall be valued on an installed basis and costs of removal from a current location shall not be a deduction from the valuation. (o) The term"Financing Party"means a Project Lessee or Lender or tax equity investor admitted as a direct or indirect member of Provider. (p) The term"Fiscal Year"shall mean the fiscal year of Buyer,which Buyer represents and warrants is January 1 to December 31. (q) The term"Force Majeure 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, Force Majeure Event may include but are not limited to the following acts or events: (i)extraordinary wind storms,hail, tornados,hurricanes,floods,lightning strikes,and earthquakes;(ii)explosions or fires arising from lightning strikes or other causes unrelated to the acts or omissions of the Party seeking to be excused from performance and unrelated to any defect in materials or equipment of Provider; (iii) acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, epidemic, pandemic, official actions of any Governmental Authority,terrorist acts, or rebellion;and(iv)strikes or labor disputes. Force Majeure Events shall not include equipment failures or acts or omissions of agents, suppliers or subcontractors,except to the extent such acts or omissions arise from a Force Majeure Event. Neither changes in prices for Usable Electricity nor changes in available solar energy resulting from cloud cover or other natural events constitute Force Majeure Events. (r) The term "Governmental Authority" means any international, national, federal, provincial, state, municipal, county, regional or local government, administrative, judicial or regulatory entity operating under any Applicable Laws and includes any department, commission, bureau,board,administrative agency or regulatory body of any government with authority over the parties to this Agreement or this transaction. 5 DocuSign Envelope ID:6A07CA8E-E31 B-4A44-A199-EB3302A6CF57 (s) The term"Initial Period"has the meaning provided in Section 2. (t) The term "Installer" means the Provider or any person or entity designated by Provider to install a Project on a Site. (u) The term"Land Registry"means the office where real estate records for a Site are customarily filed. (v) The term"Lender"means persons providing construction or permanent financing to Provider in connection with installation of the Project. (w) The term"Liens"has the meaning provided in Section 7(c). (x) The term "Losses" means any and all losses, liabilities, claims, demands, suits, causes of action,judgments, awards, damages, cleanup and remedial obligations, interest, fines, fees, penalties, costs, and expenses (including all attorney's fees and other costs and expenses incurred in defending any such claims or matters). (y) The term"Operations Period"has the meaning provided in Section 2. (z) The term"Operations Year" means a twelve (12) month period beginning at 12:00 am on an anniversary of the Commercial Operation Date and ending at 11:59 pm on the day immediately preceding the next anniversary of the Commercial Operation Date,provided that the first Operations Year shall begin on the Commercial Operation Date. (aa) The term"Party"means either Buyer or Provider,as the context shall indicate, and "Parties"means both Buyer and Provider. (bb) The term"Point of Delivery"has the meaning set forth in Section 4(a). (cc) The term "Project" means an integrated system for the generation of Usable Electricity from solar energy consisting of the photovoltaic panels and associated equipment to be installed on each of the Sites in accordance with this Agreement, and includes equipment and cabling required to connect to the Point of Delivery. (dd) The term "Project Lessee" means, if applicable, any Person to whom Provider transferred or leased a Project. (ee) The term "Provider" has the meaning assigned to it in the introductory paragraph hereof,and all permitted successors and assigns. (ff) The term "Relocation Event" means the relocation of a Project, starting at the shutdown of the Project pursuant to such relocation,and ending at the commercial operation of the Project when such relocated Project is reinstalled at a new location,as determined by the Provider in its reasonable discretion. • 6 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 (gg) The term "Renewable Energy Certificate" or "REC" means a certificate, credit, allowance, green tag, or other transferable indicia, howsoever entitled, created by an applicable program or certification authority indicating generation of a particular quantity of energy, or product associated with the generation of a megawatt-hour(MWh)from a renewable energy source by a renewable energy project. (hh) The term"Site"means the real property upon which the Project is developed. (ii) The term"Solar Services"means the services Provider provides to Buyer hereunder. (jj) The term"Tax Attributes"means the investment tax credits(including any grants or payments in lieu thereof)and any tax deductions or other benefits under the Internal Revenue Code or applicable federal, state, or local law available as a result of the ownership and operation of a Project or the output generated by a Project (including, without limitation, tax credits (including any grants or payments in lieu thereof)and accelerated and/or bonus depreciation.) (kk) The term"Term"shall have the meaning provided in Section 2 hereof. (11) The term "Usable Electricity" means alternating current electrical energy meeting the specifications described in Exhibit C,as measured by the Billing Meter at the Point of Delivery. 2. Term. (a) Term. This Agreement shall consist of an Initial Period and an Operations Period. As used herein, "Term" shall mean all of the Initial Period and the Operations Period, unless the Provider or Buyer terminates the Agreement prior to the end of the Initial Period pursuant to the terms of this Agreement. (b) Initial Period.The Initial Period will begin on the Effective Date and will terminate on the earlier of(i) the Commercial Operation Date or (ii) the date the Agreement is terminated pursuant to the provisions of Section 3. (c) Operations Period. If applicable, the Operations Period will commence on the Commercial Operation Date and will terminate at 11:59 p.m. on the 25th anniversary of the Commercial Operation Date unless earlier terminated in accordance with this Agreement;provided, however the Operations Period will automatically renew for two(2)additional five(5)consecutive year periods immediately following the Operations Period unless Buyer or Provider shall provide written notice to the other Party of its intention not to extend the Agreement at least one hundred eighty(180)days prior to the end of the Operations Period or any applicable automatic five(5)year extension period,as the case may be. 3. Planning,Installation and Operation of Project. (a) Site Assessment and Planning. During the Initial Period, Provider shall have the right, at its own expense, to identify and assess the suitability of each Site for the Project to be located on such Site and shall act diligently in conducting such assessment. The assessment shall 7 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 include the right to inspect the physical condition of the Site; to apply for any building permits or other governmental authorizations necessary for the construction of the Project; to arrange interconnections with the Electric Utility;to make any applications to the appropriate Public Service Commission or other agencies for receipt of payments for the Project; to apply to any other governmental agencies or other persons for grants or other determinations necessary for the construction of or receipt of revenues from the Project; to execute a binding lease or close on an option or purchase of the Site, as applicable; or to make any other investigation or determination necessary for the financing,construction, operation or maintenance of the Project. (b) Termination of Agreement during the Initial Period. At any time during the Initial Period,Provider shall have the right to cease development of the Project on a Site and unilaterally terminate this Agreement, for any reason, including but not limited to material increases in Provider's costs to provide the Solar Services. If Provider gives Buyer notice of such determination, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Parties shall not be released from any payment or other obligations arising under this Agreement prior to the delivery of the notice; and (ii) the confidentiality provisions of Section 13,and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. At any time prior to the submission of the interconnection application and the payment associated therewith to the Electrical Utility, Buyer may terminate this Agreement, provided that Buyer pay Provider for any direct costs incurred as of the date of termination in connection with the development of the Project. If Buyer gives Provider notice of such determination and makes the associated payment set forth above,this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Buyer shall not be released from any payment or other obligations arising under this Agreement prior to the delivery of the notice; and (ii)the confidentiality provisions of Section 13,and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. If material increases in Provider's costs to provide the Solar Services are the reason for Provider's termination of this Agreement during the Initial Period, Provider shall propose an Amendment to this Agreement for Buyer's consideration prior to exercising its right to terminate during the Initial Period. Such Amendment shall set forth (i) the reasons Provider's costs to provide the Solar Services have materially increased during the Initial Period, (ii) the extent Provider's costs to provide the Solar Services have materially increased during the Initial Period, and (iii) Provider's proposed adjustment to the Usable Electricity Purchase Rate schedule in Exhibit A to reflect such material changes in Provider's costs.Such Amendment shall be delivered by written notice pursuant to Section 22. If Provider proposes an Amendment pursuant to this Section,Provider and Buyer may negotiate an adjustment in the Usable Electricity Purchase Rate to reflect any material increases in Provider's costs to provide the Solar Services,and in the event Buyer and Provider are unable to agree upon a reasonable adjustment within thirty(30) days after Provider has delivered a proposed Amendment to Buyer in accordance with this Section, either Party may terminate the Agreement. If either Party gives notice of such determination, this Agreement shall terminate effective as of the delivery of such notice without any further liability of the Parties to each other, provided that (i) the Parties shall not be released from any payment or other obligations arising under this Agreement prior to 8 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 the delivery of the notice; and (ii) the confidentiality provisions of Section 13, and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. (c) Commencement of Construction,Modification of Design.Provided that either party does not terminate this Agreement pursuant to this Section 3, Provider will use commercially reasonable efforts to commence installing the Project on the applicable Site within one hundred eighty (180) days of the Provider obtaining necessary approvals of the Project from the Electric Utility and any Governmental Authority. (i) As of the Effective Date,Provider anticipates that each Project shall consist of the components and shall have the designs attributed to such Project in Exhibit C attached hereto. (ii) Notwithstanding subsection (i) above, Provider has the right to modify the design of each Project, including the selection of the components in the Project, in its reasonable discretion. (d) Contractors. Provider shall use licensed contractors to perform the work of installing, operating, and maintaining the Project. Provider shall be responsible for the conduct of Installers and Provider's subcontractors, and Buyer shall have no contractual relationship with Installers or Provider's subcontractors in connection with the work on the Project. (e) Status Reports. Provider shall give Buyer regular updates,on a reasonable schedule requested by Buyer, on the progress of installation of the Project and shall notify Buyer of when Provider will commence testing of a Project. Buyer shall have the right to have its representatives present during the construction and testing process, but subject to reasonable written rules and procedures as may be established by Provider and Installer. After Provider has determined, in its reasonable judgment,that a Project meets the requirements of the Electric Utility and the Arkansas Public Service Commission, has been installed in accordance with all Applicable Laws, has successfully completed all performance tests, and is capable of producing Usable Electricity on a continuous basis, Provider shall notify Buyer that installation of the Project is complete and shall specify the Commercial Operation Date for such Project,which may be immediately upon delivery of such notice to Buyer. All Usable Electricity produced by a Project prior to the Commercial Operation Date shall be delivered to Buyer at the Point of Delivery after appropriate safety testing and Buyer shall pay for all such Usable Electricity at the rate applicable to the first Operations Year. (I) Standard of Operation. Provider shall design, obtain permits, install, operate, and maintain a Project so as to keep it in good condition and repair, in compliance with all Applicable Laws and in accordance with the generally accepted practices of the electric industry, in general, and the solar generation industry, in particular. Such work shall be at Provider's sole expense. Except for emergency situations or unplanned outages, Provider shall cause the work to be performed at times so as to minimize disruption of the Project during peak sunlight times, to the extent reasonably possible. 9 } DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 (g) System Shut Down. Provider may shut down the Project at any time in order to perform required emergency repairs to the Project. At other times, Provider shall give Buyer advance notice of the shutdown as may be reasonable under the circumstances. Provider shall have no obligation to reimburse Buyer for costs of purchasing Usable Electricity that would have been produced by the Project but for such shutdown.Provider shall not schedule shutdowns during peak periods of electric generation and periods when peak energy and demand prices are charged by the Electric Utility, except as may be required in accordance with prudent electric industry safety practices in the event of equipment malfunction. 4. Sale of Electric Energy. (a) Sale of Usable Electricity. Throughout the Operations Period, subject to the terms and conditions of this Agreement, Provider shall sell to Buyer and Buyer shall buy from Provider all Usable Electricity produced by the Project,whether or not Buyer is able to use all such Usable Electricity. The Point of Delivery of the Usable Electricity shall be as indicated in Exhibit C. Title to and risk of loss with respect to the Usable Electricity shall transfer from Provider to Buyer at the Point of Delivery. (b) Delivery of Usable Electricity. The Usable Electricity from the Project shall be delivered from Provider to Buyer at the Point of Delivery per the specifications set forth in Exhibit C and otherwise in compliance with all requirements of the Electric Utility. (c) Limits on Obligation to Deliver. Provider does not warrant or guarantee the amount of electric energy to be produced by the limits on Project for any hourly, daily,monthly,annual or other period.Provider is not a utility or public service company and does not assume any obligations of a utility or public service company to supply Buyer's electric requirements, other than the obligations under this Agreement. At the time of this Agreement, Provider is not subject to rate review by governmental authorities. (d) Meter Testing. Provider shall install one or more Billing Meter(s) at the Site, as Provider deems appropriate,to measure the output of the Project at the Point of Delivery. Provider shall provide Buyer with reasonable access to the metered energy output data collected by Provider. Provider shall install an Interval Data Recorder (IDR) with industry standard telemetry at each Project. Provider shall conduct tests of the Billing Meter(s) at such times as it deems appropriate in accordance with industry standards, but not less than once in any two-year period. Buyer shall pay for any independent testing of the Billing Meter(s)in excess of such minimum testing schedule that Buyer deems necessary, except if, after such testing, the Billing Meter is shown to be in error in Provider's favor by more than two percent(2%),Provider shall pay for the cost of such test and shall make corresponding adjustments to the records of the amount of electrical energy provided by the Project delivered based on the period that is half-way in between the date of this testing and the last testing date of the Billing Meter. If there is an error of less than or equal to two percent (2%)no billing adjustments will be made. In the event there is an error of greater than two percent (2%), Provider shall adjust the next invoice to be provided to Buyer under Section 5(b) hereof, to either charge the Buyer additional amounts for energy produced over the stated Billing Meter amount during the applicable period at the applicable rate or provide Buyer a credit against future billing for energy produced under the stated Billing Meter amount during the applicable period, 10 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 provided, however, that any deficiencies or credits not theretofore applied or satisfied at the expiration or earlier termination of the Operations Period shall be settled in cash. 5. Payment and Billing; Limits on Buyer Obligations; Event of Non- Appropriation (a) Rates. Buyer shall pay Provider for Usable Electricity produced by each Project at the rates set forth in Exhibit A attached hereto. (b) Billing. Buyer shall pay for the Usable Electricity produced by each Project quarterly in arrears,promptly after the end of each quarter from the start of operational production. Provider shall provide Buyer with an invoice setting forth the quantity of Usable Electricity produced by the Project in such quarter, the applicable rates for such, and the total amount due, which shall be the product of the quantities and the applicable rates. (c) Invoice Delivery. Invoices shall be in writing and shall be either (i) delivered by hand; (ii) mailed by first-class, registered or certified mail, return receipt requested, postage prepaid; (iii)delivered by a recognized overnight or personal delivery service;; or(iv)transmitted by email if receipt of such transmission by email is specifically acknowledged by the recipient (automatic responses not being sufficient for acknowledgement) and with a hard copy to follow, addressed as follows: City of Fayetteville 113 West Mountain Street Fayetteville,AR,72701 (d) Payment. Buyer shall pay each invoice within thirty (30) days of receipt of the invoice. Payments shall be made by electronic funds transfer to an account designated by Provider or by Direct Deposit of funds into Provider's bank account or by check if electronic transfer or direct deposit are not available. Provider shall designate the account in the invoice or in a written notice delivered to Buyer. (f) Disputed Invoices. If Buyer objects to all or a portion of an invoice, Buyer shall, on or before the date payment of the invoice is due, (i) pay the undisputed portion of the invoice, and (ii) provide an itemized statement of its objections setting forth in reasonable detail the basis for its objections. If Buyer does not object prior to the date payment of any invoice is due, Buyer shall be obligated to pay the full amount of such invoices but Buyer may subsequently object to such invoice and, if such objection proves to be correct, receive a refund of the disputed amount; provided,however, that Buyer may not object to any invoice more than twelve (12) months after the date on which such invoice is rendered. (g) Payment Limitations. If, during the term of this Agreement including any extensions, Buyer is bound or deemed bound by the provisions of any State of Arkansas laws concerning the sufficiency of Buyer appropriations and the legal ability of Buyer to enter into binding contracts and agreements with annual obligations in excess of annual Buyer appropriations ("Appropriation Bound") the provisions of Sections 5(f)-(j) of the Agreement shall control. If 11 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 Buyer is Appropriation Bound,Provider and Buyer hereby expressly acknowledge and agree that the obligation of Buyer to pay invoices for Usable Electricity in any Fiscal Year under this Agreement or otherwise would be legally binding to the extent of amounts appropriated for and legally available to Buyer for such purposes during such Fiscal Year. The parties hereto acknowledge that all payments made by Buyer under this Agreement will constitute currently budgeted expenditures. The parties hereto acknowledge that all payments made by Buyer under this Agreement will not constitute a general obligation debt, an indebtedness, or a multiple-Fiscal Year direct or indirect debt or other financial obligation of Buyer within the meaning of any constitutional or statutory provision or limitation. Buyer represents to Provider, and the parties hereto acknowledge that,Buyer is Appropriation Bound. (h) Event of Non-Appropriation. If Buyer is Appropriation Bound,if by the first day of any Fiscal Year Buyer has failed for any reason to obtain an appropriation of sufficient legally available amounts to be used by Buyer to pay invoices for Usable Electricity that will be due hereunder for and during the next ensuing Fiscal Year, then an Event of Non-Appropriation shall be deemed to have occurred on the first calendar day thereafter (an "Event of Non- Appropriation"). However, the parties hereto hereby agree that no Event of Non-Appropriation shall be deemed to have occurred if the foregoing failure set forth in this subsection(g)is cured on or before the thirty-first(3151) day of such Fiscal Year in which such Event of Non-Appropriation shall be deemed to have occurred by the enactment of an appropriation providing sufficient legally available amounts to Buyer,or Buyer otherwise making sufficient money available,to pay invoices for Usable Electricity that will be due hereunder for and during the next ensuing Fiscal Year. (i) Present Expectation. If Buyer becomes Appropriation Bound, it is the present expectation of Buyer that the applicable budgetary entity, within the limits of available funds and revenues,will make an appropriation of a sufficient amount to fund Buyer's obligations hereunder during each Fiscal Year of the Term; provided, however, this expectation of Buyer shall not be binding upon any future applicable budgetary entity in any future Fiscal Year, except to the extent of any previously appropriated funds. Buyer shall use reasonable good faith efforts to have funds properly budgeted in the general operating expense section of the budget(and not a specific line item), appropriated, allotted,or otherwise made available for this Agreement(including obtaining legislative and other authorizations for use of such funds)and to satisfy such conditions in a timely manner. (j) Notice of Event of Non-Appropriation. In the case of an Event of Non- Appropriation, Buyer shall promptly give notice of such Event of Non-appropriation (the "NAE Notice").Notwithstanding the occurrence of any Event of Non-Appropriation or the delivery of the NAE Notice, Buyer will not interrupt or impair the delivery of Usable Electricity or jeopardize Provider's sale, transfer or other monetization of Environmental Attributes, RECs or Tax Attributes. Following receipt by Provider of an NAE Notice, Provider, in its sole discretion, (i) may terminate this Agreement, or(ii) may continue to operate the Project and deliver the Usable Electricity to a third party or utility company without payment by Buyer therefore during the applicable Fiscal Year(and each Fiscal Year thereafter until an appropriation is made). Under the circumstances of (ii), other than with respect to the obligation to make payment for energy delivered,all obligations of Buyer under this Agreement shall remain in full force and effect.Should Buyer receive an appropriation for this Agreement during the continuation of the Event of Non- 12 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 Appropriation,before termination under option(i)has been exercised,Buyer shall pay such monies to Provider as to make Provider whole for any amounts due and owing under this Agreement to the extent appropriated,and upon payment such Event of Non-Appropriation shall be nullified. (k) Within thirty(30)days of Provider's receipt of the NAE Notice,Provider shall give notice to Buyer of Provider's election among options (i) and (ii) under subsection (i) above. If Provider does not provide notice to Buyer of Provider's election under this subsection (j) within such period, Provider shall be deemed to have elected option (ii) under subsection (i) above, provided that,if Provider elects or is deemed to have elected option(ii)it may subsequently change its election at any time upon prior written notice to Purchaser. 6. Supplemental Power,Net Metering and RECs. (a) Back-up and Supplemental Usable Electricity. Except as otherwise provided herein, throughout the Term, Buyer shall be responsible for obtaining all of its requirements for electric energy in excess of the amounts produced by the Project. Provider shall have no obligation to obtain or pay for such supplemental or back-up Usable Electricity. (b) Net Metering&Utility Credits.At any time that electric production from the Project is greater than Buyer's requirements at such time,Buyer shall nevertheless pay Provider for all the Usable Electricity produced by the Project at the rates and in the manner provided in this Agreement. Buyer shall be entitled to receive, to the extent permitted by Applicable Law, any credits or payments due from the Electric Utility as a result of net metering from the Project,except during an Event of Non-Appropriation. Upon Buyer's written request and not to exceed twice per year, Provider or its duly authorized contractor shall provide reasonable assistance to Buyer in reviewing the applicable bills,credits and payments received from the Electric Utility. (c) Interconnection. Provider shall be responsible for arranging the interconnection of the Project with Buyer's distribution system in a manner that includes bi-directional or "net metering" if applicable. It is further understood that all cost associated with establishing the interconnection between the Project and the electric utility pursuant to Net-Metering Rule 3.01 are solely the responsibility of the Provider. (d) Solar Program Incentives.Provider shall receive all payments and benefits available under any incentive/benefits solar program. Buyer shall provide reasonable assistance to Provider in preparing all applications and other documents necessary for Provider to receive such payments/benefits,including designating Provider as the customer for purposes thereof or assigning payments/benefits therefrom to Provider. If Buyer receives any payments under any such incentive/benefits solar program or other programs in respect of the Project, it shall promptly pay them over to Provider. Buyer's obligation to make any payments to Provider under this paragraph (d)is limited to any payments actually received by Buyer. (e) Ownership of Tax Attributes.Provider shall be the owner of any Tax Attributes that may arise as a result of the operation of the Project and shall be entitled to transfer such Tax Attributes to any person. Buyer shall provide reasonable assistance to Provider in preparing all documents necessary for Provider to receive such Tax Attributes,and if Buyer is deemed to be the 13 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 owner of any such Tax Attributes,Buyer shall assign the same(or the proceeds thereof)to Provider. If Buyer receives any payments in respect of such Tax Attributes, it shall promptly pay them over to Provider. (f) Environmental Attributes. Buyer shall be the owner of any Environmental Attributes that may arise as a result of the operation of the Project and shall be entitled to transfer such Environmental Attributes to any person. (g) Capacity& Ancillary Services. Provider shall be entitled to receive any payments for electric capacity or ancillary services that may become available as a result of the construction or operation of the Project. Buyer shall provide reasonable assistance to Provider in preparing all documents necessary for Provider to receive such payments,and if Buyer is deemed to be the owner or provider of such capacity or services, then Buyer shall assign the same to Provider. If Buyer receives any payments in respect of capacity or such services then Buyer shall promptly pay them over to Provider. (h) Provider Is Not A Utility.Neither Party shall assert that Provider is an electric utility or public service company or similar entity that has a duty to provide service, is subject to rate regulation, or is otherwise subject to regulation by any governmental authority as a result of Provider's obligations or performance under this Agreement. (i) Grid charges. Buyer shall be responsible for paying any grid charge authorized pursuant to Ark. Code Ann. §23-18-607 or any other Applicable Law. 7. Permits and Ownership of Project. (a) Permits. Provider shall pay for and obtain all approvals from governmental entities necessary for the construction and operation of the Project, including land use permits, building permits,demolition and waste disposal permits and approval. (b) System Ownership. Except as provided in Section 8, Provider or Financing Party shall be the legal and beneficial owner of the Project at all times. Buyer disclaims any right, title and interest in and to the Project. The Project is personal property and shall not attach to or be deemed a part of, or fixture to, the Site. The Project shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code as in effect in the state of the Site. Buyer and/or Provider shall make any necessary filings to disclaim the Project as a fixture of the Site in the appropriate Land Registry to place all interested parties on notice of the ownership of the Project by Provider. (c) Liens. To the extent permitted by Applicable Law, each Party shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien, (including mechanics', labor or materialman's lien), charge, security interest, encumbrance or claim of any nature,including claims by Governmental Authorities for taxes(collectively referred to as"Liens" and each,individually,a"Lien")on or with respect to the interests of the other in the Project. 8. Purchase Option 14 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 (a) Purchase Option. Buyer shall have the right to purchase the Project and Provider's rights in the Site from Provider upon the terms set forth in this Section 8(a) (the "Purchase Option") on either of the seventh (7`h), fourteenth (14th), or twenty-first (2151) anniversary of the Commercial Operation Date ("Purchase Option Period(s)") by providing to Provider written notice of Buyer's election to purchase the Project and Provider's rights in the Site(the "Purchase Option Notice")no later than the date which is twelve(12)months prior to the respective Purchase Option Period (the "Purchase Option Notice Deadline"). If the Purchase Option is elected by Buyer timely sending to Provider the Purchase Option Notice prior to the Purchase Option Notice Deadline, the closing shall occur(i) within the three (3) month period immediately following the respective Purchase Option Period or a time and date mutually agreeable to Buyer and Provider (the "Purchase Option Closing Date"). The purchase price to be paid to Provider by Buyer for the Project and Provider's rights in the Site on the Purchase Option Closing Date shall be the greater of(i)Fair Market Value of the Project and Provider's rights in the Site and (ii)the purchase price for the Project and Provider's rights in the Site on the respective Purchase Option Period as set forth on Exhibit D hereto(the"Purchase Option Purchase Price"). Within one hundred twenty (120) days of Provider's receipt of the Purchase Option Notice,Provider shall give Buyer an appraisal of the Fair Market Value of the Project and Provider's rights in the Site as of the date of the sale.Buyer may,but is not obligated to, accept such appraisal. If Buyer does not accept such appraisal within fifteen (15) days of receiving the appraisal from Provider, the Parties shall meet to discuss the appraisal. If the parties are unable to reach agreement within twenty(20)days of the Buyer's receipt of the appraisal from Provider, the Parties will be deemed to enter into a dispute for purposes of Section 21 and shall follow the procedures in Section 21 for resolution of the dispute. Notwithstanding the foregoing, in the event that Provider enters into a tax equity investment financing transaction in connection with funding the installation of the Project, the process of determining the Fair Market Value of the Project and Provider's rights in the Site in this Agreement shall be undertaken by a mutually acceptable nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry acting reasonably and in good faith to determine the Fair Market Value of the Project and Provider's rights in the Site and shall be undertaken consistently with the terms of such transaction so that the process for determining Fair Market Value under this Agreement shall be the same as provided in the agreements for such tax equity investment financing transaction.Buyer shall be responsible for all appraisal fees. (b) Transfer of Ownership. Upon Buyer's notice that it elects to exercise the option set forth in Section 8(a) above, Provider shall prepare and deliver to Buyer a set of records on the operation and maintenance history of the Project, including a summary of known defects. Upon payment of the Purchase Option Purchase Price,Provider shall deliver,or cause to be delivered,to Buyer a bill of sale conveying the Project to Buyer and an assignment or lease/easement or special warranty deed, as applicable, with respect to Provider's rights in the Site. Such bill of sale, assignment of lease/easement, and/or special warranty deed shall not contain any warranties other than a warranty against any defects in title arising through Provider. Provider shall use all reasonable efforts to transfer any remaining manufacturer's warranties on the Project, or portions thereof,to Buyer. (c) Operation&Maintenance After Sale.Prior to the effective date of Buyer's purchase of the Project and Provider's rights in the Site under Section 8(a),Buyer and Provider shall discuss 15 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 entering into an operation and maintenance agreement under which Provider shall perform all or a portion of the operation and maintenance requirements of the Project following Buyer's purchase of the Project and Provider's rights in the Site. However,neither Party shall be under an obligation to enter into such an agreement. (d) No Survival of Purchase Option.The options for Buyer to purchase the Project and Provider's rights in the Site under Section 8(a)shall not survive the termination of this Agreement. 9. Shutdowns. (a) Provider Safety Shutdown. In addition to the right of Provider to shut down the Project for maintenance as provided in Section 3(g), Provider may shutdown any or all Project if Provider, in the exercise of reasonable judgment, believes Site conditions or activities of persons on the Site may interfere with the safe operation of a Project. Provider shall give Buyer notice of a shutdown immediately upon becoming aware of the potential for such conditions or activities. Provider shall use commercially reasonable efforts to restore Site conditions so as to not interfere with the safe operation of the Project and to reduce,to the greatest extent practicable, the duration of the shutdown. In the event of such a shutdown, unless the shutdown was caused by the act or omission of Buyer or any party under Buyer's control,Buyer shall not be required to pay Provider any amounts for Usable Electricity that Buyer would have purchased but for the shutdown. (b) System Disruptions. In the event that any act or omission of Buyer, Buyer's employees,Affiliates, or agents results in a disruption or outage in a Project's production,then, in either case,Buyer shall reimburse Provider for all costs and expenses incurred by Provider to repair the Project or restore such Project's production to normal operating condition and Buyer will pay Provider an amount equal to the sum of(A) payments that Buyer would have made to Provider hereunder for Usable Electricity that would have been produced by the Project following such outage or disruption; (B) revenues that Provider would have received with respect to the Project under any incentives/benefits solar program and any other assistance program with respect to electric energy that would have been produced following such outage or disruption; and (C) revenues from Environmental Attributes that Provider would have received with respect to electric energy that would have been produced by the Project following such outage or disruption. Determination of the amount of electric energy that would have been produced following such outage or disruption shall be based, during the first Operations Year, on the estimated levels of production and,after the first Operations Year,based on actual operation of the Project in the same period in the previous Operations Year,unless Provider and Buyer mutually agree to an alternative methodology. 10. Taxes. (a) Income Taxes.Provider shall be responsible income taxes associated with payments from Buyer to Provider for Usable Electricity from the Project. Provider(and/or Financing Party), as owner of the Project, shall be entitled to all Tax Attributes with respect to the Project. (b) Sales Taxes. Buyer shall be responsible for all taxes, fees, and charges, including sales,use, and gross receipts taxes,imposed or authorized by any Governmental Authority on the 16 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 sale of electric energy by Provider to Buyer. Buyer shall timely report, make filings for, and pay any and all such taxes assessed directly against it and shall reimburse Provider for any and all such taxes assessed against and paid by Provider. (c) Personal Property Taxes. Provider shall be responsible for all personal property taxes for personal property which comprises a part of the Project and which is owned by Provider. (d) Real Property Taxes. Buyer shall not be responsible for real property taxes for any real property which comprises a part of the Project and which is not owned by Buyer. (e) Tax Contests. Each Party has the right to contest taxes in accordance with Applicable Law and the terms of encumbrances against the Site. Each Party shall use all reasonable efforts to cooperate with the other in any such contests of tax assessments or payments. In no event shall either Party postpone during the pendency of an appeal of a tax assessment the payment of taxes otherwise due except to the extent such postponement in payment is bonded or otherwise secured in accordance with Applicable Law. (f) Payment of Delinquent Taxes. In the event either Party fails to pay any taxes that may become a lien upon the other Party's property, such Party may pay such amounts and in such event shall be entitled to recover such paid amount from the other Party, together with interest thereon at the rate of one percent (1%) per month, compounded monthly, but not to exceed the maximum amount of seventeen percent(17%)per annum. (g) Reimbursement Deadline. Any reimbursement of taxes owing pursuant to this Section 10 shall be paid within twenty (20) days of receiving an invoice therefor from the Party who paid the taxes. 11. Reserved. 12. Cooperation The Parties acknowledge that the performance of each Party's obligations under this Agreement will frequently require the assistance and cooperation of the other Party. Each Party therefore agrees, in addition to those provisions in this Agreement specifically providing for assistance from one Party to the other, that it will at all times during the Term cooperate with the other Party and provide all reasonable assistance to the other Party to help the other Party perform its obligations hereunder. During the Term,Buyer shall deliver to Provider: (i)its annual audited financial statements within 180 days after the end of each Fiscal Year, (ii) its annual budget for the succeeding Fiscal Year promptly following approval thereof, (iii) proof of appropriation of funds for payments due hereunder with its annual budget,and(iv) such other financial statements and information relating to the ability of Buyer to satisfy its obligations under this Agreement as may be reasonably requested by Provider from time to time. 17 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 13. Press Releases and Confidentiality. (a) Press Releases. The Parties acknowledge that they each desire to publicize information about this Agreement and the Project. The Parties therefore agree that each may make independent press releases about entering into this Agreement,the size and location of the Project, production values of the Project,the estimated savings(including,but not limited to,financial and environmental attributes) as a result of the Project, the costs incurred by the City related to the Project, material aspects including, but not limited to, component descriptions and locations, and the identity of the other Party,with the prior written consent of the other Party,which consent will not be unreasonably withheld. However, the terms of this Agreement and information about the Project other than that described above constitutes Confidential Information,as defined below, and is subject to the remaining provisions of this Section 13. Both Parties have exclusive control over the content or their respective websites. Any press release will be reviewed by both Parties within 3 business days. If no changes have been requested after 3 business days for review either Party may issue the press release. Both Parties will review and agree to all media announcement and marketing publications before release. Nothing herein shall prevent Buyer from complying with its obligations under the Freedom of Information Act. (b) Limits on Disclosure of Confidential Information. Subject to the exceptions set forth below in Section 13(c),each Party agrees that,(i)without the consent of the other Party,it shall not disclose any Confidential Information received from the other Party to any other person and(ii) it shall use any Confidential Information received from the other Party only for the purpose of fulfilling its obligations under this Agreement. Notwithstanding the foregoing, the Parties may, and shall, disclose any information required to be disclosed under rules, regulations and contracts implementing any incentives/benefits applicable to the Project which Provider elects to participate in or Tax Attributes required to be disclosed by any Governmental Authority under Applicable Law or pursuant to a validly issued subpoena or required filing.Notwithstanding the foregoing provision, the Parties acknowledge that the Buyer is subject to the disclosure requirements of the Arkansas Freedom of Information Act and the confidentiality of the Family Educational Rights and Privacy Act. (c) Permissible Disclosures.Buyer may publicly publish this Agreement and its exhibits and schedules in the event Buyer determines, in its sole discretion, that disclosure is required by any agreement to which Buyer is a party, or by applicable law or the rules of any public or private regulatory body. Provider may provide this Agreement,and any correspondence,notices and other information related to this Agreement to any person who has provided or who is interested in providing construction or permanent financing, or any refinancing thereof, to Provider in connection with the Project. In addition,if a receiving Party is required by Applicable Law,validly issued subpoena,required filing,or the rules of any stock exchange or regulatory body,to disclose any Confidential Information provided by the disclosing Party,the receiving Party shall notify the disclosing Party prior to making any disclosure and shall use its reasonable efforts to cooperate with the disclosing Party,but at the expense of the disclosing Party. (d) Buyer acknowledges that Provider is an independent contractor and the Buyer has no ownership or control over Provider,a private entity. Provider has not agreed to act as a custodian of public records for the Buyer subject to the provisions of the Arkansas Freedom of Information 18 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 Act, Ark. Code Ann. §25-19-101, et seq. Buyer further acknowledges and agrees that certain documents and information provided to Buyer pursuant to the terms and conditions of this Agreement may place Provider and Buyer at a competitive disadvantage if the information is disclosed by Buyer. In the event Buyer receives a request for disclosure pursuant to subpoena or other means, Buyer shall promptly provide notice of such request to Provider, and shall notify Provider of any records Buyer deems it is required under law to disclose, in order to give Provider the opportunity to seek an Attorney General Opinion or court order to prevent the disclosure. (e) Provider shall provide the Buyer with access to a Project monitoring application which will allow the Buyer to access the Project information for purposes of Buyer displaying and communicating the Project information to the public. The system monitoring application shall be updated at least daily. 14. Representations and Warranties. (a) Mutual Representations. Each Party hereby represents and warrants to the other,as of the Effective Date,that: (i) Organization. It is duly organized, validly existing and in good standing under the laws of its state of incorporation or formation, as applicable, and of the state in which the Sites are located, respectively, and has the power and authority to enter into this Agreement and to perform its obligations hereunder. (ii) No Conflict. The execution and delivery of this Agreement and the performance of and compliance with the provisions of this Agreement will not conflict with or constitute a breach of or a default under (1) its organizational documents; (2) any agreement or other obligation by which it is bound; and/or(3)any law or regulation. (iii) Enforceability. (1) Except as contemplated under Section 3(a), all actions required to be taken by or on the part of such Party necessary to make this Agreement effective have been duly and validly taken; (2) this Agreement has been duly and validly authorized, executed and delivered on behalf of such Party; and (3) this Agreement constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with its terms, subject to laws of bankruptcy, insolvency, reorganization, moratorium or other similar laws. (iv) No Material Litigation. There are no court orders,. actions, suits or proceedings at law or in equity by or before any governmental authority,arbitral tribunal or other body, or threatened against or affecting it or brought or asserted by it in any court or before any arbitrator of any kind or before or by any governmental authority that could reasonably be expected to have a material adverse effect on it or its ability to perform its obligations under this Agreement,or the validity or enforceability of this Agreement. (b) Buyer Representations. In addition to the representations and warranties in Section 14(a), Buyer hereby represents and warrants to Provider, as of the Effective Date,that: 19 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 (i) Authorization. The execution and delivery of this Agreement by Buyer and the performance of its obligations hereunder have been duly authorized by all necessary official action. This Agreement is a legal,valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms. (ii) Financial Information. The financial information Buyer has provided to Provider presents fairly in all material respects the financial condition and results of operations of Buyer. (c) Provider Representations. In addition to the representations and warranties in Section 14(a),Provider hereby represents and warrants to Buyer that: (i) Before commencing performance of this Agreement Provider shall have become licensed or otherwise permitted to do business in the State of Arkansas and shall have provided proof and documentation of all required insurance and bonds pursuant to this Agreement. (ii) Provider shall make available,upon reasonable request, documents relating to its performance under this Agreement, including contracts and subcontracts it shall enter into; (iii) Provider shall use contractors and subcontractors who are qualified,licensed and bonded in this State to perform the work so subcontracted pursuant to the terms hereof; (iv) Provider has all requisite authority to the use of proprietary property, both tangible and intangible,contemplated by this Agreement; (v) The execution and delivery of this Agreement by Provider and the performance of its obligations hereunder have been duly authorized by all necessary official action. This Agreement is a legal, valid and binding obligation of Provider enforceable against Provider in accordance with its terms; and (vi) If requested by Buyer, the financial information Provider has provided to Buyer presents fairly in all material respects the financial condition and results of operations of Provider. 15. Force Maieure. (a) Excuse for Force Majeure Event. Except as provided in Section 15(b) or 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 this Agreement if and to the extent that such delay or failure is caused by the occurrence of a Force Majeure Event;provided that the Party claiming relief as a result of the Force Majeure Event shall promptly (i) notify the other Party in writing of the existence and details of the Force Majeure Event; (ii)exercise all reasonable efforts to minimize delay caused by such Force Majeure Event;(iii)notify the other Party in writing of the 20 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 cessation of such Force Majeure Event; and (iv) resume performance of its obligations hereunder as soon as practicable thereafter. (b) No Excuse for Payment for Prior Services. Obligations to make payments for services already provided shall not be excused by a Force Majeure Event. (c) Restoration.In the event of a casualty event,to the extent that such casualty event is attributable to the occurrence of a Force Majeure Event that destroys all or a substantial portion of a Site, Provider shall elect, within ninety(90) days of such event, whether it will restore the Site, which restoration will be at the sole expense of Provider. If Provider does not elect to restore the Site, then this Agreement will terminate. If Provider does elect to restore the Site, Provider shall provide notice of such election to Buyer, and thereafter following receipt of all necessary permits and approvals shall diligently restore the Site at its sole expense. In the event of termination of this Agreement pursuant to this Section 15(c), (i)the Parties shall not be released from any payment or other obligations arising under this Agreement prior to the casualty event; and (ii) the confidentiality provisions of Section 13,and the dispute resolution provisions of Section 21 hereof shall continue to apply notwithstanding the termination of this Agreement. Notwithstanding anything to the contrary in this Agreement,Provider shall restore the Site if a Force Majeure Event occurs during the first seven(7)years of the Operation Period. (d) Termination for Force Majeure Event. Notwithstanding anything to the contrary in this Agreement, if nonperformance that is the result of a Force Majeure Event continues beyond a continuous period of two hundred and seventy(270)days, then either Party shall have the right to terminate this Agreement upon thirty (30) days' notice to the other; provided, however, that Provider's restoration of the Site under Section 15(c) shall not be subject to the foregoing termination provision if during such 270-day period Provider has begun restoration of the Site and is proceeding diligently, using commercially reasonable efforts, to complete such restoration without unreasonable delay. In the event of such a termination of this Agreement with respect to the Project,the Parties shall not be released from any payment or other obligation arising under this Agreement which accrued prior to the shutdown of the Project or Site,and the confidentiality and dispute resolution provisions of this Agreement shall survive the termination of this Agreement. 16. Provider Default and Buyer Remedies. (a) Provider Events of Default. Provider shall be in default of this Agreement if any of the following("Provider Events of Default")shall occur: (i) Misrepresentation. Any representation or warranty by Provider under Section 14 hereof, is incorrect or incomplete in any material way, or omits to include any information necessary to make such representation or warranty not materially misleading, and such defect is not cured within fifteen (15) days after receipt of notice from Buyer identifying the defect. (ii) Abandonment During Installation. After commencement of installation of a Project, Provider abandons installation of the Project for thirty (30) consecutive days and fails to resume installation within thirty(30) days after receipt of notice from Buyer stating 21 DocuSign Envelope ID:6A07CASE-E31B-4A44-A199-EB3302A6CF57 that, in Buyer's reasonable determination, Provider has abandoned installation of the Project. (iii) Failure to Operate. After the Commercial Operation Date, Provider fails to deliver Usable Electricity for a period of ninety (90)consecutive days,which failure is not due to equipment failure, damage to the Project that can be remedied during such ninety (90) day period through the exercise or ordinary diligence, act of governmental authority, exercise of Provider's rights under this Agreement, or otherwise excused by the provisions of Section 15(b) (relating to Force Majeure Events); and Provider fails to resume operation within thirty(30)days after receipt of notice from Buyer stating that,in Buyer's reasonable determination, Provider has ceased operation of the Project; provided, however, that the cure period shall be extended by the number of calendar days during which Provider is prevented by circumstances beyond its control from taking curative action if Provider had begun curative action and was proceeding diligently,using commercially reasonable efforts, to complete such curative action. (iv) Obligation Failure. Provider fails to perform any obligation hereunder, such failure is material,such failure is not excused by the provisions of Section 15(b)(relating to Force Majeure Events), and such failure is not cured within: (A)ten (10)days if the failure involves a failure to make payment when due; or(B)sixty(60)days if the failure involves an obligation other than payment,after receipt of notice from Buyer identifying the failure. (v) Prohibited Acts. Provider takes any material action forbidden by this Agreement. (vi) Insolvency. Provider(A) applies for or consents to the appointment, or the taking of possession by,a receiver, custodian, trustee or liquidator of itself or a substantial portion of its property; (B) admits in writing its inability, or is generally unable, to pay its debts as such debts become due; (C) makes a general assignment for the benefit of its creditors; (D) commences a voluntary case under any bankruptcy law; (E) files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) acquiesces in, or fails to contest in a timely manner,any petition filed against Provider in an involuntary case under bankruptcy law or seeking to dissolve Provider under other Applicable Law; or(G) takes any action authorizing its dissolution. Prior to any event of Provider insolvency occurring after the fifth anniversary of the Commercial Operation Date for a Project, Provider shall offer to sell the Project at Fair Market Value to Buyer,unless prohibited by law. (b) Financing Party Opportunity to Cure; Buyer Remedies. Upon an Event of Default by Provider, provided that Buyer complies with its obligations under Section 18 and Financing Party does not cure such Event of Default by Provider,Buyer may terminate this Agreement, seek to recover damages for costs of replacement Usable Electricity for the Project, and pursue other remedies available at law or equity. 17. Buyer Default and Provider Remedies. 22 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 (a) Buyer Events of Default. Buyer shall be in default of this Agreement if any of the following("Buyer Events of Default")shall occur: (i) Misrepresentation. Any representation or warranty by Buyer under Section 14 hereof, is incorrect or incomplete in any material way, or omits to include any information necessary to make such representation or warranty not materially misleading, and such defect is not cured within fifteen (15) days after receipt of notice from Provider identifying the defect. (ii) Obstruction. Buyer intentionally obstructs commencement of installation of any Project or fails to take any actions necessary for the interconnection of any Project,or fails to take Usable Electricity produced by any Project (except in the case of Excuse for Force Majeure Event),and fails to correct such action within its own power to do so within fifteen(15)days. (iii) Payment Failure. Buyer fails to make any payment due under the terms of this Agreement and fails to make such payment within thirty(30)days after the date when due. (iv) Obligation Failure. Buyer fails to perform any obligation hereunder, such failure is material,such failure is not excused by the provisions of Section 15(b)(relating to Force Majeure Events), and such failure is not cured within sixty (60) days if the failure involves an obligation other than payment,after receipt of notice from Provider identifying the failure. (v) Insolvency. Buyer (A) applies for or consents to the appointment, or the taking of possession by,a receiver,custodian,trustee or liquidator of itself or a substantial portion of its property; (B) admits in writing its inability, or be generally unable, to pay its debts as such debts become due; (C) makes a general assignment for the benefit of its creditors; (D) commences a voluntary case under any bankruptcy law; (E)files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) acquiesces in, or fails to contest in a timely manner, any petition filed against Buyer in an involuntary case under bankruptcy law or seeking to dissolve Buyer under other Applicable Law;or(G)takes any action authorizing its dissolution. (b) Default Damages. Upon an Event of Default by Buyer, Provider may remove any components of the Project located on a Site and/or pursue any and all other remedies available at law or in equity. 18. Collateral Assignment,Financing Provisions. (a) Financing Arrangements. To the extent permitted by law, Provider may pledge, grant security interests, assign, or otherwise encumber its interests in the Site, Project and this Agreement to any persons providing financing for the Project. Buyer acknowledges that Provider 23 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 will obtain construction financing for the Project from one or more third parties and that Provider may either obtain term financing secured by the Project or sell or assign the Project to a Financing Party or may arrange other financing accommodations from one or more financial institutions and may from time to time refinance, or exercise purchase options under, such transactions. Buyer acknowledges that in connection with such transactions Provider may secure Provider's obligations by,among other collateral,an assignment of this Agreement,in whole or in part,and a first security interest in the Project, including the Site. In order to facilitate such financing, and with respect to any lender or lessor,as applicable,Buyer agrees as follows: (i) Consent to Collateral Assignment. Buyer hereby consents to both of the sale or lease of the Project to a Financing Party and the collateral assignment to the Financing Party of the Provider's right,title and interest in and to this Agreement. (ii) Rights of Financing Party. Notwithstanding any contrary term of this Agreement: (A) Step-In Rights. The Financing Party, as owner or lessee of the Project, or as collateral assignee of this Agreement, 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. The Financing Party shall also be entitled to exercise all rights and remedies of owners or secured parties,generally with respect to this Agreement and the Project; (B) Opportunity to Cure Default. The Financing Party shall have the right,but not the obligation,to pay all sums due under this Agreement and to perform any other act,duty or obligation required of 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 Financing Party to cure any default of Provider under this Agreement or (unless the Financing Party has succeeded to Provider's interests under this Agreement)to perform any act,duty or obligation of Provider under this Agreement,but Buyer hereby gives it the option to do so; (C) Exercise of Remedies. Upon the exercise of remedies,including any sale of the Project by the Financing Party, whether by judicial proceeding or under any power of sale contained therein, or any conveyance from Provider to the Financing Party (or any assignee of the Financing Party as defined below) in lieu thereof,the Financing Party shall give notice to Buyer of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a default under this Agreement; (D) Cure of Bankruptcy Rejection. 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 Financing Party made within ninety(90)days of such termination or rejection,Buyer shall enter into a new agreement with Financing Party or its assignee(s) having the same terms and conditions as this Agreement. 24 DocuSign Envelope ID:6A07CA8E-E318-4A44-A199-EB3302A6CF57 (iii) Right to Cure. (A) Cure Period. If Financing Party provides Buyer with notice of its interest and with a notice address,Buyer will not exercise any right to terminate or suspend this Agreement unless it shall have given the Financing 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 Financing Party shall not have caused to be cured the condition giving rise to the right of termination or suspension within the periods for cure provided for in this Agreement.; provided that if such Provider default reasonably cannot be cured by the Financing Party within such period and the Financing Party 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 an additional ninety (90) days. The Parties' respective obligations will otherwise remain in effect during any cure period. (B) Continuation of Agreement. If the Financing Party or its assignee (including any purchaser or transferee), pursuant to an exercise of remedies by the Financing Party,shall acquire title to or control of Provider's assets and shall,within the time periods described in Section 18(a)(iii)(A)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 shall no longer be in default under this Agreement, and this Agreement shall continue in full force and effect. (b) Financing Party a Third-Party Beneficiary. Buyer agrees and acknowledges that Financing Party is a third-party beneficiary of the provisions of this Section 18. (c) Entry to Consent to Assignment. Buyer agrees to execute any consents to assignment, payment direction letters, or acknowledgements as may be reasonably requested by Provider and/or Financing Party in connection with such financing of or sale of any or all of the Project. (d) Regardless of assignment,Provider,Provider's Affiliate,or a contractor thereof that is an experienced manager in the renewable energy industry of at least 25 MW of renewable energy assets will continue to operate and maintain the Project. For the avoidance of doubt, Entegrity Energy Partners LLC and/or an Affiliate thereof shall qualify as an experienced manager hereunder. 19. Chanee in Law. If there is any Change in Law subsequent to the Effective Date that results in a direct and material change in Provider's costs to provide the Solar Services or Buyer's ability to obtain, or a material reduction in, any net metering credit or payment from the Electric Utility, Provider or Buyer shall promptly submit to the other party a written notice setting forth (i) the citation of the Change in Law, (ii) the manner in which such change materially increases Provider's costs to 25 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 provide the Solar Services or Buyer's ability to receive, or the material reduction in, the net metering credit or payment,and(iii)Provider's or Buyer's proposed adjustment to the kWh rates to reflect such material changes in Provider's costs or Buyer's ability to receive, or the material reduction in, the net metering credit or payment. Provider and Buyer agree to negotiate in good faith a commercially reasonable adjustment in the kWh rate to reflect the associated costs or values impacted by the Change in Law, and in the event Buyer and Provider are unable to agree upon a reasonable adjustment within thirty(30) days after written notice in accordance with this Section, such Dispute shall be resolved in accordance with Section 21 hereof. 20. Limitations on Damages,Liability,and Remedies;Disclaimer. (a) EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES SUBCONTRACTORS OR SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL,OR CONSEQUENTIAL DAMAGES (INCLUDING,WITHOUT LIMITATION, LOST REVENUES (OTHER THAN AMOUNTS PAYABLE UNDER THIS AGREEMENT), LOST PROFITS, LOST BUSINESS OPPORTUNITY OR ANY BUSINESS INTERRUPTION), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF ADVISED OF SUCH. THE PARTIES AGREE THAT (1) IN THE EVENT THAT PROVIDER OR ITS INVESTORS LOSE OR ARE REQUIRED TO RECAPTURE ANY TAX ATTRIBUTES OR OTHER TAX BENEFITS AS A RESULT OF A BREACH OF THIS AGREEMENT BY BUYER, SUCH RECAPTURED AMOUNT SHALL BE DEEMED TO BE DIRECT AND NOT INDIRECT OR CONSEQUENTIAL DAMAGES,AND(II)IN THE EVENT THAT PROVIDER IS RETAINING THE ENVIRONMENTAL ATTRIBUTES PRODUCED BY THE PROJECT, AND A BREACH OF THIS AGREEMENT BY BUYER CAUSES PROVIDER TO LOSE THE BENEFIT OF SALES OF SUCH ENVIRONMENTAL ATTRIBUTES TO THIRD PARTIES, THE AMOUNT OF SUCH LOST SALES SHALL BE DIRECT AND NOT INDIRECT OR CONSEQUENTIAL DAMAGES. (b) PROVIDER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON- PERFORMANCE OF THIS AGREEMENT CANNOT EXCEED THE TOTAL PAYMENTS ACTUALLY MADE BY BUYER UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 20(B) WILL APPLY WHETHER SUCH LIABILITY OR CLAIM ARISES IN CONTRACT,TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY,OR OTHERWISE. (c) TO THE EXTENT THAT THIS AGREEMENT SETS FORTH SPECIFIC REMEDIES FOR ANY CLAIM OR LIABILITY, SUCH REMEDIES ARE THE AFFECTED PARTY'S SOLE AND EXCLUSIVE REMEDIES FOR SUCH CLAIM OR LIABILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. (d) EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO WARRANTY WITH RESPECT TO THE PROJECT OR THE PERFORMANCE OF PROVIDER'S OBLIGATIONS HEREUNDER, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A 26 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE,APPLIES UNDER THIS AGREEMENT. (e) NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO ALTER, LIMIT, OR OTHERWISE COMPROMISE THAT TORT IMMUNITY AFFORDED THE CITY OF FAYETTEVILLE UNDER THE CONSTITUTION AND STATUTES OF THE STATE OF ARKANSAS. 21. Dispute Resolution. (a) Negotiation Period. The Parties shall negotiate in good faith and attempt to resolve any dispute,controversy or claim arising out of or relating to this Agreement(a"Dispute")within thirty(30)days after the date that a Party gives written notice of such Dispute to the other Party. (b) Mediation. If, after such negotiation in accordance with Section 21(a), the Dispute remains unresolved, either Party may request that a non-binding mediation take place. In such mediation,representatives of the Parties with authority to resolve the dispute shall meet for at least three(3)hours with a mediator whom they choose together. If the Parties are unable to agree on a mediator, then either Party is hereby empowered to request the American Arbitration Association to appoint a mediator. The mediator's fee and expenses shall be paid one-half by each Party. (c) Forum. The parties agree that all claims, demands or actions for loss, expense, damage,liability or other relief,either at law or in equity,arising out of or related to this Agreement must be brought before a court in Washington County, Arkansas having jurisdiction over such matter. 22. Notices. Delivery of Notices. All notices or other communications which may be or are required to be given by any party to any other party pursuant to this Agreement shall be in writing and shall be either (i)delivered by hand; (ii) mailed by first-class, registered or certified mail, return receipt requested,postage prepaid; (iii) delivered by a recognized overnight or personal delivery service; (iv)transmitted by facsimile (such transmission to be effective on the day of receipt if received prior to 5:00 pm local time on a business day or in any other case as of the next business day following the day of transmittal); or (v) transmitted by email if receipt of such transmission by email is specifically acknowledged by the recipient (automatic responses not being sufficient for acknowledgement),addressed as follows: If to Buyer: City of Fayetteville 113 West Mountain Street Fayetteville,AR,72701 If to Provider: Entegrity Energy Partners,LLC 27 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 1403 East 6t Street Little Rock,AR 72202 Notices shall be effective when delivered(or in the case of email,when acknowledged by the recipient) in accordance with the foregoing provisions, whether or not (except in the case of email transmission) accepted by, or on behalf of,the Party to whom the notice is sent. Each Party may designate by Notice in accordance with this section to the other Party a new address to which any notice may thereafter be given. 23. Miscellaneous. (a) Governing Law. This Agreement shall be governed by the laws of the State of Arkansas, without regard to its choice of law provisions, and applicable federal law. Any legal action or proceeding arising out of or relating to this Agreement must be conducted exclusively within the State of Arkansas and in no other jurisdiction. (b) Rules of Interpretation. Section headings are for convenience only and shall not affect the interpretation of this Agreement. References to sections are,unless the context otherwise requires, references to sections of this Agreement. The words "hereto","hereof"and"hereunder" shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word"person" shall include individuals; partnerships; corporate bodies (including but not limited to corporations, limited partnerships and limited liability companies); non-profit corporations or associations;governmental bodies and agencies;and regulated utilities. The word"including"shall be deemed to be followed by the words "without limitation". In the event of any conflict between the text of this Agreement and the contents of an Exhibit hereto, the text of this Agreement shall govern. (c) Severability. If any non-material part of this Agreement is held to be unenforceable, the rest of the Agreement will continue in effect. If a material provision is determined to be unenforceable and the Party which would have been benefited by the provision does not waive its unenforceability, then the Parties shall negotiate in good faith to amend the Agreement to restore to the Party that was the beneficiary of such unenforceable provision the benefits of such provision. (d) Amendment and Waiver. This Agreement may only be amended by a writing signed by both Parties. Any waiver of any of the terms hereof shall be enforceable only to the extent it is waived in a writing signed by the Party against whom the waiver is sought to be enforced. Any waiver shall be effective only for the particular event for which it is issued and shall not constitute a waiver of a subsequent occurrence of the waived event nor constitute a waiver of any other provision hereof, at the same time or subsequently. (e) Assignment. Neither Party may assign, sell,transfer or in any other way convey its rights, duties or obligations under this Agreement, either in whole or in part, without the prior written consent of the other Party which consent shall not be unreasonably withheld or delayed, except that without consent of Buyer, Provider (i)may assign, in whole or in part, its rights and obligations hereunder to an Affiliate of Provider and (ii) may sell or collaterally assign this 28 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 Agreement in whole or in part as collateral, in accordance with Section 18. For purposes of this Section 23(e),assign,sell,transfer,or convey does not include any sale of all or substantially all of the assets of Provider or any merger of Provider with another person,whether or not Provider is the surviving entity from such merger, or any other change in control of Provider,provided any such surviving entity assumes all obligations of Provider, as appropriate,under this Agreement. Buyer agrees to execute any consents to assignment or acknowledgements as may be reasonably requested by Provider in connection with an assignment of this Agreement. (f) Provider Put Option. Buyer and Provider hereby expressly acknowledge and agree that Provider shall have the option to put the purchase of one or more Projects located on a Site to Buyer at the end of the Term for a purchase price which is equivalent to the Fair Market Value of the Project at such time. (g) THIS AGREEMENT IS NOT A LEASE — THIS AGREEMENT CONSTITUTES A SERVICE CONTRACT. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS NOT A LEASE AND THIS AGREEMENT SHALL NOT BE CONSTRUED AS A LEASE. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE AND FURTHER COVENANT, WARRANT, AND REPRESENT TO EACH OTHER THAT NEITHER PARTY WILL TAKE ANY ACTION WHATSOEVER TO TREAT OR CONSTRUE THIS AGREEMENT AS A LEASE. THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS AN AGREEMENT TO SELL ELECTRIC ENERGY GENERATED FROM AN ALTERNATIVE ENERGY FACILITY AND THIS AGREEMENT SHALL BE DEEMED A SERVICE CONTRACT PURSUANT TO 26 U.S.C. SECTION 7701(e)(3)(A). THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE AND FURTHER COVENANT, WARRANT, AND REPRESENT TO EACH OTHER THAT EACH PARTY WILL TAKE ANY AND ALL ACTIONS NECESSARY TO INSURE THAT THIS AGREEMENT IS TREATED AND CONSTRUED AS A SERVICE CONTRACT SATISFYING THE REQUIREMENTS OF SERVICE CONTRACTS PURSUANT TO 26 U.S.C. SECTION 7701(e)(3)(A). THE PARTIES HERETO HEREBY FURTHER EXPRESSLY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS INTENDED TO FULLY COMPLY WITH ACT 464 OF THE 2019 REGULAR SESSION OF THE 92ND GENERAL ASSEMBLY OF THE STATE OF ARKANSAS, EXPRESSLY INCLUDING, BUT NOT LIMITED TO,A.C.A SECTION 23-18-603(7)(C). (h) No Joint Venture. This Agreement does not create a joint venture, partnership or other form of business association between the Parties. (i) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of signature by fax, or scan delivered by email, receipt acknowledged, or electronic signature are effective to bind a Party hereto. (Signatures contained on following page) 29 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 (Signature Page to Solar Services Agreement) EXECUTED AND EFFECTIVE as of the Effective Date. BUYER: CITY OF FAYETTEVILLE By: Nai c: IQl1Bl a Title:MA PROVIDER: ENTEGRITY ENERGY PARTNERS,LLC Mickaet?ai-ker By: wkk.r►.w..ro«1I.Ian MOW) Name: Michael Parker Title: President 30 1 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 EXHIBIT A CONFIDENTIAL USABLE ELECTRICITY PURCHASE RATE Year Solar Electric Rate($/kWh) 1 $0.0570 2 $0.0576 3 $0.0581 4 $0.0587 5 $0.0593 6 $0.0599 7 $0.0605 8 $0.0611 9 $0.0617 10 $0.0623 11 $0.0630 12 $0.0636 13 $0.0642 14 $0.0649 15 $0.0655 16 $0.0662 17 $0.0668 18 $0.0675 19 $0.0682 20 $0.0689 21 $0.0696 22 $0.0702 23 $0.0709 24 $0.0717 25 $0.0724 31 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 EXHIBIT B DESCRIPTION OF SITE General Description: A portion of parcel#200-02456-000 in Logan County,Arkansas. Final legal description to be determined by survey. 32 DocuSign Envelope ID:6A07CA8E-E31B-4A44-A199-EB3302A6CF57 EXHIBIT C CONFIDENTIAL DESCRIPTION OF PROJECT Project Description: Point of Delivery Located at the Billing Meter Solar Modules: FS-6450A-P or similar Solar Racking System: OMCO Single Axis Tracker Racking or similar Inverters: SMA Sunny Highpower PEAK3 125-US or similar Billing Meter: Elkor WattsOn-Mark II MT-RG-05 or similar Facility Capacity(DC): Approximately 3.77 MW Facility Capacity(AC): Approximately 2.88 MW Estimated Year-1 Production: Approximately 6,538,454 kWh 33 DocuSign Envelope ID:6A07CA8E-E31 B-4A44-A199-EB3302A6CF57 EXHIBIT D CONFIDENTIAL PURCHASE OPTION PURCHASE PRICE SCHEDULE Seventh(7th)Anniversary of Commercial Operation Date: The greater of(i)Fair Market Value of the Project and Provider's rights in the Site and(ii)$4,650,000.00; Fourteenth (14th) Anniversary of Commercial Operation Date: The greater of(i) Fair Market Value of the Project and Provider's rights in the Site and(ii)$3,250,000.00; Twenty-First(21st)Anniversary of Commercial Operation Date:The greater of(i)Fair Market Value of the Project and Provider's rights in the Site and(ii)$1,750,000.00. 34