HomeMy WebLinkAboutORDINANCE 6115F fAYFrT
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113 West Mountain ” i
Fayetteville, AR 72701(479) 575-8323
File Number: 2018-0625
OZARKS ELEC'T'RIC COOPERATIVE CORPORATION AND TODAY'S POWER, INC.:
f
AN ORDINANCE TO WAIVE COMPETITIVE BIDDING AND AUTHORIZE MAYOR JORDAN TO
ENTER INTO AGREEMENTS WITH OZARKS ELECTRIC COOPERATIVE CORPORATION AND
TODAY'S POWER, INC. FOR THE DEVELOPMENT, CONSTRUCTION, AND OPERATION OF
SOLAR POWER. GENERATION AND STORAGE EQUIPMENT AND FACILITIES AT
FAYETTEVILLE'S WESTSIDE AND NOLAND WASTEWATER TREATMENT FACILITIES, AND TO
APPROVE A BUDGET ADJUSTMENT TO PROVIDE FUNDING IN THE AMOUNT OF $560,818.38
FOR SITE IMPROVEMENTS NECESSARY TO CONNECT TO THE SOLAR ARRAYS
WHEREAS, on January 2, 2018, pursuant to Resolution No. 25-18, the City Council adopted an Energy
Action Plan which includes a goal of 100% clean energy consumption by City facilities by 2030; and
WHEREAS, the City's two wastewater treatment facilities are the largest electricity consuming
accounts making, up approximately 67% of the City's overall electricity consumption; and
WHEREAS, installing solar power generating and storage facilities meets the City's goal of converting
to clean energy, will lead to improved reliability for the wastewater treatment facilities, reduce
dependence on backup generators, upgrade the electricity grid servicing the treatment plants and should
also result in cost savings to the City and taxpayers; and
WHEREAS, Ozarks Electric Cooperative Corporation ("Ozarks Electric") is the City's monopoly
power provider where the wastewater treatment facilities are located and is a shareholder in Today's Power,
Inc. ("Today's Power"), which will allow the City to obtain the benefits of a total package arrangement for
solar power generation, storage, maintenance, electrical upgrades, energy management, and net metering
that would not be possible otherwise.
Page 1 Printed on 11121118
Ordinance 6115
File Number.' 2018-0625
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby determines an
exceptional situation exists in which competitive bidding is deemed not feasible or practical and
therefore waives the requirements of formal competitive bidding for solar power facility installation and
related services at the Westside and Noland Wastewater Treatment Facilities, pursuant to the agreements
described below.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan
to sign a Tri -Lateral Agreement with Ozarks Electric and Today's Power for the development,
construction and operation of solar power generation and storage facilities and equipment at the
Westside and Noland Wastewater Treatment Facilities.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan
to sign two Ownership and Operations Agreements with Today's Power for development, construction
and operation of solar power generation and storage facilities which provides for 99% ownership of the
solar power generating system by Today's Power and 1% by the City and which requires Today's Power to
finance the purchase of, install and maintain the solar power facilities.
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan
to sign two Lease and Easement Agreements with Today's Power for approximately 48.95 acres at the
Noland Plant and approximately 37.8 acres at the Westside Plant for the installation and operation of
the solar power generating facilities.
Section 5: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan
to sign two Solar Power Services Agreements with Today's Power for the purchase of solar power services
at a cost of 4.7673 cents per kilowatt hour.
Section 6: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan
to sign a Facilities Upgrade Agreement with Ozarks Electric in the amount of $560,818.00 for the
construction and upgrade of the City's facilities to allow for the interconnection and storage of electric
energy at the Westside and Noland Plants.
Section 7: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan
to sign an Energy Management Agreement with Ozarks Electric which provides for the management by
the City of back-up generators at the Westside and Noland Plants in order to reduce energy
consumption during peak conditions which will allow the City to remain on the large power off peak
rate as long as the tri -lateral agreement remains in effect.
Page 2 Printed on 11/21/18
Ordinance 6115
File Number. 2018-0625
Section 8: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment,
a copy of which is attached to the City Council Agenda Memo, in the amount of $560,818.00 to provide
funding for the make-ready site improvements authorized by Section 5 of this Ordinance.
PASSED and APPROVED on 11/20/2018
Approved:
Attest:
L�
Lioneld Jordan, M r
Sondra E. Smith, City Clerk Treasurer
�• TR
.�`�F��
=v: FAYETTEVILLE.
.''AKA
Page 3 Printed an 11121118
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Text File
File Number: 2018-0625
Agenda Date: 11/2012018 Version: 1 Status: Agenda Ready
In Control: City Council Meeting
Agenda Number: D. 5
File Type: Ordinance
OZARKS ELECTRIC COOPERATIVE CORPORATION AND TODAY'S POWER, INC.:
AN ORDINANCE TO WAIVE COMPETITIVE BIDDING AND AUTHORIZE MAYOR JORDAN TO
ENTER INTO AGREEMENTS WITH OZARKS ELECTRIC COOPERATIVE CORPORATION AND
TODAY'S POWER, INC. FOR THE DEVELOPMENT, CONSTRUCTION, AND OPERATION OF
SOLAR POWER GENERATION AND STORAGE EQUIPMENT AND FACILITIES AT
FAYETTEVILLE'S WESTSIDE AND NOLAND WASTEWATER TREATMENT FACILITIES, AND
TO APPROVE A BUDGET ADJUSTMENT TO PROVIDE FUNDING IN THE AMOUNT OF
$560,81.8.38 FOR SITE IMPROVEMENTS NECESSARY TO CONNECT TO THE SOLAR ARRAYS'
WHEREAS, on January 2, 2018, pursuant to Resolution No. 25-18, the City Council adopted an Energy
Action Plan which includes a goal of 100% clean energy consumption by City facilities by 2030; and
WHEREAS, the City's two wastewater treatment facilities are the largest electricity consuming accounts
making up approximately 67% of the City's overall electricity consumption; and
WHEREAS, installing solar power generating and storage facilities meets the City's goal of converting to clean
energy, will lead to improved reliability for the wastewater treatment facilities, reduce dependence on backup
generators, upgrade the electricity grid servicing the treatment plants and should also result in cost savings to the.
City and taxpayers; and
WHEREAS, Ozarks Electric Cooperative Corporation ("Ozarks Electric") is the City's monopoly power
provider where the wastewater treatment facilities are located and is a shareholder in Today's Power, Inc.
("Today's Power"), which will allow the City to obtain the benefits of a total package arrangement for solar
power generation, storage, maintenance, electrical upgrades, energy management, and net metering that would
not be possible otherwise.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby determines an exceptional
situation exists in which competitive bidding is deemed not feasible or practical and therefore waives the
requirements of formal competitive bidding for solar power facility installation and related services at the
Westside and Noland Wastewater Treatment Facilities, pursuant to the agreements described below.
1 City of Fayetteville, Arkansas Page 1 Printed on 11/20/2018
File Number: 2018-0625
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign a
Tri -Lateral Agreement with Ozarks Electric and Today's Power for the development, construction and
operation of solar power generation and storage facilities and equipment at the Westside and Noland -
Wastewater Treatment Facilities.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign
two Ownership and Operations Agreements with Today's Power for development, construction and operation
of solar power generation and storage facilities which provides for 99% ownership of the solar power
generating system by Today's Power and 1% by the City and which requires Today's Power to finance the
purchase of, install and maintain the solar power facilities.
Section 4: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign
two Lease and Easement Agreements with Today's Power for approximately 48.95 acres at the Noland Plant
and approximately 37.8 acres at the Westside Plant for the installation and operation of the solar power
generating facilities.
Section 5: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign
two Solar Power Services Agreements with Today's Power for the purchase of solar power services at a cost
of 4.7673 cents per kilowatt hour.
Section 6: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign a
Facilities Upgrade Agreement with Ozarks Electric in the amount of $560,818.00 for the construction and
upgrade of the City's facilities to allow for the interconnection and storage of electric energy at the Westside
and Noland Plants.
Section 7: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign
an Energy Management Agreement with Ozarks Electric which provides for the management by the City of
back-up generators at the Westside and Noland Plants in order to reduce energy consumption during peak
conditions which will allow the City to remain on the large power off peak rate as long as the tri -lateral_
agreement remains in effect.
Section 8: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment, a
copy of which is attached to the City Council Agenda Memo, in the amount of $560,818.00 to provide funding
for the make-ready site improvements authorized by Section 5 of this Ordinance.
City of Fayetteville, Arkansas Page 2 Printed on 1112012018
City of Fayetteville Staff Review Form
2018-0625
Legistar File ID
11/20/2018
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda item
Peter Nierengarten 11/1/2018 SUSTAINABILITY/RESILIENCE (631)
Submitted By Submitted Date Division / Department
Action Recommendation:
Staff recommends approval of a trilateral agreement with Ozarks Electric Cooperative and Today's Power, Inc. for
the development, construction and operation of 10 MW of Solar Power Generation and associated 24 MWh of
Storage at the two Fayetteville Wastewater Treatment Facilities and approval of a budget adjustment.
Budget Impact:
5400.730.5800-5400.00 Wastewater Treatment Plant
Account Number Fund
18027.1801 Solar Array Project
Project Number Project Title
Budgeted Item? No Current Budget
Funds Obligated
Current Balance F$
Does item have a cost? Yes Item Cost $ 560,818.00
Budget Adjustment Attached? Yes Budget Adjustment $ 560,818.00
Remaining Budget $ -
V20160321
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number: Approval Date:
Original Contract Number:
Comments:
CITY OF
FAYETTEVILLE
µ` ARKANSAS
MEETING OF NOVEMBER 20 2018
TO: Mayor and City Council
THRU: Don Marr, Chief of Staff
CC: Tim Nyander, Utilities Director
FROM: Peter Nierengarten, Sustainability Director
DATE: November 1, 2018
CITY COUNCIL MEMO
SUBJECT: Trilateral Agreement for Solar Power and Storage
RECOMMENDATION:
Staff recommends approval of a trilateral agreement with Ozarks Electric Cooperative and
Today's Power, Inc. for the development, construction and operation of 10 MW of Solar Power
Generation and associated 24 MWh of Storage at the two Fayetteville Wastewater Treatment
Facilities.
BACKGROUND:
On January 2, 2018, the City Council adopted an Energy Action Plan by Resolution 25-18. This
Energy Action Plan was created to build a framework and energize action around the City of
Fayetteville's efforts to be a resource and energy efficient community. The plan focuses on four
sectors for reducing the community's overall greenhouse gas emissions; reductions in overall
energy use, diverting waste from landfills, shifting towards clean energy production, and
reducing transportation related emissions. Included among the Energy Action Plan's high-level
goals was a City specific goal of 100% clean energy consumption by City facilities by 2030.
Currently the City's clean energy consumption is 16% made of clean energy from the utility grid
and direct generation of clean energy at city buildings. The two Wastewater Treatment Plants
are the City's two largest electricity consuming accounts making up approximately 67% of the
City's overall electricity consumption. Both plants have generous land resources making them
obvious target for clean energy deployment.
The City's Eastside — Paul R. Noland Wastewater Treatment Facility first came online in the
1960's and served ably as Fayetteville's sole facility for wastewater treatment and water
reclamation until 2008. After completion of wastewater system upgrades in 2008, the City's
Westside Wastewater Treatment Plant came online and began serving much of the northern
and western portions of Fayetteville that lie in the Illinois River Watershed. The remainder of
Fayetteville in the White River Watershed continues to be served by the East Side Plant.
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
The East Side Plant at1400N. Fox Hunter Road sits on 515acres on the west bank mf the
White River. The City owns another 670 acres across the river from the plant that is home to
Fayetteville's Biosolids Management Facility (BMS) and hayfields that are used for the
spreading ofwater treatment plant residue. Locating solar onthis property does result ina
reduction of revenue that the City receives for cutting hay and spreading water treatment sludge
residue.
The Westside Plant sits on3DDacres mt15 S. Broyles Road near the headwaters cdGoose
Creek. Lands owned by the City surrounding the Westside Plant are comprised of the Woolsey
Prairie, Woolsey Historic Farm, relic undeveloped wet prairie, oak savannah habitat and
additional lands that are being developed oaavvorking-farno.
Since coming online both Wastewater Treatment Plants have received electrical service from
Ozarks Electric, oethey are the only power provider inthese areas ofthe City. The City of
Fayetteville established its first electric service with Ozarks Electric in 1864 and through the
years has had Ozarks Electric service at. 172different account locations. Currently the City has
83active service locations with Ozarks Electric,
Ozarks Electric is a non-profit, member -owned electric utility cooperative headquartered at 3641
W. VVedinQton Dr. in Fayetteville. Ozarks provides distribution qfelectricity to more than 70.800
homes, farms, businesses and industries in nine counties in Northwest Arkansas and Northeast
L]h|ohorna. Ozarks Electric is o 1/1711 owner of -the Arkansas Electrical Cooperatives, Inc. which
provides wholesale power generation and transmission to Ozarks Electric and 16 other
electricity distribution cooperatives in Arkansas. Today's Povver. Inc. (TPI) ioafully owned
subsidiary of the Arkansas Electric Cooperatives, Inc. TPI was created by the Arkansas Electric
Cooperatives to offer community solar to their non-profit member cooperatives who otherwise
could not utilize federal solar tax incentives.
DISCUSSION:
The unique relationship between the City of Fayetteville, Ozarks Electric and Today's Power
Inc. has allowed the three organizations to develop a Trilateral Agreement that provides for the
development, construction and operation of 10 MW of Solar Power Generationand associated
24W1VVhofenergy storage atthe two Fayetteville Wastewater Treatment Facilities. The project
consists of yWVV of ground mounted solar photovoltaic panels and 12 MVVh of battery storage
oteach facility. Solar panels will be installed on a sun tracking system that will a||ovv nnoxinnumn
solar exposure throughout the day — this will translate to an approximate 15% increase in
electricity production by the solar array.
Today's Power, Inc. will lease approximately. 87acres from the City of Fayettevillefor the two
solar facilities and will provide full operations and maintenance of the facility during the 20 -year
agreement. The City ofFayetteville will purchase electricity generated bythe two solar ornsyo at
e robe of$0.O48/kVVh for 20 years —thm current price that the City pays for electricity from
Ozarks Electric is $0.0513/kVVh. The City will own 196 ofthe solar array and TPI will own the
remaining 99Y6.
2
As part of the Trilateral agreement Ozarks Electric will pay the City to manage current back-up
generators at the East and West Plants in order to minimize Ozarks Electric's peak demand in
conjunction with TPI's management of the, energy storage facilities. To fully, examine and
execute this coordination the City's Generator Management company, Power Secure, will be
consulted to facilitate future revision to the City's existing Interconnection and Maintenance
Agreement with Ozarks Electric. Ozarks will also pay,the City for HVAC/Lighting and storage
losses associated with the battery storage
The 10MW of solar panels will generate approximately 18,300,000 kWh/yr of clean energy that
would offset approximately 103% of the total electricity consumption at the two WWTP's.
Excess electricity generation will be credited to other City of Fayetteville electric accounts. This
project will change the amount of clean energy that the city consumes from 16% currently to
72% clean energy consumed for.total City Government Operations, bringing Fayetteville much
closer to the City specific goal of 100% clean energy consumption by City facilities by 2030.
Additionally, if this package of agreements is approved, the City would begin working with
Ozarks Electric to submit an application to the Arkansas Public Service Commission (ASPC)
requesting a waiver of the 300kW net metering limit for each solar array interconnection.
The total savings of the project over current electricity procurement will be approximately
$182,000 per year with an ROI of just 3.1 years. Total savings over the 20 -year life of the .
project will be $6.0 million.
x `R y:,�-
.. . TAnnuai�� 6.Y.x
ITEM
Electricity Bill Savings $ 939,717
Battery HVAC & Lighting Payment $ 2,500
Generator Fuel Cost Savings $ 60,000
Generator Management Payment $ 75,000
Battery Storage Loss Payment $ 1,152
AMS p s �00
�� fV,,`4 TY�
TCIwSAUI_IN .:'On
COSTS
Solar Electricity Cost $ 874,348
Loss of Hay & Sludge Spreading Revenue $ 22,000
w
.c ar v'�� i fi 3 " Y� x fw,
TOTA0$-T15
L "� ,� � � . � . . t
Capital Cost - site elect improvements $ 560,818
RCrI,(yrs}`. 3 17' y
ZONING & DEVELOPMENT REVIEW
The package of agreements includes requirement that TPI submit development and
construction plans for the solar array project through the City (Westside WWTP) and County
(Eastside WWTP) development review process for large scale development plan. Additionally,
the contract includes a requirement that 36.62 acres of the property at the Westside WWTP be
rezoned from RSF-8 to R -A. This rezoning request has been submitted to the Planning
Commission and would be brought back to the City Council for consideration after the
November 26th Planning Commission Meeting.
BUDGET/STAFF IMPACT:
Necessary site electric improvements to connect to the solar arrays at the two Wastewater
Treatment Facilities will cost $560,818.38. This will be funded from the Water/Sewer Reserve
Fund. The ongoing cost of electricity that the City will purchase from the solar arrays will be
fixed at $0.048 per kWh for 20 years.
Attachments:
Tri -Lateral Agreement Flowchart
Tri -Lateral Agreement between CoF, Ozarks Electrict and Today's Power, Inc.
Ownership and Operations Agreement between CoF and Today's Power, Inc. (East & West)
Lease and Easement Agreement between CoF and Today's Power, Inc. (East & West)
Solar Power Services Agreement between CoF and Today's Power, Inc. (East & West)
Facilities Upgrade Agreement between CoF and Ozarks Electric
Energy Management Agreement between CoF and Ozarks Electric
Eastside Wastewater Treatment Plant Solar Layout
Westside Wastewater Treatment Plant Solar Layout
Budget Adjustment
4
Agr
PC
i_
eements in Current Solar
wer & Storage Package
Tri -Lateral Agreement
COF — TPI - Ozarks
COF — TPI
COF — TPI
COF — TPI
I
Ownership &
Lease and
Solarr Power
Power
Operations
Easement
Services
Agreement
Agreement
Agreement
(east & west)
(east & west)
(east & west)
COF — Ozarks
COF — Ozarks
Facilities Upgrade
Energy Management
Agreement
Agreement
Ozarks - TPI
Master Lease
Agreement
(east & west)
Legend
Existing/Revised
Interconnection
and Maintenance
Agreement
(future)
M Agreements between City of Fayetteville & Today's Power, Inc.
Net Metering
Agreement
APSC > 300kW
Waiver
(future)
Agreements between City of Fayetteville & Ozarks Electric
■ Agreement between Today's Power, Inc. and Ozarks Electric
Agreement between City of Fayetteville, Ozarks Electric and the Arkansas Public Service Commission
'IRP)fONSTRUfT101
SERVICES
a
305 Dela Vine Avenue
Monterey, CA 93940
S, www,rpcs.com
v
A '
MY Dura'Track" HZ v3
> 11 [NNGIGGiFS
Project Details
0
a
Customer Todays Power
0
cProject Name Fayetteville East
u
Address South of E Wyman Rd
Coordinates 36.081089,-94.065619
' City, State, Zip I Fayetteville, AR 72701
ASCE 7-10Wind
105
ASCE 7.10 Snow
Corrosion Rating
10
C2
Module Brand
JA Solar
Module Size
Module Qty
365
15,750
Size (watts DC)
5,748,750
String Site
18
String Qty
815
Driveline Angle
0
Row
Spacing/GCR
Motor Qty
17
6
PRELIMINARY VISUAL AID ONLY
NOT FOR CONSTRUCTION
Date 9/17/2018
Designed By PL
Rev, Date 10/4/2018
Rev. 4 1
Eastside Wastewater Treatment Plan Solar Layout
Foundation Post Summary
Tracker Row Summary
Tracker Row Summary
City of Fayetteville, Arkansas - Budget Adjustment Form (Legistar)
Budget Year Division WASTEWATER TREATMENT (730) Adjustment Number
2018 /Org2
Requestor: Cheryl Partain
BUDGET ADJUSTMENT DESCRIPTION / JUSTIFICATION:
A budget adjustment is needed to move budgeted funds from the Sewer Rehabilitation project to the Solar Array
Project. The budgeted funds will be used to pay Ozarks Electric to complete improvements to the City's electrical
infrastructure at both the Noland and Westside Wastewater Treatment Plants to allow for the interconnection of the
Solar Array and Battery Storage to the existing electric service and electric equipment.
COUNCIL DATE: 11/20/2018
LEGISTAR FILE ID#: 2018-0625
L CIS, 14 utiah~
11/11'2018 1:49 PM
Budget Director Date
TYPE:
DESCRIPTION:
RESOLUTION/ORDINANCE
GLDATE:
POSTED:
TOTAL
Account Number
- -
Increase / (Decrease)
Expense Revenue
Proiect.Sub#
Project Sub.Detl AT
v.20180817
Account Name
5400.730.5800-5400.00
560,818 -
18027 1801 EX
Building & Grounds - Maintenance
5400.720.5700-5815.00
(560,818) -
02017 1 EX
Sewer Improvements -'Sewer ImprovemE
H:\Budget Adjustments\2018_Budget\CITY_COUNCIL\2018-11-20\2018-0625 BA Solar Array Project 1 of i
CitvClerk
From: Nierengarten, Peter
Sent: Monday, November 26, 2018 4:33 PM
To: CityClerk
Cc: Pennington, Blake
Subject: FW: TPI -City of Fayetteville SPSA and O&O Executed Copies
Attachments: Fayetteville -TPI Ownership and Operation Agreement EAST Plant 11.26.18 Executed.pdf;
Fayetteville -TPI Ownership and Operation Agreement WEST Plant 11.26.18
Executed.pdf; Fayetteville -TPI Solar Power Services Agreement '11-26-2018 EAST
Executed.pdf; Fayetteville -TPI Solar Power Services Agreement 11-26-2018 West
Executed.pdf
Sondra/Lisa — Attached are 4 revised (and signed) documents for the solar array project that will need to replace the 2
Ownership & Operations Agreements and the 2'Solar Power Services Agreements that are in the original Tri -Lateral
Agreement packet submitted and approved by the City Council. Blake has review the changes and indicated that do not
alter any of the fundamental aspects of the agreements that Council approved last week.
Please let me know if your have any questions.
Peter Nierengarten, PE
Sustainability Director
City of Fayetteville, Arkansas
479.575.8272
From: Kelly Comer [mailto:kcomer@todayspower.com)
Sent: Monday, November 26, 2018 2:54 PM
To: Nierengarten, Peter<anierengarten@fayetteville-ar.gov>; Pennington, Blake <bpennington@fayetteville-ar.gov>
Cc: Roger Rowe <rrowe@laxvaughan.com>; Michael Henderson <michael.henderson@aecc.com>
Subject: TPI -City of Fayetteville SPSA and 0&0 Executed Copies
And here are the clean signed versions. Thanks for your patience!
Kelly
From: Kelly Comer <kcomer@todayspower.com>
Date: Monday, November 26, 2018 at 2:36 PM
To: "Nierengarten, Peter" <pnierengarte6gfayetteville-ar.gov>, "Pennington, Blake"
<bpennington @fayetteville-a r.gov>
Cc: Roger Rowe <rrowe@laxvaugha,n.com>, Michael Henderson <michael.henderson aecc.com>
Subject: TPI -City of Fayetteville SPSA and O&O Redlined Copies
Peter,
Attached are the redlined copies of the SPSA and 0&0 (East and West). Shortly, I will send over the clean execution pdfs
with Michael's signatures.
Thanks!
Kelly
Kelly Comer
Supervisor of Administration
Today's Power, Inc.
c. 479-806-5963
m. 501-570-2241
o. (888) 322-4275
kcomer@todayspower.com
SOLAR POWER SERVICES AGREEMENT
(Fayetteville West Wastewater Treatment Plant Project)
PREAMBLE .
This SOLAR POWER SERVICES AGREEMENT (this "Agreement'), dated as of November 1,
2018, is made by and between Today's Power, Inc. ("Provider"), and City of Fayetteville, Arkansas
("Customer') (each, a "Party" and collectively, the "Parties").
RECITALS
WHEREAS, Provider is in the business of developing, owning and managing renewable energy
resources and selling the energy output from such resources;
-WHEREAS, Customer desires to purchase solar services from Provider;
WHEREAS, Provider desires to install, maintain, and operate the System, as defined herein, on the
Project Site, as defined herein;
WHEREAS, Provider desires to sell, and Customer desires to purchase, the Solar Services, as
defined herein; and
WHEREAS, Provider and Customer desire to jointly own the System.
NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
AGREEMENT
1. Definitions. . Unless otherwise required by the context in which. any term appears:
(a) capitalized terms used in this Agreement shall have the respective meanings set forth in this Section 1;
(b) the singular shall include the plural and vice versa; (c) the words "herein ,"... hereof and "hereunder"
shall refer to this Agreement as a whole and not to any particular .section or subsection hereof; and
(d) references to ,this Agreement shall include a reference to all exhibits hereto, as the same may be
amended, modified, supplemented or replaced from time to time.
"Agreement" shall mean this Solar Power Services Agreement, including the exhibits hereto.
",Applicable Law" shall mean, with respect to any Person, any constitutional provision, law, statute,
rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction,
registration, license, franchise, permit, authorization, - guideline; governmental approval, consent or
requirement of: any Governmental Authority having jurisdiction over such Person or its property,
enforceable .at law or in equity, including the interpretation and administration thereof by. such
Governmental Authority.
"Base Service Fee" shall have the meaning set forth in Section 3.1.
"Business Day". shall mean any day other than a Saturday, Sunday or legal holiday for commercial
banks under the laws of the State of Arkansas.
"Claim Notice" shall have the meaning set forth in Section 14.3.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commercial Operation Date" shall mean the date, as determined by Provider on which the System
is (i) functionally complete and operating and (ii) capable of producing Energy.
"Customer" shall have the meaning set forth in the Preamble to this Agreement.
"Customer Default" shall have the meaning set forth in Section 12.1.
"Customer's Interest" shall have the meaning set forth in Section 5.3.1.
"Effective Date" shall be the date set forth in Preamble to this Agreement.
"Electrical System" shall mean the electrical system (whether or not owned by Customer) that is
connected to the System at the System's service panel or other point of connection between the System and
such electrical system.
"Energy" shall mean the entire generating. capacity output of the System, with projected
performance as set forth on Exhibit C attached hereto.
"Environmental Attributes" shall mean any and all claims, credits, benefits emissions reductions,
offsets, renewable energy credits and allowances„ howsoever entitled, resulting from the avoidance of the
emission of any gas, chemical or'other substance to the air, soil or water, which are deemed of value by
Customer; provided that Environmental Attributes shall not include Environmental Financial Incentives or
Tax Attributes.
"Environmental Financial Incentives" shall mean each of the following financial benefits, rebates
and incentives that is in effect as of the Effective Date or may come into effect in the future: (i) performance-
based incentives under a Governmental Authority's or a utility's program or initiative, state and Federal
incentive tax credits (including income tax credits and investment tax credits arising under the Code), other
tax benefits, and accelerated depreciation, however named or referred to, with respect to any and all fuel,
emissions, air quality, energy generation, or other environmental or energy characteristics, resulting from
the use of solar generation or the avoidance of the emission of any gas, chemical or other substance into the
air, soil or water attributable to the sale of Energy generated_ by the System; (u) all reporting rights with
respect to such incentives; and (iii) all Rebates, provided that Environmental Financial Incentives shall not
include Environmental Attributes.
"Expiration Date" shall have the meaning set forth in Section 11.1.
"Extension Period" shall have the meaning set forth in Section 11.2.
"Force Majeure Event" shall mean, when used in connection with the performance of a Party's
obligations under this Agreement, any act or event (to the extent not caused by such Party or its agents,
employees or representatives) which is unforeseeable, or being foreseeable, unavoidable and outside the
control of the Party which invokes it, and which renders said Party unable to comply totally or partially
with its obligations under this Agreement. In particular, a Force Majeure Event shall be considered to
include, without limitation, any of the following events:
(a) war, riot, acts of a public enemy or other.civil disturbance;
(b) acts of God, including but not limited to, storms, floods, lightning, earthquakes,
hailstorms, ice storms, tornados, typhoons, hurricanes, landslides, volcanic
eruptions, range or forest fires, and objects striking the earth from space (such as
meteorites), sabotage or destruction by a third party of facilities and -equipment
relating to the performance by the affected Party.of.its obligations under this
Agreement (except that weather events of a nature reasonably anticipated to occur
at the Project Site, including those which affect the insolation of the site (for
example, cloudy days, rain or other usual and ordinary<weather events), shall not
be considered a Force Majeure Event); and
(c) strikes, walkouts, lockouts or similar industrial or labor actions or disputes. -
"Governmental Authority" shall mean any federal, state, regional, county, town, city, or municipal
government, whether domestic or foreign, or any department, agency, bureau; or other administrative,
regulatory or judicial body of any such government including, without limitation, any governmental or
quasi -governmental entity or independent system operator or regional transmission, operator.
"Indemnified Party" shall have the meaning set forth in Section 14.3.
"Indemnifying Party" shall have the meaning set forth in Section 14.3.
"Indemnity Amount" shall have the meaning set forth in Section 15.3
"Insolvency" shall mean (a) any case, action or proceeding before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation; receivership,
dissolution, winding -up or relief of debtors or (b) any general assignment for the benefit of creditors,
composition, marshaling -of assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors.
"Insurance Proceeds" shall have the meaning set forth in Section 10.2.
"Interconnection Point" shall have the meaning set forth in Section 5.3.4.
"Lease shall have the meaning set forth in Section 4.1.
"Liens" shall have the meaning set forth in Section 8.1.2.
"MACRS" shall have the meaning set forth in Section 15.1
"Maintenance" shall mean the ordinary upkeep of the System, including testing the performance of
the solar panels and inverters, checking the condition of. the racking system, and making any minor
adjustments or undertaking any other activities necessary to ensure that the System is in good working
order. Maintenance sham not include Repairs.
"Meter" shall have the meaning set forth in Section 6.3.
"Monthly Period" shall mean the period commencing on the Commercial Operation Date and
ending on the last day of the calendar month in which the Commercial Operation: Date occurs, and,
thereafter, all subsequent one (I) -calendar month periods during the Tenn.
"Party" or "Parties" shall have the meaning set forth in the Preamble to,this Agreement.
"Payment Date" shall mean the first Business Day of each month during the Term.
"Person" shall mean any individual, corporation, partnership, company, joint venture, association,
trust, unincorporated organization, firm or other entity, or a Governmental Authority.
"Proiect Site" shall mean that portion of the Property where the System is physically located, as
more fully described in Exhibit B attached hereto.
"Property" shall mean the land/property located at Fayetteville, Arkansas, the legal description of
which is set forth in Exhibit A attached hereto.
"Provider" shall have the meaning set forth in the Preamble to this Agreement. For purposes of
access rights and other rights necessary for Provider to perform its obligations hereunder, the term
"Provider" shall include Provider's authorized agents, contractors and subcontractors.
"Provider Default" shall have the meaning set forth in Section 12.2.
"Rebates" shall mean any and all Governmental Authority or utility rebates or other funding offered
for the development of photovoltaic systems.
"Repairs" shall mean the repair or replacement of any equipment or component of the System,
including the racking system, where such equipment or component is broken, non-performing or materially
underperforming.
"Restoration Work" shall have the meaning set forth in Section 10.2.
"Service Fee" shall have the meaning set forth in Section 3.
"Solar Services" shall mean the Energy purchased by Customer pursuant to the terms and
,conditions of this Agreement.
"System" shall mean a solar power plant with a total generating capacity of 5,000 Kilowatts AC
nominal located on the Project Site and shall include, without limitation, the components described in
Exhibit C.
"Tax Attributes" shall mean all investment credits, production tax credits, income tax credits and
similar tax attributes.
"Tax Benefit Loss" shall have the meaning set forth in Section 15.2
"Tax Benefits" shall have the meaning set forth in Section 15.1
"Term" shall have the meaning set forth in Section 11.1.
"Termination Date" shall have the meaning set forth in Section 11.1.
"Transfer Taxes" shall have the meaning set forth in Section 3.2.
"Unforeseen Circumstance" shall mean any act, event or condition that has, or may reasonably be
expected to have, a direct material adverse effect on the rights or the obligations of the parties under this
Agreement, or a direct material adverse effect on the System or its operation, if such act, event or condition
is beyond the reasonable control of Provider. Unforeseen Circumstances include, but are not limited to: (i)
Force Majeure Events (but excluding strikes, walkouts, lockouts or similar industrial or labor actions or
disputes), (ii) court orders and other legal process, (iii) loss of necessary permits, if not the result of either
party's action, (iv) changes in law affecting the permits for, or operation of, the System (for example, new
environmental requirements), but not changes in tax law, (v) loss of necessary utilities for reasons other
than Provider's fault, (vi) unknown subsurface conditions at the Project Site or the Property (including the
presence of hazardous waste), (vii) condemnation, and (viii) the failure of any subcontractor or supplier,
other than a subsidiary or affiliate of Provider, to furnish service, supplies or equipment on the dates agreed
to if such subcontractor's or supplier's failure so to perform is due to an Unforeseen Circumstance.
2. Purchase and Sale of Solar Services. Customer agrees to purchase and accept from
Provider, and Provider agrees to sell and deliver to Customer, one hundred percent (100%) of the Solar
Services during: each Monthly Period of the Term in accordance with the terms and conditions set forth
herein. Customer acknowledges and agrees that it is required to take and/or pay for all the Solar Services
produced by the System. Customer's purchase of Solar Services does not include Environmental Financial
Incentives or Tax Attributes, all of which shall be retained and owned by Provider.
Price and Payment.
3.1 Price. Customer shall pay Provider for the Solar Services provided pursuant to the
terms of this Agreement at the service fee rates set forth in Exhibit D ("Base Service Fee") and on the
Payment Dates, plus any additional amount required pursuant to Section. 3.2,.(collectively, the "Service
Fee").
3.2 Taxes. Customer shall pay and' be responsible for all sales, use, excise, transfer
and other similar taxes ("Transfer Taxes'.% but excluding in all events taxes based.on•or measured by net
income 'f that are imposed by any taxing authority arising out of or with respect to the purchase or sale of
the Solar Services (regardless of whether such Transfer Taxes are imposed .on Provider or Customer),
together with any interest, penalties or additions to tax payable with respect to such Transfer Taxes.
Provider will pay and be responsible for any sales or use tax imposed with respect to Provider's acquisition
and installation.of the System.
3.3 Billing and Pam. Billing and payments,for the Solar Services sold and
purchased under this Agreement and any other amountsdue and payable hereunder shall be as follows:
3.3:1 Billin All Solar Services delivered by Provider to Customer from the
System shall be metered and recorded at the delivery. point using. a Meter, as set forth in Section
6.3:, The Meter used for metering and recording Solar Services shall be -furnished, installed, owned,
maintained, inspected, tested, calibrated and read by Provider. Provider shall test -and calibrate;the
Meter.from time to time. Customer shall receive reasonable 'advance notice of any Meter test and
shall,have the right to have a representative present at all Meter tests. By, the tenth (10'h) day of
each calendar month during the Term, Provider shall provide metered information to -Customer
regarding the Solar Services delivered to Customer during the previous month (the "Provider
Billing").
33.2 Payments. For each Monthly Period during the Term, Customer shall pay
to Provider the amount due to Provider in U.S. Dollars on the Payment Dates pursuant to Provider
Billing:
3.3.3 - Late Payments. Any payment not made within. five (5) days of the
applicable Payment Date shall bear interest from the date on which such payment was -required to
have been made through and including the date such payment is actually received by Provider.
Such. interest shall accrue at a rate equal to the lesser of ten percent (10%) per annum or the highest
level of interest permitted by applicable law.
4. Propel
4.1 Ownership of Property. Customer represents, warrants and -.covenants that
Customer has lawful title to the Property and grants to Provider an easement across and through the Property
and leases to Provider the Project Site, pursuant to a separate Lease and Easement Agreement (the "Lease"),
free and clear of all liens and encumbrances except as set forth on Exhibit E attached hereto.
4.2 Access to Proiect Site.
4.2.1 Customer shall not initiate, conduct or permit activities on, in or about the
Property or the Project Site that could cause damage, impairment or otherwise adversely affect the
System.
4.2.2 Customer shall implement and maintain reasonable and appropriate rules
and security measures on the Property to prevent Customer's employees, invitees, agents,
representatives and other unrelated third parties from having access to. the Project Site or the
System.
5. Installation, Ownership and Approval of the System.
5.1 Installation. Provider will cause the System to be designed, engineered, installed
and constructed substantially in accordance with the terms of this Agreement and Applicable Law. Provider
shall procure all materials and equipment for the System installation and maintain the same at the Project
Site or Property. Provider shall perform all installation work at the Project Site in a manner that reasonably
minimizes inconvenience to and interference with Customer's use of the Property to the extent
commercially practical.
5.2 Permits and Utility Approvals. Provider shall have the primary responsibility for
preparing applications and obtaining all permits, licenses and approvals required for the construction and
installation of the System under this Agreement. Customer agrees to obtain any siting or other necessary
permits, licenses and approvals in connection with the construction, operation and maintenance of the
System on the Property, including the submission of applications for interconnection of the System with
the local electric utility. Utility approval is the responsibility of Customer. Customer shall apply to the
local utility for a meter point at the System through which net metering and meter aggregation can be
accomplished. Customer is responsible for obtaining a waiver of the 300 kW net metering facility limit
from the Arkansas Public Service Commission. Customer shall not make any material changes to its
electrical equipment at the Property after the date on which the applicable utility interconnection application
is submitted unless any such changes, individually or in the aggregate, would not adversely affect the
approval by such utility of such interconnection.
5.3 System and Output Ownership.
5.3.1 Title to System. Provider shall at all times retain title to ninety-nine
percent (99%) of the System and be the legal and beneficial owner of said percentage of the System,
including the right to any and all Environmental Financial Incentives and Tax Attributes, which
include, without limitation, Provider's right to retain, sell, transfer or assign the same. Customer
shall be transferred title to one percent (1%) of the System after construction but before the
Commercial Operation Date (the "Customer's Interest"). The System shall (i) remain personal
property and shall not attach to or be deemed a part of, or fixture to, any Property, and (ii) at all
times retain the legal status of personal property as defined under Article 9 of the applicable
Uniform Commercial Code. Customer warrants and represents that it shall keep the System free
from all liens, claims and encumbrances of its lenders and any other third parties (other than those
created by Provider or its creditors). The Parties intend that neither Customer nor any party related
to Customer shall acquire the right to operate the System or be deemed to operate the System for
purposes of Section 7701(e)(4) of the Code and any related regulatory and administrative
pronouncements, so that this Agreement is treated as a service agreement and not a lease and the
terms of this Agreement shall be construed consistently with the intention of the Parties. The
1.1
Parties agree that this Agreement constitutes a service agreement within the meaning of Section
7701(e)(4) of the Code. Customer shall be entitled to receive all Renewable Energy.Credits earned
by the System in lieu of any. Environmental Financial Incentives and Tax Attributes.
5.3.2 Energy Delivery. All obligations related to delivering Energy from the
System to the Customer will begin upon the Commercial Operation Date. In no event shall Provider
have any liability to Customer for deliveries of Energy prior to the Commercial Operation Date.
5.3.3 Ownership of Environmental Attributes, Environmental Financial
Incentives and Tax Attributes, Assistance. All Environmental Financial Incentives and Tax
Attributes available in connection with the System are owned by Provider. Customer shall take all
reasonable measures to assist Provider in obtaining all Environmental Financial Incentives and Tax
Attributes currently available or subsequently made available in connection with the System; at
Provider's expense. If Customer fails to act in good faith in completing documentation or taking
actions reasonably requested by Provider, and such failure results in the loss of an Environmental
Financial Incentives or Tax Attributes, Customer shall reimburse Provider for the full amount of
such lost Environmental Financial Incentives or Tax Attributes. Notwithstanding the foregoing,
Customer, as owner of the Customer's Interest, shall be entitled to all Environmental Attributes
produced by the System. Provider shall cooperate with. Customer, at Customer's cost, take all
actions requested by Customer that are reasonable and necessary to assist Customer in registering,
and maintaining registration for, such Environmental Attributes. Upon the reasonable request of
Customer from time to time, and at Customer's expense, (i) Provider shall deliver or cause to be
delivered :to .Customer such attestations/certifications of Environmental Attributes as may be
reasonably requested by Customer to comply with any certification system or program for such
Environmental Attributes, and (ii) Provider shall provide full cooperation in connection with
Customer's registration and certification of'such Environmental kAttributes.
5.3.4 Risk of Loss, Exclusive Control. As between the Parties, Provider will be
deemed tol be in exclusive control (and responsible for any property damage or injuries to persons
caused thereby) of the Energy up to but excluding the point where the System is interconnected to
an Electrical System (the "Interconnection Point"). However, the Customer will bear the risk of
loss of any Renewable Energy Credits as a result of any interruption.in the Energy while in the
exclusive control of the Provider. Customer will be deemed to be in exclusive control (and
responsible for any property damage or injuries to persons caused thereby) of the Energy at and
after the Interconnection Point.. Risk of loss related to Energy will transfer from Provider to
Customer at the Interconnection Point:
6. Operation and Maintenance of System.
6.1 O&M Work Phase/Datashare. Provider, at its sole cost and expense, shall provide
or cause a third party to provide all operation, monitoring and Maintenance services for the System during
the Term. Provider shall properly maintain, pay for and provide access to necessary phone, data or other
communications lines to record electrical output of the System. If, in the sole opinion of the Provider
following consultation with Customer, Repairs are needed to the System in order for it to perform as
designed, Provider shall be responsible for performing, or causing a third party to perform, such Repairs.
6.2 Malfunctions and Emergencies._ Each of Customer and Provider shall cooperate
with and notify the other Party within twenty-four (24) hours following the discovery of any material
malfunction in the operation of the System. Provider and Customer each shall notify the other Party
immediately upon the discovery of an emergency condition in the System.
6.3 Metering. Provider shall install or cause to be installed a meter ("Meter") on the
Property for the measurement of Solar Services provided to Customer from the System on a continuous
basis and shall provide Customer access to the Meter and to all information generated thereby.
6.4 Outa es. Provider shall be entitled to suspend delivery of Energy to Customer for
the purpose of maintaining, repairing or making capital improvements to the System and such suspension
of service shall not constitute a breach of this Agreement, provided that Provider shall use commercially
reasonable efforts to minimize any interruption in service to Customer.
6.5 Curtailment. Customer shall have the right to notify Provider, by telephonic
communication, to curtail the full Energy production of and/or deliveries from the System for any reason
in Customer's sole discretion, and Provider shall comply with such curtailment order as soon as reasonably
practicable. However, if Customer requests curtailment, Customer must pay Provider for production that
the system would have produced if not curtailed.
6.6 No Perforavance Guarantee. Provider makes no performance guarantee with
respect to the System.
7. Representations and Warranties. In addition to any other representations and warranties
contained in the Agreement, each Party represents and warrants to the other Party as of the Effective Date
that:
(a)
it is duly organized, validly existing and in good standing under the laws
of the state of its formation;
(b)
it has the full right and authority to enter into, execute, deliver and perform
its obligations under this Agreement;
(c)
it has taken all requisite corporate or other action to approve the execution,
delivery and performance of this Agreement; -.
(d)
this Agreement constitutes a legal, valid and binding obligation
enforceable against such Party in accordance with its terms;
(e)
to its knowledge there is no litigation, action, proceeding or investigation
pending or threatened on any basis before any court or other Governmental
Authority by, against, affecting or involving any of its business, properties
or assets (including, without limitation, with respect to Customer, the
Project Site or any interest therein) that would affect its ability to perform
its obligations under this Agreement; and,
(f)
its execution of and performance under this Agreement shall not violate
any existing Applicable Law or create a default under any agreement to
which it is a party.
8. Covenants.
8.1 Provider's Covenants. As a material inducement to Customer's execution and
delivery of this Agreement, Provider covenants and agrees to the following:
8.1.1
Permits and Approvals. Provider shall use commercially reasonable
efforts to assist Customer in fulfilling Customer's responsibilities under Sections 5.2 and 8.2.2.
8.1.2 Provider Records. Provider shall maintain and keep complete and accurate
records of its operations hereunder and shall maintain such data as may be necessary to determine.
with reasonable accuracy any item relevant to this Agreement.
8.1.3 Removal of Liens. In connection with the construction of the System on
the Project Site or the financing of the System, Provider shall not directly or in cause, create,
incur, assume, or suffer to exist any mortgage, pledge, lien (including mechanics' or materialmen's
lien), charge,: security interest, encumbrance=or claim of any nature ("Liens") on or with respect to
the Project Site or the Property; provided that this Section shall notaimit Liens on the System and
related assignments_ of the rights of Provider in the Lease and related easements. If Provider
breaches its obligations under this Section, it shall: immediately notify, Customer in writing and
shall promptly cause such Lien to be discharged and released of record from the Project Site or the
Property without cost to the Customer, and shall defend and indemnify Customer against all costs
and expenses (including reasonable attorneys' fees) incurred in discharging and releasing such
Lien.
8.2: Customer's Covenants. As a material inducement to Provider's execution of this
Agreement, Customer covenants and agrees as follows:
8.2.1 Liens. Customer shall not directly or indirectly cause, create, incur,
assume or suffer to exist any Liens on or with respect to the System or any interest therein.
Customer also shall pay promptly before a fine or penalty may..attach to the System any taxes,
charges or fees of whatever type of any relevant Governmental Authority for which4.Customer:is
responsible under Section 3:2. If Customer breaches its obligations under this Section,it shall
immediately notify Provider in writing, shall promptly cause such Lien to be discharged and
released of record without cost to Provider, and shall reimburse Provider for all costs and expenses
(including reasonable attorneys' fees and court costs at trial and on appeal) incurred in discharging
and releasing. such Lien.
8.2.2 Consents and Approvals. sCustomer shall obtain and maintain, and secure
and deliver to Provider copies of, all consents, approvals, permits, licenses; and authorizations and
inspections from relevant Governmental Authorities, utility personnel, and other agreements and
consents related to the operation of the System;. performance of Customer's obligations and the
.rights granted by Customer hereunder, and that are required -by the terms, conditions or.provisions
of anyrestriction or any agreement or instrument to. which Customer is a party or by which
Customer is bound, including completing applications for. interconnection with Customer'slocal
electric utility.
8.2.3 Maintenance. of Interconnection. Customer shall ensure that all : of the
facilities to which Energy is delivered hereunder remain interconnected to the Electrical System
during all periods covered by this Agreement through the Expiration Date.or Termination Date (as
applicable).
9. Insurance Requirements.
9.1 Provider's Insurance. During all periods covered by this Agreement through the
Expiration Date or Termination Date (as applicable), Provider shall maintain, at its sole expense, coverage
limits of $10 million combined, commercial general liability insurance and umbrella liability and "all-risk"
property insurance covering the System installed at the Project Site. Provider, if it has employees, shall
also maintain at all times during the Term workers' compensation insurance coverage in accordance with
the applicable requirements of federal and state law and automobile liability insurance coverage. Provider
shall deliver to Customer certificates of insurance evidencing such coverage and naming Customer as an
0
additional insured. Such insurance shall be on an occurrence basis and shall be primary coverage without
right of contribution from any insurance of Customer.
9.2 L eservedl.
10. Force Maieure; Casualty.
10.1 Force Majeure Events. If either Party is prevented from or delayed in performing
any of its obligations under this Agreement by reason of a Force Majeure Event, such Party shall notify the
other Party in writing as soon as practicable after the onset of such Force Majeure Event and the
performance of its obligations under this Agreement shall be excusably delayed to the extent that such
Force Majeure Event has interfered with such performance. The Party whose performance under this
Agreement is prevented or delayed as the result of a Force Majeure Event shall use reasonable efforts to
remedy its inability to perform. If a Party's failure to perform its obligations under this Agreement is due
to a Force Majeure Event, then such failure shall not be deemed a Provider Default or a Customer Default,
as the case may be. Notwithstanding anything in this Section 10 to the contrary, no payment obligation of
Customer under this Agreement may be excused or delayed as the result of a Force Majeure Event. In case
a Force Majeure Event continues for two (2) years or more, either Party may terminate this Agreement by
written notice to the other and in such an event, neither party shall have liability to the other for any damages
as a result of such termination.
10.2 Casual . If the System is damaged or destroyed by fire, theft or other casualty,
Provider shall proceed promptly to establish and collect all valid claims which may have arisen against
insurers or others based upon any such damage or destruction (the "Insurance Proceeds"). Provider, using
the Insurance Proceeds, shall within one hundred eighty (180) calendar days after the Insurance Proceeds
become available to Provider (or if such restoration cannot be reasonably accomplished within such 180
day period, within such time period as is reasonably necessary after such 180 day period to complete such
restoration so long as such restoration is commenced within such 180 day period and is pursued with
reasonable diligence during and after such period), repair, restore, replace or rebuild the System to
substantially the same condition as existed immediately prior to the damage or destruction, assuming the
System was in the condition and repair required to be maintained in accordance with the terms herein, and
shall be made, or caused to be made and substantially in accordance with the originally approved plans for
the System (the "Restoration Work"). Notwithstanding the foregoing, in the event of substantial damage
or destruction by casualty which damage Provider reasonably determines is such that the reconstruction of
an economically viable System is not practicable or economical, for reasons including but not limited to
(a) the Insurance Proceeds made available to Provider are not sufficient to repair such loss or damage, or
(b) such reconstruction cannot be carried out under Applicable Laws, including then -current building or
zoning laws, then Provider shall have the right to terminate this Agreement at no liability to Provider. If
Provider elects to reconstruct the System, and if the Insurance Proceeds received by Provider are
insufficient to pay the entire cost of the Restoration Work, then the amount of any such deficiency shall be
borne solely by Provider. If the Insurance Proceeds received by Provider exceed the entire cost of the
Restoration Work, then such excess proceeds shall be retained by the Parties according to their ownership
percentages.
11. Term; Termination.
11.1 Term. The initial term of this Agreement (the "Term") shall commence on the
Effective Date and shall expire on the date (subject to extension as set forth in Section 11.2, below, the
"Expiration Date") that is twenty (20) years after the Commercial Operation Date, unless and until
terminated earlier pursuant to this Agreement (the date of any such termination, the "Termination Date").
Provided, during all fiscal years succeeding Customer's current fiscal year, Customer's payment obligations
and any other financial obligations hereunder shall be subject to the availability of Customer's revenues in
excess of Customer's expenses, as provided in Section 11.6.
IN
11.2 Extension of Term. Not less than two hundred ten (210) days prior to the
Expiration Date, Provider shall notify Customer of its reasonable determination of the remaining useful life
of the System and the Service Fee that would be payable during the Extension Period (as defined below),
such Service Fee to.be based on the fair market value of the System at the time of such determination. Upon
prior written notice to Provider at least one hundred. eighty (d 80) days prior to the Expiration Date,
Customer shall have the option to extend the Term for an additional period equal to the lesser of (a) five
(5) years and (b) the number of days equal to 80% of the then remaining useful life of the system as of the
original Expiration Date; as determined by Provider (the "Extension Period"). Upon Customer's written
notice to Provider of its election of the Extension Period, the Expiration Date shall be at the last date of the
Extension Period. Notwithstanding any provision to the contrary in this Section 11.2, should Provider enter
into a sale:and lease -back transaction regarding its interest in the System with a third party for purposes of
financing; any extension rights of Customer hereunder shall in all respects be consistent, and not in conflict,
with the extension rights, if any, of Provider as set out in the System lease documents between Provider
and such third party. In such event, Provider and Customer shall agree on changes to this Section 11.2 to
achieve such consistency, and if Provider and Customer are unable to so agree, Customer shall not have
any extension rights hereunder.
1133 Removal of System. Upon the Expiration Date (including if extended by an
Extension Period), Provider shall have the right to remove.all of the tangible personal property comprising
the System from the Project Site, at a cost that is borne solely by Provider, or may.continue to operate the
System in place and provide the Solar Services to other persons for the term of the Lease.
11.4 Payment of Termination Value on Termination Date. In the event that Customer
shall terminate the agreement other than as a result of a Provider Default or other, than as a result of the
Customer's fiscal .deficit, or this Agreement shall be. terminated for reasons attributable to- Customer
including a --Customer Default prior to the Expiration Date, Customer shall pay, to Provider the Termination
Value, less the value of the Customer's Interest, plus any other unpaid amounts then due and outstanding
under this Agreement. The Parties agree.that actual damages to Provider in the event of a termination of
this Agreement would be difficult to ascertain and the applicable Termination Value is a reasonable
approximation of the damages suffered by Provider.
11.5 Provider Termination. Provider shall have the right, 'upon written notice to
terminate this Agreement for cause, which shall include: a Customer Default.
11.6 :—Customer Termination for Fiscal Deficit. Customer's payment obligations and any
other financial obligations hereunder, for fiscal years succeeding Customer's current fiscal year shall be
subject to the availability of Customer's revenues in excess of Customer's expenses: •During.the thirty (30)
days before the commencement of each year, Customer may terminate its obligations under this Agreement
by written notice to Provider if the Customer's expenses exceed its revenues. Such. notice shall constitute a
"Customer_ Default" for which Provider shall have all remedies provided herein, including but not limited
to the remedies1n Section 13.2, with the exception of the collection of the Termination Value, remedies in
the other agreements between the Parties, and remedies at law.
12. Defaults.
12.1 Customer Default. The occurrence at any time of any of the following events shall
constitute a "Customer Default":
12.1.1 Failure to Pay. The failure of Customer to pay any amounts owing to
Provider on or before the day following the date on which such amounts are due and payable under
the terms of this Agreement and Customer's failure to cure each such failure within three (3)
Business Days after Customer receives written notice of each such failure from Provider;
12.1.2 Failure to Perform Other Obligations. Unless due to a Force Majeure
Event excused by Section 10, the failure of Customer to perform or cause to be performed any other
obligation required to be performed by Customer under this Agreement, or the failure of any
representation and warranty set forth herein to be true and correct in any material respect as and
when made; provided, however, that if such failure by its nature can be cured, then (except for the
obligation to allow. Provider access to the System in the event repair or emergency service is
required) Customer shall have a period of thirty (30) days after receipt of written notice from
Provider of such failure to cure the same and a Customer Default shall not be deemed to exist
during such period; provided, further, that if Customer commences to cure such failure during such
period and is diligently and in good faith attempting to effect such cure, said period shall be
extended for sixty (60) additional days; provided, finally, that in any event if such failure shall
continue for at least five (5) days and shall result in lost revenue to Provider, Provider shall be
entitled to reasonably estimate the amount of revenue that would have been obtained and shall
invoice Customer therefor;
12.1.3 Bankruptcy, Etc. (a) Customer admits in writing its inability to pay its
debts generally as they become due; or (b) Customer files a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state, district or territory thereof; or (c) Customer
makes an assignment for the benefit of creditors; or (d) Customer consents to the appointment of a
receiver of the whole or any substantial part of its assets; or (e) Customer has a petition in
bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing
thereof; or (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a
receiver of the whole or any substantial part of Customer's assets, and such order, judgment or
decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof,
or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent
jurisdiction shall assume custody or control of the whole or any substantial part of Customer's
assets and such custody or control is not terminated or stayed within ninety (90) days from the date
of assumption of such custody or control.
12.2 Provider Default. The occurrence at any time of the following events shall
constitute a "Provider Default":,
12.2.1 Failure to Perform Obligations. Unless due to a Force .Majeure Event
excused by Section 10, the failure of Provider to perform or cause to be performed any obligation
required to be performed by Provider under this Agreement or the failure of any representation and
warranty set forth herein to be true and correct in any material respect as and when made; provided,
however, that if such failure by its nature can be cured, then Provider shall have a period of thirty
(30) Business Days after receipt of written notice from Customer of such failure to Provider to cure
the same and a Provider Default shall not be deemed to exist during such period; provided, further,
that if Provider commences to cure such failure during such period and is diligently and in good
faith attempting to effect such cure, said period shall be extended for a period of time reasonably
required to accomplish such cure;
12.2.2 Bankruptcy, Etc. (a) Provider admits in writing its inability to pay its debts
generally as they become due; or (b) Provider files a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state, district or territory thereof, or (c) Provider makes an assignment for
the benefit of creditors; or (d) Provider consents to the appointment of a receiver of the whole or
any substantial part of its assets; or (e) Provider has a petition in bankruptcy filed against it, and
such petition is not dismissed within ninety (90) days after the filing thereof; or (f) a court of
competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or
any substantial part of Provider's assets, and such order, judgment or decree is not vacated or set
12
aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions
of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume
custody or control of the whole or any substantial part of Provider's assets and such custody or
control is not terminated or stayed within ninety (90) days from the date of assumption of such
custody or control.
13. Remedies Fallowing Default.
13.1 Customer's Remedies Upon Provider Default. If a Provider Default as described
in Section 12.2 has occurred and has not been cured as provided therein, Customer may either (a) -continue
this Agreement, reserving all remedies for breach of contract or (b) terminate this Agreement by written
notice and this Agreement shall be of no further force or effect as of the date.the termination -notice is given:
In either event, Customer may collect from Provider all damages and other remedies allowed,by law;
provided, however; Provider's liability hereunder shall be in all respects limited to, and shall not exceed;
amounts paid to it hereunder during the most recent twenty-four (24) -month -period.
13.2 Provider's Remedies Upon Customer Default. If a Customer Default as described
in Section 12.1 has occurred, Provider may (i) terminate this Agreement as provided in Section 1 l .5, above;
and Provider shall thereafter have the, right to (A) abandon in place on the Project Site all the tangible
property,comprising the System or (B) remove all of the tangible property comprising the Facility from the
Project Site, or (ii) continue to operate the Facility in place and sell the Energy to other persons for the term
of the Lease. In all such events, Provider additionally may collect from Customer all damages and other
remedies allowed by law, except as limited by Section 11.6 above.
13.3 No Consequential Damages. NOTHING IN THIS AGREEMENT IS INTENDED
TO CAUSE EITHER PARTY TO BE, AND NEITHER PARTY SHALL BE, LIABLE TO THE OTHER
PARTY FOR ANY LOST BUSINESS, LOST PROFITS OR REVENUES>FROM:OTHERS OR OTHER
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ALL CLAIMS
FOR WHICH ARE . HEREBY. IRREVOCABLY WAIVED BY CUSTOMER AND PROVIDER.
NOTWITHSTANDING THE FOREGOING, NONE OF THE PAYMENTS FOR ENERGY ACTUALLY
RECEIVED OR ANY OTHER AMOUNT SPECIFIED AS PAYABLE BY CUSTOMER TO PROVIDER
UNDER THE TERMS OF THIS AGREEMENT UPON THE TERMINATION OF THIS AGREEMENT
SHALL BE DEEMED CONSEQUENTIAL DAMAGES.
13:4 ; Effect ofTermination of Agreement. Upon the Termination Date or the Expiration
Date, as applicable,: any amounts then owing by a Party to the .other Party shall become immediately due
and payable and the then future obligations of Customer and Provider under this Agreement shall :be
terminated (other than the indemnity obligations set forth in Section 14). Such termination shall not relieve
either Party from, obligations accrued prior to the Termination Date or Expiration Date, as applicable
14. Indemnification.
14:1 I_ndemnification by Provider. Provider shall fully indemnify, save harmless and
defend Customer from and against any and all . costs, claims, and expenses incurred by Customer in
connection with or arising from any claim by a third party for physical damage to or physical destruction
of property, or death of or bodily injury to any Person, but only to the extent caused by (a) the negligence
or willful misconduct of Provider or its agents or employees or others under; Provider's control or (b) a
Provider Default; 'provided, however, that Provider's obligations pursuant to this Section 14.1 shall not
extend'to'claims, demands, lawsuits or actions for liability to the extent attributable to the negligence or
willful misconduct of Customer; provided further, however, that nothing in this Section is intended to
modify the limitation of Provider's liability set forth in Sections 13.3 above.
14.2 (Reserved].
13
14.3 , Notice of Claims. Any Party seeking indemnification or making a claim hereunder
(the "Indemnified Party") shall deliver to the other Party (the "Indemnifying Party") a notice describing the
facts underlying its claim and the amount of such claim (each such notice a "Claim Notice"). Such Claim
Notice shall be delivered promptly to the Indemnifying Party after the Indemnified Party receives notice
that an action at law or a suit in equity has commenced; provided, however, that failure to deliver the Claim
Notice as aforesaid shall not relieve the Indemnifying Party of its obligations under this Section, except to
the extent that such Indemnifying Party has been prejudiced by such failure.
14.4 Defense of Action. If requested by an Indemnified Party, the Indemnifying Party
shall assume on behalf of the Indemnified Party, and conduct with due diligence and in good faith, the
defense of such Indemnified Party with counsel reasonably satisfactory to the Indemnified Party; provided,
however, that if the Indemnifying Party is a defendant in any such action and the Indemnified Party believes
that there may be legal defenses available to it that are inconsistent with those available to the Indemnifying
Party, the Indemnified Party shall have the right to select separate counsel to participate in its defense of
such action at the Indemnifying Party's expense. If any claim, action, proceeding or investigation arises as
to which the indemnity provided for in this Section 14 applies, and the Indemnifying Party fails to assume
the defense of such claim, action, proceeding or investigation after having been requested to do so by the
Indemnified Party, then the Indemnified Party may, at the Indemnifying Party's expense, contest or, with
the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld,
settle such claim, action, proceeding or investigation. All costs and expenses incurred by the Indemnified
Party in connection with any such contest or settlement shall be paid upon demand by the Indemnifying
Party.
14.5 Survival of Provisions. The provisions of this Section 14 shall survive the
expiration or termination of this Agreement.
15. Special Tax Indemnity
15.1 Assumptions. This Agreement was entered into on the assumption that the System
will be eligible for such deductions, credits and other tax benefits as are provided by federal, state and local
laws to an owner of property ("Tax Benefits") including, without limitation: (a) Modified Accelerated Cost
Recovery System ("MACRS") deductions pursuant to Section 168 of the Code in amounts based upon a
tax basis equal to cost of the Equipment and the respective Recovery Class (depreciable life); (b) all
deductions for interest on any indebtedness incurred to finance any Item of Equipment; (c) treatment of all
items of income and deduction relating to this Agreement as coming from sources wholly within the United
States, and (d) the renewable energy tax credit pursuant to Section 48 of the Code based on qualifying use
for the period of time necessary thereunder for full utilization of the tax credit.
15.2, Provider's Obligation to Advise Customer. Provider shall have an obligation to
advise Customer regarding the obligations on Customer for Provider to receive the maximum amount of
Tax Benefits.
15.3 Payment of Indemnity Amount. If, as a result of any intentional act or omission
of Customer (other than entering into this Agreement) that violates or contradicts Provider's advice as
required in Section 15.2, Provider .(or if Provider has entered into or subsequently enters into a sale-
leaseback of the System, Provider's lessor) shall lose the right to claim, or not be entitled to claim, all or
any portion of the Tax Benefits, or if all or any portion of the. Tax Benefit claimed shall be disallowed,
recaptured, reduced or eliminated, in whole or in part, or if the originally contemplated after-tax return is
adversely affected (collectively, "Tax Benefit Loss"), then Customer shall pay to Provider the "Indemnity
Amount" as hereinafter defined.
15.4 Indemnity Amount. The "Indemnity Amount" as used herein shall equal that
amount which, after deductions of all taxes, interest, additions to tax, penalties, costs, fees and expenses
14
payable by Provider (or Provider`s lessor, if applicable) with respect to the receipt thereof; which will permit
such person to receive (on an After -Tax Basis over the Term of this Agreement) the same return that such
party would have realized had there not been a Tax Benefit Loss. The Indemnity Amount shall be calculated
on the assumption that (i) Provider (or Provider's lessor, if applicable) is subject to the maximum Federal
and State Corporate Income Tax Rate with respect to each year, and (ii) but for the Tax Benefit Loss, all
Tax Benefits would be currently utilized. The Indemnity Amount shall be payable to Provider upon demand
of Provider.
16. Miscellaneous Provisions.
16.1 Notices. All notices, communications and waivers under this Agreement shall�be
in writing and shall be (a) delivered in person, (b) mailed, postage prepaid, either by registered or certified
mail, return receipt requested, (c) sent by reputable overnight express, courier,. (d) transmitted,by facsimile
where confirmation of successful transmission is received from the receiving party's facsimile machine
(such transmission to be effective on the day of receipt if received prior to 5:00 p.m. local time on a Business
Day or in any other case on the next Business Day following the day of transmittal) or (e) transmitted by e-
mail if receipt of such transmission by e-mail is specifically acknowledged by the recipient (automatic
responses not being sufficient for acknowledgment), addressed in each case to the addresses set forth below,
or to any other address either of the Parties shall designate in a written notice to the other Party:
If to Provider:
Today's Power, Inc.
P.O. Box 194208
Little Rock AR 72219-4802
Attention: Michael W. Henderson, President
Phone: 501-570-2228
Fax: (501) 570-2928
Email:. michael.henderson@aecc.com
With a conv to:
Today's Power, Inc.
P.O. Box 194208
Little Rock AR 722194802
Attention: General Counsel
If to Customer:
City of Fayetteville, Arkansas
113 West Mountain Street
Fayetteville, AR 72701
Attention: Mayor Lioneld Jordan
Phone: (479) 575-8257
Email: mayor@fayetteville-ar.gov
All notices sent pursuant to the terms of this Section 16.1 shall be deemed received (i) if,personally
delivered, then on the date of delivery, (ii) if sent by reputable overnight, express courier, then on the next
Business Day immediately following the day sent, or (iii) if sent by registered or certified mail, then on.the
earlier of the third (3rd) Business Day following the day sent or when actually received.
19
16.2 Assignment by Customer. Customer shall not assign its interests in this
Agreement, nor any part thereof, without Provider's prior written consent, which consent shall not be
unreasonably withheld or delayed. Any assignment by Customer not permitted under this Section 16.2
shall be void ab initio.
16.3 Assignment by Provider. Provider shall not assign its interests in this Agreement,
nor any part thereof, without Customer's prior written consent, which consent shall not be unreasonably
withheld or delayed; provided that Provider may (i) make an assignment to an affiliate of Provider, (ii)
make an assignment through merger, consolidation or sale of all or substantially all of Provider's stock or
assets, and (iii) make an assignment to a capital provider or bank or other financial institution as part of a
financing arrangement. A direct assignee of Provider's obligations hereunder shall assume in writing, in
form and content reasonably satisfactory to Customer, the due performance of all Provider's obligations
under this Agreement. Customer will provide such confirmations, releases and novations as are reasonably
requested by Provider in connection with any such assignment. Any assignment by Provider not permitted
under this Section 16.3 shall be void ab initio.
16.4 Successors and Assigns. The rights, powers and remedies of each Party shall inure
to the benefit of such party and its successors and permitted assigns.
16.5 Entire Agreement. This Agreement (including all exhibits attached hereto and
incorporated herein by this reference) represents the entire agreement between the Parties with respect to
the subject matter hereof and thereof and supersedes all prior and contemporaneous oral and prior written
agreements.
16.6 Amendments to Agreement. This Agreement shall not be amended, modified or
supplemented except in a writing executed by both Provider and Customer at the time of such amendment,
modification or supplement.
16.7 Waivers; Approvals. No waiver of any provision of this Agreement shall be
effective unless set forth in writing signed by the Party granting such waiver, and any such waiver shall be
effective only to the extent it is set forth in such writing. Failure by a Party to insist upon full and prompt
performance of any provision of this Agreement, or to take action in the event of any breach of any such
provisions or upon the occurrence of any Provider Default or Customer Default, as applicable, shall not
constitute a waiver of any rights of such Party, and, subject to the notice requirements of this Agreement,
such Party may at any time after such failure exercise all rights and remedies available under this Agreement
with respect to such Provider Default or Customer Default. Receipt by a Party of any instrument or
document shall not constitute or be deemed to be an approval of such instrument or document. Any
approvals required under this Agreement must be in writing, signed by the Party whose approval is being
sought.
16.8 Partial Invalidity. In the event that any provision of this Agreement is deemed to
be invalid by reason of the operation of Applicable Law, Provider and Customer shall negotiate an equitable
adjustment in the provisions of the same in order to effect, to the maximum extent permitted by law, the
purpose of this Agreement (and in the event that Provider and Customer cannot agree then such provisions
shall be severed from this Agreement) and the validity and enforceability of the remaining provisions, or
portions or applications thereof, shall not be affected by such adjustment and shall remain in full force and
effect.
16.9 Industry Standards. Except as otherwise set forth herein, for the purpose of this
Agreement accepted standards of performance within the solar photovoltaic power generation industry in
the relevant market shall be the measure of whether a Party's performance is reasonable and timely. Unless
expressly defined herein, words having well-known technical or trade meanings shall be so construed.
16
I6.10 Counterparts. This Agreement may be executed in counterparts, including by
facsimile transmission, each of which shall be deemed an original and all of which when,taken together
shall constitute one and the same Agreement.
16.11 No Third Party.. ights. This Agreement is solely far the benefit of the Parties and
their respective permitted successors and permitted assigns, and this Agreement shall not otherwise be
deemed to confer upon or give to any other third party any remedy, claim, liability, reimbursement, cause
of action or other right.
16.12 No: Agency: This Agreement is not intended, and shall not be construed, to create
any association, joint venture, agency relatibnship.or partnership between the Parties or to impose any such
obligation or liability upon either Party. Neither Party shall have any right, power or authority to enter into
any agreement or undertaking for, or act as or be an agent or representative of, or otherwise bind, the other
Party.
. 16.1=3 No Public Utility. Nothing contained in this Agreement shall be construed as an
intent by Provider to dedicate its property to public use, to provide public utility services, or to subject itself
to regulation as -a public utility, an electric utility, an investor owned utility, a municipal utility, generation
company or a merchant power plant otherwise known as an exempt wholesale generator.
16.14 : No. Recourse to Affiliates. This Agreement is solely and exclusively between the
Parties, and any obligations created:herein on the part of either Party shall be the obligations solely of such
Party. No Party shall have recourse to any parent, subsidiary, partner, member, affiliate, lender, director,
officer or employee of -the other Party for performance or non-performance of any obligation hereunder,
unless such°obligations were assumed in writing by the Person against whom recourse is sought.
16.15 Cooperation with Financing. Customer acknowledges that Provider may be
financing the System and Customer agrees that it shall reasonably cooperate with Provider and its financing
parties in connection with such financing, including (a) the furnishing of such information, (b) the giving
of such certificates, and (c) providing such opinions of counsel and other matters as Provider and its
financing parties may reasonably request; provided, that the foregoing undertaking shall not obligate
Customer to materially change any rights or benefits, or materially increase any burdens, liabilities or
obligations of Customer, under this Agreement (except for providing notices and additional cure periods to
the financing parties with respect to Provider Defaults as a financing party may reasonably request).
16.16 Governing Law. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
UNDER THIS AGREEMENT, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE
OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ARKANSAS
APPLICABLE TO CONTRACTS MADE AND PERFORMED .IN THAT STATE AND ANY
APPLICABLE LAWS OF THE UNITED. STATES OF AMERICA.
16.17 [Reserved].
16.18 Injunctive Relief. The Parties acknowledge and agree that any violation or breach
of the provisions of this Agreement may result in irreparable injury to a Party for which a remedy at law
may be inadequate. In addition to any relief at law that may be available to a non -breaching Party for such
violation or breach, and regardless of any other provision contained in this Agreement, such Party shall be
entitled to seek injunctive and other equitable relief and shall -not be required to post any bond in connection
therewith.
17
16.14 Cumulative Remedies. Except as set forth herein, any right or remedy of Provider
or Customer shall be cumulative and without prejudice to any other right or remedy, whether contained
herein or not.
16.20 Headings. The headings in this Agreement are solely for convenience and ease of
reference and shall have no effect in interpreting the meaning of any provision of this Agreement.
16.21 Additional Documents and Actions. Upon the receipt of a written request from the
other Party, each Party shall execute such additional documents, instruments and assurances and take such
additional actions as are reasonably necessary to carry out the terms and intent hereof. Neither Party shall
unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to
this Section 16.22.
17. Estoppel.
Either Party, without charge, at any time and from time to time, within ten (10) Business Days after
receipt of a written request by the other Party, shall deliver a written instrument, duly executed, certifying
to such requesting Party, or any other person, firm or corporation specified by such requesting Party:
(a) That this Agreement is unmodified and in full force and effect, or if there
has been any modification, that the same is in full force and effect as so
modified, and identifying any such modification;
(b) Whether or not to the knowledge of any such Party there are then existing
any offsets or defenses in favor of such Party against enforcement of any
of the terms, covenants and conditions of this Agreement and, if so,
specifying the same and also whether or not to the knowledge of such
Party, the other Party has observed and performed all of the terms,
covenants and conditions on its part to be observed and performed, and if
not, specifying the same; and
(c) Such other information as may be reasonably requested by a Party.
Any written instrument given hereunder may be relied upon by the recipient of such instrument, except to
the extent the recipient has actual knowledge of facts contained in the certificate.
18
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as of the
date set forth above.
PROVIDER:
TODAY'S POWER, INC.
HendersonName: Michael W4
Title: President
Dated: �ILi
CITYAYETT7 LEA"SAS
d
Mayor
Attest:. YU c,�C'�
Name: Sondra Smith
0111111111114'.
RE
Title: City Clerk
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c•��:• C1 dF••,P�"�
Dated:
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EXHIBIT A
DESCRIPTION OF PROPERTY
The Property address is identified as 1500 South Broyles Road, Fayetteville, Arkansas (West Wastewater
Treatment Facility). The Property is more particularly described as follows:
West Side Solar Array Tract "A"
A part of the Northeast Quarter (NE) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (3 1) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at a point North 87'42" 10" West 1324.01 feet and South 02'36'15" West 53.60 feet
from the Northeast corner of said section being the southerly line a Water & Sewer easement Doc.
Ref. 0023-00000172;
Thence along said southerly line South 87'42'10" East a distance of 897.68 feet to a point;
Thence leaving said southerly line South 18°26'10" East a distance of 13.21 feet to a point;
Thence South 26°36'45" East a distance of 108.67 feet to a point;
Thence South 30"13'49" East a distance of 45.60 feet to a point;
Thence South 42'32'58" East a distance of 76.92 feet to a point;
Thence South 31'37'17" East a distance of 34.88 feet to a point;
Thence South 22'00'01" East a distance of 138.03 feet to a point;
Thence South 29'13'02" East a distance of 83.11 feet to a point;
Thence South 49°15`31" East a distance of 174.84 feet to a point;
Thence South 29°05'30" East a distance of 15.31 feet to the westerly right-of-way Broyles Avenue;
Therice"alpng said right-of-way South 02'5822" West a distance of 295.76 feet to a point;
Thence.le ,Jng said right -of --way North 87542'04" West a distance of 1299.30 feet to a paint;
Thence North, 0263615" East a distance of 843.55 feet which is the point of beginning, having an
area of 22:34 •acres more or less. Subject to any rights-of-way of roads or easements of record.
West Side Solar Array Tract "B"
A parts of the Southwest Quarter (SW) of the Northeast Quarter (NE) of Section Fourteen (14)
`• township Sixteen (16) North, Range Thirty -One (31) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at a point South 02'35"22" West 1668.99 feet and South 87'24`38" East 65.34 feet
from the Northwest corner of the Northwest Quarter (NW) of the Northeast Quarter said section
being the easterly right-of-way of 54th Street;
Thence South 88'32'12" East a distance of 1074.05 feet to a point;
Thence South 02'32`01" West a distance of 820.14 feet to a point;
Thence North 88'32'12" West a distance of 675.18 feet to a point;
Thence North 02'35'22" East a distance of 520.21 feet to a point;
Thence North 88'32'12" West a distance of 400.69 feet to the said easterly right-of-way 54th
Street; Thence along said right-of-way North 0247'04" East a distance of 299.97 feet to which
is the point of beginning, having an area of 15.46 acres more or less. Subject to any rights-of-
way of roads or easements of record.
EXHIBIT B
DESCRIPTION OF PROJECT SITE
The Property address is identified as 1500 South Broyles Road, Fayetteville, Arkansas (West Wastewater
Treatment Facility). The Property is more particularly described as follows:
West Side Solar Array Tract "A"
A part of the Northeast Quarter (NE) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (3 1) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at a point North 87°42" 10" West 1324.01 feet and South 02°36' 15" West 53.60 feet
from the Northeast corner of said section being the southerly line a Water & Sewer easement Doc.
Ref. 0023-00000172; "
Thence along said southerly line South 87'42'10" East a distance of 897.68 feet to a point;
Thence leaving said southerly line South 18'26'10" East a distance of 13.21 feet to a point;
Thence South 26°3645" East a distance of 108.67 feet to a point;
Thence South 30°13'49" East a distance of 45.60 feet to a point;
Thence South 42°32'58" East a distance of 76.92 feet to a point;
Thence South 31°37'17" East a distance of 34.88 feet to a point;
Thence South 22°00'01" East a distance of 138.03 feet to a point;
Thence South 29°13'02" East a distance of 83.11 feet to a point;
Thence South 49°1531" East a distance of 174.84 feet to a point;
Thence South 29°05'30" East a distance of 15.31 feet to the westerly right-of-way Broyles Avenue;
Thence along said right-of-way South 02°5822" West a distance of 295.76 feet to a point;
Thence leaving said right-of-way North 87°42'04" West a distance of 1299.30 feet to a point;
Thence North 02°36'15" East a distance of 843.55 feet which is the point of beginning, having an
area of 22.34 acres more or less. Subject to any rights-of-way of roads or easements of record.
West Side Solar Array Tract "B"
A part of the Southwest Quarter (SW) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (31) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at a point South 02°35"22" West 166899 feet and South 87°24'38" East 65.34 feet
from the Northwest corner of the Northwest Quarter (NW) of the Northeast Quarter said section
being the easterly right-of-way of 54th Street;
Thence South 88°32'12" East a distance of 1074.05 feet to a point;
Thence South 02°32'01" West a distance of 820.14 feet to a point;
Thence North 88°32'12" West a distance of 675.18 feet to a point;
Thence North 02°35'22" East a distance of 520.21 feet to a point;
Thence North 88°32'12" West a distance of 400.69 feet to the said easterly right-of-way 54th
Street; Thence along said right-of-way North 02°47'04" East a distance of 299.97 feet to which
is the point of beginning, having an area of 15.46 acres more or less. Subject to any rights-of-
way of roads or easements of record.
EXHIBIT C
DESCRIPTION OF SYSTEM,
A 5.75 MW DC Monocrystalline Photovoltaic Single Axis Tracking System.
EXHIBIT D
BASE SERVICE FEE SCHEDULE
Solar Services shall be charged based on performance of the System. To determine performance,
Provider shall measure the energy produced each month from the System as a representative of the
performance and assess a charge of 4.7673 cents/kWh to reflect the value of the solar services provided.
OWNERSHIP AND OPERATIONS AGREEMENT
This OWNERSHIP AND OPERATIONS AGREEMENT (this "Agreement"); dated
November 1, 2018, is made by and between Today's Power, Inc. ("TPI"), and The City of
Fayetteville, Arkansas ("Fayetteville") (collectively, the "Owners" or singularly, an "Owner").
RECITALS
Jti!HEREAS, TPI is engaged in, among other -things, the generation, transmission;
distribution, and sale of electric energy services;
WHEREAS, TPI, and Fayetteville are parties to a certain Solar Power Services Agreement,
dated November 1, 2018 (the "SPSA") pertaining.,to a solar photovoltaic electric generating
system and an energy storage system on land leased from Fayetteville near its west wastewater
treatment facility, located at 15 South Broyles Road, Fayetteville, Arkansas (the "West Plant");
WHEREAS, TPI- is,constructing the solar photovoltaic electric- generating System at the
West Plant, -,which :upon° completion isr anticipated to have :,a net generating capacity of
approximately 5.75 MW DC/ 5 MW AC ("System" as defined in;the SPSA) and a storage capacity
of 12 MWh or 6 MW for 2 hours ("Storage"), as may be adjusted from time to time;
WHEREAS, as agreed in the SPSA; TFI shall own a.99% undivided interest in the System;
and Fayetteville shall own a I%, undivided interest in the System;.
WHEREAS, Owners desire to set forth in this Agreement their respective rights and
obligations with respect to, among other things, the construction, co -ownership; and operation of
the System, as provided herein.
TERMS OF AGREEMENT
1. .Definitions. All capitalized terms herein shall have the same meaning as defined
in the SPSA.
2:Ownership of the System. The Owners shall have title to the System at the West
Plant:as tenants in common, each with undivided ownership interests therein, expressed as
percentages as of the date hereof, as follows:
TPI 99%
_ Fayetteville 1%.
Each Owner's percentage undivided ownership interest in the System at the West Plant is
referred to herein as the Owner's "Ownership Share."
3. Construction of System. The Owners hereby appoint TPI, and TPI hereby
accepts its appointment as, their agent to act on their behalf in connection with the construction
of the System. For purposes of this Agreement, the term "construction" includes planning,
engineering, design, development, licensing, permitting, procurement, construction,
reconstruction, completion, performance testing, start-up, commissioning, and all other activities
related to the effort to construct the System and place it into service (including the hiring and
training of construction personnel). TPI will have sole responsibility for, and will have full
authority to act for the Owners with respect to, the construction of the System. TPI will have the
right to negotiate, enter into, and amend contracts necessary or useful, in its sole discretion, in
connection with the construction of the System, as well as to carry out construction activities
under contracts in effect on or prior to the date hereof. TPI shall be solely responsible, at its own
cost, for acquisition of the Property, preparation of the Project Site, and construction of the
System.
4. Personal Property. During and after completion of construction, the System
shall (i) remain personal property and shall not attach to or be deemed a part of, or fixture to, the
Property, and (ii) at all times retain the legal status of personal property as defined under Article
9 of the Arkansas Uniform Commercial Code.
5. Liens and Encumbrances. TPI may grant liens and encumbrances upon its
Ownership Share in the System to persons who provide financing for the cost of construction of
the System. Between the parties. TPI shall be solely liable for any indebtedness relating to the
cost of construction and operation of the System. Fayetteville shall not be liable for any
indebtedness related to the System. Furthermore, Fayetteville shall keep its Ownership Share
free from all liens, claims and encumbrances of its lenders and any other third parties (including
those created by TPI or its creditors).
6. Operations.
6.1. Intent of Owners. It is the intent of the Owners that the System will be
operated to maximize its useful life and output and minimize maintenance costs. This
Agreement is not intended to create, and does not create, any partnership, agency, joint venture
or similar relationship between the Owners, and none of the Owners has the right or ability to
contract for or on behalf of any other Owner or to effect any transaction for the account of any
other Owner, except as expressly provided herein.
6.2. Appointment of Operator. From and after the Commercial Operation
Date, the Owners hereby appoint TPI, and TPI hereby accepts its appointment as, their agent to
act on their behalf in connection with the operation of the System. For purposes of this
Agreement, the term "operations" includes all operating, testing, maintenance, repair, capital
addition, capital improvement, and all other activities relating to the effort to operate the System
2
(including the hiring and training of operating personnel), and related terms such as "operating"
have corresponding meanings.
6.3. Responsibili1y for Operations. Except as otherwise provided for herein,
TPI will have sole responsibility for, and will have full authority to act for the Owners with
respect to, the operations of the System. Without limiting the generality of the foregoing, TPI's
duties will include, in addition to the other duties specified elsewhere in this Agreement, the
following:
(a) Manage, supervise, and conduct the day-to-day operations and affairs of the
System;
(b) Establish policies and procedures relating to the operations of the System,
including as required by, or to facilitate compliance with, applicable Law;
(c) Furnish and train the personnel necessary for the performance of operating
functions, and be responsible for all personnel matters, including hiring;
disciplining, discharging, training, and promoting;
(d) Establish operating and performance parameters for the System from time
to time;
(e) Make, or cause to be made, all Maintenance and Repairs to the System;
(f) .Receive on the Owners' behalf any notice or other,communication (and
forward promptly to each {.Owner a. true, correct and complete copy_ of any
material notice or .communication) from any; Governmental Authority
relating to a, regulatory citation, review;. enforcement action, or any other
violation of.applicable Law with respect to the System or the Project Site;
(g) File or settle any type of legal action, including on behalf of the Owners, to
protect the Owners' rights in respect of the System or the Project Site, or to
enforce agreements entered into by TPI pursuant to Section 6.4 hereof;
,(h) Investigate, adjust, defend, and settle claims by third parties arising out of
or in connection with the System or..the Project Site;.
(i) Establish a written maintenance schedule for the System;
(j) Execute and file with any applicable Governmental Authority all necessary
and appropriate applications, amendments, reports, and other documents
and filings for or in connection with the System, including in order to secure
required permits or to comply with applicable law;
3
(k) Maintain the Project Site in good condition and repair, including with
respect to landscaping and grounds keeping;
(1) Take such other actions as TPI reasonably determines to be necessary or
appropriate, or as may be required under applicable Laws, Orders, or
Permits, to achieve the purposes of this Agreement; and
(m) Procure, and make payment when due, any and all supplies, equipment, and
materials necessary to operate the System, subject to this Agreement.
6.4. Contracts. TPI will have the right to negotiate, enter into, and amend, in
its sole discretion, contracts necessary or useful in connection with System operations or the
Property. All contracts (including amendments) relating to System operations and the Property
may be executed solely by TPI.
6.5. Exculpation of TPI. For so long as TPI acts in good faith with respect to
the operation and management of the System, it shall not be responsible, to other Owners for loss
or damage to the System due to its neglect, mechanical failure, or any other cause whatsoever.
Notwithstanding the foregoing, however, the limitation of liability set forth in this Section 6.5
shall not apply to any claim by an Owner against TPI for specific performance or injunctive
relief with respect to the obligations of TPI under this Agreement.
7. Exclusivity. During the term of this Agreement, the Owners may not engage any
party other than TPI to construct or operate the System or otherwise provide the services to be
provided by TPI under this Agreement at the West Plant. Nothing herein prohibits TPI from
providing, and the Owners acknowledge that TPI may provide, construction, operating, or other
services in respect of solar photovoltaic electric generating facilities owned by TPI or other
parties, including one or more affiliates of TPI. Nothing herein prohibits TPI from contracting
with third.parties, including one or more affiliates of TPI, to provide the services to be provided
by TPI under this Agreement. Nothing herein prohibits Owner from contracting with other
parties to provide similar services at other City -owned properties or projects.
8. Inspection Right. Each Owner will have the right, exercisable from time to time
after providing reasonable advance notice to TPI, and without unreasonably interrupting or
interfering with construction or operating activities, to meet with TPI and inspect -the System. In
exercising its inspection right, each Owner will cause its representatives to comply with all
safety, security, and other rules, regulations, and policies applicable to personnel at the' System.
9. Interconnection and Transmission.
9.1. Interconnection Agreement. TPI will, for the benefit of the Owners,
negotiate and enter into, and from time to time may change, either directly or on behalf of the
4
Owners, any arrangements that TPI reasonably deems necessary or appropriate relating to the
interconnection of the System to the electricity distribution grid (the "Electrical System"),
including an Interconnection Agreement. At the request of TPI, the Owners will execute directly
any agreement evidencing such arrangements, including an Interconnection Agreement.
9.2. Distribution Arrangements. TPI will be responsible for the distribution
arrangements for the System's Energy delivered from and beyond the Interconnection Point.
10: Security. Fayetteville will provide, at its own expense, security for the System .
through its police department. The.security required for.the System shall be determined in the
sole discretion of Fayetteville: In connection with the security services Fayetteville shall have
reasonable access to the Project Site. Notwithstanding the foregoing; TPI may also provide any
supplemental security services or equipment that it deems in its necessary or that is required by,.
applicable law;: order, or permit.:
11. Financial Obligations.
11.1. General. TPI will bear all costs of acquisition of the Property and all costs
of construction, Maintenance, Repairs, and operation of the System, unless the other Owners
otherwise agree in writing.
11.2. Fiscal Deficit. of Fayetteville.. Fayetteville's payment obligations -and any
other financial obligations, in this Agreement for fiscal periods succeeding its current fiscal
period shall besubject:to�the availability of the city's revenues in excess of its expenses. As f
provided in Section 11.6 of the SPSA, within thirty (30) days before the commencement of each.
fiscal period. of the City, Fayetteville may terminate its financial obligations _under this Agreement
by written notice to TPI if Fayetteville's expenses exceed its revenues. Such a termination shalt
constitute a -".Customer Default" under Section 12.1 of the SPSA and"'shall invoke the remedies-
available
emedies-available to TPI under the SPSA, under the Parties' other agreements, and the law..
12. Representations and Warranties. In addition to any other representations and
warranties contained in this Agreement, each Owner incorporates by reference herein the
Representations and Warranties in Section 7 of the SPSA, as if the same were restated herein,
word for word.
13. Insurance Requirements. TPI shall provide insurance covering the System, as
provided in Section 9 of the SPSA, at its sole cost.
14. Force Maieure; Casualty; Condemnation. Events of force majeure, casualty,
and condemnation pertaining to the System shall be governed by Section 10 of the SPSA.
5
15. Term, Termination. The term of this Agreement shall be contemporaneous with
the term of the SPSA, and the term, and termination of this Agreement, .shall be governed by
Section 11 of the SPSA.
16. Defaults and Remedies. Defaults, and remedies for Defaults, under this
Agreement shall governed by Sections 12 and 13 of the SPSA.
17. Operation or Disposition of System after Expiration Date,
17.1. Operation of System after Expiration Date. If TPI determines and obtains
approval by Owners holding a majority of Ownership Shares, at any time after the Expiration
Date, that the System may be operated profitably and that the Solar Services should be sold to
persons other than Fayetteville, it shall account to the Owners no less frequently than annually,
and each Owner will be entitled to receive its Ownership Share of all net income from the
operation of the System.
17.2. Disposition of System after Expiration Date. If TPI determines and
obtains approval by Owners holding a majority of Ownership Shares, at any time after the
Expiration Date that the System has become obsolete or at any time that the System must be
removed from service under an applicable law,. order or permit,, the TPI will, on behalf of the
Owners, take such actions as may be necessary or appropriate,. in TPI's reasonable opinion, to
wind -down the operations of the System; including by decommissioning the System, disposing
of the properties and equipment then comprising the System; razing structures, disposing of
debris, filing an affidavit of abandonment and other appropriate affidavits or instruments on
behalf of the Owners, and undertaking environmental remediation activities. Except as
otherwise expressly provided in this Agreement or any other written agreement between the
Owners, the Owners will bear (and promptly pay as incurred) all obligations, liabilities, costs,
and expenses associated with winding down the construction or operations of the Facility in
proportion to their respective Ownership Shares. This Section will survive the termination or
expiration of this Agreement.
17.3. Disposition of Equipment. In the event of a disposition of the System, TPI
will dispose of all equipment then comprising the System (subject to the rights of any lienholders
with respect thereto) in a reasonable manner, and will distribute the net proceeds or apportion the
costs of any such disposition to the Owners in proportion to their respective Ownership Shares;
provided, however, that any such disposition will not (i) discharge an Owner from any obligation
it then owes (or may thereafter owe) to the other Owners under this Agreement or (ii) terminate
the obligations of an Owner to pay or be responsible for the costs of any disposition, winding -
down, or remediation of all or any portion of the System in proportion to its Ownership Share.
18. Assignments.
2
18.1. Fayetteville shall not sell, transfer, assign, conveyor otherwise dispose of
any right, title, or interest in or to all or any portion of its Ownership Share of the System or in
this Agreement to any third party (including an affiliate) without the prior written consent of all
other Owners, which consent shall not be unreasonably withheld or delayed. Any assignment by
Fayetteville not permitted under this Section 18.1 shall be void ab initio.
18.2. Assignment by TPI.' TPI shall not assign its interests in this Agreement,
nor any part thereof, without Fayetteville's prior written consent, which consent shall not be
unreasonably withheld or delayed; provided that TPI may (i) make an assignment to an affiliate,
(ii) make an assignment through merger, consolidation or sale of all or substantially all of TPI's
stock or assets, and (iii) make an assignment to a capital provider or bank or other financial
institution as part of a financing arrangement. A direct assignee of TPI's obligations hereunder
shall assume in writing, in form and content reasonably satisfactory to Fayetteville, the due
performance of all TPI's obligations under this Agreement. Fayetteville will provide such
confirmations, releases and novations as are reasonably requested by TPI in connection with any
such assignment. Any assignment by TPI not permitted under this Section 18.2 shall be void ab
initio.
1tr
19 ' Construction. The SPSA and this Agreement pertain to the same subject and
object, are`in-pari materia, and shall be construed consistently with reference to one another.
20 Miscellaneous Provisions. The Miscellaneous Provisions in Section 15 of the
SPSA are incorporated by reference herein, as if the same were restated herein, word for word.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
7
IN:; WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as of the
date set forth above.
TODAY'S POWER, IN
Name: Michael W. Henderson
Title: President f�j
Dated: � .tif�-fel 6, ,Q.9/lS
Attest:
Name: Sondra Smith
ttlrrrrr
Title: City Clerk
��,�,i
��•``�,�;�:= / TR
F9 ,
s''
Dated:.
.
FAYETTEVILLE:
�•,�� GTO ��,N p.�.
til
OWNERSHIP AND OPERATIONS AGREEMENT
This OWNERSHIP AND OPERATIONS, AGREEMENT (this "Agreement'), dated
November I, 2018, is made by and between Today's Power, Inc. ("TPI"), and The City of
Fayetteville, Arkansas ("Fayetteville") (collectively; the "Owners" or singularly, an "Owner").
RECITALS
WHEREAS; TPI -'is engaged, in, among other things, the generation, transmission,
distribution, and sale of electric energy, services;
WHEREAS, TPI and Fayetteville are parties to a certain Solar Power Services Agreement,
dated November 1, 2018 (the'"SPSA") pertaining to a solar photovoltaic electric generating
system and an energy storage system on land leased from Fayetteville near its east wastewater
treatment facility, located at1400 North Fox Hunter Road, Fayetteville, Arkansas (the "East
Plant");
WHEREAS, TPI is constructing the solar photovoltaic electric: generating System at the
East Plant, which upon completion is anticipated to - have• a net"? generating capacity of
approximately 5.75 MW DC/ 5 MW AC ("System" as defined in the SPSA) and a storage capacity
of 12 MWh or:6 MW'for 2 hours ("Storage"), as may be adjusted.ffrom.time to time;
WA.HEREAS; as agreed in the SPSA, TPI shall own a_99% undivided interest in the System,
and Fayetteville shaltown a 1% undivided interest in the System;
WHEREAS; Owners; desir"e" to set f6rth in this Agreement .their respective rights and
obligations with respect to, among other things, the construction, co -ownership, and=operation of
the System, as provided herein.
TERMS OF AGREEMENT
1. , Definitions. All capitalized terms herein shall have thesame meaning as defined
in the SPSA.
2. Ownership of the System. The Owners shall have title to the System at the East
Plant as tenants in common, each with undivided ownership interests -therein, expressed as
percentages as of the date hereof, as follows:
TPI 99%
Fayetteville I %.
Each Owner's percentage undivided ownership interest in the System at the East Plant is referred
to herein as the Owner's "Ownership Share."
3. Construction of System. The Owners hereby appoint TPI, and TPI hereby
accepts its appointment as, their agent to act on their behalf in connection with the construction
of the System. For purposes of this Agreement, the term "construction' includes planning,
engineering, design, development, licensing, permitting, procurement, construction,
reconstruction, completion, performance testing, start-up, commissioning, and all other activities
related to the effort to construct the System and place it into service (including the hiring and
training of construction personnel). TPI will have sole responsibility for, and will have full
authority to act for the Owners with respect to, the construction of the System. TPI will have the
right to negotiate, enter into, and amend contracts necessary or useful, in its sole discretion, in
connection with the construction of the System, as well as to carry out construction activities
under contracts in effect on or prior to the date hereof. TPI shall be solely responsible, at its own
cost, for acquisition of the Property, preparation of the Project Site, and construction of the
System.
4. Personal Property. During and after completion of construction, the System
shall (i) remain personal property and shall not attach to or be deemed a part of,'or fixture to, the
Property, and (ii) at all times retain the legal status of personal property as defined under Article
9 of the Arkansas Uniform Commercial Code.
5. Liens and Encumbrances. TPI may grant liens and encumbrances upon its
Ownership Share in the System to persons who provide financing for the cost of construction of
the System. Between the parties. TPI shall be solely liable for any indebtedness relating to the
cost of construction and operation of the System. Fayetteville shall not be liable for any
indebtedness related to the System. Furthermore, Fayetteville shall keep its Ownership Share
free from all liens, claims and encumbrances of its lenders and any other third parties (including
those created by TPI or its creditors).
6. Operations.
6.1. Intent of Owners. It is the intent of the Owners that the System will be
operated to maximize its useful life and output and minimize maintenance costs. This
Agreement is not intended to create, and does not create, any partnership, agency, joint venture
or similar relationship between the Owners, and none of the Owners has the right or ability to
contract for or on behalf of any other Owner or to effect any transaction for the account of any
other Owner, except as expressly provided herein.
6.2. Appointment of Operator. From and after the Commercial Operation
Date, the Owners hereby appoint TPI, and TPI hereby accepts its appointment as, their agent to
act on their behalf in connection with the operation of the System. For purposes of this
Agreement, the term "operations" includes all operating, testing, maintenance, repair, capital
addition, capital improvement, and all other activities relating to the effort to operate the System
2
(including thet hiring and training of operating personnel), and related terms such as "operating"
have corresponding meanings.
6.3. Responsibili1y for Operations. Except'as otherwise provided for herein,
TPI will have sole responsibility for, and will have `full authority to act for the Owners with
respect to, the operations of the System. Without limiting the generality of the foregoing, TPI's
duties will include, in addition to the other duties specified elsewhere in this Agreement, the
following:
(a) Manage, supervise, and conduct the day-to-day operations and affairs of the
System;
(b) Establish policies and procedures relating to the operations of the System,
including as required by, or to facilitate compliance with, applicable Law;
(c) Furnish and train the personnel necessary for the performance of operating
functions, and be responsible for all personnel matters, including hiring,
disciplining, discharging, training, and promoting;
(d) Establish operating and performance parameters for the System from time
to time;
(e) Make, or cause to be made, all Maintenance and Repairs to;the System;
(f) Receive -on the Owners" behalf: any: notice or other communication (and
forward promptly to each. Owner a true, correct and .complete copy of any
material notice or communication): from any Governmental Authority
relating to a regulatory citation; review; enforcement action, or any other
violation of applicable Law with respect to the System or the Project Site;
(g) File or settle any type of legal action, including on behalf of the Owners, to
protect the Owners' rights in respect of the System or the Project Site, or to
enforce agreements entered into. by TPI pursuant to Section 6.4 hereof;
(h) Investigate, adjust, defend, and settle claims by third parties arising out of
or in connection with the System or. the Project Site;
(i) Establish a written maintenance schedule for the System;
(j) Execute and file with any applicable Governmental Authority all necessary
and appropriate applications, amendments, reports, and other documents
and filings for or in connection with the System, including in order to secure
required permits or to comply with applicable law;
(k) Maintain the Project Site in good condition and repair, including with
respect to landscaping and grounds keeping;
(1) Take such other actions as TPI reasonably determines to be necessary or
appropriate, or as may be required under applicable Laws, Orders, or
Permits, to achieve the purposes of this Agreement; and
(in) Procure, and make payment when due, any and all supplies, equipment, and
materials necessary to operate the System, subject to this Agreement.
6.4. Contracts. TPI will have the right to negotiate, enter into, and amend, in
its sole discretion, contracts necessary or useful in connection with System operations or the
Property. All contracts (including amendments) relating to System operations and the Property
may be executed solely by TPI.
6.5. Exculpation of TPI. For so long as TPI acts in good faith with respect to
the operation and -management of the System, it shall not be responsible to other Owners for loss
or damage to the System due to its neglect, mechanical failure, or any other cause whatsoever.
Notwithstanding the foregoing, however, the limitation of liability set forth in this Section 6.5
shall not apply to any claim by an Owner against TPI for specific performance or injunctive
relief with respect to the obligations of TPI under this Agreement.
7. Exclusivity. During the term of this Agreement, the Owners may not engage any
party other than TPI to construct or operate the System or otherwise provide the services to be
provided by TPI under this Agreement at the East Plant. Nothing herein prohibits TPI from
providing, and the Owners acknowledge that TPI may provide, constructionoperating; or other
services in respect of solar photovoltaic electric generating facilities owned by TPI or other
parties, including one or more affiliates of TPI. Nothing herein prohibits TPI from contracting
with third parties, including one or more affiliates of TPI, to provide the services to be provided
by TPI under this Agreement. Nothing herein prohibits Owner from contracting with other
parties to provide similar services at other City -owned properties or projects.
8. Inspection Right. Each Owner will have the right, exercisable from time to time
after providing reasonable advance notice to TPI, and without unreasonably interrupting or
interfering with construction or operating activities, to meet with TPI and inspect the System. In
exercising its inspection right, each Owner will cause its representatives to comply with all
safety, security, and other rules, regulations, and policies applicable to personnel at the System.
9. Interconnection and Transmission.
9.1. Interconnection Agreement. TPI will, for the benefit of the Owners,
negotiate and enter into, and from time to time may change, either directly or on behalf of the
4
Owners, any arrangements that TPI reasonably deems necessary or appropriate relating to the
interconnection of the System to the.electricity distribution grid (the "Electrical System"),
including an Interconnection Agreement. At the request of TPI, the Owners will execute directly
any agreement evidencing such arrangements, including an Interconnection Agreement.
9.2. Distribution Arrangements. TPI will be responsible for the distribution
arrangements for the System's Energy delivered from and beyond the Interconnection Point.
10. Security. Fayetteville will provide, at its own expense, security for the System
through its police department-. The security required for.the System shall be determined in the
sole discretion of Fayetteville. In connection with the security services Fayetteville shall have
reasonable access to the Project.Site. Notwithstanding the foregoing, TPI may also provide any-
supplemental security services or equipment that it deems in its necessary or that is required by
applicable law; order,, or permit:
11. Financial Obligations.
11.1. General. TPI will bear all costs of acquisition of the Property and all costs
of construction, Maintenance, Repairs, and operation of the System, -unless the other Owners .
otherwise agree in writing.
11.2. :Fiscal, -Deficit of Fayetteville. Fayetteville'.s payment obligations, and any°
other financial :obligations in this Agreement for fiscal periods succeeding its current fiscal
period shall be;subject to the`availability of.the city's revenues in excess of its expenses. As
provided in: Section 11:.6 of the SPSA;:within'thirty (30) days before the commencement of each
fiscal period of the City, Fayetteville may terminate its financial obligations under this Agreement
by written notice to TPI if Fayetteville.'s-expenses. exceed its revenues Such a termination shall
constitute a "Customer Default'=under Section_12.1: of the SPSA and shall invoke the remedies.
available to TPI under the SPSA, under the Parties' other agreements, and the law.
12. Representations. and Warranties. In addition to any other representations and
warranties contained in this Agreement, each Owner incorporate's by, reference herein the
Representations and Warranties in Section 7 of the SPSA, as if the -same were xestated herein,
word for word.
13. Insurance Requirements.: TPI shall provide -insurance covering the System, as
provided in Section 9 of the SPSA; at its sole cost.
14. Force Maieure; Casualty; Condemnation. Events of force majeure, casualty,
and condemnation pertaining to the System shall be governed by Section 10 of the SPSA.
15. Term, Termination. The term of this Agreement shall be contemporaneous with
the term of the SPSA, and the term, and termination of this Agreement, shall be governed by
Section 11 of the SPSA.
16. Defaults and Remedies. Defaults, and remedies for Defaults, under this
Agreement shall governed by Sections 12 and 13 of the SPSA.
17. Operation or Disposition of System after Expiration Date.
17.1. Operation of System after Expiration Date. If TPI determines and obtains
approval by Owners holding a majority of Ownership Shares, at any time after the Expiration
Date, that the System may be operated profitably and that the Solar Services should be sold to
persons other than Fayetteville, it shall account to the Owners no less frequently than annually,
and each Owner will be entitled to receive its Ownership Share of all net income from the
operation of the System.
17.2. Disposition of System after Expiration Date. If TPI determines and
obtains approval by Owners holding a majority of Ownership Shares, at any time after the
Expiration Date that the System has become obsolete or at any time that the System must be
removed from service under an applicable law, order or permit, the TPI will, on behalf of the
Owners, take such actions as may be necessary or appropriate, in TPI's reasonable opinion, to
wind -down the operations of the System, including by decommissioning the System, disposing
of the properties and equipment then comprising the System, razing structures, disposing of
debris, filing an affidavit of abandonment and other appropriate affidavits or instruments on
behalf of the Owners, and undertaking environmental remediation activities. Except as
otherwise expressly provided in this Agreement or any other written agreement between the
Owners, the Owners will bear (and promptly pay as incurred) all obligations, liabilities, costs,
and expenses associated with winding down the construction or operations of the Facility in
proportion to their respective Ownership Shares. This Section will survive the termination or
expiration of this Agreement.
17.3. Disposition of Equipment. In the event of a disposition. of the System, TPI
will dispose of all equipment then comprising the System (subject to the rights of any lienholders
with respect thereto) in a reasonable manner, and will distribute the net proceeds or apportion the
costs of any such disposition to the Owners in proportion to their respective Ownership Shares;
provided, however, that any such disposition will not (i) discharge an Owner from any obligation
it then owes (or may thereafter owe) to the other Owners under this Agreement or (ii) terminate
the obligations of an Owner to pay or be responsible for the costs of any disposition, winding -
down, or remediation of all or any portion of the System in proportion to its Ownership Share.
18. Assignments.
31
18.1. Fayetteville shall not sell, transfer, assign, convey or otherwise dispose of
any right, title, or interest in or to all or any portion of its Ownership Share of the System or in
this Agreement to any third party (including an affiliate) without the prior written consent of all
other Owners, which consent shall not be unreasonably withheld or delayed. Any assignment by
Fayetteville not permitted under this Section 18.1 shall be void ab initio.
18.2. Assignment by TPI. TPI shall not assign its interests in this Agreement,
nor any part thereof, without Fayetteville's prior written consent, which consent shall not be
unreasonably withheld or delayed; provided that TPI may (i) make an assignment to an affiliate,
(ii) make an assignment through merger, consolidation or sale of all or substantially all of TPI's
stock or assets, and (iii),make an assignment to a capital provider or bank or other financial
institution as part of a financing arrangement. A direct assignee of TPI's obligations hereunder
shall assume in writing, in form and content, reasonably satisfactory to Fayetteville, the due
performance of all TPI's obligations under this Agreement. Fayetteville will provide such
confirmations, releases and novations as are reasonably requested by TPI in -connection with any
such assignment. Any assignment by TPI not permitted under this Section 18.2 shall be void ab
initip..
19. " Construction. The SPSA and this Agreement pertain to the same subject and
object, are in pari materia, and shall be construed consistently with reference to one another.
20: , .: Miscellaneous Provisions. The Miscellaneous Provisions in Section 16 of the
SPSA-are incorporated by reference herein, as if the same were restated herein, word for word.
[THE REMAINDER OF THIS PAGE=HIA:S BEEN INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as of the
date set forth above.
TODAY'S POWER, IN
Name: Michael W. enderson
Title: President p
Dated:.Tl,ct�
CITY
In
Title: Mayor
Name: Sondra Smith
Title: City Clerk
Dated:
SOLAR POWER SERVICES AGREEMENT
(Fayetteville East Wastewater Treatment Plant Proiect)
PREAMBLE
This SOLAR POWER SERVICES AGREEMENT (this "Agreement"), dated as of November 1,
2018, is made by and between Today's Power, Inc. ("Provider"), and City of Fayetteville, Arkansas
("Customer") (each, a "Part "'and collectively, the "Parties"). .
RECITALS
WHEREAS, Provider is in the business of developing, owning and managing renewable energy
resources and selling the energy output from such resources;
WHEREAS, Customer desires to purchase solar services from Provider;
WHEREAS, Provider desires to install, maintain, and operate the System, as defined herein, on the
Project Site, as defined herein;
WHEREAS, Provider desires to sell, and Customer desires to purchase, the Solar Services, as
defined herein; and
WHEREAS, Provider and Customer desire to jointly own the System.
NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
AGREEMENT
1. . Definitions: • Unless otherwise required by the context in which any term appears:
(a) capitalized terms used: in this Agreement,shall have the respective meanings set forth in this Section 1;
(b) the singular shall include the plural. and vice versa; (c) -the words "herein," "hereof and "hereunder"
shall refer to this, Agreement as a: whole and not to�any particular section or subsection hereof; and
(d) references to this Agreement shall include a reference to all exhibits hereto, as the same may be
amended, modified, supplemented or replaced from time to time.
"Agreement" shall mean this Solar Power Services Agreement, including the exhibits hereto.
. "Applicable Law" shall mean, with respect to any Person, any constitutional provision, law, statute,
rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction,
registration, license, franchise, permit, authorization, guideline, governmental approval, consent or
requirement of. any Governmental Authority having jurisdiction over such Person or its property,
enforceable at law or in equity, including the interpretation and administration thereof by such
Governmental Authority.
"Base Service Fee" shall have the meaning set forth in Section 3.1.
"Business Day" shall mean any day other than a Saturday, Sunday or legal holiday for commercial
banks under the laws of the State of Arkansas.
"Claim Notice" shall have the meaning set forth in Section 14.3.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commercial Operation Date" shall mean the date, as determined by Provider on which the System
is (i) functionally complete and operating and (ii) capable of producing Energy.
"Customer" shall have the meaning set forth in the Preamble to this Agreement.
"Customer Default" shall have the meaning set forth. in Section 12.1.
"Customer's Interest" shall have the meaning set forth in Section 5.3.1.
"Effective Date" shall be the date set forth in Preamble to this Agreement.
"Electrical System" shall mean the electrical system (whether or not owned by Customer) that is
connected to the System at the System's service panel or other point of connection between the System and
such electrical system.
"Energy" shall mean the entire generating capacity output of the System, with projected
performance as set forth on Exhibit C attached hereto.
"Environmental Attributes" shall mean any and all claims, credits, benefits emissions reductions,
offsets, renewable energy credits and allowances, howsoever entitled, resulting from the avoidance of the
emission of any gas, chemical or other substance to the air, soil or water, which are deemed of value by
Customer; provided that Environmental Attributes shall not include Environmental Financial Incentives or
Tax Attributes.
"Environmental Financial Incentives" shall mean each of the following financial benefits, rebates
and incentives that is in effect as of the Effective Date or may come into effect in the future: (i) performance-
based incentives under a Governmental Authority's or a utility's program or initiative, state and Federal
incentive tax credits (including income tax credits and investment tax credits arising under the Code), other
tax benefits, and accelerated depreciation, however named or referred to, with respect to any and all fuel,
emissions, air quality, energy generation, or other environmental or energy characteristics, resulting from
the use of solar generation or the avoidance of the emission of any gas, chemical or other substance into the
air, soil or water attributable to the sale of Energy generated by the System; (ii) all reporting rights with
respect to such incentives; and (iii) all Rebates, provided that Environmental Financial Incentives shall not
include Environmental Attributes.
"Expiration Date" shall have the meaning set forth in Section 11.1.
"Extension Period" shall have the meaning set forth in Section 11.2.
"Force Majeure Event" shall mean, when used in'connection with the performance of a Party's
obligations under this Agreement, any act or event (to the extent not caused by such Party or its agents,.
employees or representatives) which is unforeseeable, or being foreseeable, unavoidable and outside the
control of the Party which invokes it, and which renders said Party unable to comply totally or partially
with its obligations under this Agreement. In particular, a Force Majeure Event shall be considered to
include, without limitation, any of the following events:
(a) war, riot, acts of public enemy or other civil disturbance;
(b) acts of God, including but not limited to, storms, floods, lightning, earthquakes,
hailstorms, ice storms, tornados, typhoons, hurricanes, landslides, volcanic
eruptions, range or forest fires, and objects striking the earth from space (such as
N.
meteorites), sabotage or destruction by a third party of facilities and equipment
relating to the performance by the affected Party of its obligations under this
Agreement (except that weather events of a nature reasonably anticipated to occur
at the Project Site, including those.which affect the.insolation of the site (for
example, cloudy days, rain or other usual and ordinary weather events), shall not
be considered a Force Majeure Event); and
(c) strikes, walkouts, lockouts or similar .industrial or labor actions or disputes.
"Governmental Authority" shall mean any federal, state, regional, county, town, city, or municipal
government, whether domestic or foreign, or: any department; agency, bureau, or other administrative,
regulatory or judicial body of any such government including, without limitation, any governmental or
quasi -governmental entity or independent system operator or regional -transmission operator.
"Indemnified Party" shall have the meaning set forth in Section 14.3.
"Indemnifying Party" shall have the meaning set forth in Section 14.3.
"Indemnity Amount" shall have the meaning set forth in Section 15.3
"Insolvency Event" shall mean (a) any case, action or proceeding before any court or other
Governmental Authority relating to bankruptcy; reorganization, � insolvency, liquidation, receivership,
dissolution, winding -up or relief of debtors or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors; or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors.
"Insurance Proceeds" shall have the:meaning set forth in Section 10.2.
"Interconntection Point" shall have the meaning set forth in Section 5.3.4.
``Lease" shall have the meaning set forth in Section 4.1.
"Liens" shall have the meaning set forth in Section 8.1.2.
"MACRS" shall have the meaning set forth in Section 15.1
"Maintenance" shall mean the ordinary upkeep of the System, including testing the performance of
the solar panels and inverters, checking the condition of°the racking -system, and making any minor
adjustments or undertaking any other activities necessary to ensure that the System is in good working
order. Maintenance shall not include Repairs:"
"Meter" shall have the meaning set forth in Section 6.3.
. "Monthly Period"'shall mean the period commencing.owthe Commercial Operation Date and
ending on the las;:day of.the,calendar month: in 'which;the Commercial Operation Date occurs, and;
thereafter, al I subsequent one (1) -calendar month periods during the Term.
"PaM" or "Parties" shall have the meaning set forth in the Preamble to this Agreement.
"Payment Date" shall mean the first Business Day of each month.during the Term.
"Person" shall mean any individual, corporation, partnership, company, joint venture, association,
trust, unincorporated organization, firm or other entity, or a Governmental Authority.
"Proiect Site" shall mean that portion of the Property where the System is physically located, as
more fully described in Exhibit B attached hereto.
"Prope " shall mean the land/property located at Fayetteville, Arkansas, the legal description of
which is set forth in Exhibit A attached hereto.
"Provider" shall have the meaning set forth in the Preamble to this Agreement. For purposes of
access rights and other rights necessary for Provider to perform its obligations hereunder, the term
"Provider" shall include Provider's authorized agents, contractors and subcontractors.
"Provider Default" shall have the meaning set forth in Section 12.2.
"Rebates" shall mean any and all Governmental Authority or utility rebates or other funding offered
for the development of photovoltaic systems.
"Repairs" shall mean the repair or replacement of any equipment or component of the System,
including the racking system, where such equipment or component is broken, non-performing or materially
underperforming.
"Restoration Work" shall have the meaning set forth in Section 10.2.
"Service Fee" shall have the meaning set forth in Section 3.
"Solar Services" shall mean the Energy purchased by Customer pursuant to the terms and
conditions of this Agreement.
"Systern" shall mean a solar power plant with a total generating capacity of 5,000 Kilowatts AC
nominal located -on the Project Site and shall include, without limitation, the components described in
Exhibit C.
"Tax Attributes" shall mean all investment credits, production tax credits, income tax credits and
similar tax attributes.
"Tax Benefit Loss" shall have the meaning set forth in Section 15.2
"Tax Benefits" shall have the meaning set forth in Section 15.1
"Term" shall have the meaning set forth in Section 11.1.
"Termination Date" shall have the meaning set forth in Section 1 I. I.
"Transfer Taxes" shall have the meaning set forth in Section 3.2.
"Unforeseen Circumstance" shall mean any act, event or condition that has, or may reasonably be
expected to have, a direct material adverse effect on the rights or the obligations of the parties under this
Agreement, or a direct material adverse effect on the System or its operation, if such act, event or condition
is beyond the reasonable control of Provider. Unforeseen Circumstances include, but are not limited to: (i)
Force Majeure Events (but excluding strikes, walkouts, lockouts or similar industrial or labor actions or
disputes), (ii) court orders and other legal process, (iii) loss of necessary permits, if not the result of either
party's action, (iv) changes in law affecting the permits for, or operation of, the System (for example, new
environmental requirements), but not changes in tax law, (v) loss of necessary utilities for reasons other
than Provider's fault, (vi) unknown subsurface conditions at the Project Site or the Property (including the
presence of hazardous waste), (vii) condemnation, and (viii) the failure of any subcontractor or supplier,
4
other than a subsidiary or affiliate of Provider, to furnish service, supplies or equipment on the dates agreed
to if such subcontractor's or supplier's failure so to perform is due to an Unforeseen Circumstance.
2. Purchase and Sale of Solar Services. Customer agrees to purchase and accept from
Provider, and Provider agrees to sell and deliver to Customer, one hundred percent (100%) of the Solar
Services during each Monthly Period of the Term in accordance with the terms and conditions set forth
herein. Customer acknowledges and agrees that it is required to take and/or pay for all the Solar Services
produced by the System. Customer's purchase of Solar Services does not include Environmental Financial
Incentives or Tax Attributes, all of which shall be retained and owned by Provider.
Price and Payment.
3.1 Price. Customer shall pay Provider for the Solar Services provided pursuant to the
terms of this Agreement at the'service fee rates set forth in Exhibit D ("Base Service Fee") and on the
Payment Dates, plus any additional amount required pursuant to Section 3.2 (collectively, the "Service
3.2 Taxes. Customer shall pay and be responsible for all sales, use, excise, transfer
and other similar taxes ("Transfer- Taxes"), but excluding in all events taxes. based on or measured by net
income, that are imposed by any taxing authority arising out of or with respect to the purchase or sale of
the Solar Services (regardless of whether such Transfer Taxes are imposed -on Provider or Customer),
together'with any interest, penalties or additions to tax payable with respect to such Transfer Taxes.
Provider will pay and be responsible for any sales or use tax imposed with respect to Provider's acquisition
and installation of the System. .
3.3 Billing and Pa yment. Billing and,payment for the Solar Services sold and
purchased under this Agreement and any other amounts due and payable hereunder shall be as follows:
3.3.1 Billin . All SolavServices delivered by Provider to Customer from the
System shall be metered and recorded at the delivery point using a Meter,as set forth in Section
6.3. The Metertused for metering and recording Solar Services shall.be furnished; installed, owned,
maintained, inspected, tested, -cal ibratedand read by Provider. Provider shall test and calibrate the
Meter from time to time. Customer shall receive reasonable advance notice of any Meter test and
shall have the right to have a representative present at all Meter tests. By the tenth (10`x') day of
each calendar month during the Term, Provider shall provide metered information to Customer
regarding the Solar Services delivered to Customer during the previous month (the "Provider
Billing")
3.3.2 Payments. For each Monthly Period during the Term, Customer shall pay
to Provider the amount due to Provider in U.S Dollars on the Payment Dates pursuant to Provider
Billing.
3.3.3 Late Payments. Any payment not made within five (5) days of the
applicable Payment Date shall bear interest from the date on which such payment was required to
have been made through and including the date such payment is actually received by Provider.
Such interest shall accrue at a -rate equal to the lesser of ten percent (10%) per annum or the highest
level of interest permitted by applicable law.
4. Property.
4.1 Ownership of Property. Customer represents, warrants and covenants that
Customer has lawful title to the Property and grants to Provider an easement across and through the Property
and leases to Provider the Project Site, pursuant to a separate Lease and Easement Agreement (the "Lease"),
free and clear of all liens and encumbrances except as set forth on Exhibit E attached hereto.
4.2 Access to Project Site.
4.2.1 Customer shall not initiate, conduct or permit activities on, in or about the
Property or the Project Site that could cause damage, impairment or otherwise adversely affect the
System.
4.2.2 Customer shall implement and maintain reasonable and appropriate rules
and security measures on the Property to prevent Customer's employees, invitees, agents,
representatives and other unrelated third parties from having access to the Project Site or the
System.
Installation, Ownership and Approval of the System.
5.1 Installation. Provider will cause the System to be designed, engineered, installed
and constructed substantially in accordance with the terms of this Agreement and Applicable Law. Provider
shall procure all materials and equipment for the System installation and maintain the same at the Project
Site or Property. Provider shall perform all installation work at the Project Site in a manner that reasonably
minimizes inconvenience to and interference with Customer's use of the Property to the extent
commercially practical.
5.2 Permits and Utility Approvals. Provider shall have the primary responsibility for
preparing applications and obtaining all pen -nits, licenses and approvals required for the construction and
installation of the System under this Agreement. Customer agrees to obtain any siting or other necessary
permits, licenses and approvals in connection with the construction, operation and maintenance of the
System on the Property, including the submission of applications for interconnection of the System with
the local electric utility. Utility approval is the responsibility of Customer. Customer shall apply to the
local' utility for a meter point at the System through which net metering and meter aggregation can be
accomplished. Customer is responsible for obtaining a waiver of the 300 kW net metering facility limit
from the Arkansas Public Service Commission. Customer shall not make any material changes to its
electrical equipment at the Property after the date on which the applicable utility interconnection application
is submitted unless any such changes, individually or in the aggregate, would not adversely affect the
approval by such utility of such interconnection.
5.3 System and Output Ownership.
5.3.1 Title to System. Provider shall at all times retain title to ninety-nine
percent (99%) of the System and be the legal and beneficial owner of said percentage of the System,
including the right to any and all Environmental Financial Incentives and Tax Attributes, which
include, without limitation, Provider's right to retain, sell, transfer or assign the same. Customer
shall be transferred title to one percent (M) of the System after construction but before the
Commercial Operation Date,(the "Customer's interest"). The System shall (i) remain personal
property and shall not attach to or be deemed a part of, or fixture to, any Property, and (ii) at all
times retain the legal status of personal property as defined under Article 9 of the applicable
Uniform Commercial Code. Customer warrants and represents that it shall keep the System free
from all liens, claims and encumbrances of its lenders and any other third parties (other than those
created by Provider or its creditors). The Parties intend that neither Customer nor any party related
to Customer shall acquire the right to operate the System or be deemed to operate the System for
purposes of Section 7701(e)(4) of the Code and any related regulatory and administrative
pronouncements, so that this Agreement is treated as a service agreement and not a lease and the
terms of this Agreement shall be construed consistently with the intention of the Parties. The
M
Parties agree that this Agreement constitutes a service agreement within the meaning of Section
7701(e)(4) of the Code. Customer shall be entitled to receive all Renewable Energy Credits earned
by the System in lieu of any Environmental Financial Incentives and Tax Attributes.
5.3.2 Ener" -Delivery. All obligations related to delivering Energy from the
System to the Customer will begin upon the Commercial Operation:Date. In no event shall Provider
have any liability to Customer for deliveries of Energy prior to the Commercial Operation Date., .
5.3.3 Ownership of Environmental Attributes, Environmental Financial
Incentives and Tax Attributes, Assistance.., All Environmental Financial Incentives and Tax
-Attributes available in connection with the System are owned by Provider. Customer shall take all
reasonable measures to assist Provider in obtaining all Environmental Financial Incentives and Tax
Attributes currently available or subsequently made available in connection with'the System,,at
Provider's expense. If Customer fails to act in goo& faith in completing documentation or taking
actions reasonably requested by Provider, and such failure results in the loss of an Environmental
Financial Incentives or Tax Attributes, Customer shall reimburse Provider for the full amount of
such lost Environmental Financial Incentives or Tax Attributes. Notwithstanding the foregoing,
Customer, as owner of the Customer's Interest, shall be entitled to all Environmental Attributes
produced by the System. Provider shall cooperate with Customer; at Customer`s cost, take all
actions requested by Customer that are reasonable and necessary:to assist Customer in registering,
and maintaining registration for, such Environmental Attributes. Upon the reasonable request of
Customer from time to time, and at Customer's expense, (i) Provider shall deliver or cause to be
delivered to Customer such attestations/certifications of Environmental Attributes as may be
reasonably requested by Customer to comply with any certification system or program for such
Environmental Attributes, and (ii) Provider shall provide full cooperation in connection with
Customer's registration and certification of such Environmental. Attributes.
5.3.4 Risk of Loss-, Exclusive Control. As between the Parties, Provider will be
deemed to be in exclusive control -(and responsible for any -property damage or injuries to persons
caused thereby) of the:Energy tip to but excluding the point where the System is interconnected to
an Electrical System (the "Interconnection Point"). However, the Customer will bear the risk of
loss of any Renewable Energy Credits as a result of any interruption in the Energy while in the
exclusive control of the Provider. Customer will be deemed to be in exclusive control (and
responsible for any property damage or injuries to persons caused thereby) of the Energy at and
after the Interconnection Point._ Risk of loss related to Energy will transfer from Provider to
Customer at the Interconnection Point.
6. Operation and Maintenance of System.
6.1 O&M Work Phase/Datashare. Provider, at its sole cost and expense, shall provide
or cause a third party to provide all operation, monitoring and Maintenance services for the System during
the Term. Provider shall properly maintain, pay for and provide access to necessary phone, data or other
communications lines to record electrical output of the System. If, in the sole opinion of the Provider
following consultation with Customer, Repairs are needed to the System in order for it to perform as
designed, Provider shall be responsible for performing, or causing a third party to perform, such Repairs.
6.2 Malfunctions and Emergencies. Each of Customer and Provider shall cooperate
with and notify the other Party within twenty-four (24) hours following the discovery of any material
malfunction in the operation of the System. Provider and Customer each shall notify the other Party
immediately upon the discovery of an emergency condition in the System.
7
6.3 Metering. Provider shall install or cause to be installed a meter ("Meter") on the
Property for the measurement of Solar Services provided to Customer from the System on a continuous
basis and shall provide Customer access to the Meter and to all information generated thereby.
6.4 Outages. Provider shall be entitled to suspend delivery of Energy to Customer for
the purpose of maintaining, repairing or making capital improvements to the System and such suspension
of service shall not constitute a breach of this Agreement, provided that Provider shall use commercially
reasonable efforts to minimize any interruption in service to Customer.
6.5 Curtailment. Customer shall have the right to notify Provider, by telephonic
communication, to curtail the full Energy production of and/or deliveries from the System for any reason
in Customer's sole discretion, and Provider shall comply with such curtailment order as soon as reasonably
practicable. However, if Customer requests curtailment, Customer must pay Provider for production that
the system would have produced if not curtailed.
6.6 No Performance Guarantee. Provider makes no performance guarantee with
respect to the System.
7. Representations and Warranties. In addition to any other representations and warranties
contained in the Agreement, each Party represents and warrants to the other Party as of the Effective Date
that:
(a)
it is duly organized, validly existing and in good standing under the laws
of the state of its formation;
(b)
it has the full right and authority to enter into, execute, deliver and perform
its obligations under this Agreement;
(c)
it has taken all requisite corporate or other action to approve the execution,
delivery and performance of this Agreement;
(d)
this Agreement constitutes a legal, valid and binding obligation
enforceable against such Party in accordance with its terms;
(e)
to its knowledge there is no litigation, action, proceeding or investigation
pending or threatened on any basis before any court or other Governmental
Authority by, against, affecting or involving any of its business, properties
or assets (including, without limitation, with respect to Customer, the
Project Site or any interest therein) that would affect its ability to perform
its obligations under this Agreement; and,
(f)
its execution of and performance under this Agreement shall not violate
any existing Applicable Law or create a default under any agreement to
which it is a party.
8. Covenants.
8.1 Provider's Covenants. As a material inducement to Customer's execution and
delivery of this Agreement, Provider covenants and agrees to the following:
8.1.1
Permits and Approvals. Provider shall use commercially reasonable
efforts to assist Customer in fulfilling Customer's responsibilities under Sections 5.2 and 8.2.2.
8
8.1.2 Provider Records. Provider shall maintain and keep complete and accurate
records of its operations hereunder and shall maintain such data as may be necessary to determine
with reasonable accuracy any item relevant to this Agreement.
8.1.3 Removal of Liens. In connection with the construction of the System on
the Project Site or the financing of the System, Provider shall not directly or indirectly cause, create,
incur, assume, or suffer to exist any mortgage, pledge, lien (including mechanics' or materialmen's
lien), charge, security interest, encumbrance or claim rof any nature ("Liens") on or with respect to
the Project Site or the Property; provided that this Section shall not limit Liens on the System and
related assignments of the rights of Provider in the Lease and related easements. If Provider
breaches its obligations under this Section, it shalt .immediately notify Customer in writing and
shall promptly cause such Lien to be discharged and released of record from the Project Site or the
Property without cost to the Customer, and shall defend and indemnify Customer against all costs
and expenses (including reasonable attorneys' fees) incurred in discharging and releasing such
Lien.
8.2 Customer's Covenants. As a.material inducement to Provider's execution of this
Agreement, Customer covenants and agrees as follows:
8.2.1 Liens. Customer shall not directly or indirectly cause, create, incur,
assume or suffer to exist any Liens on or with respect to the System or any interest therein.
Customer also shall pay promptly before a fine or:penalty may: attach to the System any taxes,
charges or fees of whatever type of any relevant,Goveriimental Authority for which Customer is
responsible under Section 12: If Customer breaches its. obligations under this Section, it shall
immediately notify Provider: in writing, shall promptly cause such. Lien to be discharged and
released of record without cost to Provider, and shall reimburse Provider for all costs'and expenses
(including reasonable attorneys' fees and court costs at trial and on appeal) incurred in discharging
and releasing such Lien.
8.2.2 Consents and Approvals: Customer shall obtain and maintain, and secure
and deliver to Provider copies of, al 1. consents, `approvals, permits, licenses,. and authorizations and
inspections from relevant Governmental Authoeities; utility personnel, and other agreements and
consents related to the operatiowof the System, performance `of Customer's obligations and the
rights granted by Customer hereunder, and that are required by the terms, conditions or provisions
ofany restriction or any agreement or instrument to which. Customer is a party or by. which
Customer is bound, including completing applications for, interconnection with Customer's local
electric utility.
8.2.3 Maintenance; of Interconnection.. Customer shall ensure that all of the
facilities to which Energy is delivered hereunder remain interconnected -to the Electrical System
during all periods covered by this Agreement through the Expiration Date -or Termination Date (as
applicable).
9. Insurance Requirements.
9.1 Provider's Insurance. During all periods covered by this Agreement through the
Expiration Date or Termination Date (as applicable), Provider shall maintain, at its sole expense, coverage
limits of $10 million combined, commercial general liability insurance and.umbrella Iiability and "all risk"
property insurance covering the System installed at the Project Site: Provider, if it has employees, shall
also maintain at all times during the Term workers' compensation insurancecoverage in accordance with
the applicable requirements of federal and state law and automobile liability insurance coverage. Provider
shall deliver to Customer certificates of insurance evidencing such coverage and naming Customer as an
additional insured. Such insurance shall be on an occurrence basis and shall be primary coverage without
right of contribution from any insurance of Customer.
9.2 [Reservedl.
10. Force Maieure. Casualty.
10.1 Force Maieure Events. If either Party is prevented from or delayed in performing
any of its obligations under this Agreement by reason of a Force Majeure Event, such Party shall notify the
other Party in writing as soon as practicable after the onset of such Force Majeure Event and the
performance of its obligations under this Agreement shall be excusably delayed to the extent that such
Force Majeure Event has interfered with such performance. The Party whose performance under this
Agreement is prevented or delayed as the result of a Force Majeure Event shall use reasonable efforts to
remedy its inability to perform. If a Party's failure to perform its obligations under this Agreement is due
to a Force Majeure Event, then such failure shall not be deemed a Provider Default or a Customer Default,
as the case may be. Notwithstanding anything in this Section 10 to the contrary, no payment obligation of
Customer under this Agreement may be excused or delayed as the result of a Force Majeure Event. In case
a Force Majeure Event continues for two (2) years or more, either Party may terminate this Agreement by
written notice to the other and in such an event, neither party shall have liability to the other for any damages
as a result of such termination.
10.2 Casualty. If the System is damaged or destroyed by fire, theft or other casualty,
Provider shall proceed promptly to establish and collect all valid claims which may have arisen against
insurers or others based upon any such damage or destruction (the "Insurance Proceeds"). Provider, using
the Insurance Proceeds, shall within one hundred eighty (180) calendar days after the Insurance Proceeds
become available to Provider (or if such restoration cannot be reasonably accomplished within such 180
day period, within such time period as is reasonably necessary after such 180 day period to complete such
restoration so long as such restoration is commenced within such 180 day period and is pursued with
reasonable diligence during and after such period), repair, restore, replace or rebuild the System to
substantially the same condition as existed immediately prior to the damage or destruction, assuming the
System was in the condition and repair required to be maintained in accordance with the terms herein, ands
shall be made, or caused to be made and substantially in accordance with the originally approved plans fori)
the System (the"Restoration Work"). Notwithstanding the foregoing, in the event of substantial damage
or destruction by casualty which damage Provider reasonably determines is such that the reconstruction of
an economically viable System is not practicable or economical, for reasons Including but not limited to
(a) the Insurance Proceeds made available to Provider are not sufficient to repair such loss or damage, or
(b) such reconstruction cannot be carried out under Applicable Laws, including then -current building or
zoning laws, then Provider shall have the right to terminate this Agreement at no liability to Provider. If
Provider elects to reconstruct the System, and if the Insurance Proceeds received by Provider are
insufficient to pay the entire cost of the Restoration Work, then the amount of any such deficiency shall be
borne solely by Provider. If the Insurance Proceeds received by Provider exceed the entire cost of the
Restoration Work, then such excess proceeds shall be retained by the Parties according to their ownership
percentages.
11. Term; Termination.
11.1 Term. The initial term of this Agreement (the "Term") shall commence on the
Effective Date and shall expire on the date (subject to extension as set forth in Section 11.2, below, the
"Expiration Date") that is twenty (20) years after the Commercial Operation Date, unless and until
terminated earlier pursuant to this Agreement (the date of any such termination, the "Termination Date").
Provided, during all fiscal years succeeding Customer's current fiscal year, Customer's payment obligations
and any other financial obligations hereunder shall be subject to the availability of Customer's revenues in
excess of Customer's expenses, as provided in Section 11.6.
10
11.2 Extension of Term. Not less than two, hundred ten (2 10) days prior to the
Expiration Date, Provider shall notify. Customer of its reasonable determination of the remaining useful life
of the System and the Service Fee that would be payable during the Extension Period (as defined below),
such Service Fee to be based on the fair market:value ofthe System at the timeof such determination. Upon
prior written notice to Provider at least one hundred eighty (180)..days prior to the Expiration Date,
Customer shall have the option to extend the Term for an additional period equal to the lesser of (a) five
(5) years,and (b) the number of days equal to 80% of the then remaining useful life of the system as of the
original Expiration Date, as determined by Provider (the: "Extension Period"). Upon Customer's written
notice to Provider of its election of the Extension Period, the Expiration Date°shall be at the last date of the
Extension Period. Notwithstanding any provision to the contrary in this Section.11.2, should Provider enter
into a sale and lease -back. transaction regarding :its:interest in the System with.a third party for purposes of
financing, any extension rights of Customer hereunder shall in all respects.be consistent; and not in conflict,
with the extension rights, if any, of Provider as set out in,the System lease documents between Provider
and such third party. In such event, Provider and Customer shall agree on changes to. this Section 11.2 to
achieve such consistency, and if Provider and Customer are unable to so agree, Customer shall not have
any extension rights hereunder.
11.3 Removal of .System.. Upon the Expiration Date (including if extended by an
Extension Period); Provider shall have the right to remove all of the tangible personal propertycomprising
the System from the Project Site, at.a cost that is borne solely by Provider, or may continue to operate the
System in place.and provide the Solar Services to other. persons for the term of the,Lease.
11.4 Payment of Termination Value 'on Termination .Date. , In the event that Customer
shall terminate the agreement other. than as a result of aTrovider Default or other than as a result of the
Customer's fiscal deficit, or this Agreement shall be -terminated for reasons attributable- to Customer
including.a' Customer Default prior -to; the Expiration Date, Customer•shall pay to Provider the Termination
Value; less the value of the Customer's Interest;: plus any other unpaid amounts then due and outstanding
under. this Agreement. The Parties agree that actual damages to Provider in the event of.a termination of
this Agreement would be difficult to ascertain and the applicable Termination Value is a reasonable
approximation of the damages suffered by Provider.
11.5 Provider Termination. Provider shall have the right, upon written notice, to
terminate this Agreement for cause, which shall include: a Customer Default.
11.6 Customer: Termination for Fiscal Deficit; Customer's payment obligations and any
other financial obligations hereunder, for fiscal years succeeding Customer's current fiscal year shall be
subject to the availability of Customer's revenues in excess of,.Customer:'s expenses.: During the thirty (30)
days. before the commencement of each year; Customer may terminate its obligations,under this Agreement
by written notice:to Provider if the Customer's expenses exceed its revenues. Such notice shall constitute a
"Customer Default" for which Provider shall have all remediesprovided herein, including but not limited
to the remedies in Section 13.2, with the exception of the collection of the Termination Value, remedies in
the other agreements between the Parties, and remedies at:law.
12. Defaults.
12.1 Customer Default.. The occurrence at any time of any of the following events shall
constitute a "Customer Default":
12.1.1 Failure to Pay: The failure of Customer to pay any amounts owing to
Provider on or before the day following the date on which such amounts are due and payable under
the terms of this Agreement and Customer's failure to cure each such failure within three (3)
Business Days after Customer receives written notice of each such failure from Provider;
12.1.2 Failure to Perform Other Obligations. Unless due to a Force Majeure
Event excused by Section 10, the failure of Customer to perform or cause to be performed any other
obligation required to be performed by Customer under this Agreement, or the failure of any
representation and warranty set forth herein to be true and correct in any material respect as and
when made; provided, however, that if such failure by its nature can be cured, then (except for the
obligation to allow Provider access to the System in the event repair or emergency service is
required) Customer shall have a period of thirty (30) days after receipt of written notice from
Provider of such failure to cure the same and a Customer Default shall not be deemed to exist
during such period; provided, further, that if Customer commences to cure such failure during such
period and is diligently and in good faith attempting to effect such cure, said period shall be
extended for sixty (60) additional days; provided, finally, that in any event if such failure shall
continue for at least five (5) days and shall result in lost revenue to Provider, Provider shall be
entitled to reasonably estimate the amount of revenue that would have been obtained and shall
invoice Customer therefor;
12.1.3 Bankruptcy. Etc. (a) Customer admits in writing its inability to pay its
debts generally as they become due; or (b) Customer files a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state, district or territory thereof, or (c) Customer
Makes an assignment for the benefit of creditors; or (d) Customer consents to the appointment of a
receiver of the whole or any substantial part of its assets; or (e) Customer has a petition in
bankruptcy filed against it, and such petition is not dismissed within ninety(90) days after the filing
thereof; or (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a
receiver of the whole or any substantial part of Customer's assets, and such order, judgment or
decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof;
or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent
jurisdiction shall assume custody or control of the whole or any substantial part of Customer's
assets and such custody or control is not terminated or stayed within ninety (90) days from the date
of assumption of such custody or control.
12.2 Provider Default. The occurrence at any time of the following events shall
constitute a "Provider Default":
12.2.1 Failure to Perform Obligations. Unless due to a Force Majeure Event
excused by Section 10, the failure of Provider to perform or cause to be performed any obligation
required to be performed by Provider under this Agreement or the failure of any representation and
warranty set forth herein to be true and correct in any material respect as and when made; provided,
however, that if such failure by its nature can be cured, then Provider shall have a period of thirty
(30) Business Days after receipt of written notice from Customer of such failure to Provider to cure
the same and a Provider Default shall not be deemed to exist during such period; provided, further,
that if Provider commences to cure such failure during such period and is diligently and in good
faith attempting to effect such cure, said period shall be extended for a period of time reasonably
required to accomplish such cure;
12.2.2 Bankruptcy, Etc. (a) Provider admits in writing its inability to pay its debts
generally as they become due; or (b) Provider files a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law or statute of the United
States of America or any state, district or territory thereof; or (c) Provider makes an assignment for
the benefit of creditors; or (d) Provider consents to the appointment of a receiver of the whole or
any substantial part of its assets; or (e) Provider has a petition in bankruptcy filed against it, and
such petition is not dismissed within ninety (90) days after the filing thereof; or (f) a court of
competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or
any substantial part of Provider's assets, and such order, judgment or decree is not vacated or set
12
aside or stayed within ninety (90) days from the date,of entry thereof; or (g) under the provisions
of any other law for the relief or, aid of debtors,�any court of competent jurisdiction shall assume
custody or control of the whole or any substantial part of Provider's assets and such custody or
control is not terminated or stayed within ninety (90) days from the date of assumption of such
custody or control.
13. Remedies Following Default.
13.1 . Customer's Remedies Upon Provider Default. If a Provider Default as described
in. Section,12.2 has occurred and has not been cured as provided -therein, Customer may either (a) continue
this Agreement, reserving all remedies for breach of contract or (b) terminate this Agreement by written
notice and this Agreement shall be of no further force or effect as of the,date the termination notice is given.
In.either event,.Customer may collect- from - Provider all damages and other remedies allowed by law;
"provided; however; Provider's liability hereunder as liquidated damages shall.be in all respects limited to,
and shall not exceed; amounts paid to it hereunder during the most recent twenty- four (24) -month period:
13.2 Provider's Remedies Upon Customer -Default. If a Customer Default as described
in Section 12.1 has occurred, Provider may (i) terminate this Agreement as provided in Section 11.5, above,
and Provider shall thereafter .havethe right. to .(A) abandon :in placet on the Project Site all the. tangible
property -comprising -the System or (B).remove all.of thetangible property comprising the Facility from the
Project Site, or (ii).continue<to.operate,the.Facility in place..and sell the Energy to other persons for the term
of the Lease. In all such events, Provider additionally may collect from Customer all damages and other
remedies allowed by law, except as limited by Section 11.6 above.
13.3 No Consequential Damages. NOTHING4N THIS AGREEMENT IS INTENDED
TO CAUSE EITHER PARTY TO BE, AND NEITHER PARTY:SHALL BE, LIABLE TO THE OTHER
PARTY FOR ANY LOST BUSINESS, LOST PROFITS OR REVENUES=FROM.OTHERS OR OTHER
INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ALL CLAIMS
FOR WHICH ARE HEREBY IRREVOCABLY, WAIVED;BY- CUSTOMER AND PROVIDER.
NOTWITHSTANDING THE FOREGOING, NONE OFTHE PAYMENTS FOR ENERGY ACTUALLY
RECEIVED.OR ANY OTHER AMOUNT.SPECIFIED AS PAYABLE BY CUSTOMER TO PROVIDER
UNDER THE TERMS OF THIS AGREEMENT UPON. THE:TERMINATION OF THIS AGREEMENT
SHALL BE DEEMED CONSEQUENTIAL-DAMAGES-
13.4
ONSEQUENTIAL-DAMAGES13.4 Effect of Tenn ination of Agreement. Upon the Termination Dateor the Expiration
Date, as applicable, any amounts then- owing. by a Party. to the other: Partyshall. become immediately due
and payable and the. then future obligations of Customer and .Provider under this Agreement shall be
terminated (other than the indemnity obligations set forth in Section 14). Such termination shall not relieve
either Party from obligations accrued prior to the Termination Date or Expiration Date, as applicable
14. Indemnification.
14.1 Indemnification by Provider. Provider shall fully indemnify, save harmless and
defend Customer from and against any and. all costs; claims; °and expenses incurred by Customer in
connection with or arising from any claim,by a third. party for physical damage to or physical destruction
of property, or death of or bodily injury to any Person, but only to the extent caused by (a) the negligence
or willful misconduct of Provider or its agents or employees or others under,Provider's control or (b) a
Provider Default; provided, however, that Provider's obligations pursuant to this Section 14.1 shall not
extend to claims, demands, lawsuits or actions for liability to the°extent attributable to the negligence or
willful misconduct of Customer; provided further, however, that nothing in this Section is intended to
modify the limitation of Provider's liability set forth in Sections 13.3 above.
14.2 [Reserved].
13
14.3 Notice ofCIaims. Any Party seeking indemnification or making a claim hereunder
(the "Indemnified Party") shall deliver to the other Party (the "Indemnifying Party") a notice describing the
facts underlying its claim and the amount of such claim (each such notice a "Claim Notice"). Such Claim
Notice shall be delivered promptly to the Indemnifying Party after the Indemnified Party receives notice
that an action at law or a suit in equity has commenced; provided, however, that failure to deliver the Claim
Notice as aforesaid shall not relieve the Indemnifying Party of its obligations under this Section, except to
the extent that such Indemnifying Party has been prejudiced by such failure.
14.4 Defense of Action. If requested by an Indemnified Party, the Indemnifying Party
shall assume on behalf of the Indemnified Party, and conduct with due diligence and in good faith, the
defense of such Indemnified Party with counsel reasonably satisfactory to the Indemnified Party; provided,
however, that if the Indemnifying Party is a defendant in any such action and the Indemnified Party believes
that there may be Iegaldefenses available to it that are inconsistent with those available to the Indemnifying
Party, the Indemnified Party shall have the right to select separate counsel to participate in its defense of
such action at the Indemnifying Party's expense. If any claim, action, proceeding or investigation arises as
to which the indemnity provided for in this Section 14 applies, and the Indemnifying Party fails to assume
the defense of such claim, action, proceeding or investigation after having been requested to do so by the
Indemnified Party, then the Indemnified Party may, at the- Indemnifying Party's expense; contest or, with
the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld,
settle such claim, action, proceeding or investigation. All costs and expenses incurred by the Indemnified
Party in connection with any such contest or settlement shall be paid upon demand by the Indemnifying
Party.
14.5 Survival of Provisions. The provisions of this Section 14 shall survive the
expiration or termination of this Agreement.
15. Special Tax Indemnity
15.1 Assumptions. This Agreement was entered into on the assumption that the System
will be eligible for such deductions, credits and other tax benefits as are provided by.federal, state and local
laws to an owner of property ("Tax Benefits") including, without limitation: (a) Modified Accelerated Cost
Recovery System ("MACRS") deductions pursuant to Section 168 of the Code in amounts based upon a
tax basis equal to cost of the Equipment and the respective Recovery Class (depreciable life); (b) all
deductions for interest on any indebtedness incurred to finance any Item of Equipment; (c) treatment of all
items of income and deduction relating to this Agreement as coming from sources wholly within the United
States, and (d) the renewable energy tax credit pursuant to Section 48 of the Code based on qualifying use
for the period of time necessary thereunder for full utilization of the tax credit.
15.2 Provider's Obligation to Advise Customer. Provider shall have an obligation to
advise Customer regarding the obligations on Customer for Provider to receive the maximum amount of
Tax Benefits.
15.3 Payment of Indemnity Amount. If, as a result of any intentional act or omission
of Customer (other than entering into this Agreement) that violates or contradicts Provider's advice as
required in Section 15.2, Provider (or if Provider has entered into or subsequently enters into a sale-
leaseback of the System, Provider's lessor) shall lose the right to claim, or not be entitled to claim, all or
any portion of the Tax Benefits, or if all or any portion of the Tax Benefit claimed shall be disallowed,
recaptured, reduced or eliminated, in whole or in part, or if the originally contemplated after-tax return is
adversely affected (collectively, "Tax Benefit Loss"),, then Customer shall pay to Provider the "Indemnity
Amount" as hereinafter defined.
15.4 Indemnity Amount. The "Indemnity Amount" as used herein shall equal that
amount which, after deductions of all taxes, interest, additions to tax, penalties, costs, fees and expenses
14
payable by Provider (or Provider's lessor, if applicable) with respect to the receipt thereof, which will permit
such person to receive (on an After -Tax Basis over the Term of this Agreement) the samereturn that such
party would have realized had there not been a Tax Benefit Loss. The Indemnity Amount "shall be calculated
on the assumption that (i) Provider (or Provider's lessor, if applicable) is subject to the maximum Federal
and State Corporate Income Tax Rate with respect to each year, and (ii) but for the Tax Benefit Loss, all
Tax Benefits would be currently utilized. The Indemnity Amount_shall be payable to Provider upon demand
of Provider.
16. Miscellaneous Provisions.
16.1 Notices. All notices, communications and waivers.under this Agreement shall be
in writing and shall be (a) delivered in person, (b) mailed, postage prepaid,.either by,registered or certified
mail, return receipCrequested, (c) sent by reputable overnight express. courier, (d) transmitted byrfacsimile
where confirmation of successful transmission is received from the receiving party's facsimile machine
(such transmission to be effective on the day of receipt if received prior to 5:00 p.m. local time on a Business
Day or in any other case on the next Business Day following the day of transmittal) or (e) transmitted by e-
mail if receipt of such transmission by e-mail. is specifically. acknowledged by the recipient (automatic
responses not being sufficient for acknowledgment), addressed in each case to the addresses'set forth below,
or to any other address either of the Parties shall designate in a written notice to the other Party:
If to Provider: ,
Today's Power, Inc.
P.O. Box 194208
Little Rock AR -72219-4802
Attention: Michael W. Henderson, President
Phone: 501-570-2228
Fax: (501) 570-2928
Email: michael:henderson@aecc,com
With a coRyo:
Today's Power; Inc.
P.O. Box 1194208:
Little Rock -AR 72219-4802
Attention: General Counsel
If to Customer:
City of Fayetteville, Arkansas
113 West Mountain Street
Fayetteville, AR 72701
Attention: Mayor Lioneld Jordan
Phone: (479) 575-8257
Email: mayor@fayetteville-ar.gov
All notices sent pursuant to the terms of this Section 16.1 shall be deemed received (i) if personally
delivered, then on the date of delivery, (ii) if sent by reputable overnight, express courier, then on the next
Business Day immediately following the day sent, or (iii) if sent by registered or certified mail, then on the
earlier of the third (3rd) Business Day following the day sent or when actually received.
15
16.2 Assignment by Customer. Customer shall not assign its interests in this
Agreement, nor any part thereof, without Provider's prior written consent, which consent shall not be
unreasonably withheld or delayed. Any assignment by Customer not permitted under this Section 16.2
shall be void ab initio.
16.3 Assignment by Provider. Provider shall not assign its interests in this Agreement,
nor any part thereof, without Customer's prior written consent, which consent shall not be unreasonably
withheld or delayed; provided that Provider may (i) make an assignment to an affiliate of Provider, (ii)
make an assignment through merger, consolidation or sale of all or substantially all of Provider's stock or
assets, and (iii) make an assignment to a capital provider or bank or other financial institution as part of a
financing arrangement. A direct assignee of Provider's obligations hereunder shall assume in writing, in
form and content reasonably satisfactory to Customer, the due performance of all Provider's obligations
under this Agreement. Customer will provide such confirmations, releases and novations as are reasonably
requested by Provider in connection with any such assignment. Any assignment by Provider not permitted
under this Section 16.3 shall be void ab initio.
16.4 Successors and Assigns. The rights, powers and remedies of each Party. shall inure
to the benefit of such party and its successors and permitted assigns.
16.5 Entire Agreement, This Agreement (including all exhibits attached hereto and
incorporated herein by this reference) represents the entire agreement between the Parties with respect to
the subject matter hereof and thereof and supersedes all prior and contemporaneous oral and prior written
agreements.
16.6 Amendments to Agreement. This Agreement shall not be amended, modified or
supplemented except in a writing executed by both Provider and Customer at the time of such amendment,
modification or supplement.
16.7 Waivers; Approvals. No waiver of any provision of this Agreement shall be
effective unless set forth in writing signed by the Party granting such waiver, and any such waiver shall be
effective only to the extent it is set forth in such writing. Failure by a Party to insist upon full and prompt
performance of any provision of this Agreement, or to take action in the event of any breach of any such
provisions or upon the occurrence of any Provider Default or Customer Default, as applicable, shall not
constitute a waiver of any rights of such Party, and, subject to the notice requirements of this Agreement,
such Party may at any time after such failure exercise all rights and remedies available under this Agreement
with respect to such Provider Default or Customer Default. Receipt by a Party of any instrument or
document shall not constitute or be deemed to be an approval of such instrument or document. Any
approvals required under this Agreement must be in writing, signed by the Party whose approval is being
sought.
16.8 Partial Invalidity. In the event that any provision of this Agreement is deemed to
be invalid by reason of the operation of Applicable Law, Provider and Customer shall negotiate an equitable
adjustment in the provisions of the same in order to effect, to the maximum extent permitted by law, the
purpose of this Agreement (and in the event that Provider and Customer cannot agree then such provisions
shall be severed from this Agreement) and the validity and enforceability of the remaining provisions, or
portions or applications thereof, shall not be affected by such adjustment and shall remain in full force and
effect.
16.9 Industry Standards. Except as otherwise set forth herein, for the purpose of this
Agreement accepted standards of performance within the solar photovoltaic power generation industry in
the relevant market shall be the measure of whether a Party's performance is reasonable and timely. Unless
expressly defined herein, words having well-known technical or trade meanings shall be so construed.
OM
16.10 Counterparts. This Agreement may be executed in counterparts, including by
facsimile transmission, each of which shall be deemed an original and all of which when taken together
shall constitute one and the same Agreement.
16.11 No Third Party Rights. This Agreement is solely for the benefit of the Parties and
their respective permitted successors and permitted assigns, and this Agreement shall not otherwise be
deemed to confer upon or give to any other third party any remedy, claim, liability, reimbursement, cause
of action or other right.
16.12 No Apency. This. Agreement is not intended, and shall not be construed, to create
any association, joint venture, agency relationship or partnership between the Parties or to impose any such
obligation or liability upon either Party. Neither Party shall have any right, power or authority to enter into
any agreement or undertaking for, or act as or be an agent or representative of, or otherwise bind, the other
Party.
16.13 �No Public Utility.: Nothing contained in this Agreement shall be construed as an
intent by Provider to dedicate its property to public use, to provide public utility services, or to subject itself
to regulation as a public utility, an electric utility, an investor owned utility, a municipal utility, generation
company or a merchant power plant otherwise known as an exempt wholesale generator.
16.14 -No Recourse to Aff liates. This Agreement is solely and exclusively between the
Parties, and any obligations created herein on the part of either Party shall be the obligations solely of such
Party. No Party shall have recourse to any parent, subsidiary, partner, member, affiliate, lender, director,
officer or employee of the other Party for performance or non-performance of any obligation hereunder,
unless such obligations were assumed in-writing.by the Person against whom recourse is sought.
16.15 Cooperation .with Financing. Customer acknowledges that Provider may be
financing the System and Customer agrees that it shall reasonably cooperate with Provider and its financing
parties in -connection with such financing, including (a) the furnishing of such information, (b) the giving
of such certificates, and (c) providing such. opinions of counsel and other matters as Provider and its
financing parties may reasonably request; provided, that the foregoing undertaking shall not obligate
Customer to materially change any rights or benefits, or materially increase any burdens, liabilities or
obligations of Customer, under this Agreement (except for providing notices and additional cure periods to
the financing parties with respect to Provider Defaults as a financing party may reasonably request).
16.16 Governing Law. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
UNDER THIS AGREEMENT, IN ALL RESPECTS, ' INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE
OBLIGATIONS .HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ARKANSAS
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
16.17 [Reserved).
16.18 Injunctive Relief. The Parties acknowledge and agree that any violation or breach
of the provisions of this Agreement may result in irreparable. injury to a Party for which a remedy at law
may be inadequate. In addition to any relief at law that may be available to a non -breaching Party for such
violation or breach, and regardless of any other provision contained in this Agreement, such Party shall be
entitled to seek injunctive and other equitable relief and shall not be required to post any bond in connection
therewith.
17
16.19 Cumulative Remedies. Except as set forth herein, any right or remedy of Provider
or Customer shall be cumulative and without prejudice to any other right or remedy, whether contained
herein or not.
16.20 'Headings. The headings in this Agreement are solely for convenience and ease of
reference and shall have no effect in interpreting the meaning of any provision of this Agreement.
16.21 Additional Documents and Actions. Upon the receipt of a written request from the
other Party, each Party shall execute such additional documents, instruments and assurances and take such
additional actions as are reasonably necessary to carry out the terms and intent hereof. Neither Party shall
unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to
this Section 16.22.
17. Estoppel.
Either Party, without charge, at any time and from time to time, within ten (10) Business Days after
receipt of a written request by the other Party, shall deliver a written instrument, duly executed, certifying
to such requesting Party, or any other person, firm or corporation specified by such requesting Party:
(a) That this Agreement is unmodified and in full force and effect, or if there
has been any modification, that the same is in full force and effect as so
modified, and identifying any such modification;
(b) Whether or not to the knowledge of any such Party there are then existing
any offsets or defenses in favor of such Party against enforcement of any
of the terms, covenants and conditions of this Agreement and, if so,
specifying the same and also whether or not to the knowledge of such
Party, the other Party has observed and performed all of the terms,
covenants and conditions on its part to be observed and performed, and if
not, specifying the same; and
(c) Such other information as may be reasonably requested by a Party.
Any written instrument given hereunder may be relied upon by the recipient of such instrument, except to
the extent the recipient has actual knowledge of facts contained in the certificate.
18
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as of the
date set forth above.
PROVIDER:
TODAY'S POWER;: C.
By:
Name: Michael W. Henderson
Title: President
Dated:d2��i
CIT AYE
B
e: ioneld Jord
itle: Mayor
Attest:
Name: Sondra Smith
Title: City Clerk
SAS
Dated: 11—'767,201
G. G�ZY 0'� •. a.M
'r
FAYETTEVILLE ;
sy�'QkAN`�P•,l'
EXHIBIT A
DESCRIPTION OF PROPERTY
The Property address is identified as 1400 North Fox Hunter Road, Fayetteville, Arkansas (East
Wastewater Treatment Facility). The Property is more particularly described as follows:
Part of the Northwest Quarter of Section Nine (9), Township Sixteen (16) North, Range Twenty -
Nine (29) West, 5th Principle Meridian, Washington County, Arkansas being more particularly
described as follows:
Beginning at a point South 8738'18" East 222.82 feet and South 02°023" West 30.00;
Thence South 02940'23" West a distance of 1395.02 feet to a point;
Thence North 87°38'18" West a distance of 1530.02 feet to a point;
Thence North 02040'23" East a distance of 1295.56 feet to the beginning of a curve to
the right;;
Thence with a curve turning to the right with an arc length of 156.54 feet, with a radius
of 100.00 feet;,; with a chord bearing of North 47°31'02" East, with a chord length of 141.04 feet,
to a point;:
Thence South 87°38'18" East a distance of 1430.56 feet which is the point of beginning;
having an area of 48.950 acres more or less. Subject to any rights-of-way or easements of record.
EXHIBIT B
DESCRIPTION OF PROJECT SITE
The Property address is identified as 1400 North Fox Hunter Road, Fayetteville, Arkansas (East
Wastewater Treatment Facility). The Property is more particularly described as follows:
Part of the Northwest Quarter of Section Nine (9), Township Sixteen (16) North, Range Twenty -
Nine (29) West, 5th Principle Meridian, Washington County, Arkansas being more particularly
described as follows:
Beginning at a point South 87°38'18" East 222.82 feet and South 02°40'23" West 30.00;
Thence South 02°40'23" West a distance of 1395.02 feet to a point;
Thence North 87°38'18" West a distance of 1530.02 feet to a point;
Thence North 02°40'23" East a distance of 1295.56 feet to the beginning of a curve to
the right;
Thence with a curve turning to the right with an arc length of 156.54 feet, with a radius
of 100.00 feet, with a chord bearing of North 47°31'02" East, with a chord length of 141.04 feet,
to a point;
Thence South 87°38'18" East a distance of 1430.56 feet which is the point of beginning,
having an area of 48.950 acres more or less. Subject to any rights-of-way or easements of record.
EXHIBIT C
DESCRIPTION OF SYSTEM
A 5.75 MW DC Monocrystalline Photovoltaic Single Axis Tracking System.
EXHIBIT D
BASE SERVICE FEE SCHEDULE
Solar Services shall be charged based on performance of the System. To determine performance,
Provider shall measure the energy produced each month from the System as a representative of the
performance and assess a charge of 4.7673 cents/kWh to reflect the value of the solar services provided.
EXHIBIT E
PERMITTED LIENS
TRILATERAL AGREEMENT FOR
SOLAR POWER AND STORAGE
r r �
This TRILATERAL AGREEMENT (this "Agreement"), dated as of November 1, 2018, is
made by and between Today's Power, Inc. ("TPI"), the City of Fayetteville, Arkansas (the "City"),
and Ozarks Electric Cooperative Corporation ("OECC") (each, a "Party" and collectively, the
"Parties") for the purpose of achieving benefits to each of the Parties from solar power generating
and energy storage facilities at the City's East water treatment facility located at 1400 North Fox
Hunter Road, Fayetteville, Arkansas (the "East Plant"), and 15 South Broyles Road, Fayetteville,
Arkansas (the "West Plant") which benefits can only be achieved by a trilateral agreement between
the monopoly provider of electric utility services to the City, the developer and operator of the
solar power generating and energy storage facilities, and the City.
RECITALS
WHEREAS, the City desires to obtain renewable energy to achieve its sustainability
goals, renewable energy credits associated with renewable energy, energy savings for its citizens,
stored power and improved reliability for its water treatment facility, reduced dependence on
back-up generators, reduced fuel costs for peak electricity usage, and an upgrade to the
electricity grid servicing the East Plant and the West Plant;
WHEREAS, the City desires to obtain the foregoing benefits with no additional debt or
capital expenditures related to solar power generating and energy storage facilities, with the
exception of make-ready costs in the amount of $560,818_payable to OECC for electrical
upgrades on the sites, under a long-term agreement with financially secure entities, under a long-
term agreement with the monopoly provider of its electric utility services with which it has had
advantageous contractual arrangements for decades, and with the opportunity to obtain site lease
income from previously unproductive land, income from management of its peak energy usage;
WHEREAS, OECC desires to develop renewable energy in its exclusive service territory,
retain the City as a member/customer on a large power off peak tariff, provide the City with
energy savings for its citizens, add a peak.demand mitigation resource through an energy storage,
facility, and manage net metering energy and stored energy through the operation of the solar
power generating and energy storage facilities by a related operating entity, TPI;
WHEREAS, TPI desires to develop and operate a five megawatt AC solar power
generating facility and a twelve megawatt energy storage facility at each of the East and West
Plants (for a total of 1.0 MW AC Solar and 24 MWh of Storage) and to sell solar services to an
established customer of a related electric utility, OECC; and
WHEREAS, the Parties' desires can only be achieved through this agreement and the
several related agreements between Parties described herein.
NOW THEREFORE, in consideration of the mutual promises set forth below, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
AGREEMENT
1. Solar Generating Facilities. TPI shall construct two 5 MW AC solar generating
facilities on property leased from the City, and the City shall purchase all of the energy generated
by the solar generating facility, pursuant to a separate Solar Power Services Agreement between
TPI and the City.
2. Lease and Easement for Solar Generating Facilities. TPI shall lease from the
City, and the City shall provide TPI access to, sites suitable for the construction of two 5 MW
AC solar generating facilities and for the interconnection of the facilities with OECC's electrical
grid, pursuant to separate Lease and Easement Agreements.
3. Energy Storage Facilities. TPI shall construct two 12 MWh energy storage
facilities adjacent to the solar facilities, and OECC shall lease from TPI all of the energy storage
provided by the energy storage facilities, pursuant to separate Energy Storage Lease Agreements.
4. Lease and Easement for Energy Storage Facility. TPI shall lease from the
City, and the City shall provide access to, sites'adjacent to the solar generating facilities that are
suitable for the construction of two 12 MWh energy storage facilities and for the interconnection
of the storage facilities with the solar facilities and with OECC's electrical grid, pursuant -to
separate Lease and Easement Agreements. Such Lease and Easement Agreements shall be
subject to all existing easements of record.
5. Energy Management. The City shall manage its back-up generators at the East
and West Plants in order to mitigate OECC's peak demand in conjunction with TPI's
management of the energy storage facility and directives from OECC, and OECC shall
compensate the City for its services, pursuant to a separate Energy Management Agreement.
6. Electrical System Upgrade. OECC and the City shall upgrade their service lines
and equipment on their respective sides of the existing meters at the East and West Plants in
order to more efficiently manage the energy produced by the solar generating facilities and
stored by the energy storage facilities, pursuant to a separate Facilities Upgrade Agreement.
7. Ownership and Operation of Solar Facilities. The City shall own one percent
(1%) of the personal property comprising the solar generating facilities; TPI shall own ninety-
nine percent (99%) of the personal property comprising the solar generating facilities, pursuant
to the terms of separate Ownership and Operations Agreements. TPI shall possess, operate and
control the solar generating facility, pursuant to the same Ownership and Operations Agreement.
N
8. Net Metering Waiver. OECC shall provide the City with a meter point in its
electrical system through which net metering and meter aggregation can be obtained on the
condition that the City obtain approval by the Arkansas Public Service Commission of a waiver
of the 300 kW net metering limit. OECC shall not object to the net metering application and
shall not require the City to waive grandfathering. Upon approval by the Arkansas Public
Service Commission (the "APSC") of said waiver, OECC and the City shall execute a Net
Metering and Interconnection Agreement incorporating the terms of the Commission's order.
9. No Indebtedness of City. Through the several agreements described herein, the
City shall incur no indebtedness or capital outlay in connection with the construction of the solar
generating facility and the energy storage facilities, except for the $560,818 costs incurred by the
City required to upgrade its electrical infrastructure as set forth in the Facilities Upgrade
Agreement.
10. Interdependent Agreements. The Parties agree that the several agreements
described herein are interdependent, that no single agreement would be executed without the
execution of all other described agreements, and that the execution by each Party of its respective
agreements described herein is consideration for the other Parties' execution of their respective
agreements.., Upon the reduction, of the agreements described herein to mutually acceptable
writings, the Parties warrant to, and agree with, one another that they shall execute each such
agreement to which they are a party. Provided, the performance of each Agreement described
herein shall be determined by its terms, independently of the performance of all other
Agreements.
11. Conditional Execution of Agreements. The several agreements described
herein may be executed at any time and at various times. Provided, that the effectiveness of each
such agreement is hereby conditioned on (i) an ordinance of the City approving the projects and
the City's entry into the several agreements described herein and (ii) an order of the APSC
approving the City's application for waiver of the 300 kW net metering limit which is mutually
acceptable to the Parties.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement
as of the date set forth above.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
TODAY'S POWER, INC.
By:
Name: Michael . Henderson
Title: President
/ on.
CITY O . AYVTEYILLE,
ByY
Title: Mayor C-,,,'
�0011111tttt11'e4z
•`1 1T Y 0,�.*,sGrG
Attest: Y,, C
Name: Sondra Smith . FAYETTEVILLE:
Title: City Clerk -Treasurer -7 y :,
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Dated: ff �� Za ff �rJfr�ttilU4��`'
OZARKS ELECTRICAL COOPERATIVE
CORPORATION
By: 44,*4.gl
Name: Mitchell Johns
Title: President & CEO
Dated:
El
ENERGY MANAGEMENT AGREEMENT
This AGREEMENT (this "Agreement"), dated as of November 1, 2018, is made by and
between the City of Fayetteville, Arkansas (the "City"), and Ozarks Electric Cooperative
Corporation ("OECC") (each, a "Party" and collectively, the "Parties") for the purpose of
achieving benefits to each of the Parties from solar power generating and energy storage facilities
at the City's East water treatment facility located at 1400 North Fox Hunter Road, Fayetteville,
Arkansas (the "East Plant"), and 15 South Broyles Road, Fayetteville, Arkansas (the "West Plant")
which benefits are more specifically stated by a Trilateral Agreement For Solar Power and Storage
(Trilateral Agreement) between the monopoly provider of electric utility services to the City,
OECC, the developer .and operator of the solar power generating and energy storage facilities,
Today's Power Inc. (TPI), and the City. This Agreement deals specifically with the management
by the City of its back-up generators at the East and West Plants in order to mitigate OECC's peak
demand in conjunction with TPI's management of the energy storage facility and directives from
OECC at both plant locations, and to operate its back-up generators to be off of OECC's electric
system during peak conditions and City remaining on OECC's large power off peak rate for the
duration of this agreement.
RECITALS
WHEREAS, the City desires to obtain renewable energy to achieve its sustainability
goals, renewable energy credits associated with renewable energy, energy savings for its citizens,
stored power and improved reliability for its water treatment facility, reduced dependence on
back-up generators, reduced fuel costs for peak electricity usage, and an upgrade to the
electricity grid servicing the East Plant and the West Plant; and
WHEREAS, OECC desires to develop renewable energy in its exclusive service
territory, retain the City as a member/customer on a large power off peak tariff, provide the City
with energy savings for its citizens, add a peak demand mitigation resource through an energy
storage facility, and manage net metering energy and stored energy through the operation of the
solar power generating and energy storage facilities by a related operating entity, TPI; and
WHEREAS, the Parties and TPI have entered into one certain Trilateral
Agreement For Solar Power and Storage, as of this date, which encompasses the various aspects
and agreements comprising the terms, conditions and obligations of the parties; and
WHEREAS, in order to accomplish the purposes of the various agreements
among the parties it is necessary that both the East Plant and the West Plant of the City be
managed and its back-up generators be operated by the City so that both plants will be off the
peak of Arkansas Electric Cooperative Corporation (AECC), OECC's electric supplier, and the
peak of OECC during peak conditions; and
WHEREAS, it is important to have continued exercising of the City's generation
assets to assure availability during possible grid disruption; and
WHEREAS, itis necessary to have continued monitoring of statewide load
conditions and occasional need for generation asset operations to assure that the City does not
incur undesired demand penalties in situations where statewide peaking events could occur
simultaneous to low or fluctuating solar production in Fayetteville, AR; and
WHEREAS, it is mutually beneficial to OECC and the. City to operate generation
assets in a fashion similar to historic non -solar operation; and
WHEREAS, under proposed interconnection the City's generation assets, solar
arrays, and OECC's energy storage will be synchronized to OECC's distribution network; and
WHEREAS, the Parties' desires can only be achieved through this agreement and
the several related agreements between Parties described herein.
NOW THEREFORE, in consideration of the mutual promises set forth below, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
AGREEMENT
1. Energy Manaffement. The City agrees to manage its back-up generators at the East
and West Plants in order to mitigate OECC's peak demand in conjunction with TPI's
management of the energy storage facility and directives from OECC at both plant
locations, and to operate its back-up generators to be off of OECC's electric system
during peak conditions. To that end, the City agrees as follows, to -wit: a) To remain,
at all times while this agreement is in force, on OECC's large power off peak tariff at
both Plant locations; and b). To at all times when OECC and AECC's systems are
under peak conditions, to operate its generators at a minimum of 1500kW at both
locations in order to be off of OECC and AECC's peak;
2. Costs of Operation. OECC agrees to pay to the City the sum of $1,151 per year for
the estimated storage facility losses for both plants and the sum of $2,500 per year for
HVAC and lighting services. Further, OECC agrees to pay the sum of $60,000 per
year for fuel costs and the sum of $75,000 per year for the operation of the City's
generators in accordance with paragraph 1 above. All payments under this paragraph
shall be due and payable to the City on or before November 1 of each year following
that year's summer peaking season. The fuel cost payment and the operation of
generator payment are both specifically conditioned on the City complying with the
conditions of paragraph 1 above. In the event that the system described in this
agreement does not become operational on or before January 1, 2019, the payment of
the amounts set forth in this paragraph for the year 2019 shall be prorated as of the
date the system becomes operable provided that the city complies with the conditions
of paragraph 1 above.
2
3. Access to Project Site. The City also hereby grants to OECC, together with its
employees, representatives, agents and contractors, for the term of this
agreement, a non-exclusive easement to access both Plant Sites across or through
the Property and any surrounding or adjacent lands or buildings owned, leased or
under the control of The City as may be reasonably required for (a) the delivery,
installation; operation, maintenance, repair and removal of the Equipment; (b)
utility lines, pipes and conduits for the transmission of electricity or otherwise
serving the Equipment; and (c) as may be otherwise reasonably required by
OECC in connection with this Agreement and the Equipment, passage through
which is necessary to gain access to the Equipment or the Plant Sites. The nature
and extent of such non-exclusive easement shall be subject to the mutual
agreement of the parties hereto and all easements and rights of way of record, but
shall include access for tours, demonstrations, public relations and education.
OECC agrees to indemnify, defend and hold harmless the City from all suits,
actions, or claims of any character brought on account of any injuries or
damages received or sustained by any person, persons, or property during any
tour, demonstration, public relation or education activities provided by OECC,
its employees, representatives, agents, or contractors.
4. Interdependent Agreements. The Parties agree that the several agreements described herein
are interdependent, that no single agreement would be executed without the execution of all
other described agreements, and that the execution by each Party of its respective agreements
described herein is consideration for the other Parties' execution of their respective
agreements. Upon the reduction of the agreements described herein to mutually acceptable
writings, the Parties warrant to, and agree with, one another that they shall execute each such
agreement to which they are a party. Provided, the performance of each Agreement described
herein shall be determined by its terms, independently of the performance of all other
Agreements.
S. Conditional Execution of Agreements. The several agreements described herein may be
executed at any time and at various times. Provided, that the effectiveness of each such
agreement is hereby conditioned on (i) an ordinance of the City approving the projects and the
City's entry into the several agreements described herein and (ii) an order of the APSC
approving the City's application for waiver of the 300 kW net metering limit which is mutually
acceptable to the Parties.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement
as of the date set forth above.
Dated: f ae:)/k
Attest:
B :..
Name: Sondra E. Smith
Title: City Clerk-Treasurer
GST Y p
Dated: � �.� �Zlj /8���� •� �, .��
FAYET7EVILLE; —
OZARKS ELECTRICAL COOPERATIV,,--;p ANS?.J��;
CORPORATION ON
By:
Name: kitchelI Johnson
Title: President & CEO
Dated: /0/30o/tS'
BrcQ 11 1 5
ARCHIVED
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY Kit Williams
City Attorney
TO: City Clerk -Treasurer Sondra Smith Blake Pennington
Assistant City Attorney
FROM: Blake on PenningtAssistant Ci AttorneyRhonda Lynch
Pennington, Paralegal
DATE: January 15, 2019
RE: Appendix 1 to Facilities Upgrade Agreement with Ozarks Electric
When the City Council approved Ordinance 6115 - the slate of contracts for
the solar power project at the Westside and Noland Wastewater Treatment
Plants - we accidentally omitted Appendix 1 from the Facilities Upgrade
Agreement, which is a line item breakdown of the scope of work. The
Facilities Upgrade Agreement begins on page 89 of the final approved
ordinance packet.
There is no need for Appendix 1 to go back to the City Council for further
approval for two reasons. First, the City Council approved the maximum
cost of the work in Paragraph 2 of the Facilities Upgrade Agreement. Second,
the work required for the upgrades was detailed in both the staff memo and
in the staff presentation to the City Council. Please add this page to the final
ordinance packet at the end of the Facilities Upgrade Agreement and
immediately before the document entitled "Lease and Easement Agreement
- West Wastewater Treatment Facility."
Appendix I
1AICOT CA VJ=TTJ=1/11 I F 4e)l AR PLANT
NEW CONSTRUCTION
$259,382.83
1� 3 1213
' '8
TIRE CONSTRUCTION
RETIRE
1 5,76
ROCK CLAUSE
$30,000-00
RECLOSER COSTS
t 0
$24,000-00
FIBER COSTS @ 2750 FT.
0 0
$2,0692.50
IMETERING AND AUTOMATION COSTS
$16,000.00
m
ITOTAL ESTIMATE
1 5 log
$331,561.09
=ACT J=A VJ=TTJ=Vll I F -qf)l AR PLANT
—1-- - - - - - - - - - ---- - - -- -- -
NEW CONSTRUCTION
$157,477.20
RETIRE CONSTRUCTION
$6,030.09
RECLOSER COSTS
$24,000.00
FIBER COSTS (P 20,600 FT.
$25,750.00
METERING AND AUTOMATION COSTS S
$16,000.00
ITOTAL ESTIMATE
$229,257.29 1
ITOTAL. MAKE READY UPGRADES - $560,818.3"
FACILITIES UPGRADE AGREEMENT
This AGREEMENT (this "Agreement"), dated as of November 1, 2018, is made by and
between the City of Fayetteville, Arkansas (the "City"), and Ozarks Electric Cooperative
Corporation ("OECC") (each, a "Party" and collectively, the "Parties") for the purpose of
achieving benefits to each of the Parties from solar power generating and energy storage facilities
at the City's East water treatment facility located at 1400 North Fox Hunter Road, Fayetteville,
Arkansas (the `Bast Plant"), and 15 South Broyles Road, Fayetteville, Arkansas (the "West Plant")
which benefits are more specifically stated by a Trilateral Agreement For Solar Power and Storage
between the monopoly provider of electric utility services to the City, OECC, the developer and
operator of the solar power generating and energy storage facilities, Today's Power Inc. (TPI), and
the City. This Agreement deals specifically with the construction and upgrade of the City's
facilities necessary to make the property and facilities of the City ready, at both plant locations, to
allow for the interconnection and storage of electric energy at the City's plant locations and to
establish the cost of same.
RECITALS
WHEREAS, the City desires to obtain renewable energy to achieve its sustainability
goals, renewable energy credits associated with renewable energy, energy savings for its citizens,
stored power and improved reliability for its water treatment facility, reduced dependence on
back-up generators, reduced fuel costs for peak electricity usage, and an upgrade to the
electricity grid servicing the East Plant and the West Plant; and
WHEREAS, OECC desires to develop renewable energy in its exclusive service
territory, retain the City as a member/customer on a large power off peak tariff, provide the City
with energy savings for its citizens, add a peak demand mitigation resource through an energy
storage facility, and manage net metering energy and stored energy through the operation of the
solar power generating and energy storage facilities by a related operating entity, TPI; and
WHEREAS, the Parties and TPI have entered into one certain Trilateral
Agreement For Solar Power and Storage, as bf this date, which encompasses the various aspects
and agreements comprising the terms, conditions and obligations of the parties; and
WHEREAS, in order to accomplish the purposes of the various agreements
among the parties it is necessary that both the East Plant and the West Plant of the City undergo
significant new upgrades, construction and modification; and
WHEREAS, the Parties' desires can only be achieved through this agreement
and the several related agreements between Parties described herein.
NOW THEREFORE, in consideration of the mutual promises set forth below, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
AGREEMENT
1. Facilities U12grade Required. The electric of facilities and service lines of the
City are required to be upgraded and altered in order that the purposes of the Trilateral
Agreement may be accomplished. These facility upgrades are on the City's side of the meter at
both the East and West Plants. OECC agrees to perform all work necessary to make the upgrades
described on the attached Appendix 1, which Appendix is hereby incorporated by reference
herein. Such upgrades shown on said Appendix shall be at the cost stated in paragraph 2. In the
event there are upgrades or work not identified in said Appendix, such additional work shall be
performed by OECC at the usual and customary cost for same only upon approval by both
parties of a written change order describing the additional work to be performed and itemizing
the cost of the additional work..
2. Cost for Facilities Upgrade. The City shall pay to OECC the sum of $560,818
for the upgrades at both facilities. Such payment shall be due and payable to OECC within thirty
(30) days of the City's acceptance and approval of invoices for upgrades and other work
performed pursuant to this Agreement, whether described in Appendix I or a change order.
3. Access to Project Site. The City also hereby grants to OECC, together with
its employees, representatives, agents and contractors, for the term of this agreement, a non-
exclusive easement to access both Plant Sites across or through the Property and any
surrounding or adjacent, lands or buildings owned, leased or under the control of The City as
may be reasonably required for (a) the delivery, installation, operation, maintenance, repair
and removal of the Equipment; (b) utility lines, pipes and conduits for the transmission of
electricity or otherwise serving the Equipment; and (c) as may be otherwise reasonably
required by OECC in connection with this Agreement and the Equipment, passage through
which is necessary to' gain access to the Equipment or the Plant Sites. The nature and extent
of such non-exclusive easement shall be subject to the mutual agreement of the parties hereto
and all existing easements and rights of way of record.
4. Energy Manay-ement. The City shall manage its back-up generators at the East
and West Plants in order to mitigate OECC's peak demand in conjunction with TPI's
management of the energy storage facility and directives from OECC and OECC shall
compensate the City for its services, pursuant to a separate Energy Management Agreement.
5. Electrical System Upgrade by OECC. OECC shall upgrade its service lines and
equipment on its side of the existing meters at the East and West Plants in order to more
efficiently manage the energy produced by the solar generating facilities and stored by the
energy storage facilities.
2
6. Interdependent Agreements. The Parties agree that the several agreements
described herein are interdependent, that no single agreement would be executed without the
execution of all other described agreements, and that the execution by each Party of its respective
agreements described herein is consideration for the other Parties' execution of their respective
agreements. Upon the reduction of the agreements described herein to mutually acceptable
writings, the Parties warrant to, and agree with, one another that they shall execute each such
agreement to which they are a party. Provided, the performance of each Agreement described
herein shall be determined by its terms, independently of the performance of all other
Agreements.
7. Conditional Execution of Agreements. The several agreements described
herein may be executed at any time and at various times. Provided, that the effectiveness of each
such agreement is hereby conditioned on (i) an ordinance of the City approving the projects and
the City's entry into the several agreements described herein and (ii) an order of the APSC
approving the City's application for waiver of the 300 kW net metering limit which is mutually
acceptable to the Parties.
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement
as of the date set forth above.
3
CITY OLYAYE
ByLI_6_p0!74�
Name: Lioneld J
Title: Mayor Z
Dated:';
Attest:
����tttt�rttrls
���K•1 TRE4r4�i
BY: O
�' • �� Y Orc *`rU�
Name: Sondra E. Smith
Title: City Clerk=Treasurer
; FAYETTEVILLE:
OZARKS ELECTRICAL COOPERATIVE
CORPORATION
By: 1 tb�
Name: itchell Johns n
Title: President &• CEO
Dated: /01301/g
LEASE AND EASEMENT AGREEMENT — WEST WASTEWATER TREATMENT
FACILITY
This LEASE AND EASEMENT AGREEMENT (this "Agreement"), dated as of
November 1, 2018 (the "Effective Date"), is made by and between Today's Power, Inc.
("Tenant"), an Arkansas corporation, and City of Fayetteville, Arkansas ("Lessor"), an Arkansas
City of the First Class (each, a "Party" and collectively, the "Parties").
RECITALS
WHEREAS, Lessor and Tenant have entered into the .Solar Power Services Agreement
("SPSA"), dated as of November 1, 2018 ("SPSA Effective Date"), pursuant to which, and subject
to the terms thereof (i) Tenant, as Seller thereunder, is obligated to construct on the Project Site a
5,000 kW AC solar photovoltaic power generating facility ("Facility"), and (ii) Tenant is required
to sell and Lessor, as Buyer thereunder, is required to purchase 100% of the output of the Facility;
and
WHEREAS, in conjunction with the terms of the SPSA, the Parties desire to execute this
Agreement granting Tenant certain leasehold, easement, and use rights regarding the Property and
the Project Site, which real property is owned by Lessor.
NOW THEREFORE, in consideration of the mutual promises set forth below and in the
SPSA, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
!'MMU 1
1. Definitions. Unless otherwise required by the context in which any term appears:
(a) capitalized terms used in this Agreement shall have the respective meanings set forth in this
Section 1; (b) the singular shall include the plural and vice versa; (c) the words "herein," "hereof
and "hereunder" shall refer to this Agreement as a whole and not to any particular section or
subsection hereof; and (d) references to this Agreement shall include a reference to all exhibits
hereto, as the same may be amended, modified, supplemented or replaced from time to time.
"AC" shall mean alternating current.
"Agreement" shall have the meaning set forth in the Preamble.
"Applicable Law" shall mean, with respect to any Person, any constitutional provision,
law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate,
holding, injunction, registration, license, franchise, permit, authorization, guideline, governmental
approval, consent or requirement of any Governmental Authority having jurisdiction over such
Person or its property, enforceable at law or in equity, including the interpretation and
administration thereof by such Governmental Authority.
"Business Day" means any day other than a Saturday, Sunday or. legal holiday for
commercial banks under Applicable Law.
"Claim Notice" shall have the meaning set forth in Section 12.3.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Operation Date" means the date on which the Facility begins commercial
operation after startup and testing, as memorialized in a notice from.Tenant to Lessor.
"Effective Date" shall have the meaning set forth in the Preamble.
"Energy" means the AC electric energy generated by the Facility.
"Environmental Attributes" means any and all claims, credits, benefits emissions
reductions, offsets, renewable energy credits and allowances, howsoever entitled, resulting from
the avoidance of the emission of any gas, chemical or other substance to the air, soil or water,
which are deemed of value by Lessor; provided that Environmental Attributes shall not include
Environmental Financial Incentives or Tax Attributes.
"Environmental Financial Incentives" means each of the following financial benefits,
rebates and incentives that is in effect as of the SPSA Effective Date or may come into effect in
the future: (i) performance-based incentives under a Governmental Authority's or a utility's
program or initiative, state and Federal incentive tax credits (including income tax credits and
investment tax .credits arising under the Code), other tax benefits, and accelerated depreciation,
however named or referred to, with respect to any and all fuel, emissions, air quality, energy
generation, or other environmental or energy characteristics, resulting from the use of solar
generation or the avoidance of the emission of any gas, chemical or other substance into the air,
soil or water attributable to the sale of Energy generated by. the Facility; (ii) all reporting rights
with respect to such incentives; and (iii) all Rebates, provided that Environmental Financial
Incentives shall not include Environmental Attributes.
"Expiration Date" means the expiration date of the SPSA, which shall be the date that is
twenty years after the Commercial Operation Date, unless the SPSA is terminated earlier pursuant
to its terms.
"Facility" shall mean a solar photovoltaic power generating facility with a total generating
capacity of 5,000 kW AC nominal located on the Project Site and shall include, without limitation,
the components and equipment described in Exhibit E.
"Force Majeure" means an event that (a) is not reasonably anticipated as of the date hereof,
(b) is not within.the reasonable control of the Force Majeure Party, (c) is not the result of the Force
Majeure Party's negligent or willful act or failure to act, and (d) could not be overcome by the
Force Majeure Party's exercise of due diligence in the circumstances. Force Majeure includes,
but is not limited to, events of the following types (but only to the extent that such an event, in
consideration of the circumstances, satisfies the requirements set forth in the preceding sentence):
failure of transmission or distribution facilities or other equipment; breakage of or damage to
machinery or equipment, including the Equipment; acts of God; fire; explosion; civil disturbance;
2
sabotage; or action or restraint by a Government Authority.
"Force Majeure Party" shall have the meaning set forth in Section 8.
"Governmental Authority" shall mean any federal, state, regional, county, town, city, or
municipal government, whether domestic or foreign, or any department, agency, bureau, or other
administrative, regulatory or judicial body of any such government including, without limitation,
any governmental or quasi -governmental entity or independent system operator or regional
transmission operator.
'W" means kilowatt, and unless otherwise stated shall be AC.
"Indemnified Party" shall have the meaning set forth in Section 12.3.
"Indemnifying Party" shall have the meaning set forth in Section 12.3.
"Lease" shall have the meaning set forth in Section 2.1.
"Lease Term" shall have the meaning set forth in Section 2.1.
"Lessor" shall have the meaning set forth in the Preamble.
"Lessor Default" shall have the meaning set forth in Section 10.1.
"Liens" shall have the meaning set forth in Section 7.1.1.
"Maintenance" means the ordinary upkeep of the Facility, including testing the
performance of the solar panels and inverters, checking the condition of the racking system, and
making any minor adjustments or undertaking any other activities necessary to ensure that the
Facility is in good working order. Maintenance shall not include Repairs.
"NDA" shall have the meaning set forth in Section 5.1.
".Non -Force Majeure Party" shall have the meaning set forth in Section 8.
"Partv" or "Parties" shall have the meaning set forth in the Preamble.
"Person" means any individual, corporation, partnership, company, joint venture,
association, trust, unincorporated organization, firm or other entity, or a Governmental Authority.
"Project Site" means that portion of the Property where the Facility is physically located,
as more fully described in Exhibit B attached hereto.
"Property" means the land/property located as described in Exhibit A, the legal description
of which is set forth in Exhibit A attached hereto. For avoidance of doubt and without limitation,
the Project Site is located within the Property.
"Rebates" means any and all Governmental Authority or utility rebates or other funding
offered for the development of photovoltaic systems.
"Repair" or "Repairs" shall mean the repair or replacement of any equipment or component
of the Facility, including the racking system, where such equipment or component is broken, non-
performing or materially underperforming.
"SPSA" shall have the meaning set forth in the Recitals.
"SPSA Effective Date" shall have the meaning set forth in the Recitals.
"Tax Attributes" shall mean all investment credits, production tax credits, income tax
credits and similar tax attributes.
"Tenant" shall have the meaning set forth in the Preamble. For purposes of the exercise of
easement and other rights regarding the Property granted to Tenant in this Agreement, and
specifically including the rights granted in Section 2.2 and Section 2.3, the term "Tenant" shall
include Tenant's authorized agents, contractors and subcontractors.
"Tenant Default" shall have the meaning set forth in Section 14.2.
"Termination Date" shall mean, in the case of a termination of the SPSA prior to the
Expiration Date, the date of such earlier termination.
2. Lease and Related Rights.
2.1 . Lease. Lessor hereby leases to Tenant, and Tenant hereby leases from
Lessor in accordance with the terms of this Agreement, the Project Site for the Lease Term for the
sole purposes of installing, owning, operating, maintaining, repairing and removing the Facility,
connecting the Facility to any transformer or any interconnection or transmission lines, and uses
ancillary thereto (the "Lease"). The Lease shall also include an easement to receive unobstructed
sunlight as further provided in Section 2.4. The Lease granted in this Agreement and all provisions
in this Agreement related to such Lease, including the easement and other rights granted to Tenant
in this Agreement, shall survive for the life of the Facility plus one year but no less than a period
ending upon the twenty sixth (26th) anniversary of the Commercial Operation Date (the "Lease
Term"). This Agreement and the Lease and other easement and property use rights granted herein
shall survive the Expiration Date or other termination of the SPSA.
2.2 Access to Project Site. Lessor also hereby grants to Tenant, for the Lease
Term, a non-exclusive easement to and from the Project Site across or through the Property and
any surrounding or adjacent lands or buildings owned, leased or under the control of Lessor and
as otherwise may be reasonably required for the purpose of (a) the delivery, installation, operation,
Maintenance, Repair and removal of the Facility; and (b) as may be otherwise reasonably required
by Tenant in connection with the SPSA and the Facility, passage through which is necessary to
gain access to the Facility or the Project Site. Said easement shall be subject to and shall not
interfere with existing rights of way and easements of record.
2.3 Transmission Connection Rights. Lessor also hereby grants to Tenant, for
the Lease Term, a non-exclusive easement to and from the Project Site across or through the
Property and any surrounding of adjacent lands or buildings owned, leased or under the control of
Lessor, as more particularly described on the attached Exhibit B and as otherwise may be
reasonably required, for the purpose of (a) the delivery, installation, operation, maintenance, repair
and removal of utility lines, pipes, conduits, poles, towers and other equipment and structures for
the transmission of electricity or otherwise serving the Facility; and (b) to connect the Facility to
transmission lines regulated by the Federal Energy Regulatory Commission or otherwise as is
necessary for Tenant to sell the output of the Facility onto the transmission grid or to otherwise
effectuate the sale of the output of the Facility. Said easement shall be subject to and shall not
interfere with existing rights of way and easements of record.
2.4 Overshadowing and Shading. Notwithstanding any other provision of this
Agreement to the contrary, Lessor, or any lessee, grantee or licensee of Lessor, shall not erect any
structures on, or make other modifications to, or plantings on, the Property which will interfere
with the construction, operation, Maintenance or Repair of, or solar access of, the Facility. Further,
if Applicable Law and Lessor's existing easements, restrictions, and rights do not ensure that
structures or plantings on adjoining property will not interfere with the solar access for the Facility,
then Lessor and Tenant shall work together to obtain from owners of adjoining properties any
easements and restrictive covenants reasonably necessary to protect the unobstructed solar access
of the Facility. Such easements shall run for the benefit of both Lessor and Tenant. If such
easements or restrictive covenants cannot be obtained, Tenant shall have the right (but shall not be
required) to relocate the Facility to another location on the Property and Lessor shall reasonably
cooperate with such relocation, and reimburse Tenant for all costs incurred in connection
therewith.
2.5 Use of Rights. Tenant shall utilize the rights granted hereunder in a manner
that does not unreasonably interfere with Lessor and use of the Property by Lessor's guests and
invitees, tenants, licensees or other visitors to the extent commercially practical.
2.6 Quiet Enjoyment. Lessor represents, warrants and covenants that Lessor
has lawful title to the Project Site and the Property free and clear of all liens and encumbrances
except as set forth on Exhibit C attached hereto and that Tenant shall have quiet and peaceful use,
enjoyment and possession of the Project Site and the easements and other rights granted hereunder
for the Lease Term. Lessor agrees that this Agreement and any easements, leaseholds and rights
of way granted hereunder run with the Property and survive any transfer of all or any portion of
the Property and will be binding upon and benefit the Parties' successors and assigns.
2.7 Site Conditions and Utilities. Lessor represents to Tenant that Lessor is
unaware of any Property conditions or construction requirements that (a) would materially increase
the cost of installing the Facility at the Project Site or would materially increase the cost of
maintaining the Facility at the Project Site over the cost that would be typical or customary for
solar photovoltaic systems substantially similar to the Facility or (b) would adversely affect the
ability of the Facility as designed to produce electricity once installed. Lessor shall promptly
notify Tenant of any change in the condition of the Property and/or any change or anticipated
change involving adjacent property that could damage, impair or otherwise adversely affect the
Facility.
2.8 City pproval of Final Project Design and Zoning. Prior to commencing
construction of the Facilities, Tenant shall submit final project designs for approval by the City
through the development process as set forth in the City of Fayetteville Unified Development
Code. Prior to commencing construction on Tract "A", City of Fayetteville must approve of the
re -zoning of Tract "A" to the appropriate city zone for the Facility.
2.9 Memorandum of Lease. Contemporaneously with the execution and
delivery of this Agreement, the Parties shall also execute and deliver a memorandum of this
Agreement in substantially the form attached hereto as Exhibit D, which Tenant may record in the
registry or title records of the county or counties where the Property is located, and any other
applicable government office providing record notice of Tenant's rights hereunder.
3. Rent. Apart from payment by Tenant of One U.S. Dollar ($1.00), the Parties'
obligations hereunder and under the SPSA, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by Lessor, no other rent shall be due from Tenant
hereunder throughout the Lease Term.
4. Installation and Ownership of the Facility.
4.1 Tenant will cause the Facility to be designed, engineered, installed and
constructed substantially in accordance with the terms of the SPSA and Applicable Law. Tenant,
shall procure all materials and equipment for the Facility installation and maintain the same at the
Project Site or Property. Tenant shall perform all installation work at the Project Site in a manner
that reasonably minimizes inconvenience to and interference with Lessor and Lessor's guests and
Lessor's use of the Project Site and the Property to the extent commercially practicable.
4.2 Title to Facility. Tenant shall at all times own not less than 99% of the
Facility, and shall own in their entirety any and all Environmental Financial Incentives and Tax
Attributes relating to the Facility, which include, without limitation, Tenant's right to retain, sell,
transfer or assign the same. Lessor shall own not more than I% of the Facility. Lessor and Tenant "
shall enter into a separate Ownership and Operations Agreement regarding the ownership and
operations of the Facility. The Facility shall (i) remain personal property and shall not attach to
or be deemed a part of, or fixture to, any Property, and (ii) at all times retain the legal status of
personal property as defined under Article 9 of the applicable Uniform Commercial Code. Lessor
warrants and represents that it shall keep the Facility free from all liens, claims and encumbrances
of its lenders and any other third parties (other than those created by Tenant or its creditors).
Tenant shall be entitled to, and is hereby authorized to, file one or more UCC Financing Statements
or fixture filings, as applicable, in such jurisdictions as it deems appropriate with respect to the
Facility in order to protect its title to and rights in the Facility.
Third Party Consents; Cooperation with Financing.
5.1 Lessor covenants that it will obtain a non -disturbance and attornment
agreement ("NDA") from any third party who now has or may in the future obtain an interest in
the Project Site or areas of the Property over which easements or other rights in favor of Tenant
have been. granted hereunder, including, without limitation, any lessors or lenders to Lessor or
holders of any liens or encumbrances on the Property (including those set forth on Exhibit C).
Such NDA shall be in a form reasonably suitable to Lessor and Tenant and shall (a) acknowledge
and consent to Tenant's rights in the Project Site, the Property, and this Agreement,
(b) acknowledge that the third party has no interest in or lien on the Facility or any other property
0
of Tenant on the Project Site or the Property and shall not gain any interest in the Facility or any
other property of Tenant on the Project Site or the Property by virtue of the Parties' performance
or breach of this Agreement or the SPSA, or the exercise of any rights by a third party, and (c) not
disturb Tenant's rights under this Agreement and provide for Tenant's attomment to the third party
in the event that the third party forecloses on the Property.
5.2 Lessor acknowledges that Tenant may be financing the Facility and Lessor
agrees that it shall reasonably cooperate with Tenant and its financing parties in connection with
such financing, including (a) the furnishing of such information, (b) the giving of such certificates
and obtaining one or more NDAs, and (c) providing such opinions of counsel and other matters as
Tenant and its financing parties may reasonably request; provided, that the foregoing undertaking
shall not obligate Lessor to materially change any rights or benefits, or materially increase any
burdens, liabilities or obligations of Lessor, under this Agreement (except for providing notices
and additional cure periods to the financing parties with respect to Tenant Defaults as a financing
party may reasonably request).
6. Representations and Warranties. In addition to any other representations and
warranties contained in this Agreement, each Party represents and warrants to the other Party as
of the Effective Date that:
(a) it is duly organized, validly existing and in good standing under the
laws of the state of its formation;
(b) it has the full right and authority to enter into, execute, deliver and
perform its obligations under this Agreement;
(c) it has taken all requisite corporate or other action to approve the
execution, delivery and performance of this Agreement;
(d) this Agreement constitutes a legal, valid and binding obligation
enforceable against such Party in accordance with its terms;
(e) to its knowledge there is no litigation, action, proceeding or
investigation pending or threatened on any basis before any court or
other Governmental Authority by, against, affecting or involving
any of its business, properties or assets (including, without
limitation, with respect to Lessor, the Project Site or any interest
therein) that would affect its ability to perform its obligations under
this Agreement; and,
(f) its execution of and performance under this Agreement shall not
violate any existing Applicable Law or create a default under any
agreement to which it is a party.
7. Covenants.
7.1 Tenant's Covenants. As a material inducement to Lessor's execution and
delivery of this Agreement, Tenant covenants and agrees to the following:
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7.1.1 Removal of Liens. Except for the leasehold rights, easements,
financing and other rights granted to Tenant in this Agreement, Tenant shall not directly or
indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien
(including mechanics', labor or material man's lien), charge, security interest,
encumbrance or claim of any nature ("Liens") on or with respect to the Property or the
Project Site; provided that Tenant shall have the right without Lessor's consent to enter
into and grant Liens on the Facility, related assignments of the rights of Tenant in the Lease,
this Agreement and the Property, and related mortgages of Tenant's leasehold and
easement interests granted by this Agreement. If Tenant breaches its obligations under this
Section, it shall immediately notify Lessor in writing, shall promptly cause such Lien to be
discharged and released of record without cost to Lessor, and shall defend and indemnify
Lessor against all costs and expenses (including reasonable attorneys' fees) incurred in
discharging and releasing such Lien.
7.1.2 Removal of Facility. Upon the Expiration Date, should Tenant
exercise its right under the SPSA to remove the Facility from the Project Site, Tenant shall
return the Project Site to its .original condition, except for Facility support structures,
electric/Wiring components and ordinary wear and tear, and Tenant shall leave the Project
Site in neat and clean order.
7.1.3 Lessor's Covenants. As a material inducement to Tenant's execution of
this Agreement, Lessor covenants and agrees as follows:
7.1.4 Maintenance of Site. Lessor shall give Tenant prompt notice of any
damage to or defective condition in any part of the Property (including mechanical,
electrical, plumbing, heating, ventilating, air conditioning and other equipment facilities
and systems located within or serving the Property) or the Facility which may have an
effect on the Tenant's access to or operation of the Facility.
7.1.5 Liens. Lessor shall not directly or indirectly cause, create, incur,
assume or suffer to exist any Liens on or with respect to the Facility or any interest therein.
Lessor also shall pay promptly before a fine or penalty may attach to the Facility or
Property any taxes, charges or fees of whatever type of any relevant Governmental
Authority levied on the Property, including the Project Site. If Lessor breaches its
obligations under this Section, it shall immediately notify Tenant in writing, shall promptly
cause such Lien to be discharged and released of record without cost to Tenant, and shall
indemnify Tenant against all costs and expenses (including reasonable attorneys' fees and
court costs at trial and on appeal) incurred in discharging and releasing such Lien, and
Tenant shall have the right (but not the obligation) to cure any such breach by Lessor at
Lessor's expense.
7.1.6 Property es. Tenant shall not be responsible for paying any
increase in real estate taxes caused by Tenant's use, improvements, additions or
modifications to the Property or Project Site and shall not be liable for any property taxes
or assessments associated with the Property or the Project Site, other than Tenant's
personal property taxes arising out of its ownership of the Facility. Lessor shall provide
Tenant with evidence of Lessor's timely payment of all taxes related to the Property or the
Facility.
8. Force Maieure Events. If either Party is prevented from or delayed in performing any
of its obligations under this Agreement by reason of a Force Majeure Event, such Party (the "Force Majeure
FIM") shall notify the other Party (the "Non -Force Majeure Party") in writing as soon as practicable after
the onset of such Force Majeure Event and the performance of its obligations under this Agreement shall
be excusably delayed to the extent that such Force Majeure Event has interfered with such performance.
The Force Majeure Party shall use reasonable efforts to remedy its inability to perform. If a Party's failure
to perform its obligations under this Agreement is due to a Force Majeure Event, then such failure shall not
be deemed a Tenant Default or a Lessor Default, as the case may be. In case a Force Majeure Event
continues for two (2) years or more, the Non -Force Majeure Party may terminate this Agreement by written
notice to the Force Majeure Party and in such an event, neither Party shall have liability to the other for any
damages as a result of such termination.
9. Insurance Requirements.
9.1 Tenant's Insurance. During all periods covered by this Agreement through
the Expiration Date or Termination Date (as applicable), Tenant shall maintain, at its sole expense,
coverage limits of $10 million combined commercial general liability insurance and umbrella liability
and "all risk" property insurance covering the Facility installed at the Project Site. Tenant, if it
has employees, shall also maintain at all times during the Term workers' compensation insurance
coverage in accordance with the applicable requirements of federal and state law and automobile
liability insurance coverage. Tenant shall deliver to Lessor certificates of insurance evidencing
such coverage and naming Lessor as an additional insured with respect to Tenant's liability
insurance. Such insurance shall be on an occurrence basis and shall be primary coverage without
right of contribution from any insurance of Lessor.
9.2 [Reserved]
10. Defaults.
10.1.1 Lessor Default. The occurrence at any time of any of the following events
shall constitute a "Lessor Default":
10. 1.2 Failure to Perform Other Obligations: Unless due to a Force
Majeure Event excused by Section 8, the failure of Lessor to perform or cause to be
performed any obligation required to be performed by Lessor under this Agreement, or the
failure of any representation and warranty set forth herein to be true.and correct in any
material respect as and when made; provided, however, that if such failure by its nature
can be cured, then Lessor shall have a period of thirty (30) days after receipt of written
notice from Tenant of such failure to cure the same and a Lessor Default shall not be
deemed to exist during such period; provided, further, that if Lessor commences to cure
such failure during such period and is diligently and in good faith attempting to effect such
cure, said period shall be extended for sixty (60) additional days; provided, finally, that in
any event if such failure shall continue for at least five (5) days and shall result in lost
revenue to Tenant, Tenant shall be entitled to reasonably estimate the amount of revenue
that would have been obtained and shall invoice Lessor therefor.
6
10. 1.3 Bankruptcy, Etc. (a) Lessor admits in writing its inability to pay its
debts generally as they become due; or (b) Lessor files a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws or any other applicable
law or statute of the United States of America -or any state; district or territory thereof; or
(c) Lessor makes an assignment for the benefit of creditors; or (d) Lessor consents to the
appointment of a receiver of the whole or any substantial part of its assets; or (e) Lessor
has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety
(90) days after the filing thereof, or (f) a court of competent jurisdiction enters an order,
judgment, or decree appointing a receiver of the whole or any substantial part of Lessor's
assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety
(90) days from the date of entry thereof, or (g) under the provisions of any other law for
the relief or aid of debtors, any court of competent jurisdiction shall assume custody or
control of the whole or any substantial part of Lessor's assets and such custody or control
is not terminated or stayed within ninety (90) days from the date of assumption of such
custody or control.
10. 1.4 Default Under SPSA. A breach by Lessor under the terms of the
SPSA and Lessor fails to cure such breach during any applicable cure period thereunder.
10. 1.5 Tenant Default. The occurrence at any time of the following events shall
constitute a "Tenant Default":
10.1.6 Failure to Perform Obligations. Unless due to a Force Majeure
Event excused by Section 8, the failure of Tenant to perform or cause to be performed any
obligation required to be performed by Tenant under this Agreement, or the failure of any
representation and warranty set forth herein to be true and correct in any material respect
as and when made; provided, however, that if such failure by its nature can be cured, then
Tenant shall have a period of thirty (30) days after receipt of written notice from Lessor of
such failure to Tenant to cure the same and a Tenant Default shall not be deemed to exist
during such period; provided, further, that if Tenant commences to cure such failure during
such period and is diligently and in good faith attempting to effect such cure, said period
shall be extended for a period of time reasonably required to accomplish such cure.
10. 1.7 Bankruptcy, Etc. (a) Tenant admits in writing its inability to pay its
debts generally as they become due; or (b) Tenant files a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws or any other applicable
law or statute of the United States of America or any state, district or territory thereof, or
(c) Tenant makes an assignment for the benefit of creditors; or (d) Tenant consents to the
appointment of a receiver of the whole or any substantial part of its assets; or (e) Tenant
has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety
(90) days after the filing thereof; or (f) a court of competent jurisdiction enters an order,
judgment, or decree appointing a receiver of the whole or any substantial part of Tenant's
assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety
(90) days from the date of entry thereof; or (g) under the provisions of any other law for
the relief or aid of debtors, any court of competent jurisdiction shall assume custody or
control of the whole or any substantial part of Tenant's assets and such custody or control
IN
is not terminated or stayed within ninety (90) days from the date of assumption of such
custody or control.
10.1.8 Default Under SPSA. A breach by Tenant under the terms of the
SPSA and Tenant fails to cure such breach during any applicable cure period thereunder.
11. Remedies Following Default.
11.1 Lessor's Remedies Upon Tenant Default. If a Tenant Default as described
in Section 10.2 has occurred and has not been cured as provided therein, Lessor may terminate this
Agreement by written notice and this Agreement shall be of no further force or effect as of the date
the termination notice is given, in which case Lessor may require Tenant to remove all of its
tangible property comprising the Facility from the Project Site by a mutually convenient date but
in no case later than one hundred eighty (180) days after such termination date, and in such case
the Project Site.shall be returned to its original condition, except for Facility support structures,
electric/wiring components and ordinary wear and tear,'and Tenant shall leave the Project Site in.
neat and clean order.
11.2 Tenant's Remedies Upon Lessor Default. If a Lessor Default as described
in Section 10.1 has occurred, Tenant may (i) terminate this Agreement by written notice to Lessor
and this Agreement shall terminate effective on the date set out in such notice, and Tenant shall
thereafter have the right to (A) abandon in place on the Project Site all the tangible property
comprising the Facility, or (B) remove all of its tangible property comprising the Facility from the
Project Site, at a cost that is borne solely by the Tenant, or (ii) continue to operate the Facility in
place and sell the Energy to other persons. In the event that Tenant continues to operate the Facility
and sell the Energy to other persons, the easements, right to occupy the Property and the Project
Site, and all other rights granted Tenant in this Agreement shall continue for the Lease Term. Upon
the removal of the Facility, the Project Site shall be returned to its original condition, except for
Facility support structures, electric/wiring components and ordinary wear and tear, and Tenant
shall leave the Project Site in neat and clean order.
11.3 No Consequential Damages. EXCEPT AS PROVIDED ,IN SECTION
10.1.1, NOTHING IN THIS AGREEMENT IS INTENDED TO CAUSE EITHER PARTY TO
BE, AND NEITHER PARTY SHALL BE, LIABLE TO THE OTHER PARTY -FOR ANY LOST
BUSINESS, LOST PROFITS OR REVENUES FROM OTHERS OR OTHER INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ALL CLAIMS FOR
WHICH ARE HEREBY IRREVOCABLY WAIVED BY LESSOR AND TENANT.
11.4 Effect of Termination of Agreement. Upon the end of the Lease Term or
other termination date of this Agreement, as applicable, the then future obligations of Lessor and
Tenant under this Agreement shall be terminated (other than the indemnity obligations set forth in
Section 12). Such termination shall not relieve either Party from obligations accrued prior to such
termination date.
12. Lessor Termination for Fiscal Deficit. Lessor's payment obligations and any other
financial obligations hereunder, for fiscal years succeeding Lessor's current fiscal year, shall be subject to
the availability of Lessor's revenues in excess of Lessor's expenses. During the thirty (30) days preceding
the commencement of each fiscal year, Lessor may terminate its obligations under this Agreement by written
notice to Tenant if the Lessor's expenses exceed its revenues. Such notice shall constitute a "Lessor
Default" for which Tenant shall have all remedies provided herein, including but not limited to the remedies
in Section 11.2, remedies in the other agreements between the parties, and remedies at law.
13. Indemnification.
13.1 Indemnification by Tenant. Tenant shall fully indemnify, save harmless and
defend Lessor from and against any and all costs, claims, and expenses incurred by Lessor in
connection with or arising from any claim by a third party for physical damage to or physical
destruction of property, or death of or bodily injury to any Person to the extent directly related to
Tenant's acts or omissions in the exercise of its rights or performance of its obligations under this
Agreement, but only to the extent caused by (a) the negligence or willful misconduct of Tenant or
its agents or employees or others under Tenant's control or (b) a Tenant Default; provided,
however, that Tenant's obligations pursuant to this Section 12.1 shall not extend to claims,
demands, lawsuits or actions for liability to the extent attributable to the negligence or willful
misconduct of Lessor.
13.2 [Reserved].
13.3 Notice of Claims. Any Party seeking indemnification hereunder (the
"Indemnified Party") shall deliver to the other Party (the "Indemnifying Party") a notice describing
the facts underlying its indemnification claim and the amount of such claim (each such notice a
"Claim Notice"). Such Claim Notice shall be delivered promptly to the Indemnifying Party after
the Indemnified Party receives notice that an action at law or a suit in equity has commenced;
provided, however, that failure to deliver the Claim Notice as aforesaid shall not relieve the
Indemnifying Party of its obligations under this Section, except to the extent that such
Indemnifying Party has been prejudiced by such failure.
13.4 Defense of Action. If requested by an Indemnified Party, the Indemnifying
Party shall assume on behalf of the Indemnified Party, and conduct with due diligence and in good
faith, the defense of such Indemnified Party with counsel reasonably satisfactory to the
Indemnified Party; provided, however, that if the Indemnifying Party is a defendant in any such
action and the Indemnified Party believes that there may be legal defenses available to it that are
inconsistent with those available to the Indemnifying Party, the Indemnified Party shall have the
right to select separate counsel to participate in its defense of such action at the Indemnifying
Party's expense. If any claim, action, proceeding or investigation arises as to which the indemnity
provided for in this Section 12 applies, and the Indemnifying Party fails to assume the defense of
such claim, action, proceeding or investigation after having been requested to do so by the
Indemnified Party, then the Indemnified Party may, at the Indemnifying Party's expense, contest
or, with the prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld, settle such claim, action, proceeding or investigation. All costs and
expenses incurred by the Indemnified Party in connection with any such contest or settlement shall
be paid upon demand by the Indemnifying Party.
13.5 Survival of Provisions. The provisions of this Section 12 shall survive the
expiration or termination of this Agreement.
12
14. Miscellaneous Provisions.
14.1 Notices. All notices, communications and waivers under this Agreement
shall be in writing and shall be (a) delivered in person, (b) mailed, postage prepaid, either by
registered or certified mail, return receipt requested, (c) sent by reputable overnight express
courier, (d) transmitted by facsimile where confirmation of successful transmission is received
from the receiving party's facsimile machine (such transmission to be effective on the day of
receipt if received prior to 5:00 p.m. local time on a Business Day or in any other case on the next
Business Day following the day of. transmittal) or (e) transmitted by e-mail if receipt of such
transmission by e-mail is specifically acknowledged by the recipient (automatic responses not
being sufficient for acknowledgment), addressed in each case to the addresses set forth below, or
to any other address either of the Parties shall designate in a written notice to the other Party:
If to Tenant:
Today's Power, Inc.
P.Q. Box 194208
Little Rock AR 72219-4802
Attention: Michael W. Henderson, President
Phone: 501-570-2228
Fax: (501) 570-2928
Email: michael.henderson@aecc.corn
With a copy to:
Today's Power, Inc.
P.Q. Box 194208
Little Rock AR 72219-4802
Attention: General Counsel
If to Lessor:
City of Fayetteville, Arkansas
113 West Mountain Street
Fayetteville, AR 72701
Attention: Mayor Lioneld Jordan
Phone: (479) 575-8257
Email: mayor@fayetteville-ar.gov
All notices sent pursuant to the terms of this Section 14.1 shall be deemed received (i) if personally
delivered, then on the date of delivery, (ii) if sent by reputable overnight, express courier, then on
the next Business Day immediately following the day sent, or (iii) if sent by registered or certified
mail, then on the earlier of the third (3rd) Business Day following the day sent or when actually
received.
14.2 Assignment by Lessor. Lessor shall not assign its interests in this
Agreement, nor any part thereof, without Tenant's prior written consent, which consent shall not
13
be unreasonably withheld or delayed. Any assignment by Lessor not permitted under this Section
14.2 shall be void ab initio.
14.3 Assignment by Tenant. Tenant shall not assign its interests in this
Agreement, nor any part thereof, without Lessor's prior, written consent, which consent shall not
be unreasonably withheld or delayed; provided that Tenant may (i) make an assignment to an
affiliate of Tenant, (ii) make an assignment through merger, consolidation or sale of all or
substantially all of Tenant's stock or assets, (iii) make an assignment to a capital provider or bank
or other financial institution as part of a financing arrangement, including entering into and
granting mortgages and Liens as permitted by Section 7.1.1. A direct assignee of Tenant's
obligations hereunder shall assume in writing, in form and content reasonably satisfactory to
Lessor, the due performance of all Tenant's obligations under this Agreement. Lessor will provide
such confirmations, releases and novations as are reasonably requested by Tenant in connection
with any such assignment. Any assignment by Tenant not permitted under this Section 14.3 shall
be void ab initio.
14.4 Successors and Assigns. The rights, powers and remedies of each Party
shall inure to the benefit of such party and its successors and permitted assigns.
14.5 Entire Agreement. This Agreement (including all exhibits attached hereto
and incorporated herein by this reference) and the SPSA represent the entire agreement between
the Parties with respect to the subject .matter hereof and thereof and supersede all prior and
contemporaneous oral and prior written agreements.
14.6 Amendments to Agreement. This Agreement shall not be amended,
modified or supplemented except in a writing executed by both Tenant and Lessor at the time of
such amendment, modification or supplement.
14.7 Waivers; Approvals. No waiver of any provision of this Agreement shall
be effective unless set forth in writing signed by the Party granting such waiver, and any such
waiver shall be effective only to the extent it is set forth in such writing. Failure by a Party to
insist upon full and prompt performance of any provision of this Agreement, or to take action in
the event of any breach of any such provisions or upon the occurrence of any Tenant Default or
Lessor Default, as applicable, shall not constitute a waiver of any rights of such Party, and, subject
to the notice requirements of this Agreement, such Party may at any time after such failure exercise
all rights and remedies available under this Agreement with respect to such Tenant Default or
Lessor Default. Receipt by a Party of any instrument or document shall not constitute or be deemed
to be an approval of such instrument or document. Any approvals required under this Agreement
must be in writing, signed by the Party whose approval is being sought.
14.8 Partial Invalidity. In the event that any provision of this Agreement is
deemed to be invalid by reason of the operation of Applicable Law, Tenant and Lessor shall
negotiate an equitable adjustment in the provisions of the same in order to effect, to the maximum
extent permitted by law, the purpose of this Agreement (and in the event that Tenant and Lessor
cannot agree then such provisions shall be severed from this Agreement) and the validity and
enforceability of the remaining provisions, or portions or applications thereof, shall not be affected
by such adjustment and shall remain in full force and effect.
14
14.9 Counterparts. This Agreement may be executed in counterparts, including
by facsimile or electronic transmission, each of which shall be deemed an original and all of which
when taken together shall constitute one and the same Agreement.
14.10 No Third -Party Rights. This Agreement is solely for the benefit of the
Parties and their respective permitted successors and permitted assigns, and this Agreement shall
not otherwise be deemed to confer upon or give to any other third Person any remedy, claim,
liability, reimbursement, cause of action or other right.
14.11 No Agency. This Agreement is not intended, and shall not be construed, to
create any association, joint venture, agency relationship or partnership between the Parties or to
impose any such obligation or liability upon either Party. Neither Party shall have any right, power
or authority to enter into any agreement or undertaking for, or act as or be an agent or representative
of, or otherwise bind, the other Party.
14.12 No Recourse to Affiliates. This Agreement is solely and exclusively
between the Parties, and any obligations created herein on the part of either Party shall be the
obligations solely of such Party. No Party shall have recourse to any parent, subsidiary; partner,
member, affiliate, lender, director, officer or employee of the other Party for performance or non-
performance of any obligation hereunder, unless such obligations were assumed in writing by the
Person against whom recourse is sought.
14.13 Governing Law. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED UNDER THIS AGREEMENT, IN ALL RESPECTS, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
AGREEMENT AND THE OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF ARKANSAS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
14.14 [Reserved].
14.15 Injunctive Relief. The Parties acknowledge and agree that any violation or
breach of the provisions of this Agreement may result in irreparable injury to a Party for which a
remedy at law may be inadequate. In addition to any relief at law that may be available to a non -
breaching Party for such violation or breach, and regardless of any other provision contained in
this Agreement, such Party shall be entitled to seek injunctive and other equitable relief and shall.
not be required to post any bond in connection therewith.
14.16 Cumulative Remedies. Except as set forth herein, any right or remedy of
Tenant or Lessor shall be cumulative and without prejudice to any other right or remedy, whether
contained herein or not.
14.17 Headings. The headings in this Agreement are solely for convenience and
ease of reference and shall have no effect in interpreting the meaning of any provision of this
Agreement.
15
14.18 Additional Documents and Actions. Upon the receipt of a written request
from the other Party, each Party shall execute such additional documents, instruments and
assurances and take such additional actions as are reasonably necessary to carry out the terms and
intent hereof. Neither Party shall unreasonably withhold, condition or delay its compliance with
any reasonable request made pursuant to this Section 14.18.
15. Condemnation. If at any time during the Lease Term, any part of the Project Site
or Facility is taken for any public or quasi -public use under Applicable Law, ordinance of or
regulation by a Governmental Authority by condemnation or right of eminent domain, then each
Party shall be entitled to separately pursue an award for its respective property interest appropriated
as well as any damages suffered thereby, and each Party hereby waives any right to any award that
may be prosecuted by the other Party.
16. Estoppel. Either Party, without charge, at any time and from time to time, within
a reasonable time after receipt of a written request by the other Party, shall deliver a written
instrument, duly executed, certifying to such requesting Party, or any other person, firm or
corporation specified by such requesting Party:
(a) That this Agreement is unmodified and in full force and effect, or if
there has been any modification, that the same is in full force and
effect as so modified, and identifying any such modification;
(b) Whether or not to the knowledge of any such Party there are then
existing any offsets or defenses in favor of such Party against
enforcement of any of the terms, covenants and conditions of this
Agreement and, if so, specifying the same and also whether or not
to the knowledge of such Party, the other Party has observed and
performed all of the terms, covenants and conditions on its part to
be observed and performed, and if not, specifying the same; and
(c) Such other information as may be reasonably requested by a Party.
Any written instrument given hereunder may be relied upon by the recipient of such instrument,
except to the extent the recipient has actual knowledge of facts contained in the certificate.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement
as of the date set forth above.
TENANT:
TODAY'S POWER, INC.
By:
Name: Michael W. enderson
Title: President
LESSOR:
CITY
r
Title:
s Attest:
Name: Sondra Smith
SGf''•���
Title: City Clerk
`.`•`C,���'�ZY•C%F
V � F AY ETS •?-'
Date: i o2 0/
�. 9••.;9RKANS�G'�?`
i,111VG TOct%tt'�
17
EXHIBIT A
DESCRIPTION OF PROPERTY
The property address is identified as 1500 South Broyles Road, Fayetteville, Arkansas (West
Wastewater Treatment Facility). The legal description of the Property on which a Lease and
Easement Agreement is rendered is described as follows:
West Side Solar Array Tract "A"
A part of the Northeast Quarter (NE) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (3 1) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at a point North 87°42" 10" West 1324.01 feet and South 02'36'15" West 53.60 feet
from the Northeast corner of said section being the southerly line a Water & Sewer easemerit Doc.
Ref. 0023-00000172;
Thence along said southerly line South 87°42'10" East a distance of 897.68 feet to a point;
Thence leaving said southerly line South 18°26'10" East a distance of 13.21 feet to a point;
Thence South 26°36'45" East a distance of 108.67 feet to a point;
Thence South 30°13'49" East a distance of 45.60 feet to a point;
Thence South 42°3258" East a distance of 76.92 feet to a point;
Thence South 31 '37'17" East a distance of 34.88 feet to a point;
Thence South 22°00'01" East a distance of 138.03 feet to a point;
Thence South 29°13'02" East a distance of 83.11 feet to a point;
Thence South 49°15'31" East a distance of 174.84 feet to a point;
Thence South 29°05'30" East a distance of 15.31 feet to the westerly right-of-way Broyles Avenue;
Thence along said right-of-way South 02°5822" West a distance of 295.76 feet to a point;
Thence leaving said right-of-way North 87042104" West a distance of 1299.30 feet to a point;
Thence North 02°36'15" East a distance of 843.55 feet which is the point of beginning, having an
area of 22.34 acres more or less. Subject to any rights-of-way of roads or easements of record.
West Side Solar Array Tract "B"
A part of the Southwest Quarter (SW) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (31) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at a point South 02°35"22" West 1668.99 feet and South 87°2438" East 65.34 feet
from the Northwest corner of the Northwest Quarter (NW) of the Northeast Quarter said section
being the easterly right-of-way of 54th Street;
Thence South 88°32'12" East a distance of 1074.05 feet to a point;
Thence South 02°32'01" West a distance of 820.14 feet to a point;
Thence North 88°32'12" West a distance of 675.18 feet to a point;
Thence North 02°35'22" East a distance of 520.21 feet to a point;
Thence North 88°32'12" West a distance of 400.69 feet to the said easterly right-of-way 54th
Street; Thence along said right-of-way North 02°47'04" East a distance of 29997 feet to which is
the point of beginning, having an area of 15.46 acres more or less. Subject to any rights-of-way of
roads or easements of record.
up
EXHIBIT B
DESCRIPTION OF PROJECT SITE
The legal description of the Project Site at 1500 South Broyles Road, Fayetteville, Arkansas (West
Wastewater Treatment Facility) on which a Lease and Easement Agreement is rendered is
described as follows:
West Side Solar Array Tract "A"
A part of the Northeast Quarter (NE) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (3 1) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at a point North 87'42" 10" West 1324.01 feet and South 02136'15" West 53.60 feet
from the Northeast corner of said section being the southerly line a Water & Sewer easement Doc.
Ref. 0023-00000172;
Thence along said southerly line South 87'42'10" East a distance of 897.68 feet to a point;
Thence leaving said southerly line South 18°26'10" East a distance of 13.21 feet to a point;
Thence South 26°36'45" East a distance of 108.67 feet to a point;
Thence South 30'13'49" East a distance of 45.60 feet to a point;
Thence South 42°3258" East a distance of 7692 feet to a point;
Thence South 31°37'17" East a distance of 3 4.8 8 feet to a point;
Thence South 22°00'01" East a distance of 138.03 feet to a point;
Thence South 29'13'02" East a distance of 83.11 feet to a point;
Thence South 49'15'31 " East a distance of 174.84 feet to a point;
Thence South 29°05'30" East a distance of 15.31 feet to the westerly right-of-way Broyles Avenue;
Thence along said right-of-way South 02°58'22" West a distance of 295.76 feet to a point;
Thence leaving said right-of-way North 87°42'04" West a distance of 1299.30 feet to a point;
Thence North 02'36'15" East a distance of 843.55 feet which is the point of beginning, having an
area of 22.34 acres more or less. Subject to any rights-of-way of roads or easements of record.
West Side Solar Array Tract "B"
A part of the Southwest Quarter (SW) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (31) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at a point South 02'35"22" West 1668.99 feet and South 87°2438" East 6534 feet
from the Northwest corner of the Northwest Quarter (NW) of the Northeast Quarter said section
being the easterly right-of-way of 54th Street;
Thence South 88P32'12" East a distance of 1074.05 feet to a point;
Thence South 02'32'01" West a distance of 820.14 feet to a point;
Thence North 88'32'12" West a distance of 675.18 feet to a point;
Thence North 02'35'22" East a distance of 520.21 feet to a point;
Thence North 88'32'12" West a distance of 400.69 feet to the said easterly right-of-way 54th
Street; Thence along said right-of-way North 02'47'04" East a distance of 299.97 feet to which is
the point of beginning, having an area of 15.46 acres more or less. Subject to any rights-of-way of
roads or easements of record.
E
EXHIBIT C
PERMITTED LIENS
NONE
20
FORM OF MEMORANDUM OF LEASE AND EASEMENT AGREEMENT
This Memorandum of Lease and Easement Agreement ( "Memorandum ") dated as of
November' 1, 2018 (the "Execution Date"), is executed and entered into by and between City of
Fayetteville, Arkansas, an Arkansas city (the "Lessor") and Today's Power, Inc., an Arkansas
corporation (the "Tenant").
WITNESSETH THAT:
Lessor and Tenant executed and entered into that certain Lease and Easement Agreement
(the "Lease Agreement") dated as of November 1, 2018.
In consideration of One Dollar ($1.00) cash in hand paid, and of the mutual covenants
stated in Lease Agreement, the provisions of which are incorporated into and made a part of this
Memorandum, Lessor (i) has leased and demised unto Tenant that certain tract of land located in
Fayetteville, Arkansas, as more particularly described on Exhibit B attached hereto, which is
incorporated herein by reference (the "Project Site"), and (ii) further granted certain easements
and other rights on, over, across and under those premises adjacent to the Project Site as more
particularly described on Exhibit A attached hereto, which is incorporated herein by reference (the
"Property!). For avoidance of doubt and without limitation, the Project Site is situated within the
Property.
1. Term. The term of Tenant's interests under the Lease Agreement commenced on
November 1, 2018 and shall survive for the life of the Facility plus one year but no less than a
period ending upon the twenty sixth (26th) anniversary of the Commercial Operation Date (the
"Term").
2. Notice of Lease Agreement, Miscellaneous. This Memorandum does not set forth
all of the provisions of the Lease Agreement. The purpose of this Memorandum, is to give notice
of Tenant's interests granted by the Lease Agreement, and of the provisions thereof, to the same
extent as if fully set forth in this Memorandum. The terms and conditions set forth in the Lease
Agreement and this Memorandum shall be binding upon and inure to the benefit of Tenant and
Lessor, and their respective successors and assigns. Capitalized terms used in this Memorandum
not otherwise defined herein shall have the meanings attributed to such terms in the Lease
Agreement. In the event of a conflict between the provisions of this Memorandum and the Lease
Agreement, the provisions of the Lease Agreement shall control. All agreements set forth in the
Lease Agreement and in this Memorandum shall run with the land. The Lease Agreement and this
Memorandum may not be amended, modified or supplemented, except by written agreement of
Lessor and Tenant, executed by their duly authorized representatives.
3. Counterparts. This Memorandum may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which counterparts, when executed
and delivered, shall be deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
21
IN `WITNESS
Execution Date.
WHEREOF, the parties hereto have executed this Assignment as of the
1 i131IZZV 11�
Today's Power, Inc.,
an Arkansas corporation
•-
enderson,President
I
STATE OF ARKANSAS )
ss: ACKNOWLEDGMENT
COUNTY iOF4";i�a_ )
Onithis day personally appeared before the undersigned, a Notary Public within and for the
County and State aforesaid, duly qualified, commissioned and acting, the within named Michael
W. Henderson, to me personally well known (or satisfactorily proven), who stated he was the
President Of Today's Power, Inc., an Arkansas corporation, and he stated he was duly authorized
in his capacity to execute the foregoing instrument for and in the name of said entity, and further
stated and iacknowledged he had so signed, executed and delivered the foregoing instrument for
the consideration, uses and purposes therein mentioned and set forth.
i
TESTIMO Y WHEREOF, I have hereunto set my hand and official seal this
day of 2018.
C.�
Notary Public
My commission expires:
(SEAL) ``,�aai�ueo+rrrri�
o�.•��{tiRY P&I
A
., o RKANSJ#S
r
22
INWITNESS WHEREOF, the parties hereto have executed this Assignment as of the
Execution 'Date.
NY.Yf7
City of Fayetteville, Arkansas
an Arkansahnunicipality-
Attest: &6L4,24/.,°&Z Ce . Ad
Sondra Smith, City Clerk -Treasurer
Date:
STATE OF ARKANSAS _ )
I r 1W j SS:
COUNTY IOF
ACKNOWLEDGMENT
,,\\q\1111t1ttt��
T ry
Eo: FAYETTEVILLE ,
e'/VGTON%`'�;
Onithis day personally appeared before the undersigned, a Notary Public within and for the
County and State aforesaid, duly qualified, commissioned and acting, the within named Lioneld
Jordan ands Sondra Smith, to me personally well known (or satisfactorily proven), who stated they
are the Mayor and City Clerk -Treasurer for City of Fayetteville, Arkansas, and he stated they
were duly authorized in their respective capacities to execute the foregoing instrument for and in
the name of said entity, and further stated and acknowledged they had so signed, executed and
delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and
set forth.
IN jjTES IMONY WHEREOF, I have hereunto set my hand and official seal this
day of ^ QJ2018.
AN RPAAt-W.
My commission expires:
(SEAL)
23
Notary Public
LEASE AND EASEMENT AGREEMENT — EAST WASTEWATER TREATMENT
FACILITY
PREAMBLE
This LEASE AND EASEMENT AGREEMENT (this "Agreement"), dated as of
November 1, 2018 (the "Effective Date"), is made by and between Today's Power, Inc.
("Tenant"), an Arkansas corporation, and City of Fayetteville, Arkansas ("Lessor"), an Arkansas
City of the First Class (each, a "Party" and collectively, the "Parties").
RECITALS
WHEREAS, Lessor and Tenant have entered into the Solar Power Services Agreement
("SPSA"), dated as of November 1, 2018 ("SPSA Effective Date"), pursuant to which, and subject
to the terms thereof (i) Tenant, as Seller thereunder, is obligated to construct on the Project Site a
5,000 kW AC solar photovoltaic power generating facility ("Facility"), and (ii) Tenant is required
to sell and Lessor, as Buyer thereunder, is required to purchase 100% of the output of the Facility;
and
WHEREAS, in conjunction with the terms of the SPSA, the Parties desire to execute this
Agreement granting Tenant certain leasehold, easement, and use rights regarding the Property and
the Project Site, which real property is owned by Lessor.
NOW THEREFORE, in consideration of the mutual promises set forth below and in the
SPSA, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
AGREEMENT
I. Definitions. Unless otherwise required by the context in which any term appears:
(a) capitalized terms used in this Agreement shall have the respective meanings set forth in this
Section 1; (b) the singular shall include the plural and vice versa; (c) the words "herein," "hereof
and "hereunder shall refer to this Agreement as a whole and not to any particular section or
subsection hereof; and (d) references to this Agreement shall include a reference to all exhibits
hereto, as the same may be amended, modified, supplemented or replaced from time to time.
"AC" shall mean alternating current.
"Agreement" shall have the meaning set forth in the Preamble.
"Applicable Law" shall mean, with respect to any Person, any constitutional provision,
law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate,
holding, injunction, registration, license, franchise, permit, authorization, guideline, governmental
approval, consent or requirement of any Governmental Authority having jurisdiction over such
Person or its property, enforceable at law or in equity, including the interpretation and
administration thereof by such Governmental Authority.
"Business Day" means any day other than a Saturday, Sunday or legal holiday for
commercial banks under Applicable Law.
"Claim Notice" shall have the meaning set forth in Section 12.3.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Operation Date" means the date on which the Facility begins commercial
operation after startup and testing, as memorialized in a notice from Tenant to Lessor.
"Effective Date" shall have the meaning set forth in the Preamble.
"Energy" means the AC electric energy generated by the Facility.
"Environmental Attributes" means any and all claims, credits, benefits emissions
reductions, offsets, renewable energy credits and allowances, howsoever entitled, resulting from
the avoidance of the emission of any gas, chemical or other substance to the air, soil or water,
which are deemed of value by Lessor; provided that Environmental Attributes shall not include
Environmental Financial Incentives or Tax Attributes.
"Environmental Financial Incentives" means each of the following financial benefits,
rebates and incentives that is in effect as of the SPSA Effective Date or may come into effect in
the future: (i) performance-based incentives under a Governmental Authority's or a utility's
program or initiative, state and Federal incentive tax credits (including income tax credits and
investment tax credits arising under the Code), other tax benefits, and accelerated depreciation,
however named or referred to, with respect to any and all fuel, emissions, air quality, energy
generation, or other environmental or energy characteristics, resulting from the use of solar
generation or the avoidance of the emission of any gas, chemical or other substance into the air,
soil or water attributable to the sale of Energy generated by the Facility; (ii) all reporting rights
with respect to such incentives; and (iii) all Rebates, provided that Environmental Financial
Incentives shall not include Environmental Attributes.
"Expiration Date" means the expiration date of the SPSA, which shall be the date that is
twenty years after the Commercial Operation Date, unless the SPSA is terminated earlier pursuant
to its terms.
"Facility" shall mean a solar photovoltaic power generating facility with a total generating
capacity of 5,000 kW AC nominal located on the Project Site and shall include, without limitation,
the components and equipment described in Exhibit E.
"Force Ma'eure" means an event that (a) is not reasonably anticipated as of the date hereof,
(b) is not within the reasonable control of the Force Majeure Party, (c) is not the result of the Force
Majeure Party's negligent or willful act or failure to act, and (d) could not be overcome by the
Force Majeure Party's exercise of due diligence in the circumstances. Force Majeure includes,
but is not limited to, events of the following types (but only to the extent that such an event, in
consideration of the circumstances, satisfies the requirements set forth in the preceding sentence):
failure of transmission or distribution facilities or other equipment; breakage of or damage to
machinery or equipment, including the Equipment; acts of God; fire; explosion; civil disturbance;
sabotage; or action or restraint by a Government Authority.
"Force Majeure Party" shall have the meaning set forth in Section 8.
"Governmental'Authority" shall mean any federal, state, regional, county, town, city, or
municipal government, whether domestic or foreign, or any department, agency, bureau, or other
administrative, regulatory or judicial body of any such government including, without limitation,
any governmental or quasi -governmental entity or independent system operator or regional
transmission operator.
'W" means kilowatt, and unless otherwise stated shall be AC.
"Indemnified Party" shall have the meaning set forth in Section 12.3.
"Indemnifying Party" shall have the meaning set forth in Section 12.3.
"Lease" shall have the meaning set forth in Section 2.1.
"Lease Term" shall have the meaning set forth in Section 2.1.
"Lessor" shall have the meaning set forth in the Preamble.
"Lessor Default" shall have the meaning set forth in Section 14.1.
"Liens" shall have the meaning set forth in Section 7.1.1.
"Maintenance" means the ordinary upkeep of the Facility, including testing the
performance of the solar panels and inverters, checking the condition of the racking system, and
making any minor adjustments or undertaking any other activities necessary to ensure .that the
Facility is in good working order. Maintenance shall not include Repairs.
"NDA" shall have the meaning set forth in Section 5.1.
"Non -Force Majeure Party" shall have the meaning set forth in Section 8.
"partv" or "Parties" shall have the meaning set forth in the Preamble.
"Person" means any individual, corporation, partnership, company, joint venture,
association, trust, unincorporated organization, firm or other entity, or a Governmental Authority.
"Project Site" means that portion of the Property where the Facility is physically located,
as more fully described in Exhibit B attached hereto.
"Propertv" means the land/property located as described in Exhibit A, the legal description
of which is set forth in Exhibit A attached hereto. For avoidance of doubt and without limitation,
the Project Site is located within the Property.
"Rebates" means any and all Governmental Authority or utility rebates or other funding
offered for the development of photovoltaic systems.
"Repair" or "Repairs" shall mean the repair or replacement of any equipment or component
of the Facility, including the racking system, where such equipment or component is broken, non-
performing or materially underperforming.
"SPSA" shall have the meaning set forth in the Recitals.
"SPSA Effective Date" shall have the meaning set forth in the Recitals.
"Tax Attributes" shall mean all investment credits, production tax credits, income tax
credits and similar tax attributes.
"Tenant" shall have the meaning set forth in the Preamble. For purposes of the exercise of
easement and other rights regarding the Property granted to Tenant ' in this Agreement, and
specifically including the rights granted in Section 22 and Section 2.3, the term "Tenant" shall
include Tenant's authorized agents, contractors and subcontractors.
"Tenant Default" shall have the meaning set forth in Section 10.2.
"Termination Date" shall mean, in the case of a termination of the SPSA prior to the
Expiration Date, the date of such earlier termination.
Lease and Related Rights.
2.1 Lease. Lessor hereby leases to Tenant, and Tenant hereby leases from
Lessor in accordance with the terms of this Agreement, the Project Site for the Lease Term for the
sole purposes of installing, owning, operating, maintaining, repairing and removing the Facility,
connecting the Facility to any transformer or any interconnection or transmission lines, and uses
ancillary thereto (the "Lease"). The Lease shall also include an easement to receive unobstructed
sunlight as further provided in Section 2.4. The Lease granted in this Agreement and all provisions
in this Agreement related to such Lease, including the easement and other rights granted to Tenant
in this Agreement, shall survive for the life of the Facility plus one year but no less than a period
ending upon the twenty sixth (26'h) anniversary of the Commercial Operation Date (the "Lease
Term"). This Agreement and the Lease and other easement and property use rights granted herein
shall survive the Expiration Date or other termination of the SPSA.
2.2 Access to Project Site. Lessor also hereby grants to Tenant, for the Lease
Term, a non-exclusive easement to and from the Project Site across or through the Property and
any surrounding or adjacent lands or buildings owned, leased or under the control of Lessor and
as otherwise may be reasonably required for the purpose of (a) the delivery, installation, operation,
Maintenance, Repair and removal of the Facility; and (b) as may be otherwise reasonably required
by Tenant in connection with the SPSA and the Facility, passage through which is necessary to
gain access to the Facility or the Project Site. Said easement shall be subject to and shall not
interfere with existing rights of way and easements of record.
2.3 Transmission Connection Rights. Lessor also hereby grants to Tenant, for
the Lease Term, a non-exclusive easement to and from the Project Site across or through the
Property and any surrounding or adjacent lands or buildings owned, leased or under the control of
Lessor, as more particularly described on the attached Exhibit B and as otherwise may be
0
reasonably required, for the purpose of (a) the delivery, installation, operation, maintenance, repair
and removal of utility lines, pipes, conduits, poles, towers and other equipment and structures for
the transmission of electricity or otherwise serving the Facility; and (b) to connect the Facility to
transmission lines regulated by the Federal Energy Regulatory Commission or otherwise as is
necessary for Tenant to sell the output of the Facility onto the transmission grid or to otherwise
effectuate the sale of the output of the Facility. Said easement shall be subject to and shall not
interfere with existing rights of way and easements of record.
2.4 Overshadowing and Shading. Notwithstanding any other provision of this
Agreement to the contrary, Lessor, or any lessee, grantee or licensee of Lessor, shall not erect any
structures on, or make other modifications to, or plantings on, the Property which will interfere
with the construction, operation, Maintenance or Repair of, or solar access of, the Facility. Further,
if Applicable Law and Lessor's existing easements, restrictions, and rights do not ensure that
structures or plantings on adjoining property will not interfere with the solar access for the Facility,
then Lessor and Tenant shall work together to obtain from owners of adjoining properties any
easements and restrictive covenants reasonably necessary to protect the unobstructed solar access
of the Facility. Such easements shall run for the benefit of both Lessor and Tenant. if such
easements or restrictive covenants cannot be obtained, Tenant shall have the right (but shall not be
required) to relocate the Facility to another location on the Property and Lessor shall reasonably
cooperate with such relocation, and reimburse Tenant for all costs incurred in connection
therewith.
2.5 Use of Rights. Tenant shall utilize the rights granted hereunder in a manner
that does not unreasonably interfere with Lessor and use of the Property. by Lessor's guests and
invitees, tenants, licensees or other visitors to the extent commercially practical.
2.6 Quiet Enjoyment. Lessor represents, warrants and covenants that Lessor
has lawful title to the Project Site and the Property free and clear of all liens and encumbrances
except as set forth on Exhibit C attached hereto and that Tenant shall have quiet and peaceful use,
enjoyment and possession of the Project Site and the easements and other rights granted hereunder
for the Lease Term. Lessor agrees that this Agreement and any easements, leaseholds and rights
of way granted hereunder run with the Property and survive any transfer of all or any portion of
the Property and will be binding upon and benefit the Parties' successors and assigns.
2.7 Site Conditions and Utilities. Lessor represents to Tenant that Lessor is
unaware of any Property conditions or construction requirements that (a) would materially increase
the cost of installing the Facility at the Project Site or would materially increase the cost of
maintaining the Facility at the Project Site over the cost that would be typical or customary for
solar photovoltaic systems substantially similar to the Facility or (b) would adversely affect the
ability of the Facility as designed to produce electricity once installed. Lessor shall promptly
notify Tenant of any change in the condition of the Property and/or any change or anticipated
change involving adjacent property that could damage, impair or otherwise adversely affect the
Facility.
2.8 City Approval of Final Project t Design and Zoning. Prior to commencing
construction of the Facilities, Tenant shall submit final project designs for approval by the City
through the development process as set forth in the City of Fayetteville Unified Development
Code. .
29 Memorandum of Lease. Contemporaneously with the execution and
delivery of this Agreement, the Parties shall also execute and deliver a memorandum of this
Agreement in substantially the form attached hereto as Exhibit D, which Tenant may record in the
registry or title records of the county or counties where the Property is located, and any other
applicable government office providing record notice of Tenant's rights hereunder.
3. Rent. Apart from payment by Tenant of One. U.S. Dollar ($1.00), the Parties'
obligations hereunder and under the SPSA, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by Lessor, no other rent shall be due from Tenant
hereunder throughout the Lease Term.
4. Installation and Ownership of the Facility.
4.1 Tenant will cause the Facility to be designed, engineered, installed and
constructed substantially in accordance with the terms of the SPSA and Applicable Law. Tenant
shall procure all materials and equipment for the Facility installation and maintain the same at the
Project Site or Property. Tenant shall perform all installation work at the Project Site in a manner
that reasonably minimizes inconvenience to and interference with Lessor and Lessor's guests and
Lessor's use of the Project Site and the Property to the extent commercially practicable.
4.2 Title to Facility. Tenant shall at all times own not less than 99% of the
Facility, and shall own in their entirety any and all Environmental Financial Incentives and Tax
Attributes relating to the Facility, which include, without limitation, Tenant's right to retain, sell,
transfer or assign the same. Lessor shall own not more than 1% of the Facility. Lessor and Tenant
shall enter into a separate Ownership and Operations Agreement regarding the ownership and
operations of the Facility. The Facility shall (i) remain personal property and shall not attach to
or be deemed a part of, or fixture to, any Property, and (ii) at all times retain the legal status of
personal property as defined under Article 9 of the applicable Uniform Commercial Code. Lessor
warrants and represents that it shall keep the Facility free from all liens, claims and encumbrances
of its lenders and any other third parties (other than those created by Tenant or its creditors).
Tenant shall be entitled to, and is hereby authorized to, file one or more UCC Financing Statements
or fixture filings, as applicable, in such jurisdictions as it deems appropriate with respect to the
Facility in order to protect its title to and rights in the Facility.
Third Party Consents, Cooperation with Financing.
5.1 Lessor covenants that it will obtain a non -disturbance and attornment
agreement ("NDA") from any third party who now has or may in the future obtain an interest in
the Project Site or areas of the Property over which easements or other rights in favor of Tenant
have been granted hereunder, including, without limitation, any lessors or lenders to Lessor or
holders of any liens or encumbrances on the Property (including those set forth on Exhibit C).
Such NDA shall be in a form reasonably suitable to Lessor and Tenant and shall (a) acknowledge
and consent to Tenant's rights in the Project Site, the Property, and this Agreement,
(b) acknowledge that the third party has no interest in or lien on the Facility or any other property
of Tenant on the Project Site or the Property and shall not gain any interest in the Facility or any
other property of Tenant on the Project Site or the Property by virtue of the Parties' performance
or breach of this Agreement or the SPSA, or the exercise of any rights by a third party, and (c) not
disturb Tenant's rights under this Agreement and provide for Tenant's attornment to the third party
in the event that the third party forecloses on the Property.
5.2 Lessor acknowledges that Tenant may be financing the Facility and Lessor
agrees that it shall reasonably cooperate with Tenant and its financing parties in connection with
such financing, including (a) the furnishing of such information, (b) the giving of such certificates
and obtaining one or more NDAs, and (c) providing such opinions of counsel and other matters as
Tenant and its financing parties may reasonably request; provided, that the foregoing undertaking
shall not obligate Lessor to materially change any rights or benefits, or materially increase any
burdens, liabilities or obligations of Lessor, under this Agreement (except for providing notices
and additional cure periods to the financing parties with respect to Tenant Defaults as a financing
party may reasonably request).
6. Representations and Warranties. In addition to any other representations and
warranties contained in this Agreement, each Party represents and warrants to the other Party as
of the Effective Date that:
(a) it is duly organized, validly existing and in good standing under the
laws of the state of its formation;
(b) it has the full right and authority to enter into, execute, deliver and
perform.its obligations under this Agreement;
(c) it has taken all requisite corporate or other action to approve the
execution, delivery and performance of this Agreement;
(d) this Agreement constitutes a legal, valid and binding obligation
enforceable against such Party in accordance with its terms;
(e) to its knowledge there is no litigation, action, proceeding or
investigation pending or threatened on any basis before any court or
other Governmental Authority by, against, affecting or involving
any of its business, properties or assets (including, without
limitation, with respect to Lessor, the Project Site or any interest
therein) that would affect its ability to perform its obligations under
this Agreement; and,
(f) its execution of and performance under this Agreement shall not
violate any existing Applicable Law or create a default under any
agreement to which it is a party.
Covenants.
7.1 Tenant's Covenants. As a material inducement to Lessor's execution and
delivery of this Agreement, Tenant covenants and agrees to the following:
7
7.1.1 Removal of Liens. Except for the leasehold rights, easements,
financing and other rights granted to Tenant in this Agreement, Tenant shall not directly or
indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien
(including mechanics', labor or material man's lien), charge, security interest,
encumbrance or claim of any nature ("Liens") on or with respect to the Property or the
Project Site; provided that Tenant shall have the right without Lessor's consent to enter
into and grant Liens on the Facility, related assignments of the rights of Tenant in the Lease,
this Agreement and the Property, and related mortgages of Tenant's leasehold and
easement interests granted by this Agreement. If Tenant breaches its obligations under this
Section, it shall immediately notify Lessor in writing, shall promptly cause such Lien to be
discharged and released of record without cost to Lessor, and shall defend and indemnify
Lessor against all costs and. expenses (including reasonable attorneys' fees) incurred in
discharging and releasing such Lien.
7.1.2 Removal of Facility. Upon the Expiration Date, should Tenant
exercise its right under the SPSA to remove the Facility from the Project Site, Tenant shall
return the Project Site to its original condition, except for Facility support structures,
electric/wiring components and ordinary wear and tear, and Tenant shall leave the Project
Site in neat and clean order.
7.2 Lessor's Covenants. As a material inducement to Tenant's execution of this
Agreement, Lessor covenants and agrees as follows:
7.2.1 Maintenance of Site. Lessor shall give Tenant prompt notice of any
damage to or defective condition in any part of the Property (including mechanical,
electrical, plumbing, heating, ventilating, air conditioning and other equipment facilities
and systems located within or serving the Property) or the Facility which may have an
effect on the Tenant's access to or operation of the Facility.
7.2.2 Liens. Lessor shall not directly or indirectly cause, create, incur,
assume or suffer to exist any Liens on or with respect to the Facility or any interest therein.
Lessor also shall pay promptly before a fine or penalty may attach to the Facility or
Property any taxes, charges or fees of whatever type of any relevant Governmental
Authority levied on the Property, including the Project Site. If Lessor breaches its
obligations under this Section, it shall immediately notify Tenant in writing, shall promptly
cause such Lien to be discharged and released of record without cost to Tenant, and shall
indemnify Tenant against all costs and expenses (including reasonable attorneys' fees and
court costs at trial and on appeal) incurred in discharging and releasing such Lien, and
Tenant shall have the right (but not the obligation) to cure any such breach by Lessor at
Lessor's expense.
7.2.3 Property Taxes. Tenant shall not be responsible for paying any
increase in real estate taxes caused by Tenant's use, improvements, additions or
modifications to the Property or Project Site and shall not be liable -for any property taxes
or assessments associated with the Property or the Project Site, other than Tenant's
personal property taxes arising out of its ownership of the Facility. Lessor shall provide
1:3
Tenant with evidence of Lessor's timely payment of all taxes related to the Property or the
Facility.
8. Force Maieure Events. If either Party is prevented from or delayed in performing any
of its obligations under this Agreement by reason of a Force Majeure Event, such Party (the "Force Majeure
PAM") shall notify the other Party (the "Non -Force Majeure Party") in writing as soon as practicable after
the onset of such Force Majeure Event and the performance of its obligations under this .Agreement shall
be excusably delayed to the extent that such Force Majeure Event has interfered with such performance.
The Force Majeure Party shall use reasonable efforts to remedy its inability to perform. if a Party's failure
to perform its obligations under this Agreement is due to a Force Majeure Event, then such failure shall not
be deemed a Tenant Default or a Lessor Default, as the case may be. In case a Force Majeure Event
continues for two (2) years or more, the Non -Force Majeure Party may terminate this Agreement by written
notice to the Force Majeure Party and in such an event, neither Party shall have liability to the other for any
damages as a result of such termination.
9. Insurance Requirements.
9.1 Tenant's Insurance. During all periods covered by this Agreement through
the Expiration Date or Termination Date (as applicable), Tenant shall maintain, at its sole expense,
coverage limits of $10 million combined commercial general liability insurance and umbrella liability
and "all risk" property insurance covering the Facility installed at the Project Site. Tenant, if it
has employees, shall also maintain at all times during the Term workers' compensation insurance
coverage in accordance with the applicable requirements of federal and state law and automobile
liability insurance coverage. Tenant shall deliver to Lessor certificates of insurance evidencing
such coverage and naming Lessor as an additional insured with respect to Tenant's liability
insurance. Such insurance shall be on an occurrence basis and shall be.primary coverage without
right of contribution from any insurance of Lessor.
9.2 [Reserved]
10. Defaults.
10.1 Lessor Default. The occurrence at any time of any of the following events
shall constitute a "Lessor Default":
10.1.1 Failure to Perform Other Obli atm. Unless due to a Force
Majeure Event excused by Section 8, the failure of Lessor to perform or cause to be
performed any obligation required to be performed by Lessor under this Agreement, or the
failure of any representation and warranty set forth herein to be true and correct in any
material respect as and when made; provided, however, that if such failure by its nature
can be cured, then Lessor shall have a period of thirty (30) days after receipt of written
notice from Tenant of such failure to cure the same and a Lessor Default shall not be
deemed to exist during such period; provided, further., that if Lessor commences to cure
such failure during such period and is diligently and in good faith attempting to effect such
cure, said period shall be extended for sixty (60) additional days; provided, finally, that in
any event if such failure shall continue for at least five (5) days and shall result in lost
revenue to Tenant, Tenant shall be entitled to reasonably estimate the amount of revenue
that would have been obtained and shall invoice Lessor therefor.
10. 1.2 Bankruptcy, Etc. (a) Lessor admits in writing its inability to pay its
debts generally as they become due; or (b) Lessor files a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws or any other applicable
law or statute of the United States of America or any state, district or territory thereof, or
(c) Lessor makes an assignment for the benefit of creditors; or (d) Lessor consents to the
appointment of a receiver of the whole or any substantial part of its assets; or (e) Lessor
has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety
(90) days after the filing thereof; or (f) a court of competent jurisdiction enters an order,
judgment, or decree appointing a receiver of the whole or any substantial part of Lessor's
assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety
(90) days from the date of entry thereof; or (g) under the provisions of any other law for
the relief or aid of debtors, any court of competent jurisdiction shall assume custody or
control of the whole or any substantial part of Lessor's assets and such custody or control
is not terminated or stayed within ninety (90) days from the date of assumption of such
custody or control.
10. 1.3 Default Under SPSA. A breach by Lessor under the terms of the
SPSA and Lessor fails to cure such breach during any applicable cure period thereunder.
10.2 Tenant Default. The occurrence at any time of the following events shall
constitute a "Tenant Default":
10.2.1 Failure to Perform Obligations. Unless due to a Force Majeure
Event excused by Section 8, the failure of Tenant to perform or cause to be performed any
obligation required to be performed by Tenant under this Agreement, or the failure of any
representation and warranty set forth herein to be true and correct in any material respect
as and when made; provided, however, that if such failure by its nature can be cured, then
Tenant shall have a period of thirty (30) days after receipt of written notice from Lessor of
such failure to Tenant to cure the same and a Tenant Default shall not be deemed to exist
during such period; provided, further, that if Tenant commences to cure such failure during
such period and is diligently and in good faith attempting to effect such cure, said period
shall be extended for a period of time reasonably required to accomplish such cure.
10.2.2 Bankruptcy, Etc. (a) Tenant admits in writing its inability to pay its
debts generally as they become due; or (b) Tenant files a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws or any other applicable
law or statute of the United States of America or any state, district or territory thereof, or
(c) Tenant makes an assignment for the benefit of creditors; or (d) Tenant consents to the
appointment of a receiver of the whole or any substantial part of its assets; or (e) Tenant
has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety
(90) days after the filing thereof; or (f) a court of competent jurisdiction enters an order,
judgment, or decree appointing a receiver of the whole or any substantial part of Tenant's
assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety
(90) days from the date of entry thereof; or (g) under the provisions of any other law for
the relief or aid of debtors, any court of competent jurisdiction shall assume custody or
control of the whole or any substantial part of Tenant's assets and such custody or control
MI
is not terminated or stayed within ninety (90) days from the date of assumption of such
custody or control.
10.2.3 Default Under SPSA. A breach by Tenant under the terms of the
SPSA and Tenant fails to cure such breach during any applicable cure period thereunder.
H. Remedies Following, Default.
11.1 Lessor's Remedies Upon Tenant Default. If a Tenant Default as described
in Section 10.2 has occurred and has not been cured as provided therein, Lessor may terminate this
Agreement by written notice and this Agreement shall be of no further force or effect as of the date
the termination notice is given, in which case Lessor may require Tenant to remove all of its
tangible property comprising the Facility from the Project Site by a mutually convenient date but
in no case later than one hundred eighty (180) days after such termination date, and in such case
the Project Site shall be returned to its original condition, except for Facility support structures,
electric/wiring components and ordinary wear and tear, and Tenant shall leave the Project Site in
neat and clean order.
11.2 Tenant's Remedies Upon Lessor Default. If a Lessor Default as described
in Section 10.1 has occurred, Tenant may (i) terminate this Agreement by written notice to Lessor
and this Agreement shall terminate effective on the date set out in such notice, and Tenant shall
thereafter have the right to (A) abandon in place on the Project Site all the tangible property
comprising the Facility, or (B) remove all of its tangible property comprising the Facility from the
Project Site, at a cost that is borne solely by the Tenant, or (ii) continue to operate the Facility in
place and sell the Energy to other persons. In the event that Tenant continues to operate the Facility
and sell the Energy to other persons, the easements, right to occupy the Property and the Project
Site, and all other rights granted Tenant in this Agreement shall continue for the Lease Term. Upon
the removal of the Facility, the Project Site shall be returned to its original condition, except for
Facility support structures, electric/wiring components and ordinary wear and tear, and Tenant
shall leave the Project Site in neat and clean order.
11.3 No Consequential Damages. EXCEPT AS PROVIDED IN SECTION
10.1.1, NOTHING IN THIS AGREEMENT IS INTENDED TO CAUSE EITHER PARTY TO
BE, AND NEITHER PARTY SHALL BE, LIABLE TO THE OTHER PARTY FOR ANY LOST
BUSINESS, LOST PROFITS OR REVENUES FROM OTHERS OR OTHER INCIDENTAL,
INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ALL CLAIMS FOR
WHICH ARE HEREBY IRREVOCABLY WAIVED BY LESSOR AND TENANT.
11.4 Effect of Termination of Agreement. Upon the end of the Lease Term or
other termination date of this Agreement, as applicable, the then future obligations of Lessor and
Tenant under this Agreement shall be terminated (other than the indemnity obligations set forth in
Section 12). Such termination shall not relieve either Party from obligations accrued prior to such
termination date.
1.2. Lessor Termination for Fiscal Deficit. Lessor's payment obligations and any other
financial obligations, hereunder, for fiscal years succeeding Lessor's current fiscal year, shall be subject to
the availability of Lessor's revenues in excess of Lessor's expenses. During the thirty (30) days preceding
the commencement of each fiscal year, Lessor may terminate its obligations under this Agreement by written
notice to Tenant if the Lessor's expenses exceed its revenues. Such notice shall constitute a "Lessor
Default" for which Tenant shall have all remedies provided herein, including but not limited to the remedies
in Section 11.2, remedies -in the other agreements between the parties, and remedies at law.
13. Indemnification.
13.1 Indemnification by Tenant. Tenant shall fully indemnify, save harmless and
defend Lessor from and against any and all costs, claims, and expenses incurred by Lessor in
connection with or arising from any claim by a third party for physical damage to or physical
destruction of property, or death of or bodily injury to any Person to the extent directly related to
Tenant's acts or omissions in the exercise of its rights or performance of its obligations under this
Agreement, but only to the extent caused by (a) the negligence or willful misconduct of Tenant or
its agents or employees or others under Tenant's control or (b) a Tenant Default; provided,
however, that Tenant's obligations pursuant to this Section 12.1 shall not extend to claims,
demands, lawsuits or actions for liability to the extent attributable to the negligence or willful
misconduct of Lessor.
13.2 [Reserved].
13.3 Notice of Claims. Any Party seeking indemnification hereunder (the
"Indemnified Party") shall deliver to the other Party (the "Indemnifying _Party ") a notice describing
the facts underlying its indemnification claim and the amount of such claim (each such notice a
"Claim Notice"). Such Claim Notice shall be delivered promptly to the Indemnifying Party after
the Indemnified Party receives notice that an action at law or a suit in equity has commenced;
provided, however, that failure to deliver the Claim Notice as aforesaid shall not relieve the
Indemnifying Party of its obligations under this Section, except to the extent that such
Indemnifying Party has been prejudiced by such failure.
13.4 Defense of Action. If requested by an Indemnified Party, the Indemnifying
Party shall assume on behalf of the Indemnified Party, and conduct with due diligence and in good
faith, the defense of such Indemnified Party with counsel reasonably satisfactory to the
Indemnified Party; provided, however, that if the Indemnifying Party is a defendant in any such
action and the Indemnified Party believes that there may be legal defenses available to it that are
inconsistent with those available to the Indemnifying Party, the Indemnified Party shall have the
right to select separate counsel to participate in its defense of such action at the Indemnifying
Party's expense. If any claim, action, proceeding or investigation arises as to which the indemnity
provided for in this Section 12 applies, and the Indemnifying Party fails to assume the defense of
such claim, action, proceeding or investigation after having been requested to do so by the
Indemnified Party, then the Indemnified Party may, at the Indemnifying Party's expense, contest
or, with the prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld, settle such claim, action, proceeding or investigation. All costs and
expenses incurred by the Indemnified Party in connection with any such contest or settlement shall
be paid upon demand by the Indemnifying Party.
13.5 Survival of Provisions. The provisions of this Section 12 shall survive the
expiration or termination of this Agreement.
12
14. Miscellaneous Provisions.
14.1 Notices. All notices, communications and waivers under this Agreement
shall be in writing and shall be (a) delivered in. person, (b) mailed, postage prepaid, either by
registered- or certified mail, return receipt requested, (c) sent by reputable overnight express
courier, (d) transmitted by facsimile where confirmation of successful transmission is received
from the receiving party's facsimile machine (such transmission to be effective on the day of
receipt if received prior to 5:00 p.m. local time on a Business Day or in any other case on the next
Business Day following the day of transmittal) or (e) transmitted by e-mail if receipt of such
transmission by e-mail is specifically .acknowledged by the recipient (automatic responses not
being sufficient for acknowledgment), addressed in each case to the addresses set forth below, or
to any other address either of the Parties shall designate in a written notice to the other Party:
If to Tenant:
Today's Power, Inc.
P.O. Box 194208
Little Rock AR 72219-4802
Attention: Michael W. Henderson, -President
Phone: 501-570-2228
Fax: (501) 570-2928
Email: michael.henderson@aecc.com
With a copy to:
Today's Power, Inc.
P.O. Box 194208
Little Rock AR 72219-4802
Attention: General Counsel
If to Lessor:
City of Fayetteville, Arkansas
113 West Mountain Street
Fayetteville, AR 72701
Attention: Mayor Lioneld Jordan
Phone: (479) 575-8257
Email: mayor@fayetteville-ar.gov
All notices sent pursuant to the terms of this Section 14.1 shall be deemed received (i) if personally
delivered, then on the date of delivery, (ii) if sent by reputable overnight, express courier, then on
the next Business Day immediately following the day sent, or (iii) if sent by registered or certified
mail, then on the earlier of the third (3rd) Business Day following the day sent or when actually
received.
14.2 Assignment by Lessor. Lessor shall not assign its interests in this
Agreement, nor any part thereof, without Tenant's prior written consent, which consent shall not
13
be unreasonably withheld or delayed. Any assignment by Lessor not permitted under this Section
14.2 shall be void ab initio.
14.3 Assignment by Tenant. Tenant shall not assign its interests in this
Agreement, nor any part thereof, without Lessor's prior written consent, which consent shall not
be unreasonably withheld or delayed; provided that Tenant may (i) make an assignment to an
affiliate of Tenant, (ii) make an assignment through merger, consolidation or sale of all or
substantially all of Tenant's stock or assets, (iii). make an assignment to a capital provider or bank
or other financial institution as part of a financing arrangement, including entering into and
granting mortgages and Liens as permitted by Section 7.1.1. A direct assignee of Tenant's
obligations hereunder shall assume in writing, in form and content reasonably satisfactory to
Lessor, the due performance of all Tenant's obligations under this Agreement. Lessor will provide
such confirmations, releases and novations as are reasonably requested by Tenant in connection
with any such assignment. Any assignment by Tenant not permitted under this Section 14.3 shall
be void ab initio.
14.4 Successors and Assigns. The rights, powers and remedies of each Party
shall inure to the benefit of such party and its successors and permitted assigns.
14.5 Entire Agreement. This Agreement (including all exhibits attached hereto
and incorporated herein by this reference) and the SPSA represent the entire agreement between
the Parties with respect to the subject matter hereof and thereof and supersede all prior and
contemporaneous oral and prior written agreements.
14.6 Amendments to Agreement. This Agreement shall not be amended,
modified or supplemented except in a writing executed by both Tenant and Lessor at the time of
such amendment, modification or supplement.
14.7 Waivers; Approvals. No waiver of any provision of this Agreement shall
be effective unless set forth in writing signed by the Party granting such waiver, and any such
waiver shall be effective only to the extent it is set forth in such writing. Failure by a Party to
insist upon full and prompt performance of any provision of this Agreement, or to take action in
the event of any breach of any such provisions or upon the occurrence of any Tenant Default or
Lessor Default, as applicable, shall not constitute a waiver of any rights of such Party, and, subject
to the notice requirements of this Agreement, such Party may at any time after such failure exercise
all rights and remedies available under this Agreement with respect to such Tenant Default or
Lessor Default. Receipt by a Party of any instrument or document shall not constitute or be deemed
to be an approval of such instrument or document. Any approvals required under this Agreement
must be in writing, signed by the Party whose approval is being sought.
14.8 Partial Invalidity. In the event that any provision of this Agreement is
deemed to be invalid by reason of the operation of Applicable Law, Tenant and Lessor shall
negotiate an equitable adjustment in the provisions of the same in order to effect, to the maximum
extent permitted by law, the purpose of this Agreement (and in the event that Tenant and Lessor
cannot agree then such provisions shall be severed from this Agreement) and the validity and
enforceability of the remaining provisions, or portions or applications thereof, shall not be affected
by such adjustment and shall remain in full force and effect.
14
14.9 Counterparts. This Agreement may be executed in counterparts, including
by facsimile or electronic transmission, each of which shall be deemed an original and all of which
when taken together shall constitute one and the same Agreement.
14.10 No Third -Party Rights. This Agreement is solely for the benefit of the
Parties and their respective permitted successors and permitted assigns, and this Agreement shall
not otherwise be deemed to confer upon or give to any other third Person any remedy, claim,
liability, reimbursement, cause of action or other right.
14.1.1 No Agency. This Agreement is not intended, and shall not be construed, to
create any association, joint venture, agency relationship or partnership between the Parties or to
impose any such obligation or liability upon either Party. Neither Party shall have any right, power
or authority to enter into any agreement or undertaking for, or act as or be an agent or representative
of, or otherwise bind, the other Party.
14.12 No Recourse to Affiliates. This Agreement is solely and exclusively
between the Parties, and any obligations created herein on the part of either Party shall be the
obligations solely of. such Party. No Party shall have recourse to any parent, subsidiary, partner,
member, affiliate, lender, director, officer or employee of the other Party for performance or non-
performance of any obligation hereunder, unless such obligations were assumed in writing by the
Person against whom recourse is sought.
14.13 Governing Law. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED UNDER THIS AGREEMENT, IN ALL RESPECTS, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
AGREEMENT AND THE OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF ARKANSAS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
14.14 [Reserved].
14.15 Injunctive Relief The Parties acknowledge and agree that any violation or
breach of the provisions of this Agreement may result in irreparable injury to a Party for which a
remedy at law may be inadequate. In addition to any relief at law that may be available to a non -
breaching Party for such violation or breach, and regardless of any other provision contained in
this 'Agreement, such Party shall be entitled to seek injunctive and other equitable relief and shall
not be required to post any bond in connection therewith.
14.16 Cumulative Remedies. Except as set forth herein, any right or remedy of
Tenant or Lessor shall be cumulative and without prejudice to any other right or remedy, whether
contained herein or not.
14.17 Headings. The headings in this Agreement are solely for convenience and
ease of reference and shall have no effect .in interpreting the meaning of any provision of this
Agreement.
[L'
14.18 Additional Documents and Actions. Upon the receipt of a writteh request
from the other Party, each Party shall execute such additional documents, instruments and
assurances and take such additional actions as are reasonably necessary to carry out the terms and
intent hereof. Neither Party shall unreasonably withhold, condition or delay its compliance with
any reasonable request made'pursuant to this Section 14.18.
15. Condemnation. If at any time during the Lease Term, any part of the Project Site
or Facility is taken for any public or quasi -public use under Applicable Law, ordinance of or
regulation by a Governmental Authority by condemnation or right of eminent domain, then each
Party shall be entitled to separately pursue an award for its respective property interest appropriated
as well as any damages suffered thereby, and each Party hereby waives any right to any award that
may be prosecuted by the other Party.
16. Estoppel. Either Party, without charge, at any time and from time to time, within
a reasonable time after receipt of a written request by the other Party, shall deliver a written
instrument, duly executed, certifying to such requesting Party, or any other person, firm or
corporation specified by such requesting Party:
(a) That this Agreement is unmodified and in full force and effect, or if
there has been any modification, that the same is in full force and
effect as so modified, and identifying any such modification;
(b) Whether or not to the knowledge of any such Party there are then
existing any offsets or defenses in favor of such Party against
enforcement of any of the terms, covenants and conditions of this
Agreement and, if so, specifying the same and also whether or not
to the knowledge of such Party, the other Party has observed and
performed all of the terms, covenants and conditions on its part to
be observed and performed, and if not, specifying the same; and
(c) Such other information as may be reasonably requested by a Party.
Any written instrument given hereunder may be relied upon by the recipient of such instrument,
except to the extent the recipient has actual knowledge of facts contained in the certificate.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
11M
IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement
as of the date set forth above.
TENANT:
TODAY'S POWER, INC.
$y: . l7
Name: Michael W. Henderson
Title: President
L
--l" ''i ZtAw.�.. a •'1
LESSOR:
CITY OE*AYE TEVULLE, ARKANSAS
B 1' --
e: Lioneld or n
Title: Mayor
Attest:
Name: Sondra Smith�TR
Title: City Clerk A�� �,,�• • . • • • .F9S,O,,
�.� . Gti� Y p'c ••G���..
Date: f : FAYETTEVILLE:
'��'S'•;'kA NSP • J�,``.
TO
17
EXHIBIT A
The property address is identified as 1400 North Fox Hunter Road, Fayetteville, Arkansas (East
Wastewater Treatment Facility). The legal description of the Property on which a Lease and
Easement Agreement is rendered is described as follows:
Part of the Northwest Quarter of Section Nine (9), Township Sixteen (16) North, Range Twenty -
Nine (29) West, 5th Principle Meridian, Washington County, Arkansas being more particularly
described as follows:
Beginning at a point South 87°38'18" East 222.82 feet and South 02°40'23" West 30.00;
Thence South 02°40'23" West a distance of 1395.02 feet to a point;
Thence North 87°38'18" West a distance of 1530.02 feet to a point;
Thence North 02°40'23" East a distance of 1295.56 feet to the beginning of a curve to
the right;
Thence with a curve turning to the right with an arc length of 156.54 feet, with a radius
of 100.00 feet, with a chord bearing of North 47°31'02" East, with a chord length of 141.04 feet,
to a point;
Thence South 87'38'18" East a distance of 1430.56 feet which is the point of beginning,
having an area of 48.950 acres more or less. Subject to any rights-of-way or easements of record.
18
EXHIBIT B
DESCRIPTION OF PROJECT SITE
The property address is identified as 1400 North Fox Hunter Road, Fayetteville, Arkansas (East
Wastewater Treatment Facility). The legal description of the Property on which a Lease and
Easement Agreement is rendered is described as follows:
Part of the Northwest Quarter of Section Nine (9), Township Sixteen (16) North, Range Twenty -
Nine (29) West, 5th Principle Meridian, Washington County, Arkansas being more particularly
described as follows:
Beginning at a point South 87°38'18" East 222.82 feet and South 02°40'23" West 30.00;
Thence South 02°40'23" West a distance of 1395.02 feet tc a point;
Thence North 87°38'18" West a distance of 1530.02 feet to a point;
Thence North 02^°40'23" East a distance of 1295.56 feet to the beginning of a curve to
the. right;
Thence with a curve turning to the right with an arc length of 156.54 feet, with a radius
of 100.00 feet, with a chord bearing of North 47°31'02" East, with a chord length of 141.04 feet,
to a point;
Thence South 87°38'18" East a distance of 1430.56 feet which is the point of beginning,
having an area of 48.950 acres more or less. Subject to any rights-of-way or easements of record.
ILI
EXHIBIT D
FiORM OF MEMORANDUM OF LEASE AND EASEMENT AGREEMENT
This Memorandum of Lease and Easement Agreement ( "Memorandum ") dated as of
November 1, 2018 (the "Execution Date "), is executed and entered into by and between City of
Fayetteville, Arkansas, an Arkansas city (the "Lessor") and Today's Power, Inc., an Arkansas
corporation (the "Tenant").
WITNESSETH THAT:
Lessor and Tenant executed and entered into that certain Lease and Easement Agreement
(the "Lease Agreement") dated as of November 1, 2018.
In consideration of One Dollar ($1.00) cash in hand paid, and of the mutual covenants
stated in Lease Agreement, the provisions of which are incorporated into and made a part of this
Memorandum, Lessor (i) has leased and demised unto Tenant that certain tract of land located in
Fayetteville, Arkansas, as more particularly described on Exhibit B attached hereto, which is
incorporated herein by reference (the "Project Site"), and (ii) further granted 'certain easements
and other rights on, over, across and under those premises adjacent to the Project Site as more
particularly described on Exhibit A attached hereto, which is incorporated herein by reference (the
"Property"). For avoidance of doubt and without limitation, the Project Site is situated within the
Property.
1. ! Term. The term of Tenant's interests under the Lease Agreement commenced on
November 1, 2018 and shall survive for the life of the Facility plus one year but no less than a
period ending upon the twenty sixth (26th) anniversary of the Commercial Operation Date (the
"Term").
2. ; Notice of Lease Agreement, Miscellaneous. This Memorandum does not set forth
all of the provisions of the Lease Agreement. The purpose of this Memorandum is to give notice
of Tenant's interests granted by the Lease Agreement, and of the provisions thereof, to the same
extent as if fully set forth in this Memorandum. The terms and conditions set forth in the Lease
Agreement and this Memorandum shall be binding upon and inure to the benefit of Tenant and
Lessor, and their respective successors and assigns. Capitalized terms used in this Memorandum
not otherwise defined herein shall have the meanings attributed to such terms in the Lease.
Agreement. In the event of a conflict between the provisions of this Memorandum and the Lease
Agreement, the provisions of the Lease Agreement shall control. All agreements set forth in the
Lease Agreement and in this Memorandum shall run with the land. The Lease Agreement and this
Memorandum may not be amended, modified or supplemented, except by written agreement of
Lessor and Tenant, executed by their duly authorized representatives. .
3. Counterparts. This Memorandum may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of Which counterparts, when executed
and delivered, shall be deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
i
21
M
IN
IN I WITNESS WHEREOF, the parties hereto have executed this Assignment as of the
Execution Date.
TENANT:
Today's Power, Inc.,
an Arkansas corporation
By:
Michael W. Henderson, President
i
STATE O� ARKANSAS )
j ) ss: ACKNOWLEDGMENT
COUNTY10F� )
i
Onl this day personally appeared before the undersigned, a Notary Public within and for the
County and State aforesaid, duly qualified, commissioned and acting, the within named Michael
W. Henderson, to me personally well known (or satisfactorily proven), who stated he was the
President of Today's Power, Inc., an Arkansas corporation, and he stated he was duly authorized
in his capacity to execute the foregoing instrument for and in the name of said entity, and further
stated and acknowledged he had so signed, executed and delivered the foregoing instrument for
the consideration, uses and purposes therein mentioned and set forth.
day of
My commission expires:
WHEREOF, I have hereunto set my hand and official seal this CID
2018.
Notary Public
(S>j AL)
sow ao�(AR +°UBG<
ARt 4NUS
i ry��y'aC{,RNt sd'V'
22
INS
Execution
WITNESS WHEREOF, the parties hereto have executed this Assignment as of the
LESSOR:
City of Fayetteville, Arkansas
Sondra Smith, City Clerk -Treasurer
Date: el 0 le_
STATE OF ARKANSAS }
) ss: ACKNOWLEDGMENT
COUNTY O }
On this day personally appeared before the undersigned, a Notary Public within and for the
County and State aforesaid, duly qualified, commissioned and acting, the within named Lioneld
Jordan Sondra Smith, to me personally well known (or satisfactorily proven), who stated they
are the Mayor and City Clerk -Treasurer for City of Fayetteville, Arkansas, and he stated they
were duly authorized in their respective capacities to execute the foregoing instrument for and in
the name of said entity, and further stated and acknowledged. they had so signed, executed and
delivered the foregoing instrument for the consideration, uses and purposes therein mentioned and
set forth.
1��TESTIMONY WHEREOF, I have hereunto set my hand and official seal thisa)it-
day of 2018.
� u�l
i Notary Public
My commission expires:
23
�t •Y
RECEIVED
DEC 112018 NORTHWEST ARKANSAS
C Demo= *Oazettt
y .,_.
,c.:.U., in; :, F- _; .::', Af,, 72,01 47.-442-17_0 . FAX: y'g ;3 S ,;.. 'iVWV 11W4L GCn_V
I Cathy Wiles, do solemnly swear that I am the Legal Clerk of the Northwest
Arkansas Democrat- Gazette, printed and published in Washington and Benton
County, Arkansas, and of bona fide circulation, that from my own personal
knowledge and reference to the files of said publication, the advertisement of:
CITY OF FAYETTEVILLE
Ord. 6115
Was inserted in the Regular Edition on
November 29, 2018
Publication Charges $ 291.20
Cathy Wiles
Subscribed and sworn to before me
This Sfit day of pac 2018.
Notary Public
My Commission Expires: 3-14,45
SAND,zr
d��,\ •'••eNOTq�q��5'o�-r
•J:
2w
•e•
16.2025
**NOTE** Please do not pay from Affidavit
Invoice will be sent.
Ordinance: 6115
File Number: 2018-0625
OZARKS ELECTRIC
COOPERATIVE
CORPORATION AND
TODAY'S POWER, INC.:
AN ORDINANCE TO WAIVE
COMPETITIVE BIDDING
AND AUTHORIZE MAYOR
JORDAN TO ENTER INTO
AGREEMENTS WITH
OZARKS ELECTRIC
COOPERATIVE
CORPORATION AND
TODAY'S POWER, INC. FOR
THE DEVELOPMENT,
CONSTRUCTION, AND
OPERATION OF SOLAR
POWER GENERATION AND
STORAGE EQUIPMENT AND
FACILITIES AT
FAYETTEVILLE'S WESTSIDE
AND NOLAND
WASTEWATER
TREATMENT FACILITIES,
AND TO APPROVE A
BUDGET ADJUSTMENT TO
PROVIDE FUNDING IN THE
AMOUNT OF $560,818.38
FOR SITE IMPROVEMENTS
NECESSARY TO CONNECT
TO THE SOLAR ARRAYS
WHEREAS, on January 2, 2018,
pursuant to Resolution No. 25-
18, the City Council adopted an
Energy Action Plan which
includes a goal of 100% clean
energy consumption by City
facilities by 2030; and
WHEREAS, the City's two
wastewater treatment facilities
are the largest electricity
consuming accounts making up
approximately 67% of the City's
overall electricity consumption;
and
WHEREAS, installing solar
power generating and storage
facilities meets the City's goal of
convening to clean energy, will
lead to improved reliability for
the wastewater treatment
facilities, reduce dependence on
backup generators, upgrade the
electricity grid servicing the
treatment plants and should also
result in cost savings to the City
and taxpayers; and
WHEREAS, Ozarks Electric
Cooperative Corporation
("Ozarks Electric") is the City's
monopoly power provider whereI,
the wastewater treatment
facilities are located and is a
shareholder in Today's Power,
Inc. ("Today's Power"), which
will allow the City to obtain the
benefits ofa total package
arrangement for solar power
generation, storage, maintenance,
electrical upgrades, energy
management, and net metering that
would not be possible otherwise.
NOW, THEREFORE, BE IT
ORDAINED BY THE CITY
COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of
the City of Fayetteville, Arkansas
hereby determines an exceptional
situation exists in which
competitive bidding is deemed not
feasible or practical and therefore
waives the requirements of formal
competitive bidding for solar
power facility installation and
related services at the Westside and
Noland Wastewater Treatment
Facilities, pursuant to the
agreements described below.
Section 2: That the City Council of
the City of Fayetteville, Arkansas
hereby authorizes Mayor Jordan to
sign a Tri -Lateral Agreement with
Ozarks Electric and Today's Power
for the development, construction
and operation of solar power
generation and storage facilities
and equipment at the Westside and
Noland Wastewater Treatment
Facilities.
Section 3: That the City Council of
the City of Fayetteville, Arkansas
hereby authorizes Mayor Jordan to
sign two Ownership and
Operations Agreements with
Today's Power for development,
construction and operation of solar
power generation and storage
facilities which provides for 99%
ownership of the solar power
generating system by Today's
Power and I% by the City and
which requires Today's Power to
finance the purchase of, install and
maintain the solar power facilities.
Section 4: That the City Council of
the City of Fayetteville, Arkansas
hereby authorizes Mayor Jordan to
sign two Lease and Easement
Agreements with'roday's Power
for approximately 48.95 acres at
the Noland Plant and
approximately 37.8 acres at the
Westside Plant for the installation
and operation of the solar power
generating facilities.
Section 5: That the City Council of
the City of Faye leville, Arkansas
hereby authorizes Mayor Jordan to
sign two Solar Power Services
Agreements with Today's Power
for the purchase of solar power
services at a cost of 4.7673 cents
per kilowatt hour.
Section 6: That the City Council of
ARCHIVED
IVSD
the City of Fayetteville, Arkansas
hereby authorizes Mayor Jordan to
sign a Facilities Upgrade Agreement
with Ozarks Electric in the amount
of 5560,818.00 for the construction
and upgrade of the City's facilities to
allow for the interconnection and
'.. storage of electric energy at the '.....
Westside and Noland Plants.
Section 7: That the City Council of
the City of Fayetteville, Arkansas
hereby authorizes Mayor Jordan to
sign an Energy Management
Agreement with Ozarks Electric
which provides for the management
by the City of back -tip generators at
the Westside and Noland Plants in
order to reduce energy consumption
during peak conditions which will
'..... allow the City to remain on the large '.....
power off peak rate as long as the tri-
lateral agreement remains in effect.
Section 8: That the City Council of
the City of Fayetteville, Arkansas
'..... hereby approves a budget
adjustment, a copy of which is
attached to the City Council Agenda j
Memo, in the amount of $560,818.001
to provide funding for the make-
ready site improvements authorized
by Section 5 ofthis Ordinance.
PASSED and APPROVED on
11!20/2018
Jordan, Mayor
E. Smith, City Clerk
760272 Nov. 29, 2018
Ord &115
Washington County LSD Application-
WWTP East Solar .Project -
City of Fayetteville Staff Review Form
2019-0030 ARCHIVED
Legistar File ID
N/A
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item _
Chris McNamara 1/8/2019 SUSTAINABILITY/RESILIENCE (631)
Submitted By Submitted Date Division / Department
Action Recommendation:
Staff recommends signing the Washington County Large Scale Development Application for permitting review at
Washington County, AR to move forward with the development, construction and operation of the solar
photovoltaic electric generating system and an energy storage system on land designated for the City of
Fayetteville's Noland Waste Water Treatment Plant.
Budget Impact:
Account Number Fund
Solar Array Project
Project Number
Budgeted Item? NA Current Budget
Funds Obligated
Current Balance
Does item have a cost? No Item Cost
Budget Adjustment Attached? NA Budget Adjustment
Remaining Budget
Project Title
V20160321
Purchase Order Number: Previous Ordinance or Resolution # _ 6115
Change Order Number:
Original Contract Number:
Comments:
Approval Date:
CITY OF
FAYETTEVILLE
ARKANSAS
TO: Mayor Lioneld Jordan
THRU: Don Marr, Chief of Staff
CC: Tim Nyander, Utilities Director
FROM: Peter Nierengarten, Sustainability Director
DATE: January 8, 2019
STAFF MEMO
SUBJECT: Washington County Large Scale Development Application- Noland Waste
Water Treatment Plant Solar Array and Energy Storage
RECOMMENDATION:
Staff recommends signing the Washington County Large Scale Development Application for
permitting review at Washington County, AR to move forward with the development,
construction and operation of the solar photovoltaic electric generating system and an energy
storage system on land designated for the City of Fayetteville's Noland Waste Water Treatment
Plant.
BACKGROUND:
On January 2, 2018, the City Council adopted an Energy Action Plan by Resolution 25-18. This
Energy Action Plan was created to build a framework and energize action around the City of
Fayetteville's efforts to be a resource and energy efficient community. Included among the -
Energy Action Plan's high-level goals was a City specific goal of 100% clean energy
consumption by City facilities by 2030.
Currently the City's clean energy consumption is 16% made of clean energy from the utility grid
and direct generation of clean energy at city buildings. The two Wastewater Treatment Plants
are the City's two largest electricity consuming accounts making up approximately 67% of the
City's overall electricity consumption. Both plants have generous land resources making them
obvious target for clean energy deployment.
The City's Eastside — Paul R. Noland Wastewater Treatment Facility first came online in the -
1960's and served ably as Fayetteville's sole facility for wastewater treatment and water
reclamation until 2008 when it received renovations. The East Side Plant at 1400 N. Fox Hunter
Road sits on 515 acres on the west bank of the White River.
The unique relationship between the City of Fayetteville, Ozarks Electric and Today's Power
Inc. has allowed the three organizations to develop a Trilateral Agreement that provides for the
development, construction and operation of 10 MW of Solar Power Generation and associated
24 MWh of energy storage at the two Fayetteville Wastewater Treatment Facilities. The project
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
consists of 5 MW of ground mounted solar photovoltaic panels and 12 MWh of battery storage
at each facility.
Today's Power, Inc. will lease approximately 87 acres from the City of Fayetteville for the two
solar facilities and will provide full operations and maintenance of the facility during the 20 -year
agreement. The City of Fayetteville will purchase electricity generated by the two solar arrays at
a rate of $0.048/kWh for 20 years — the current price that the City pays for electricity from
Ozarks Electric is $0.0513/kWh. The City will own 1 % of the solar array and TPI will own the
remaining 99%.
DISCUSSION:
The package of agreements for the Noland Waste Water Treatment Plant Solar and Energy
Storage project requires that TPI submit development and construction plans for the project
through Washington County development review process for large scale development plans. In
order for the project to be considered by the Washington County Planning Office, the county
requires the Large Scale Development Application be submitted with the signature of property
owner or agent. As agent of the city the mayor's signature is required for this application.
BUDGET/STAFF IMPACT:
N/A
Attachments:
Washington County LSD Application-WWTP East Solar Project
Questions? Contact the Planning Office!
Phone (479) 4441724. Fax (479) 444-1786
http://www.co,washington.ar.us
2615 Brink Drive, Fayetteville. AR 72701
WASHINGTON COUNTY, ARKANSAS
LARGE SCALE DEVELOPMENT APPLICATION
Notice: Preliminary or Final LSD Plans to be placed on the Planning Board meeting agenda must have applications tumed
in to the Plannina Office by the submittal date (shown on a schedule available from the Planning Office) -
Check one: ❑■ Preliminary Plan ❑ Final Plan ❑ Concept Plan
Name of Development: City of Fayetteville Solar
Applicant: Todays Power Inc.
Address: 8110 Scott Handiton Dr. Suite A&B, Little Rode AR.. 72209 Phone: 501-920-1370
Preferred? ❑
Email: mirving@todeyspowercom
Preferred? ■ -
The following statements and answers herein made and all data, information, and evidence herewith submitted are, to the
best of my knowledge and belief, true and correct. 1 understand that submittal of incorrect or false information is grounds
for invalidation of this application. l understand that the County might not approve what i am applying for, or might set
conditions on approval. w �/ _
Signature of Applicant: Man tering ';gip, pate. 1nn019
Property Owner: City of Fayetteville
Address:
Phone:
Preferred? ❑ -
Preferred? ❑
I certify under penalty of perjury that 1 am the owner of the property that is the subject of this application or I am the
owner's authorized agent and consent to its filing. (if signed by the authorized agent, a letter from the property owner
must be provided indicating that the agent is authorized to act on hislher behalf.)
Signature of Pn;p^ Qwner
Additional Contacts:
Date.
Address: 8110 Scott Hamilton Dr. suite A&B, Little Rode AR., 72209 Phone: 1-501-944-8890
Preferred? ❑
Email: keconomon@todayspower.cum Preferred? M
Name:
Address: Phone:
Preferred? ❑
Email: Preferred? ❑
Please submit a separate sheet of paper if you need more space to include everyone who needs to be contacted for this
project.
APPLICATION CONTINUES ON BACK.
Location: Planning>Checktists> 2017 Updates> PDFs> LSD Updated 4.24.17 cmw
Questions? Contact the Planning Office!
htto:/twww.co.washinaton.ar.us
Phone (479) 444-1724. Fax (479) 444-1786
2615 Brink Drive, Fayetteville, AR 72701
Property Information:
Proposed Land Use: soWr
Total Acreage of Property: 48.95
Total Number of units Proposed:
Utility Information:
-
(Check box if utility has existing lines on or fronting the property and write the name of the company.)
❑ Water company name:
n Electric Company name: 0-ft Ems=
❑ Gas company name:
❑ Telephone company name:
❑ Cable company name:
❑ Sewer System / Septic:
Parcel Information:
Tax Parcel Numbers: 001
_ 103W.10379,10381 _ 000
Planning Area: Fay-e-Me Pknning Am
Current Zoning: Asda lfta-M aM SingteFamly Resklemiai
Floodplain: ❑ yes Q no Map #: 0-5143COMF
Floodplain type (A. AE, etc.): K
Road Information:
U.S., State, or County road # giving access to property: swe 49, Wyman Rd.
Road surface (asphalt, gravel, unimproved, etc.): Aw%wt
Right of way width:
ALL SIGNATURE LINES MUST 13E SIGNED FOR THE APPLICATION TO 6E PROCESSED.
OFFICE USE ONLY:
Conditional Use Permit Approval:
City Preliminary Approval: City Final Approval:
County Preliminary Approval: County Final Approval:
Tabled Dates:
Notes:
Location: Planning>Checklists> 2017 Updates> PDFs> LSD Updated 4.24.17 cmw
Chris McNamara
Submitted By
City of Fayetteville Staff Review Form
2019-0078
Legistar File ID
N/A
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
City of Fayetteville LSD Application
WWTP West Solar Project
1/24/2019 Sustainability/Resilience (631)
Submitted Date Division / Department
Action Recommendation:
Staff recommends signing the City of Fayetteville Large Scale Development Application for permitting review by the
City of Fayetteville. This is a necessary step to move forward with the development, construction and operation of
the solar -photovoltaic energy generating system and battery storage system at the City of Fayetteville's Westside
Waste Water Treatment Plant.
Budget Impact:
Account Number Fund
Solar Array Project
Project Number
Budgeted Item? NA Current Budget
Funds Obligated
Current Balance
Does item have a cost? NA Item Cost
Budget Adjustment Attached? NA Budget Adjustment
Remaining Budget
Project Title
I' `
V201&0321
Purchase Order Number: Previous Ordinance or Resolution # 6115
Change Order Number:
Original Contract Number:
Comments:
Approval Date:
01/29/2019
CITY OF
t,! FAYETTEVILLE
�# ARKANSAS
TO: Mayor Lioneld Jordan
THRU: Don Marr, Chief of Staff
CC: Tim Nyander, Utilities Director
FROM: Peter Nierengarten, Sustainability Director
DATE: January 241h, 2019
STAFF MEMO
SUBJECT: City of Fayetteville Large Scale Development Application- Westside Waste
Water Treatment Plant Solar Array and Battery Storage
RECOMMENDATION:
Staff recommends signing the City of Fayetteville Large Scale Development Application for
permitting review by the City of Fayetteville. This is a necessary step to move forward with the
development, construction and operation of the solar -photovoltaic energy generating system
and battery storage system at the City of Fayetteville's Westside Waste Water Treatment Plant.
BACKGROUND:
On January 2, 2018, the City Council adopted an Energy Action Plan by Resolution 25-18.. This
Energy Action Plan was created to build a framework and energize action around the City of
Fayetteville's efforts to be a resource and energy efficient community. Included among the
Energy Action Plan's high-level goals was a City specific goal of 100% clean energy
consumption by City facilities by 2030.
Currently the City's clean energy consumption is 16% made of clean energy from the utility grid
and direct generation of clean energy at city buildings. The two Wastewater Treatment Plants
are the City's two largest electricity consuming accounts making up approximately 67% of the
City's overall electricity consumption. Both plants have generous land resources making them
obvious target for clean energy deployment.
The Westside Plant sits on 300 acres at 15 S. Broyles Road near the headwaters of Goose
Creek. Lands owned by the City surrounding the Westside Plant are comprised of the Woolsey
Prairie, Woolsey Historic Farm, relic undeveloped wet prairie, oak savannah habitat and
additional lands that are being developed as a working farm.
Since coming online both Wastewater Treatment Plants have received electrical service from
Ozarks Electric as the monopoly power provider in their service territory. The City of
Fayetteville established its first electric service with Ozarks Electric in 1964 and through the
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
f►�
years has been served at 172 different account locations. Currently the City has 93 active
service locations with Ozarks Electric.
The unique relationship between the City of Fayetteville, Ozarks Electric and Today's Power
Inc. has allowed the three organizations to develop a Trilateral Agreement that provides for the
development, construction and operation of 10 MW of Solar Power Generation and associated
24 MWh of energy storage at the two Fayetteville Wastewater Treatment Facilities. The project
consists of 5 MW of ground mounted solar photovoltaic panels and 12 MWh of battery storage
at each facility.
Today's Power, Inc. will lease approximately 87 acres from the City of Fayetteville for the two
solar facilities and will provide full operations and maintenance,of the facility during the 20 -year
agreement. The City of Fayetteville will purchase electricity generated by the two solar arrays at
a rate of $0.048/kWh for 20 years — the current price that the City pays for electricity from
Ozarks Electric is $0.0513/kWh. The City will. own 1 % of the solar array and TPI will own the
remaining 99%.
DISCUSSION:
TPI recently submitted a Large -Scale Development Application, with the mayor's signature, to
the Washington County Planning office to move forward with the Noland Waste Water
Treatment Plant Solar and Energy Storage project. This current Large -Scale Development
Application before the City of Fayetteville Planning Office is the 2nd half of the review process
necessary to move forward with the agreement between the City of Fayetteville, TPI and Ozarks
Electric.
The package of agreements for the Westside Waste Water Treatment Plant Solar and Battery
Storage project requires that TPI submit development and construction plans for the project
through the City of Fayetteville development review process for large scale development plans.
For the project to be considered by the City of Fayetteville Planning Office, the city requires the
Large -Scale Development Application be submitted with the signature of property owner or
agent. As agent of the city the mayor's signature is required for this application. The
required signature is located on page 2 of the application.
BUDGET/STAFF IMPACT:
N/A
Attachments:
City of Fayetteville LSD Application- WWTP West Solar Project
CITY OF FAYETTEVILLE, ARKANSAS
LARGE SCALE DEVELOPMENT
FOR STAFF USE ONLY
Date Application Submitted:
Date Accepted as Complete:
Project Number:
Public Hearing Date:
LSD FEE:
Sign FEE:
Tech Plat Resubmittal FEE.
Tree Preservation FEE:
$200.00 - $800.00
$5.00 per sign
$200/resubmittal
$120.00
S -T -R:
PP#:
Zone:
Please fill out this form completely, supplying all necessary information and documentation to support your request. Your
application will not be placed on the Planning Commission agenda until this information is furnished.
APPLICATION:
Indicate one contact person for this request: Matt Irving Applicant Todays Power Representative
Applicant (person making request): Representative (engineer, surveyor, realtor, etc.):
Name:Matt Irvina Name:
E-mail: mirying@todayspoWer.Com E-mail:
Address: 8110 Scott Hamilton Dr Little Rock AR 72209 Address:
Phone: 501-920-1370
Fax:
Phone:
Fax:
Site Address / Location: Located on property owned by the City of Fayetteville around the West Side
Wastewater Treatment Facility @ 15 S Broyles Avenue, Fayetteville AR 72704
Current Zoning District: Hillside/Hilltop
Date of Preliminary Plat: 1/28/2099
Assessor's Parcel Number(s) for property: 765-16201-021,012,010
Total Acreage: 38.28 Number of Lots: 2 Number of Dwelling Units: °
FINANCIAL INTERESTS
The following entities and / or people have financial interest in this project:
September 2017
Page 1
APPLICANT/REPRESENTATIVE, I certify under penalty of perjury that the foregoing statements and answers herein made
all data, information, and evidence herewith submitted are in all respects, to the best of my knowledge and belief, true and
correct. I understand that submittal of incorrect of false 'information is grounds for invalidation of application completeness,
determination, or approvals. I understand that the City might not approve what I am applying for, or night set conditions of
approval.
Name (printed): Ma Irving
Dater I/1o l
PROPERTY OWNER(S)/AUTKORLZED AGENT.• I/we certify under penalty of perjury that I am/we are the owner(s) of the property
that is the subject of this application and that I/we have read this application and consent to its filing. (If signed by the authorized agent,
letter from each property owner must be provided indicating that the agent is authorized to act on her/his behalf)
Name (printed): Address:
Signature:
Date: Phone:
LSD Checklist:
Arracn the rolrowtng items to this application:
(1) Payment in full of applicable fees for processing the application:
LSD
Non -Residential Non-residential (5000 square feet or less)
$400.00
Non-residential (More than 5000 square feet)
$840.00
Residential Residential (10 residential units or less)
$200.00
Residential (25 residential units or less)
$400.00
Residential (More than 25 residential units)
$840,Qp
Technical Plat Resubmittal (tabled items only)
$200.00 per
Tree Preservation
$120.00
Public Notification Sign Fee (per sign)
$5.00
Correspondence in the form of a written letter to Planning Staff describing the scope, nature and intent of the nronnsai
variances from requirements or the Unified Development Code will be reviewed and processed in accordance with the
procedures set forth therein. Please indicate in the letter to staff if any variances are sought and if so, justification for the
request. Most variances require a Planning Commission decision.
(3) A copy of the county parcel map from the Washington County Assessor's office- or from the Washington County
website (www.co.washingtton.ar.us). The subject property and all adjacent parcels should be identified on this parcel
map. The owner's name, official mailing address, and the parcel number for every adjacent property shalt be shown
on this map.
(4) A copy of the written decision from the Parks and Recreation Advisory Board regarding park [and dedication
requirements (residential projects only).
September 2017
Page 2
(5) One (1) hard copy and one (1) digital copy in PDF format on CD of the proposed LSD site, landscaping, grading,
utility, tree preservation plans, signed application, and all other items submitted with this project. These plans should
include all required information for a LSD listed on the Plat Requirements checklist in Section 166.02 of the
Fayetteville Unified Development Code. These requirements are listed on the Plat Requirements checklist pages in
this application.
(6) One (1) hard copy and one (1) digital copy in PDF format on CD of color elevations showing all sides of each
proposed building (commercial and residential) with cardinal directions. Additional elevations and large elevations
boards will be due with each submittal.
(7) One material sample board, calling out proposed building materials, colors, etc., as indicated on the color elevations.
(8) One (1) digital copy in PDF format of the Drainage Report or Drainage Letter (if exempt from Drainage Criteria
Manual requirements). No hard copy required.
(9) Completed Tree Preservation forms and application (see attached).
(10) Completed LSD application (attached), signed by current property owner of record or written verification signed by
such owner designating a project representative.
(11) The applicant is responsible for meeting the public notification requirements for a large scale development listed on
the Notification Requirements pages in this application.
(12) Completed Fire Department Technical Plat Review Form (see Planning website -applications)
LSD PLAT REQUIREMENTS CHECKLIST
(Fayetteville UDC Section 166.03)
1 Name, address, zoning and property lines of all property owners adjacent to the exterior boundaries of the project.
2 Name, address, telephone numbers of owner(s), developer(s) and project representatives
3 North arrow, scale (graphic and written), date of preparation, zoning classification, and proposed use.
4 Title block located in the lower right hand corner indicating the name and type of project, scale, firm or individual preparing
drawing, date and revisions.
5 Provide a complete and accurate legend.
6 A vicinity map of the project with a radius of 1.5 miles from the project. This map shall include any Master Street Plan streets
as well as the 100 year flood plain boundary.
7 Street right-of-way lines clearly labeled. The drawing shall depict any future R.O.W. needs as determined by the AHTD and
Master Street Plan. Future R.O.W. as well as existing R.O.W. and center lines should be shown and dimensioned.
8 The location of all existing structures.
9 Site coverage note indicating the percentage of site that is covered by both buildings and surfaced area.
10 Written legal descriptions including area in square feet or acres that read clockwise (Note: If the project is contained in more
than one tract, the legal for each individual tract and a total tract description must be provided.)
11 Boundary survey of the property shown on the plat. The surveyor shall seal, sign and date the survey. The survey shall be tied
to state plane coordinates.
12 Provide a benchmark, clearly defined with an accuracy of 1/100'. This benchmark must be tied to USC & GS Datum.
Benchmarks include but are notaimited to the following: fire hydrant, man hole, etc.
13 Point -of -beginning from a permanent well-defined reference point. This P.O.B. shall be clearly labeled on the drawing.
14 Each plat shall have 2 points described in State Planes Coordinates, Arkansas, North, North American Datum, 1983 (NAD 83).
15 Curve data for any street which forms a project boundary.
16 Show 100 -yr floodplain and/or floodway and based flood elevations. Reference FIRM panel number and effective date.
17 Note regarding wetlands, if applicable. Note if Army Corps of Engineers determination is in progress.
18 Existing and proposed topographic information with source of the information noted. Show:
a. Two foot contour intervals for ground slope between level and ten percent.
b. Five foot contour interval for ground slope exceeding ten percent.
19 Spot elevations at grade breaks along existing round centerlines, gutter lines and top of curbs or edge of pavement.
20 Contours of adjacent land within 100 feet of the project shall also be shown.
21 Delineate trees to be retained on-site and the measures to be implemented for their protection.
22 Clearly depict the limits of soil disturbance to include all areas to be graded both on and off-site.
23 Show proposed location of all utilities.
September 2017
Page 3
24 Landscape proposals for parking lots and/or tree replacement requirements shall include proposed plant species and size.
Existing and proposed utility lines shall be shown on the plan. State the method for irrigating the plant material on the plan.
When an ordinance requires shrubs or other screening material, show the layout of planting beds.
25 Show on the drawing all known on-site and off-site existing utilities and easements (dimensioned) and provide the structure's
locations, types, and condition and note them as "existing" on the plat.
26 Existing easements shall show the name of the easement holder, purpose of the easement, and the book and page number for
the easement. If an easement is blanket or indeterminate in nature, a note to this effect shall be placed on the plat or plan.
27 Show all storm sewer structures, sanitary sewer structures and drainage structures:
a. Provide structure locations and types.
b. Provide pipe types and sizes.
28 Sanitary sewer systems:
a. Provide pipe locations, sizes, and types; and service location.
b. Manhole locations of rim and invert elevations
29 Note the occurrence of any previous overflow problems on-site or in the proximity of the site.
30 If a septic system is to be utilized, provide a table of acreage and percolation rates.
31 Water systems, on or near the site: -
a. Provide pipe locations, types, and sizes; and service location.
b. Note the static pressure and flow of the nearest hydrant if requested.
c. Show location of proposed fire hydrants and meters.
32 Underground or surface utility transmission lines: (Note: This category includes, but is not limited to Telephone, Electrical,
Natural Gas, and TV Cable):
a. Locations of all related structures (pedestals, poles, etc.)
b. Locations of all lines (note whether the line is below or above ground).
c. A note shall be placed where streets will be placed under the existing overhead facilities and the approximate change in
grade for the proposed street.
33 State the width, location, and purpose of all proposed easements or rights of way for utilities, drainage, sewers, flood control,
_ ingress/egress or other public purposes within and adjacent to the project.
34 The location, widths, grades, and names of all existing and proposed streets (avoid using first names of people for new
streets), alleys, paths, and other rights -of- way, whether public or private, within and adjacent to the project; private easements
within and adjacent to the project; and the radius of each centerline curve. Private streets shall be clearly indicated and
named. Names of streets should be approved by the 911 Coordinator.
35 A layout of adjoining property (within 300') in sufficient detail to show the effect of proposed and existing streets (including
those on the master street plan), adjoining lots, and off-site easements. This information can be obtained form the Master
Street Plan, Aerial Photos, and the City Plat Pages located in the Planning Office if requested.
36 The location of all existing and proposed street lights (at every intersection, cul-de-sac & every 300' and associated easements
to serve each light). _
37 Provide a note of any known existing erosion problems on-site or within 300' downstream of the property.
38 The location of known existing or abandoned water wells, sumps, cesspools, springs, water impoundments, and underground
structures within the project.
39 The location of known existing or proposed ground leases or access agreements, if known. (e.g. shared parking lots, drives,
areas of land that will be leased)
40 The location of all known potentially dangerous areas, including areas subject to flooding, slope stability, settlement, excessive
noise, previously filled areas and the means of mitigating the hazards (abatement wall, signage, etc.).
41 The boundaries, acreage, and the use of existing and proposed public areas in and adjacent to the project. If land is to be
offered for dedication for park and recreation purposes it shall be designated.
42 For large scale residential development, indicate the use and list in a table the number of units and bedrooms.
43 For large scale non-residential development, indicate the gross floor area, and if for multiple uses, the floor area devoted to
each type of use.
44 The location and size of existing and proposed signs, if any.
45 The location and number of bike racks provided and required.
46 Location, size, surfacing, landscaping, and arrangement of parking and loading areas. Indicate pattern of traffic flow; include a
table showing required, provided, and handicapped accessible parking spaces. _
47 Location and width of curb cuts and driveways. Dimension all driveways and curb cuts from side property line and surrounding
intersections.
September 2017
Page 4
48 Location of buffer strips, fences or screen walls, where required (check Unified Development Code for specific requirements).
49 Indicate location and type of garbage service. Dimension turnaround area at dumpster location.
50 A description of commonly held areas, if applicable.
51 Draft of covenants, conditions, and restrictions, if any.
52 A written description of requested waivers or variances.
53 Show required building setbacks. Provide a note on the plat of the current setback requirements for the subdivision. A
variance is necessary from the Board of Adjustment for proposed setbacks less than those set forth in the zoning district.
54 Preliminary grading and drainage plans and reports as required in the City Engineer's Office.
55 Any other data or reports as deemed necessary for project review by the Zoning and Development Administrator, City Engineer
or Planning Commission.
Prior to the issuance of a building permit for a large scale development the following items are required.
a. An easement plat shall be filed of record in the office of the circuit clerk dedicating all required easements and rights-of-way.
b. Grading and drainage permits
c. Project disk with all final revisions in AutoCAD format.
d. No permitting will be authorized until after a preconstruction meeting has been held with the Urban Forester and Staff Engineer. If is the
consulting engineer's responsibility to schedule this meeting
e. Completion of all required improvements or the placement of a surety with the City (letter of credit, bond, escrow) as required by '158.01 A
Guarantees in Lieu of installed Improvements to guarantee all incomplete improvements. Further, all improvements necessary to serve the
site and protect public safety must be completed, not just guaranteed, prior to the issuance of a Certificate of Occupancy.
The Zoning & Development Administrator and City Engineer may waive any of these application requirements when, in their discretion, any
such requirement is not necessary due to the nature of the proposed project, or other circumstances justify such waiver. A pre -application
conference may be arranged and is encouraged to review the proposed project and discuss the checklist requirements.
(Note: As this request goes through the review process, revised copies of the project plans, and elevations, if applicable, will be
required (see materials required for submittal' notice.)
September 2017
Page 5
NOTIFICATION REQUIREMENTS
Written Notification Process:
(1) The applicant shall mail a written notice of the hearing by first-class mail to the address of each adjacent
landowner as such address is shown in the records of the Washington County Assessor's Office. Adjacent
landowners include those across street rights-of-way, excluding interstates.
a. PZD applicants must notify property owners in writing within 100 feet of the perimeter of the PZD.
b. CUP applications for special uses must notify all property owners in writing within 500 feet of the perimeter
of the property. CUP special uses include: Dance halls; Facilities emitting odors and facilities handling
explosives; wireless communication facilities; carnival, circus, amusement park orsimilartemporwy open-
air enterprise; manufactured and mobile homes; outdoor music establishments; sexually oriented business.
(2) By the revision submittal prior to the public hearing, the applicant shall provide the following to the Planning
Division (contact staff planner for submittal deadline):
a. alphabetical list of the landowners receiving notification (County Assessor's Office)
b. map showing the landowners' relationship to the site (County Assessor's Office)
c. copy of the notice sent to the landowners (example attached)
d. certificate of mailing (example attached)
Sign Posting Process:
(1) Signs shall be made available to the applicant by the Planning Division. A $5 fee.per sign shall be remitted by
the applicant (contact staff planner for date to pick up sign).
a. The applicant shall post notice on the land for which the use is requested in a visibly prominent location
no more than ten (10) feet from the street, and shall not impede the vision of drivers or pedestrians.
b. The staff planner may require an alternate location where the property is not adjacent to a street.
c. Additional signs may be required by the staff planner.
(2) By the revision submittal prior to the hearing, the applicant shall post the sign and submit a certificate of
sign posting to the Planning Division. The sign(s) shall be photographed by the applicant and attached to
the certificate (example attached).
(3) The Planning Division will be responsible for retrieval of signs after the hearing; if a hearing is postponed,
the applicant will be notified when a new sign has been created. The applicant shall then be responsible for
posting the new date of the hearing in accordance with the criteria herein.
September 2017
Page 6
THIS IS AN EXAMPLE ONLY - DO NOT USE THIS SHEET
CERTIFICATE OF MAILING
/ hereby certify that a true and correct copy of the attached written notice was placed in
the U.S. mail, first-class, postage prepaid this
addressed as follows:
Name:
Street.,
City, State, Zip:
Name:
Street:
City, State, Zip:
Name:
Street
City, State, Zip:
Name:
Street:
City, State, Zip:
(name of person completing the mailing)
(signature of person completing the mailing)
City File No.lName:
day of_, 20 , and
September 2017
Page 7
THIS IS AN EXAMPLE ONLY - DO NOT USE THIS SHEET
WRITTEN NOTIFICATION FORM
Project Description:
scription:
The applicant Name proposes a Type of Development at Proiect Address.
Building/land Use:
Zoning:
Size of Property:
Density/Intensity:
Public Hearings:
Subdivision Committee; 9:00 AM; Month/Date/Year; 113 West Mountain Street (City
Administration Building Room 326) Fayetteville, AR 72701
Planning Commission; 5:30 PM; Month/Date/Year; 113 West Mountain Street (City
Administration Building Room 219) Fayetteville, AR 72701
Property Owner:
Name: Phone #:
Developer:
Name: Phone #:
Review Location:
The project information is available for public review at the City of Fayetteville Planning
Division, 125 West Mountain Street, Fayetteville, AR 72701 Monday -Friday 8AM-5PM;
479.575.8267.
September 2017
Page 8
THIS IS AN EXAMPLE ONLY - DO NOT USE THIS SHEET
CERTIFICATE OF SIGN POSTING
(attach photo here)
(sign lettering must be legible in photo)
(print the name of the
applicant1representativelperson posting sign), attest that the above sign was posted on
(monthldaylyear) adjacent to
(name of street).
(signature of person completing the sign posting)
City File No.lName:
September 2017 -
. Page 9
ARKANSAS
THE CITY OF FAYETTEVILLE, ARKANSAS
1 ]3 W. Mountain St.
Fayetteville, AR 72701
PARKS AND RECREATION DIVISION Telephone: (479) 444-3470
Prospective Applicant,
As Urban Forester for the City of Fayetteville it is my duty to uphold all City Ordinances regarding
the protection and preservation of trees, and the design of landscapes. I am responsible for the review of
proposed development projects to ensure that each fully complies with applicable ordinances.
Fayetteville law requires that tree preservation be made a priority for new development (see
§167.01). All plans require a site analysis, analysis report, tree preservation plan with preliminary plat or
site plan. Criteria used to evaluate the preservation of trees is found in section §167.048 of the Tree
Preservation Ordinance.
Specified minimum canopy cover is also required for all subdivisions, large scale developments,
and commercial developments. The minimum canopy percentage of a land area required to be preserved
is dependent on that areas zoning designation (see §167.04 Table 1). All proposed designs must meet
these minimum requirements with priority being given to the preservation of existing priority trees to
meet these requirements (see §167.04E). If preserved canopy cover falls below these requirements
mitigation will be needed (see §167.04I).
Please familiarize yourself with these and other requirements found in the Tree Protection and
Preservation Ordinance, as well as the Landscape Regulations Ordinance in the City's Development
Manual. You may request a copy of the City's Landscape Manual to answer any further questions or
contact this office. It is your obligation to know and meet all city requirements. The Urban Foresters job
is to ensure your project complies with these requirements. In order to effectively move through the
City's tree preservation process it is recommended that prospective applicants meet with the Urban
Forester for an initial site review prior to site design.
John Scott Lee Porter
Urban Forester - Urban Forester
113 West Mountain 113 West Mountain
Fayetteville, AR 72701 Fayetteville, AR 72701
(479)444-3470 (479) 444-3486
iscott(@favetteville-ar.gov fayetteville-ar.gov 1porter(a)fayettevilie-ar.gov
September 2017
Page 10
Tree Protection and Preservation Ordinance
Requirements and Procedures: §167.04 (H)
Applicability:
■ New residential and non-residential subdivisions
Large scale developments
Building Permits within the Hillside Hilltop Overlay District
■ Non residential construction requiring Building Permit
Building Permits for residential construction of 3 units or more
All Grading Permits (excluding all single family and duplex lots)
Procedural Requirements
■ Early review of the projects conceptual design with the Urban Forester to determine
the areas on the project where tree preservation is recommended.
■ $120.00 fee payment is required for all developments unless trees do not exist on site
in which case a waiver form is required.
■ Submit 2 copies of the Site Analysis and Analysis Report to the Urban Forester at the
time plans are submitted to the Planning Department — this step is not required for
Grading or Building Permits.
■ Submittal of a tree preservation plan.
■ After Plat Review and Subdivision Committee, a staff recommendation is forwarded
to the planning commission.
■ Upon approval of the development by the Planning Commission, further review is
required when construction documents are submitted to the engineering dept.
■ Preconstruction meeting scheduled by engineering includes review of tree
preservation with the contractor and developer.
On-site inspection of tree preservation during construction
Completion of the project
Abbreviated Tree Preservation Plan
The current Tree Ordinance states that "there shall be no land disturbance, grading or tree
removal until a Tree Preservation Plan has been submitted and approved, and the tree
protection measures at the site inspected."
Applicability: §167.04 (H) (3)
An Abbreviated Tree Preservation Plan can be submitted for all building permits
within the Hillside Hilltop Overlay District and development that does not fall
under the requirements of Large Scale Developments or Subdivisions
Purpose:
The purpose of the Tree Preservation Plan is to provide a plan that delineates tree
preservation areas and details measures to be taken to ensure protection and
survivability of trees to be saved prior to and during construction. The Abbreviated Tree
Preservation Plan is an informal version of the Tree Preservation Plan, allowing the
developer to submit a hand drawn version.
September 2017
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Tree Preservation Plan Requirements
It is suggested that all projects with existing trees should be reviewed with the Urban Forester
prior to site design to determine the extent of tree preservation required. The tree preservation
plan can be combined with the proposed project's grading plan, but the plan must be titled
Grading Plan/Tree Preservation Plan.
Step is Identification of Existing Canopy
Show the location and determine the square footage of all existing trees on the
proposed project's site.
The exact location, species, trunk diameter, health, and canopy spread of any significant
trees must be identified and shown on the plan. A "significant" tree is a tree with a trunk
diameter of 24 inches or more for large growing species (i.e. sycamore), 18" or more for
slow growing or medium sized species, and 8 inches or more for small growing species
(i.e. Redbud). To determine the canopy spread of individual trees, measure the diameter
of the canopy and figure the area.
If no "significant" trees exist on the site, a statement confirming this fact must be included
on the plan. Groups of existing trees that do not qualify as "significant" may be identified
by their canopy edge, and a square footage of the area's canopy can then be calculated.
The predominant species, average size, and health of the trees with in the grouping shall
be indicated.
Step 2: Percentage of Preserved Tree Canopy
Designate on the plan the location and square footage of preserved tree
canopy. To determine the canopy area of existing tree cover, use the following formula:
ET — Canopy
S
ET = Total canopy of existing trees in square feet
S = Total square footage of site
REMINDER: Preservation areas must be areas that can remain entirely undisturbed at
all stages of construction. If you cannot design the project to meet the minimum canopy
requirement, STEP 5 describes the tree mitigation/off-site alternatives option. This
option must be pre -approved by the Urban Forester.
Step g: Tree Canopy Table
In a table format, label the total percent of:
A) Existing Canopy
B) Total Canopy to be Preserved
C) Total Canopy to be Removed
D) Mitigation Canopy if approved
Note: Canopy is to be calculated as a percentage of the total acreage of the entire property.
Step 4: Preservation Method Specifications
September 2017
Page 12
Show a distinctive graphic line for the barrier fencing, along the dripline* or ten feet
from the trunk (whichever is greater), around all tree preservation areas.
*The dripline is an imaginary vertical line that extends downward from the outermost
tips of the tree branches to the ground.
Include a specification drawing to show the method and materials used for preservation
fencing. See the page # () for examples.
Show the location of all existing and proposed utilities, and all areas affected by
grading and drainage. REMINDER: Utility easements shall not be counted as areas
for tree preservation.
Identify on-site areas for the delivery and storage of construction materials,
on-site parking, cement truck wash-out, and soil stockpiles.
If root pruning, mulching, aeration, or other procedures are required, please indicate
on plans.
Step 5: Drainage, Grading, and Subsequent Construction Plans
Be sure the project's final drainage & grading plan, submitted for approval to the City
Engineer, is coordinated with your tree preservation plan. Cut or fill within tree
preservation areas is not permitted and the drainage & grading permit for the proposed
project will not be issued unless it is in accordance with the tree preservation plan.
Step b: On -Site Mitigation or Off -Site Alternatives
Indicate on the Tree Canopy Table the amount of canopy in square feet that falls
short of the preservation requirement
Number of trees required for forestation based on the preservation priority of the canopy
removed and the base density of forestation trees
See guidelines in the Manual
Number of trees, the size and species, and the location of all on-site mitigation trees
Dollar amount to be contributed to the tree fund if utilized for Off -Site Alternatives
Complete Mitigation Form
Step 7: Maintenance of Tree Preservation Areas During Construction
Prior to starting construction of the project, you are required to construct protection
barriers as specified on the tree preservation plan, around all tree preservation areas.
If applicable, root pruning, trimming, or other preservation activities will be required
prior to any disturbance to the site unless expressly allowed by the Urban Forester.
In order for the project to remain in compliance with the Tree Ordinance, and to
avoid potential fines or stop work orders, you must maintain the protection of all
trees designated "preserved" on the approved tree preservation plan.
Preserved trees and tree preservation areas are to be indicated on the utility plans and
grading plans to alert contractors of areas that require preservation.
Step 8: Final Plat Approval/Certification of Occupancy
Compliance with the Tree Ordinance during construction must be maintained and
verified by the Urban Forester during periodic site inspections,
If applicable, any remedial tree preservation activity, required by the Urban Forester,
must be completed before the acceptance of the final plat or Certificate of Occupancy.
If utilizing the Nonresidential Subdivisions Infrastructure only option, a Tree Preservation
Easement must be clearly depicted on an Easement Plat for Large Scale Developments
and on the Final Plat for non-residential subdivisions. The document must meet the
September 2017
Page 13
following guidelines:
Tree Preservation Easement Areas: §167.04 (F)(2)(a)
■ The tree preservation area must be shown on the plat as it relates to the subject
property and must be dimensioned or described by metes and bounds for input
into the city GIS system.
The Tree Preservation Area must be clearly marked on the Easement Plat or Final
Plat and include the following language:
Areas proposed as Tree Preservation Easements must not include any utility
easements, right of way, or structures.
Tree Preservation Area
The Tree Preservation Areas as indicated on this easement plat constitute a covenant
running with the title of the subject property and is denoted for the property owners
and their future successors, assignees or transferees to preserve, protect and maintain
existing tree canopy. No tree removal or land disturbance as defined within the City of
Fayetteville Unifjed Development Code may occur within the Tree Preservation Area
unless approved by the City of Fayetteville. Persons seeking removal of such Tree
Preservation Areas, or requesting to modify the property in such a way as to effect the
canopy within, must seek approval from the City Council through a request made by
the Urban Forester of the City of Fayetteville
Approved by
City of Fayetteville Urban Forester
Date
September 2017
Page 14
Tree Mitigation Form
Project: Developer:
Location Address:
Engineer:
It is required that this form be submitted concurrently with the Tree Preservation Plan if
mitigation of any kind is sought.
Canopy measurements:
l Tree Canopy:
Required to be Preserved
*Total Area of Site:
Acres:
Square Feet:
*Less Master Street Plan ROW and Parkland Dedication
Total Area of Existing Tree Canopy
Acres:
Square Feet:
% of Total Site Area:
Amount of Preservation Requirement Requested for Mitigation:
Existing Tree Canopy Preserved:
Acres: Acres:
Square Feet:_ Square Feet:
% of Total Site: % of Total Site Area:
Type of Mitigation Pursued:
❑ On Site Mitigation ❑ Off Site Preservation ❑ Off Site Forestation ❑ Tree Fund
List Mitigation Species, Caliper, and Quantity of trees to be planted in the space below. Refer to
table and on back for figuring quantity and caliper sizes.
Species 11
CaliperIF
Qty.
v
September 2017
Page 16
Tree Mitigation Base Density/Off Site Alternatives
When preservation cannot be accomplished and existing canopy is to be removed below
minimum canopy requirements, mitigation is required. Before any Mitigation/Off-Site
Alternatives are carried out, approval must be granted by the Landscape Administrator.
When mitigation is an issue a mitigation form, available from the Landscape
Administrator, detailing all proposed actions should be submitted with the Tree
Preservation Plan. Mitigation and reforestation densities, preferred species, spacing,
and amounts are determined by the tables below.
*The Density Factor is a ratio of canopy removed to number of trees replaced
Here are the 5 simple steps on how to calculate the size and number of trees needed for
mitigation '
1. Establish how many acres/square feet of canopy is proposed to be removed on site
that falls below the minimum canopy requirement
EX: 13,000 square feet of canopy
2. Establish the Priority type of the canopy proposed to be removed.
EX: High Priority Canopy
3. Refer to the table and find Density Factor that correlates with Canopy type removed.
EX: High Priority Canopy to be replaced with 2" caliper trees has.a Density
Factor of 218sf per replacement tree
4. Take Density Factor and divide by the square feet of canopy removed to get number of
mitigation trees needed.
EX: 13,000 sqft./218 Density Factor = 59.6 or 60 2" caliper trees to be
planted
5. On -Site Mitigation is preferred over Off -Site Alternatives. Show the location and
species of mitigation trees on the tree preservation plans and submit the
Mitigation/Off-Site Alternatives form at time of submittal
September 2017
Page 17
Existing High Priority
Existing Mid -Level
Existing Low Priority.,
Canopy Proposed For
Priority Canopy
Canopy Proposed For
Removal
Proposed For Removal
Removal
Caliper of
Required # of Density
Required # of Density
Required # of Density
Replacement
trees per acre Factar
trees per acre Factor
trees per acre Factor
Tree
removed
removed
removed
2"
200
2Y8sf
150
2gosf
100
486sf
*The Density Factor is a ratio of canopy removed to number of trees replaced
Here are the 5 simple steps on how to calculate the size and number of trees needed for
mitigation '
1. Establish how many acres/square feet of canopy is proposed to be removed on site
that falls below the minimum canopy requirement
EX: 13,000 square feet of canopy
2. Establish the Priority type of the canopy proposed to be removed.
EX: High Priority Canopy
3. Refer to the table and find Density Factor that correlates with Canopy type removed.
EX: High Priority Canopy to be replaced with 2" caliper trees has.a Density
Factor of 218sf per replacement tree
4. Take Density Factor and divide by the square feet of canopy removed to get number of
mitigation trees needed.
EX: 13,000 sqft./218 Density Factor = 59.6 or 60 2" caliper trees to be
planted
5. On -Site Mitigation is preferred over Off -Site Alternatives. Show the location and
species of mitigation trees on the tree preservation plans and submit the
Mitigation/Off-Site Alternatives form at time of submittal
September 2017
Page 17
"*ktavyeeA
PATI
v
ARKANSAS
THE CITY OF FAYETTEVILLE, ARKANSAS 113 W. Mountain St.
Fayetteville, AR 72701
PARKS AND RECREATION DIVISION Telephone: (479) 444-3470
TREE PRESERVATION PLAN WAIVER FORM
Date:
Project Name:
Project Contact:
Location:
Reason for waiver:
Verification Submitted:
Signed by the Urban Forester:
Date:
September 2017
Page 18
Today's Power, Inc.
City of Fayetteville Staff Review Form
2020-0241
Legistar File ID
N/A
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Asst. City Attorney Blake Pennington 3/12/2020 CITY ATTORNEY (021)
Submitted By
Submitted Date Division / Department
Action Recommendation:
Mayor's signature on documents necessary for Today's Power, Inc. to obtain bond financing for solar projects.
Budget Impact:
Account Number Fund
Project Number Project Title
Budgeted Item? NA Current Budget $ -
Funds Obligated $ -
Current Balance
Does item have a cost? No Item Cost
Budget Adjustment Attached? NA Budget Adjustment
Remaining Budget
Purchase Order Number:
Change Order Number:
Original Contract Number:
Comments:
V20180321
Previous Ordinance or Resolution # Ord 6115
Approval Date: 03/18/20
4
1)EVART IFti-TAL CORRUSPO\DF\CF.
[..i c+i i ii!
TDa ,;;Mayor Jordan
FROM: Blake Pennington, Assistant City Attorne
DATE: March 11, 2020
RE: Today`s Power Financing Documents for Solar Project
Kit 11 ill!.:iiw,
! if iilr:iit
l�•.!3 t�11�.r+
When we contracted with Ozarks Electric and Today's Power, Inc. for the
wastewater treatment plan solar projects, we required Todav's Power, Inc. to
bear the cost of constructing the solar array. TPI obtained a loan from First
Security Bank to finance the construction. In April of 2019, you executed a
series of documents allowing for the assignment of contracts to First Security
Bank to serve as collateral for the mortgage loan.
Today's Power, Inc. is now working to obtain financing on a number of solar
and storage projects around the state, which includes the issuance of bonds,
with First Security Bank serving as Trustee. A portion of the proposed
collateral for this financing is the contract Today's Power has with the City of
Fayetteville. J
We have been asked to sign off on three documents, the purpose of which are
explained in the letter from Chris Bell, the Controller for Today's Power, Inc.
I have reviewed each document and have made some necessary changes to
all of them. I recommend that you sign all three in order to allow Today's
Power to obtain the bond financing it requires to construct other projects
around the state.
This type of assignment is anticipated and authorized by the City's
agreements with Ozarks Electric and Today's Power. Authorizing this
assignment potentially reduces the risk to the City by establishing a
relationship with an alternative unrelated party who can step into the shoes
of Today's Power in the unlikely event of default. Furthermore, First Security
Bank is already the assignee of these contracts as the lender of the funds for
the construction portion of the project.
Today's [PQ)Wc�Ir
Your Energy Partner
wwwAodayspower.com
March 10, 2020
Mayor Jordan
City of Fayetteville
113 West Mountain Street
Fayetteville, AR 72701
Re: Today's Power, Inc.'s Long -Term Financing
Dear Mayor Jordan,
Today's Power, Inc. (TPI) is currently obtaining long-term financing on a number of solar and storage projects with
First Security Bank (FSB) functioning as Trustee. As part of this financing, TPI is seeking to obtain the following
documents from the City of Fayetteville:
Estoppel Certificate — the purpose of this agreement is for the City to represent to the Trustee that there
has not been a breach under any of TPI's agreements (lease, SPSA, etc.).
Consent to Assignment of Contracts —the purpose of this agreement is for the City to consent to the
assignment to the Trustee of TPI's contracts (lease, SPSA, etc.).
Consent, Subordination and Nondisturbance Agreement — the purpose of this agreement is for the City to
consent to the Trustee placing a leasehold mortgage on the property TPI is leasing, the City is
subordinating its landlord's lien against TPI's assets to the lien to the Trustee on the solar equipment and
agreeing that if TPI defaults under the lease, the City will not cancel the lease without giving the Trustee
the opportunity to cure and continue the lease. Under AR law, a landlord has a lien against its tenant's
personal property on the leased property for any breaches under the lease (nonpayment of rent, etc.);
however, the rent is de minimis in this transaction.
We appreciate your help and your continued partnership with TPI.
Sincerely,
Chris Bell, CPA
Controller
1 Cooperative Way • P 0 Box 194008 • Little Rock, Arkansas 72219-4008
ESTOPPEL CERTIFICATE
The undersigned, The City of Fayetteville, an Arkansas municipal corporation whose
business mailing address is 113 West Mountain Street, Fayetteville, AR 72701 (the "Customer")
does hereby state. certify and affirm to FIRST SECURITY BANK, as Trustee, an Arkansas bank
whose address is 314 N. Spring Street, Searcy, AR 72143, and its successors and assigns
("Trustee"), the following:
1. TODAY'S POWER, INC., an Arkansas corporation whose business mailing
address is P.O. Box 194008, Little Rock AR 72219 (the "Corporation") executed with the
Customer those certain agreements listed in Exhibit A attached hereto (together with all
amendments, modifications, supplements and change orders thereto and the work product resulting
therefrom, each a "Contract" and collectively, the "Contracts") in connection with the
construction, development and operation of a solar power generating and storage facility on certain
real property situated in Washington County, Arkansas.
2. To the best of the City's knowledge and belief, the City is not in breach or default
under any of the Contracts and no event has occurred which (with or without notice, passage of
time or both), would constitute a breach or default thereunder on the part of the City.
3. To the best of the City's knowledge and belief, the Corporation is not in breach or
default under any of the Contracts and no event has occurred which (with or without notice,
passage of time or both), would constitute a breach or default thereunder on the part of the
Corporation.
?r L
EXECUTED AND EFFECTIVE as ofthe l$ day of ar( , 2020.
CITY OF FA�ETTEV)&K, , ARKANSAS
i 1 1
ATTEST:
6�'�,,
*�•+`�FRK'•
��. G.• \ly • S,•,
-)C�10.--
By:
EAYETTEL i LI_ 1
KARA PAXTON, City Clerk-TN�r :
i i
FEC\ 18790\0009\7504489. v 1-2/10/20
Exhibit A
1. Solar Power Services Agreement (Fayetteville West Wastewater Treatment Plant Project)
dated November 1, 2018, between Today's Power, Inc. as Provider and City of
Fayetteville, Arkansas, as Customer
2. Solar Power Services Agreement (Fayetteville East Wastewater Treatment Plant Project)
dated November 1, 2018, between Today's Power, Inc. as Provider and City of
Fayetteville, Arkansas, as Customer
3. Ownership and Operations Agreement (West Plant) dated November 1, 2018 between
Today's Power, Inc. and the City of Fayetteville, Arkansas
4. Ownership and Operations Agreement (East Plant) dated November 1, 2018 between
Today's Power, Inc. and the City of Fayetteville, Arkansas
5. Lease and Easement Agreement — West Wastewater Treatment Facility dated November
1, 2018 between Today's Power, Inc., as Tenant, and City of Fayetteville, Arkansas, as
Lessor
6. Lease and Easement Agreement — East Wastewater Treatment Facility dated November
1, 2018 between Today's Power, Inc., as Tenant, and City of Fayetteville, Arkansas, as
Lessor
7. Memorandum of Lease and Easement Agreement dated November 1, 2018 — West site
8. Memorandum of Lease and Easement Agreement dated November 1, 2018 — East site
9. Trilateral Agreement for Solar Power and Storage dated November 1, 2018 between
Today's Power, Inc, the City of Fayetteville, Arkansas and Ozarks Electric Cooperative
Corporation.
2
FEC\ 18790\0009\7504489 v 1-2/10/20
CityClerk
From: Pennington, Blake
Sent: Friday, May 22, 2020 10:57 AM
To: CityClerk
Subject: FW: Final Agreement - Leg 2020-0241
Attachments: City of Fayetteville.pdf
Attached please find the fully executed and recorded documents related to Leg 2020-0241.
Thanks,
3F1T
Blake E. Pennington
Assistant City Attorney
Tele: (479) 575-8313
bpenning_tonC fayettev i Ile-ar.
From: Kelly Comer <kcomer@todayspower.com>
Sent: Friday, May 22, 2020 10:53 AM
To: Pennington, Blake <bpennington@fayetteville-ar.gov>
Cc: Chris Bell <cbell@todayspower.com>; Samantha Lewis <samantha.lewis@aecc.com>
Subject: Final Agreement
CAUTION: This email originated from outside of the City of Fayetteville. Do not click links or open attachments unless you recognize
the sender and know the content is safe.
Attached is the fully executed copy of the Consent, Subordination and Non -Disturbance Agreement for your records.
Thanks!
Kelly Comer
TPI Supervisor of Administration and Corporate Counsel
Today's Power, Inc.
c. (479) 806-5963
m. (501) 570-2241
o. (888) 322-4275
kcomer@todayspower.com
Tv day's
`/bur Er*-"aW F wtn�r
This instrument prepared by:
Bryan W. Duke
Friday, Eldredge & Clark, LLP
400 W. Capitol Avenue, Suite 2000
Little Rock, AR 72201
IIIIIII Nall II IIIII IIIII IIIII NIII INII IIIII IINI IIIII IIIN IIII IIIII IIII IIII
Doc ID: 019133990010 Type: REL
Kind: SUBORDINATION
Recorded: 04/01/2020 at 01:58:26 PM
Fee Amt: $60.00 Pape 1 of 10
Washington County, AR
Kyle Sylvester Circuit Clerk
File2020-00010245
CONSENT SUBORDINATION AND
NON -DISTURBANCE AGREEMENT
This SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT
AGREEMENT (this "Agreement") is made and entered into this 261h day of March, 2020 by and
among the CITY OF FAYETTEVILLE, an Arkansas city of first class whose business mailing
address is 113 West Mountain Street, Fayetteville, AR 72701 ("Landlord"), TODAY'S
POWER, INC., an Arkansas corporation whose business mailing address is P.O. Box 194208,
Little Rock AR 72219 ("Tenant"), and BANK OZK, as 'trustee, an Arkansas bank whose
address is 17901 Chenal Parkway, Little Rock, AR 72223, its successors and assigns
("Trustee").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into (i) that certain Lease and Easement
Agreement — West Wastewater Treatment Facility, dated November 1, 2018 and (ii) that certain
that certain Lease and Easement Agreement — East Wastewater Treatment Facility, dated
November 1, 2018 (each a "Lease" and collectively, the "Leases"), whereby Landlord agreed to
lease to Tenant and Tenant agreed to rent from Landlord and take possession of certain
properties located in Washington County, Arkansas and which is more particularly described on
Exhibit A attached hereto and made a part hereof (the "Premises");
WHEREAS, Memorandums of the Leases have been recorded in the real estate records
maintained by the Circuit Clerk and Ex-Officio Recorder for Washington County, Arkansas;
WHEREAS, Tenant has issued bonds designated as Today's Power, Inc. Electric
Revenue Bonds, Series 2020A in the aggregate principal amount of Twenty -One Million Three
Hundred Fifty Thousand and 00/100 Dollars ($21,350,000.00) (the "Bonds") and pursuant to
that certain Trust Indenture, dated March 26, 2020, by and between Tenant and Trustee (the
"Indenture");
WHEREAS, the Bonds are secured by two certain Leasehold Mortgages, dated of even
date herewith, encumbering the Premises and recorded in the real estate records maintained by
the Circuit Clerk and Ex-Officio Recorder for Washington County, Arkansas (each a "Leasehold
FEC\ 1 8790\0009\7566855 v1-3/22/20
Mortgage" and collectively, the "Leasehold Mortgages"), and such other collateral documents
as Trustee may require; and
WHEREAS, the parties hereto desire to enter into this Agreement.
NOW, TIIEREFOR), for and in consideration of the premises recited above and the
mutual covenants hereof, the parties hereto stipulate, covenant and agree as follows:
1. Consent to Encumbrance. Landlord hereby consents to the encumbrance of the
Tenant's leasehold estate by the Leasehold Mortgages.
2. Lease Subordination. The Leases and any and all rights, options, liens and
charges of Landlord thereunder are hereby made subject, junior and subordinate to the Leasehold
Mortgages, and to all renewals, modifications, consolidations, replacements, increases in
amount, substitutions and extensions of the Leasehold Mortgages, so that all rights and interests
of Landlord under the Leases shall be subject, junior and subordinate to the liens, rights and
interests of Trustee under the Leasehold Mortgages, and to all renewals, modifications,
consolidations, replacements, increases in amount, substitutions and extensions of the Leasehold
Mortgages, as fully as if the Leasehold Mortgages and all renewals, modifications,
consolidations, replacements, increases in amount, substitutions and extensions thereof had been
executed, delivered and recorded prior to the Leases, regardless of the order in which any such
instruments shall actually be executed, delivered and recorded.
3. Notice/Right to Cure/New Lease Upon Termination. In the event that Tenant
defaults under either Lease giving Landlord the right to terminate such Lease (including without
limitation any default by reason of bankruptcy or insolvency of Tenant or Tenant's rejection of
suchLease in any bankruptcy or insolvency proceeding), Landlord shall give Trustee written
notice of default and of Landlord's intention to terminate such Lease. Before terminating such
Lease, Landlord shall grant Trustee the right to cure or undertake the elimination Of such default
within sixty (60) days after Trustee's receipt of such notice; provided, however, if any default
shall occur other than the payment of money which cannot with due diligence be cured within
such sixty (60) day period, then Trustee shall have such additional time as may be reasonably
necessary to cure said default as long as Trustee commences a cure within such sixty (60) day
period and thereafter diligently proceeds to cure the default. In addition, if the default is non -
monetary, such default shall be deemed cured and Landlord shall not terminate such Lease if (i)
Trustee shall, within sixty (60) days after receipt of notice of such default, commence and
diligently prosecute such actions as may be necessary for the appointment of a receiver or to
cause the foreclosure of its applicable Leasehold Mortgage (including without limitation seeking
relief from the automatic stay provisions of Section 362 of the Bankruptcy Code or any
successor statute in any bankruptcy proceeding affecting such foreclosure); (ii) all rents shall be
brought current within such sixty (60) day period and shall be kept current throughout such
foreclosure proceedings and (iii) Trustee or receiver shall undertake in writing to perform all
other covenants of Tenant reasonably capable of performance by Trustee throughout such
foreclosure proceedings except as otherwise set forth herein.
FEC\ 18790\0009\7566855 v I-3/22/20
4. Nondisturbance and Other Agreements.
(a) In the event Trustee should foreclose a Leasehold Mortgage by foreclosure
or otherwise, or by acceptance of an assignment -in -lieu of foreclosure, the Lease shall remain in
full force and effect and shall remain subject to the terms and provisions of this Agreement as
modified hereby. Landlord agrees that Trustee (and any subsequent party accepting such
foreclosure, assignment -in -lieu of foreclosure or the transfer thereol) shall be entitled to all of the
rights, privileges and benefits of Tenant provided under the Leases, including but not limited to
application of any advance rents or deposits held by Landlord to obligations under the Leases,
and Trustee (and any subsequent party accepting such foreclosure, assignment -in -lieu of
foreclosure or the transfer thereof) such purchaser or party shall be subject to all the obligations
of Tenant under the Leases except as otherwise set forth herein, including, but not limited to,
operating within the requirement under the Leases and using the Premises for the purposes set
forth in the Leases.
(b) In the event that Trustee shall succeed to the interest of the Tenant under
the Leases, whether by foreclosure or assignment -in -lieu of foreclosure, then Trustee shall have
the right to assign its interest under the Leases to another party notwithstanding any contrary
provision contained in the Leases. Upon the assignment of the Leases by Trustee, and the
assumption by the assignee of the obligations of the Trustee under the Leases including, but not
limited to, operating within the requirement under the Leases and using the Premises for the
purposes set forth in the Leases, Trustee shall have no further liability with respect to the Leases.
Any assignee of Trustee shall be entitled to all of the rights, privileges and benefits of Tenant
provided under the Leases, including, but not limited to, application of any advance rents or
deposits held by Landlord to obligations under the Leases, and such assignee shall be subject to
all obligations under the Leases including, but not limited to, operating within the requirement
under the Leases and using the Premises for the purposes set forth in the Leases.
(c) Notwithstanding any term or provision of the Leases to the contrary,
Landlord agrees with Trustee, its successors and assigns, that it has not heretofore and will not,
from and after the date hereof, without prior written notice to the Trustee and opportunity to cure
as set forth in Section 3 above, permit the termination, cancellation, surrender, amendment or
modification of the Leases.
(d) Landlord agrees that there shall be no merger of the leasehold estate and
fee estate in the event that both estates are held directly or indirectly by the same person or
entity, so long as the Leasehold Mortgages are not released of record.
5. Notices. Unless otherwise provided herein, all notices, requests, consents and
demands shall be in writing and shall be mailed, postage prepaid, to the respective addresses
specified in the introductory paragraph hereof. All notices, requests, consents and demands will
be effective when mailed by certified or registered mail, postage prepaid, or when deposited with
an overnight delivery service, addressed as set forth in the introductory paragraph of this
Agreement.
FECA18790\0009\7566855 v1-3/22/20
6. Governing Law. This Agreement shall be governed by, construed and interpreted
in accordance with the laws of the State of Arkansas.
[Remainder of page intentionally left blank; Signatures to follow.]
rL•'C%18790X0009\7566855.v1-322/20
IN WITNESS WHEREOF, the undersigned have executed and delivered this Consent,
Subordination and Attornment Agreement as of the day and year first above written.
TENANT: TODAY'S POWER, INC.
By:
Michael . Henderson, President
LANDLORD: CITY OF F TTEV E 1
By:
ZJn,ATTES
By:
Kara Paxton, City C
TRUSTEE: L;aNV- O-Z-V--
By:
Title:
5
FEC11879010009V547751 vl-3/10/20
tiiJv .tT+r
•FAYETTFv1,+�;�_
Treasurer
IN WITNESS WHEREOF, the undersigned have executed and delivered this Consent,
Subordination and Attornment Agreement as of the day and year first above written.
TENANT: TODAY'S POWER, INC.
By:
!1aVcq1fe.d)e�rson, President
LANDLORD: CITY OF FAYETTEVILLE
Lioneld Jordan, Mayor
ATTEST:
Kara Paxton, City Clerk -Treasurer
TRUSTEE: BANK OZK
By: —�
Title: Executive cf7mmsiderm
5
F EC11879OW00917566955. v 1-3MM
ACKNOWLEDGMENT
STATE OF ARKANSAS )
) ss.
COUNTY OF
Before me, a Notary Public duly commissioned, qualified and acting, within and for the
County and State aforesaid, appeared in person the within named Michael W. Henderson, the
President of TODAY'S POWER, INC., an Arkansas corporation (the "Corporation"), to me
personally well known (or satisfactorily proven), who stated that he was duly authorized in his
capacity as President of the Corporation to execute the foregoing instrument for and in the name
and on behalf of the Corporation, and further stated and acknowledged that he had so signed,
executed and delivered the foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal thiday
of March, 2020.
7 -
�o u is —
My Commission expires: J
(SEAL) ,at`. � S,'�4y
FEC\18790\0009\7566855 v1-3122/20
ACKNOWLEDGMENT
STATE OF ARKANSAS )
)SS.
COUNTY OF )
Before me, a Notary Public, duly commissioned, qualified and acting, within and for said
County and State, appeared in person the within named Lioneld Jordan and Kara Paxton, who
acknowledged themselves to be the Mayor and City Clerk -Treasurer of the CITY OF
FAYETTEVILLE (the "City"), to me personally well known (or satisfactorily proven), who
stated that they were duly authorized in their capacities as Mayor and City Clcrk-Treasurer of the
City to executc the foregoing; instrument for and in the name and behalf of the City and further
stated and acknowledged that they had so signed, executed and delivered said foregoing
instrument for the consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this OIL day
of March, 2020.
Notary Public
My Commission expires:
(SEAL)
BLAKE E PENNINGTON
Nolary Puh1jc-Arkan385
Washinaton County
My Commisafon Expires 06-16-2022
Commission 0 12386o3a
7
FE0187901000917547751 v1-3110120
ACKNOWLEDGMENT
STATE OF ARKANSAS )
ss.
COUNTY OF -'/zr)
Before me, a Notary Public duly commissioned, qualified and acting, within and for the
County and State aforesaid, appeared in person the within named Sheila Mayden, the EVP
Corporate Trust Manager of BANK OZK, to me personally well known (or satisfactorily
proven), who stated that she was duly authorized in his capacity to execute the foregoing
instrument for and in the name and behalf of BANK OZK, and further stated and acknowledged
that she had so signed, executed and delivered the foregoing instrument for the consideration,
uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal thiXA)day
of March, 2020.
� 4
Not�y'jlblic
My Commission expires-
r, g. �$ a:12402gury
(SEAL)d�
�=mod tiG��2
FEC\18790\0009\7566855 v1-3/22/20
EXHIBIT A
Description of the Premises
EAST SITE
The property address is Identified as 1400 North Pox Hunter Road, Fayetteville, Arkansas (East
Wastewater Treatment Facility), The legal description of the Property on which a Leese and
Basement Agreement is rendered is described as follows;
Part of the Northwest Quarter of Section Nine (9), Township Sixteen (16) North, Range Twenty -
Nits (29) Weac, 5th Principle Meridian, Washington County, Arkansas being more particularly
described as follows:
BCglnning at a point South 87'38'3 8' Sant 222.82 Ret and South 02'41y23' West 30.00;
Thence South 02'40123" West a distance of 1395.02 feet to a point;
Thence North 87*38'18" West a distance of 1530.02 feet to a point;
Thence No 02140'23" Batt a diatenca of 1295.56 feet to the baglnniag of a curve to
the right;
Thence with a curve turning to the right with an are length of 156.54 feet, with a radius
of 100.00 feet, with a chord bearing of North 47*31'02" Bast with a chord length of 141.04 feet,
to apolut;
Thence South 8738'18' East a distance of 1430.56 feat which is the point of begirming,
having an area of 49.950 acres more or less. Subject to any rights -of -way or easements of record.
WEST SITE
The property address Is fdeodfied &: 1500 South Broyles Rued, Fayetteville, A;koiues (Went
Wattewattt Treaunant Facility). The legal descnption of the Property on wblch s Tame and
F'aAit^^ Agreement is rendered i, dercffhrd as follows:
Welt Side Solar Array Treat "A"
A part of *a Northeast QCartor (NB) ofthe Northeast Quarter (NH) of 8eadon k'ourtaaa (14)
Township Sixteen (16) North, Ran;a Thirty -One (31) Wen, of the SthPrk*le Marldlan,
W"'Ungton Cauaty. A TUM1a? and behtg mote particularly described as follows.
1300nnfa8 at apoint North 87°42"1 V West 1324.01 feet and Sovsh ar3i6.15" Wast 53.60 feet
here the Northeast oar= ofsald station being the y=hsrly lioa a Water & Scwar eeaement lioa.
Rof OW-00000172;
Tlk— along laid southerly lioa South 87'42'10' But a d Mara of 897,69 fact to a paint;
Thence leavlog said southerly line South 1V2610" Bast a dlstanca of 11,21 feet to a paint;
Thmee South 26 W451 Best a dletence of 108M fast to a point;
Thence South 30'13'49" &eat a dlstanaa of 45.60 feet to a point;
T' wmo South 42"32'58' Past a distauoe o£76.92 foot to a point;
Theaea South 31s3717' Farr a distanca ef34.88 feat to a polnl;
Thence South 22100'011 Fast a dislance of 13S.03 fiat to it pobit;
Thence South 29° 13102" But a dlsmnm of 93,11 feet to a paint;
Them South 49't5'3 i' East a distance of 174.84 feet to apoint;
Tbanea Sotrth79'05'30" Eat a distutoe of 15,31 feetto th6%VW sly dgbt-of-wayBroyles Meow:
'thence 2404 said righhof--way South OrS822" Wont a dWAnca of 295.76 feat to a point;
Thrace lem4ng said right -of --way North, 87'42'04" Wast a dkxaum of 1299.30 feet to a POW;
Thence North02*M'13' Esrt a distance of $43.55 feet which ie tho point of baglnafng, having an
area of 22.34 acrra more or less. Su'bjecr to nay dghWof--way of roads or maemants ofrecord.
West Side Solar Array gnat "B"
A part of the 3outhvrast Quarter (SW) of the Ncrlhnst Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (31) Wert, of the 5th Par4pin Motidion,
Washington County, Arkumg sad being snore particularly dawribed as follows:
Begimuug ate polar South 02 35'22" Wart 1468,99 M-et and 5o•,dh 87°2438' East 66.34 feet
fivm the Northwest Comer of the Northwest Quartw (NW) ofthe Nonhran Quarto said ecction
belag the esstarly right-of--wxy of 54th Sheet:
Thence South 88132'l2" East a dlsraAm of 1074.05 feat to a point;
Them South 02'32'OI I West a distance of 820.14 feet to a poirk
Thaor:e North 8392'12" Watt a dlamma, of 675. t8 &ot 10 a point;
Thmca North 02'35I2` Salt a dia lance of 520.21 feet to a point;
Tboace Notch 88'32'12' West a dkwoa of 400.69 feet 10 the said easterly right -of --way 346
Sheol; Theme along said right -of way North 02'47 04' Easy a diseta 1 of 2".97 Cott to which 11
the point of bagfaalog, kwAng an area of 15.46 sores mom or lean. Subjsot to any rights -of -way of
made or easements of record.
FEM1879010009\7566855 vl-3/22/20
VWshington County, AR
I certify this Instrument was filed on
04/01/2020 01:58:28 PM
and recorded in al Estate
File N 20 00010245
Kyle Circuit Clerk
by
This instrument prepared by:
Bryan W. Duke
Friday. Eldredge & Clark. LLP
400 W. Capitol Avenue, Suite 2000
Little Rock. AR 72201
CONSENT, SUBORDINATION AND
NON -DISTURBANCE AGREEMENT
This SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT
AGREEMENT (this '`Agreement") is made and entered into thisff-1day of March, 2020 by and
among the CITY OF FAYETTEVILLE, an Arkansas municipal corporation whose business
mailing address is 113 West Mountain Street, Fayetteville, AR 72701 ("City"), TODAY'S
POWER, INC., an Arkansas corporation whose business mailing address is P.O. Box 194208,
Little Rock AR 72219 ("Tenant"), and FIRST SECURITY BANK, as Trustee, an Arkansas
state chartered bank whose business mailing address is 314 N. Spring Street, Searcy, AR 72143,
its successors and assigns ("Trustee").
WITNESSETH:
WHEREAS, City and Tenant entered into (i) that certain Lease and Easement Agreement
— West Wastewater Treatment Facility, dated November 1, 2018 and (ii) that certain that certain
Lease and Easement Agreement — East Wastewater Treatment Facility, dated November 1, 2018
(each a "Lease" and collectively, the "Leases"), whereby City agreed to lease to Tenant and
Tenant agreed to rent from City and take possession of certain properties located in Washington
County, Arkansas and which is more particularly described on Exhibit A attached hereto and
made a part hereof (the "Premises");
WHEREAS, Memorandums of the Leases have been recorded in the real estate records
maintained by the Circuit Clerk and Ex-Officio Recorder for Washington County, Arkansas;
WHEREAS, Tenant has issued bonds designated as Today's Power, Inc. Electric
Revenue Bonds, Series 2020A in the aggregate principal amount of Twenty Million Seven
Hundred Thirty Thousand Dollars ($20.730,000.00) (the -'Bonds") and pursuant to that certain
Trust Indenture, dated March1 2020, by and between Tenant and Trustee (the "Indenture");
WHEREAS, the Bonds are secured by two certain Leasehold Mortgages, dated of even
date herewith, encumbering the Premises and recorded in the real estate records maintained by
the Circuit Clerk and Ex-Officio Recorder for Washington County, Arkansas (each a "Leasehold
FEC\ 18790\0009\7547751.v 1-3/10/20
Mortgage" and collectively, the "Leasehold Mortgages"), and such other collateral documents
as Trustee may require; and
WHEREAS, the parties hereto desire to enter into this Agreement.
NOW, THEREFORE, for and in consideration of the premises recited above and the
mutual covenants hereof, the parties hereto stipulate, covenant and agree as follows:
1. Consent to Encumbrance. City hereby consents to the encumbrance of the
Tenant's leasehold estate by the Leasehold Mortgages.
2. Lease Subordination. The Leases and any and all rights, options, liens and
charges of City thereunder are hereby made subject, junior and subordinate to the Leasehold
Mortgages, and to all renewals, modifications, consolidations, replacements, increases in
amount, substitutions and extensions of the Leasehold Mortgages, so that all rights and interests
of City under the Leases shall be subject, junior and subordinate to the liens, rights and interests
of Trustee under the Leasehold Mortgages, and to all renewals, modifications, consolidations,
replacements, increases in amount, substitutions and extensions of the Leasehold Mortgages, as
fully as if the Leasehold Mortgages and all renewals, modifications, consolidations,
replacements, increases in amount, substitutions and extensions thereof had been executed,
delivered and recorded prior to the Leases, regardless of the order in which any such instruments
shall actually be executed, delivered and recorded.
Notice/Right to Cure/New Lease Unon Termination. In the event that Tenant
defaults under either Lease giving City the right to terminate such Lease (including without
limitation any default by reason of bankruptcy or insolvency of Tenant or Tenant's rejection of
such Lease in any bankruptcy or insolvency proceeding), City shall give Trustee written notice
of default and of Landlord's intention to terminate such Lease. Before terminating such Lease,
City shall grant Trustee the right to cure or undertake the elimination of such default within sixty
(60) days after Trustee's receipt of such notice; provided, however, if any default shall occur
other than the payment of money which cannot with due diligence be cured within such sixty
(60) day period, then Trustee shall have such additional time aS may be reasonably necessary to
cure said default as long as Trustee commences a cure within such sixty (60) day period and
thereafter diligently proceeds to cure the default. In addition, if the default is non -monetary, such
default shall be deemed cured and City shall not terminate such Lease if (i) Trustee shall, within
sixty (60) days after receipt of notice of such default, commence and diligently prosecute such
actions as may be necessary for the appointment of a receiver or to cause the foreclosure of its
applicable Leasehold Mortgage (including without limitation seeking relief from the automatic
stay provisions of Section 362 of the Bankruptcy Code or any successor statute in any
bankruptcy proceeding affecting such foreclosure); (ii) all rents shall be brought current within
such sixty (60) day period and shall be kept current throughout such foreclosure proceedings and
(iii) Trustee or receiver shall undertake in writing to perform all other covenants of Tenant
reasonably capable of performance by Trustee throughout such foreclosure proceedings except
as otherwise set forth herein.
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FEC\ 18790\0009\7547751, v 1-3/ 10/20
4. Nondisturbanee and Other Agreements.
(a) In the event Trustee should foreclose a Leasehold Mortgage by foreclosure
or otherwise, or by acceptance of an assignment -in -lieu of foreclosure, the Lease shall remain in
full force and effect and shall remain subject to the terms and provisions of this Agreement as
modified hereby. City agrees that Trustee (and any subsequent party accepting such foreclosure,
assignment -in -lieu of foreclosure or the transfer thereof) shall be entitled to all of the rights,
privileges and benefits of Tenant provided under the Leases, including but not limited to
application of any advance rents or deposits held by City to obligations under the Leases, and
Trustee (and any subsequent party accepting such foreclosure, assignment -in -lieu of foreclosure
or the transfer thereof) such purchaser or party shall be subject to all the obligations of Tenant
under the Leases except as otherwise set forth herein, including, but not limited to, operating
within the requirement under the Leases and using the Premises for the purposes set forth in the
Leases.
(b) In the event that Trustee shall succeed to the interest of the Tenant under
the Leases, whether by foreclosure or assignment -in -lieu of foreclosure, then Trustee shall have
the right to assign its interest under the Leases to another party notwithstanding any contrary
provision contained in the Leases. Upon the assignment of the Leases by Trustee, and the
assumption by the assignee of the obligations of the Trustee under the Leases including, but not
limited to, operating within the requirement under the Leases and using the Premises for the
purposes set forth in the Leases, Trustee shall have no further liability with respect to the Leases.
Any assignee of Trustee shall be entitled to all of the rights, privileges and benefits of Tenant
provided under the Leases, including, but not limited to, application of any advance rents or
deposits held by City to obligations under the Leases, and such assignee shall be subject to all
obligations under the Leases including, but not limited to, operating within the requirement
under the Leases and using the Premises for the purposes set forth in the Leases.
(c) Notwithstanding any term or provision of the Leases to the contrary, City
agrees with Trustee, its successors and assigns, that it has not heretofore and will not, from and
after the date hereof, without prior written notice to the Trustee and opportunity to cure as set
forth in Section 3 above, permit the termination, cancellation, surrender, amendment or
modification of the Leases.
(d) City agrees that there shall be no merger of the leasehold estate and fee
estate in the event that both estates are held directly or indirectly by the same person or entity, so
long as the Leasehold Mortgages are not released of record.
5. Notices. Unless otherwise provided herein, all notices, requests, consents and
demands shall be in writing and shall be mailed, postage prepaid, to the respective addresses
specified in the introductory paragraph hereof. All notices, requests, consents and demands will
be effective when mailed by certified or registered mail, postage prepaid, or when deposited with
an overnight delivery service, addressed as set forth in the introductory paragraph of this
Agreement.
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FEC\ 1 9790\0009\7547751 v 1-3/10/20
6. Gaverning Law. This Agreement shall be governed by, construed and interpreted
in accordance with the laws of the State of Arkansas.
[Remainder of page intentionally left blank; Signatures to follow,]
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FEC\ 13790\0009\754775I.v I-3/10/'_0
IN WITNESS WHEREOF, the undersigned have executed and delivered this Consent,
Subordination and Attornment Agreement as of the day and year first above written.
TENANT: TODAY'S POWER, INC.
Michael W. Henderson. President
LANDLORD: CITY OF FAVETTE
By:
ion IdJ
ATTEST:
By:
Kara Paxton, City Clerk -Treasurer
TRUSTEE: FIRST SECURITY BANK
Title:
5
FEC\ i 8790\0009\7547751-v I -3/ i 0/20
�Eti►►nirryr
_ ; EAYEI-_TF u1i_Lr.
—�.
►►,►►Vr�ri �iiii►+ �����
ACKNOWLEDGMENT
STATE OF ARKANSAS
COUNTY OF
Before me, a Notary Public duly commissioned, qualified and acting, within and for the
County and State aforesaid, appeared in person the within named Michael W. Henderson, the
President of TODAY'S POWER, INC., an Arkansas corporation (the "Corporation"), to me
personally well known (or satisfactorily proven), who stated that he was duly authorized in his
capacity as President of the Corporation to execute the foregoing instrument for and in the name
and on behalf of the Corporation, and further stated and acknowledged that he had so signed,
executed and delivered the foregoing instrument for the consideration, uses and purposes therein
mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this � day
of March, 2020.
Notary Public
My Commission expires:
(SEAL)
6
FEC\ 1 8790\0009\7547751 v1-3/10/20
ACKNOWLEDGMENT
STATE OF ARKANSAS )
) SS.
COUNTY OF WA5WPJGTt)0 )
Before me, a Notary Public, duly commissioned, qualified and acting, within and for said
County and State, appeared in person the within named Lioneld Jordan and Kara Paxton, who
acknowledged themselves to be the Mayor and City Clerk -Treasurer of the CITY OF
FAYETTEVILLE (the "City"), to me personally well known (or satisfactorily proven), who
stated that they were duly authorized in their capacities as Mayor and City Clerk -Treasurer of the
City to execute the foregoing instrument for and in the name and behalf of the City and further
stated and acknowledged that they had so signed, executed and delivered said foregoing
instrument for the consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this A day
of March, 2020.
Notary Public
My Commission expires:
6115 12Z022_
(SEAL)
IFNotary
KE E PENNINGTON
Public -Arkansas
ashington County
ission Expires 05-15-2022mission M 12388039
7
FEC\18790\0009\7547751 %,1-3/10/20
ACKNOWLEDGMENT
STATE OF ARKANSAS
SS.
COUNTY OF
Before me, a Notary Public duly commissioned, qualified and acting, within and for the
County and State aforesaid, appeared in person the within named
the of FIRST SECURITY BANK, to me personally well known (or
satisfactorily proven), who stated that he was duly authorized in his capacity to execute the
foregoing instrument for and in the name and behalf of FIRST SECURITY BANK, and further
stated and acknowledged that he had so signed, executed and delivered the foregoing instrument
for the consideration, uses and purposes therein mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day
of March, 2020.
Notary Public
My Commission expires:
(SEAL)
FEC\ 18790\0009\7547751.v 1-3/10/20
1DK4IIIaY_ 1
Description of the Premises
EAST SITE
The property address is identified as 1400 North Fox Hunter Road, Fayetteville, Arkansas (East
Wastewater Treatment Facility). The legal description of the Property on which a Lease and
Easement Agreement is rendered is described as follows:
Part of the Northwest Quarter of Section Nine (9), Township Sixteen (16) North, Range Twenty -
Nine (29) West, 5th Principle Meridian, Washington County, Arkansas being more particularly
described as follows:
Beginning at a point South 87138' 18" East 222.82 feet and South 02"40'23" West 30.00;
Thence South 02'40'23" West a distance of 1395.02 feet to a point;
Thence North 87138'18" West a distance of 1530.02 feet to a point;
Thence North 02°40'23" East a distance of 1295.56 feet to the beginning of a curve to
the right;
Thence with a curve turning to the right with an arc length of 156.54 feet, with a radius
of 100.00 feet, with a chord bearing of North 47131102" East, with a chord length of 141.04 feet,
to a point;
Thence South 87'38'18" East a distance of 1430.56 feet which is the point of beginning,
having an area of 48.950 acres more or less. Subject to any rights -of -way or easements of record.
WEST SITE
The property address is identified as 1500 South Broyles Road, Fayetteville, Arkansas (West
Wastewater Treatment Facility). The legal description of the Property on which a Lease and
Easement Agreement is rendered is described as follows:
West Side Solar Array Tract "A"
A part of the Northeast Quarter (NE) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (31) West, of the 5th Principle Meridian,
Washington County, Arkansas and being more particularly described as follows:
Beginning at apoint North 87'42"10" West 1324.01 feet and South 02°36'15" West 53.60 fee'
from the Northeast comer of said section being the southerly lire a Water & Sewer easement Doc.
Ref. 0023-00000172;
Thence along said southerly line South 87"42'i0" East a distance of 897.68 feet to a point
Thence leaving said southedy line South 1812610" East a distance of 13.21 feet to a point;
Thence South 26 3645" Fast a distance of 108.67 feet to apolm
Thence South 30"1T49" Eau a distance of 45.60 feet to a point;
Thence South 42"32'58" East a distance of 76.92 feet to a point;
'Bence South 31*3T17" East a distance of 34.88 feet to a point;
Thence South 22"00'0V East a distance of 138.03 feet to a point;
Thence South 29" 13'02" East a distance of 83.11 feet to a point;
Thence South 49'1511" East a diatunce of 174.84 fee! to a point;
Thence South 2910510" Fist adi.ftnce of 15.31 feet to the west=ly rigbt-of-way Broyles Avenue;
Thence along aid right-of-way South 02"5822" West it distance of 295,76 feet to a point;
Thence leaving said right-of-way North 87°42'04" West a distance of 1299.30 feet to a point;
Thence North 02"36'15" East a distance of 843.55 feet which is the point of beginning, having an
area of 22.34 acres more or less. Subject to any rights -of --way of roads or easements ofrecord.
West Side Solar Array Tract "B"
A part of the Southwest Quarter (SW) of the Northeast Quarter (NE) of Section Fourteen (14)
Township Sixteen (16) North, Range Thirty -One (31) West, of the 5th Principle Meridian,
Washington County, Arkansas and being morepartic0ar!y described as follows:
Beginning at a point South 02"35"22" West 1668.99 feet and South 87124'38" East 65.34 feet
from the Northwest corner of the Northwest Quarter (NW) of the Northeast Quarter said section
being the easterly right-of-way of 54th Street;
Thence South 89'32'12" East a distance of 1074.05 feet :o a point;
Thence South 02'32'0:" Was, adislartee of 820,14 feet to a point;
Them e North 88132'12" Wert a dlnucr a of 675.18 :act to apoint;
Thenw NoCh 02°35'22" East a distance of 520.21 feet to a paint;
Thutoc Nonh 88°32'12" Wes-, a distance of 400.69 feet to the said easterly right-of-way 54th
Street; Whence along said right -,of -way North 024704" East a distance of 299.97 feet to which is
the paint ofbegiming, having an area of 15.46 acres more or less. Subject to any rights -of -way of
roadr. or easrrnavta of record.
F EC\ 1 8790\0009\754775 1, v 1-3/ 10/20
CONSENT TO ASSIGNMENT OF CONTRACTS
ON THIS V day of af- ik , 2020, THIS CONSENT TO ASSIGNMENT OF
CONTRACTS (this "Consent") is incorporated in and made part of that certain Trust Indenture,
dated a _ 2020, by and between TODAY'S POWER, INC., an Arkansas corporation
whose business mailing address is P.O. Box 194008, Little Rock AR 72219 (the "Corporation"),
and FIRST SECURITY BANK, as Trustee, an Arkansas bank whose address is 314 N. Spring
Street, Searcy, AR 72143, its successors and assigns ("Trustee").
RECITALS:
WHEREAS, the Corporation executed with The City of Fayetteville, an Arkansas
municipal corporation whose business mailing address is 113 West Mountain Street, Fayetteville,
AR 72701 (the "City"), those certain agreements listed in Exhibit A attached hereto (together with
all amendments, modifications, supplements and change orders thereto and the work product
resulting therefrom, each a "Contract" and collectively, the "Contracts") in connection with the
construction, development and operation of a solar power generating and/or storage facility on
certain real property situated in Washington county, Arkansas (the "Project");
WHEREAS, pursuant to the terms of the Indenture, the Corporation has issued bonds
designated as Today's Power, Inc. Electric Revenue Bonds, Series 2020A in the aggregate
principal amount of Twenty Million Seven Hundred Thirty Thousand Dollars ($20,730,000.00)
(the "Bonds");
WHEREAS, proceeds from the Bonds shall be used, in part, for purposes of providing
permanent financing for the Project;
WHEREAS, as security for repayment of the Bonds, the Corporation has assigned to
Trustee of all of the Corporation's rights, title, interest, powers, privileges and other benefits under
the Contracts; and
WHEREAS, City's consent thereto is required in connection with such assignment of the
Contracts.
NOW, THEREFORE, in consideration of the Trustee assisting the Corporation in issuing
the Bonds and the Trustee's reliance on this Consent, the City hereby represents and agrees to and
with Trustee, as follows:
1. The City hereby consents to the assignment of each Contract to Trustee. The
Customer hereby agrees that any lien rights arising out of the performance of each Contract shall
be subordinate to all indebtedness and obligations and security therefore (including renewals,
extensions, and refunding thereof) of the Corporation to the Trustee now existing or hereafter
arising pursuant to the Indenture and the Bonds, as the same may be amended, or otherwise.
FEC\18790\0009\7504451 vl-2/10/20
Notwithstanding such assignment, the City agrees to look solely to the Corporation for the
performance of its obligations under the Contract.
2. Upon being notified by the Trustee of a default (beyond the applicable cure period)
by the Corporation under the Bonds of the Indenture, the City, at the request of the Trustee, agrees
to perform or continue performance of all obligations of the City in accordance with each Contract,
provided the Trustee has assumed all of the Corporation's obligations under each Contract. The
City agrees that the Trustee does not assume any of the Corporation's obligations or duties
concerning the Contracts, including, but not limited to, the obligation to pay for the work done
pursuant to the Contracts, unless and until the Trustee shall exercise its rights hereunder.
3. In the event of a breach by the Corporation of any of the terms and conditions of
any Contract or any other agreement entered into between the City and the Corporation, the City
will give written notice to the Trustee of such breach within thirty (30) days thereof. The Trustee
shall have the option for sixty (60) days from the receipt of such notice of default to remedy or
cure said default.
4. All rights of the Trustee under the Assignment will inure to all successors and
assigns of the Trustee and, following any assignment hereof, the Trustee will have no further
obligation regardless of any action taken by the Trustee's successors or assigns with regard hereto.
EXECUTED AND EFFECTIVE as of the day and year first above written.
CITY OFF YE ILLE, ARKANSAS
Bv:
L ON J RDAN, Mayor
ATTEST:
By: hL�
KARA PAXTON, City
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F EC\ 18790\0009\7504451 _ v 1-2/ 10/20
Exhibit A
1. Solar Power Services Agreement (Fayetteville West Wastewater Treatment Plant Project)
dated November 1, 2018, between Today's Power, Inc. as Provider and City of
Fayetteville, Arkansas, as Customer
2. Solar Power Services Agreement (Fayetteville East Wastewater Treatment Plant Project)
dated November 1, 2018, between Today's Power, Inc. as Provider and City of
Fayetteville, Arkansas, as Customer
3. Ownership and Operations Agreement (West Plant) dated November 1, 2018 between
Today's Power, Inc. and the City of Fayetteville, Arkansas
4. Ownership and Operations Agreement (East Plant) dated November 1, 2018 between
Today's Power, Inc. and the City of Fayetteville, Arkansas
5. Lease and Easement Agreement — West Wastewater Treatment Facility dated November
1, 2018 between Today's Power, Inc., as Tenant, and City of Fayetteville, Arkansas, as
Lessor
6. Lease and Easement Agreement — East Wastewater Treatment Facility dated November
1, 2018 between Today's Power, Inc., as Tenant, and City of Fayetteville, Arkansas, as
Lessor
7. Memorandum of Lease and Easement Agreement dated November 1, 2018 — West site
8. Memorandum of Lease and Easement Agreement dated November 1, 2018 — East site
9. Trilateral Agreement for Solar Power and Storage dated November 1, 2018 between
Today's Power, Inc, the City of Fayetteville, Arkansas and Ozarks Electric Cooperative
Corporation.
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