HomeMy WebLinkAbout~Master - May 19, 2026, Special Meeting of the Ames City Council Packet Amended1. Resolution setting May 26, 2026, as the date of Public Hearing and additional action on
proposal to enter into a General Obligation Solid Waste Disposal Loan Agreement and to
borrow money thereunder (Resource Recovery & Recycling Campus)
**. ADDITIONAL ITEM: Steven L. Schainker Plaza Update
a. Motion directing staff
2. Hearing on a Revocable Lease Option with Ames Greenfield Development, LLC to
develop, install, and operate solar facilities on approximately 165 acres located on
portions of the following properties at the Ames Municipal Airport (continued from May 12,
AGENDA
SPECIAL MEETING OF THE AMES CITY COUNCIL
**AMENDED**
ELECTRONIC MEETING - ZOOM*
MAY 19, 2026
NOTICE TO THE PUBLIC: The Mayor and City Council welcome comments
from the public during discussion. The Standards of Decorum, posted at the
door and available on the City website, define respectful conduct for public
participation. If you wish to speak, please fill out the form on the tablet outside
the door to the Council Chambers or scan the QR Code to the right to fill out the same form on
a personal device. When your name is called, please step to the microphone, state your name
for the record, and keep your comments brief so that others may have the opportunity to
speak.
*This will be an electronic meeting. If you wish to provide input on any item, you may
do so as a video participant by going to: https://us02web.zoom.us/j/81454850875. Or by
telephone by dialing: 833-548-0276. Zoom Meeting ID: 814-5485-0875.
CALL TO ORDER : 3:30 p.m.
CONSENT AGENDA:
PARKS & RECREATION:
HEARINGS:
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2026):
a. 405 Airport Road
b. 600 Airport Road
c. 623 Airport Road
d. 698 Airport Road
e. 816 Airport Road
f. 2540 Airport Drive
g. 3115 South Duff Avenue Rear
h. 3300 South Riverside Drive
i. 3800 South Riverside Drive
j. 3800 South Riverside Drive Rear
k. 4200 South Riverside Drive
l. 4200 South Riverside Drive Rear
m. 4600 South Riverside Drive
n. 4600 South Riverside Drive Rear
o. 4900 South Riverside Drive
p. 5000 South Riverside Drive
ADJOURNMENT:
Please note that this agenda may be changed up to 24 hours before the meeting time as
provided by Section 21.4(2), Code of Iowa.
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ITEM #:1
DATE:05-19-26
DEPT:FIN
SUBJECT:SETTING DATE OF PUBLIC HEARING FOR A GENERAL OBLIGATION
LOAN AGREEMENT IN A PRINCIPAL AMOUNT NOT TO EXCEED
$24,000,000 FOR RESOURCE RECOVERY AND RECYCLING CAMPUS
PROJECT
COUNCIL ACTION FORM
BACKGROUND:
As part of the financing strategy prepared by the City’s design consultant, HDR, Inc.,
Bond Anticipation Notes (BANs) were incorporated to provide interim financing during
the construction phase of the Resource Recovery & Recycling Campus (R3C). BANs
are short-term financing instruments, typically offered by banks and financial
institutions, commonly used to provide temporary funding prior to the issuance of
permanent long-term debt. In many respects, BAN financing functions similarly to a
construction loan by allowing the City to access capital during construction while
deferring the issuance of permanent long-term financing until the project is
substantially complete.
The use of BANs provides several advantages. Most notably, the City benefits from
lower short-term interest rates during the construction period and gains additional
flexibility in timing the issuance of the permanent financing.
Upon completion of the project, the BANs are expected to be retired through a future
General Obligation (GO) bond issuance. Alternatively, the City may evaluate other
permanent financing structures at that time, including a direct bank placement or
private placement, should market conditions and financing terms prove advantageous.
An additional benefit of utilizing BAN financing is the ability to phase in the rate
increases necessary to support long-term debt service obligations. Under a traditional
long-term financing structure, the first principal and interest payment would likely have
been due on June 1, 2027. By utilizing BAN financing during construction, the first
significant long-term debt service payment is anticipated to occur on June 1, 2028. This
extended implementation period provides the utility with additional time to align
revenues with projected operating and debt service requirements.
Furthermore, the interim financing structure allows the City to evaluate operational
performance and revenue generation from the R3C facility prior to the commencement
of full annual debt service payments. Modeling performed by HDR, Inc. indicated that,
absent the use of BAN financing, the resulting extension of the debt amortization
schedule would likely have required substantially larger rate increases beginning in FY
2026/27.
Similar to a traditional bond issuance, the utilization of BANs requires a public hearing. This
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resolution would set May 26, 2026, as the date for a public hearing on a proposal to enter into
a General Obligation loan agreement in an amount not to exceed $24,000,000.
If approved, the agreement would provide the funding necessary to support the construction of
the Resource Recovery & Recycling Campus (R3C). Based on the bids received and the
financial plan established for the construction of the facility, the City is expected to utilize
approximately $22,006,730 in proceeds to support the project. All financial obligations
associated with the loan are expected to be repaid from annual revenues generated by
the City’s Resource Recovery enterprise operations.
It should also be noted that, pursuant to Iowa Code Section 384.24, the proposed borrowing
qualifies as an essential corporate purpose because the project involves the “acquisition,
construction, reconstruction, extension, improvement, and equipping of works and facilities
useful for the collection, treatment, and disposal of sewage and industrial waste in a sanitary
manner, for the collection and disposal of solid waste, and for the collection and disposal of
surface waters and streams.” As an essential corporate purpose, the issuance is not
subject to a mandatory or reverse referendum.
ALTERNATIVES:
1. Set May 26, 2026, as the date of public hearing to authorize the issuance of Essential
Corporate Purpose General Obligation Loan Agreement in an amount not to exceed
$24,000,000.
2. Reject or delay the public hearings and provide direction related to the financing and
funding of the R3C project.
CITY MANAGER'S RECOMMENDED ACTION:
Prior to the issuance of debt, Iowa law requires the City to hold a public hearing. A
hearing date is therefore proposed to be set prior to authorizing the use of General
Obligation Loan agreement to finance the R3C project.
In addition, the financing plan developed by the City’s financial consultant includes the use of
Bond Anticipation Notes (BANs) during the construction phase. As modeled, this financing
structure results in the lowest overall impact on tipping fees, thereby minimizing the
financial impact on customers. Therefore, it is the recommendation of the City Manager
that the City Council adopt Alternative No. 1, as described above.
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ITEM #:**
DATE:05-19-26
DEPT:P&R
SUBJECT:STEVEN L. SCHAINKER PLAZA UPDATE
COUNCIL ACTION FORM
BACKGROUND:
On February 27, 2026, the City Council held a special meeting and approved a two-part
settlement agreement with Henkel Construction, the general contractor on the Schainker Plaza
project (See agreements attached).
According to the agreements, Henkel Construction will complete the remaining remedial work
on the splash pad, artificial turf, seeded lawn, remote monitoring system, and punch list items
by May 22, 2026. The completion of these items would then allow the City to partially occupy
the north and east portion of the plaza (inclusive of the building and splashpad area), for an
opening date anticipated in late May 2026.
Additionally, the agreements stipulate that no earlier than September 1, 2026, unless mutually
agreed by both parties, Henkel will remove and replace the ice-skating ribbon and complete
the final project punch list items no later than November 15, 2026 at no cost to the City.
Henkel Construction has also agreed to provide a schedule of work for the ice ribbon removal
portion of the project in writing no later than June 8, 2026.
As of Monday, May 18, 2026, many of the outstanding items on the non-ice ribbon portion of
the plaza have been addressed; however, there are a few known items that are still
outstanding:
1. The fog nozzles at the spray pad are not working properly because of the location.
Henkel Construction is consulting with Confluence, who contracted with Aquatic Design
to design the spray pad, to determine possible solutions, and
2. Staff is unsure if all the electrical work issues have been completed accurately.
Staff has been in contact with Henkel several times over the past month to evaluate the
progress on the outstanding work and have been providing feedback about the solutions
implemented. More importantly, staff has expressed on several occasions to Henkel that it is
critical that the architect, Confluence, or their sub-contractors verify that the work completed
meets project specifications so that it is verified by a third party through writing. As of May 18,
the City has not received any written verification. However, Confluence is scheduled for
a on-site visit on Tuesday, May 26 to verify that all punch list items have been
completed in accordance with specifications.
If the contractor is able to complete all outstanding items by May 22, 2026 as agreed upon,
and it is verified by a third party(ies), Henkel will have met an important project milestone. The
City Council will then need to decide when to open the non-ice ribbon portion of the plaza.
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Swimming pools, spas, and splash pads are regulated by Iowa Code Chapter 485, and the
State of Iowa has an inspection program that establishes minimum safety and sanitation
criteria for the operation of these facilities. When a pool, spa, and/or splash pad is completed,
the site must be subject to the state inspection process before it can begin operating. If the
site meets inspection standards, the owner is issued an annual operating permit.
As of May 18, 2026, the State has not been able to conduct a final inspection. Staff has
contacted the State to schedule an appointment, but a date/time has not been confirmed.
Therefore, the City does not yet have an operating permit.
ALTERNATIVES:
1. Should all of the punch list items be completed to the satisfaction of Confluence by May
22, delay opening the non-ice ribbon portion of the Schainker Plaza until the City
receives its annual operating permit from the State for the splash pad.
Once the permit is obtained, the City will open the non-ice ribbon portion of the plaza
and can begin using the splash pad immediately.
2. Should all of the punch list items be completed to the satisfaction of Confluence by May
22, open the non-ice ribbon portion of the Schainker Plaza shortly after May 22, but do
not begin the operation of the splash pad until the permit is obtained from the State.
This would mean that the water features are not turned on until the permit is obtained,
however, the public could enjoy the open space.
3. Should the State issue the operating permit, but all of the punch list items have not been
completed to the satisfaction of Confluence by May 22, direct staff to declare Henkel in
breach of the Settlement Agreement(s).
4. Should the State issue the operating permit, but all of the punch list items have not been
completed to the satisfaction of Confluence by May 22, direct staff to work with Henkel to
determine a mutually agreeable time extension beyond May 22.
CITY MANAGER'S RECOMMENDED ACTION:
The two key features at the Schainker Plaza that staff believes will draw in the public for its
use is ice-skating plaza in the wintertime and the splash pad during the warmer months. Both
are currently not operational, but the City anticipates the splash pad could be within the next
couple months.
Rather than opening the plaza in three phases, staff believes it will be best to delay opening
the non-ice ribbon portion of the Schainker Plaza until the City receives its annual operating
permit for the splash pad and all punch list items are completed according to the existing
Settlement Agreements(s). At that point, the plaza (with the exception of the ice-ribbon portion)
will be fully accessible to the public, and the splash pad will be operational for public use.
Therefore, if all of the punch list items are completed to the satisfaction of Confluence
by May 22, but the a State permit has not been issued, it is the recommendation of the
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City Manager that City Council approve Alternative No. 1 as described above.
However, should the State has issued the operating permit, but all of the punch list
items have not been completed to the satisfaction of Confluence by May 22, direct staff
in accordance with Alternative No. 4 to work with Henkel to determine a mutually
agreeable time extension beyond May 22.
ATTACHMENT(S):
Part 1: SettlementAgreementFullySigned.pdf
Part 2: PartialOccupancyAgreementFullySigned.pdf
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ITEM #:2
DATE:05-19-26
DEPT:ELEC
SUBJECT:REVOCABLE LEASE OPTION FOR AIRPORT SOLAR DEVELOPMENT
COUNCIL ACTION FORM
BACKGROUND:
At the April 21, 2026, City Council Workshop a presentation was made regarding a potential
solar farm at the Ames Municipal Airport. The project would require that the City lease portions
of the Airport property to Ames Greenfield Development, LLC (a subsidiary of Recall
Strategies) for the evaluation, installation, and operation of the solar project.
The developer envisions the installation of up to 24.9 MW(ac) of solar panels on an area of
approximately 165 acres. The panels would be divided into several separate zones on
portions of the properties that are currently farmed by a tenant who contracts with the City.
The City Council directed that staff proceed with negotiating a revocable lease option
agreement. Staff has done so and is now presenting the attached lease for approval.
This agreement is critical if the project is to move forward and qualify for federal tax credits. To
secure the 30% Investment Tax Credit from the Federal government, a project must achieve
"safe harbor" status by July 4, 2026. If the developer fails to secure the lease and make the
necessary financial investments prior to this date, then the credit expires and the project would
see a 30% increase in cost.
This agreement would only provide the developer the right to construct and operate the
project if certain conditions are met. Most significant is the condition that the parties
enter into a Notice to Proceed (NTP) Amendment, which will contain the terms for the
power purchase including the capacity of the project, the energy pricing, and the
specific areas where the panels will be installed within the lease area. These details
cannot be known until further engineering and negotiations occur during the next year.
If the parties do not agree to the NTP Amendment by June 30, 2027, the option
agreement expires, the project will not be constructed, and the City will have no
financial obligation to the developer. The City is under no obligation to agree to the
amendment if it finds any of its terms objectionable (e.g., pricing, size, impacts to other
Airport users, etc.). If the NTP Amendment is ultimately agreed to, the NTP Amendment
deadline of June 30, 2027 provides sufficient time to provide notice to cancel the tenant
farmer's lease agreement prior to incurring any costs for the following growing season.
KEY LEASE PROVISIONS:
The lease is structured to include an initial term of 25 years. As is the case with the City's
existing solar Power Purchase Agreement, at the conclusion of the lease term the parties
could agree to an extension for a further five years. Alternatively, the City would have the right
to purchase the system at that time (at a price to be negotiated in the NTP Amendment, or the
developer may remove the system from the premises.
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The City is the only entity authorized by the agreement to benefit from the construction of the
solar project. The developer is not permitted to sell the energy to any other entity. Once
negotiated in the NTP Amendment, the developer will receive payment for the energy at an
agreed-upon rate for each kWh of energy produced by the system.
The agreement makes clear that the Airport is regulated by the Federal Aviation
Administration (FAA), and that nothing in the agreement may require the City to violate
any federal regulation, directive, or law that currently exists or may exist in the future.
In addition, the developer must secure all the necessary permits and approvals from
the FAA or other governmental entities in order to install or operate the system, and
must comply with all applicable safety directives when constructing, operating, and
maintaining the system on the Airport property.
The lease contains several provisions that would allow for it to be terminated by either
party. If the developer is unable to obtain FAA approval for the some or all of the
project's construction, it may terminate the agreement, or may continue to reapply for
FAA approval. If the developer remains unsuccessful in obtaining FAA approval after
June 30, 2032, the City has the right to terminate the agreement. City staff believes this
is an important limitation to ensure that if the project cannot be developed in a timely
fashion, the land can be returned to agricultural production to ensure a steady income
for the Airport.
At the May 12, 2026 City Council meeting, the City Council directed that the leased areas are
not to include any property designated for future development according to the Airport Master
Plan. Staff has communicated this to the developer, and the lease areas have been modified
to eliminate solar installations that would conflict with such Airport development. The
resulting lease contains 15 separate areas totaling 149.74 acres. These general lease
areas are subject to further approval of the specific arrangement of solar equipment
within them, and therefore further refinement is possible prior to the execution of the
NTP Amendment. Two maps are attached to demonstrate the lease areas. The second
overlays the lease areas on the Airport Master Plan.
It is important to note that this acreage is likely insufficient to support the buildout of
the full 24.9 MW(ac) of capacity. The developer has cautioned staff that a smaller
project spread over multiple sites is likely to result in an increase to the price-per-kWh
for the energy ultimately generated. However, these details will need to be calculated
and negotiated prior to the approval of the Notice to Proceed Amendment. Again, the
City Council is not obligated to agree to that amendment if it is not satisfied with the
ultimate purchase price of the energy, or any other provisions proposed in the NTP.
As of the time of this writing, the developer had filed its business registration
application in order to do business in Iowa, but had not received approval from the
Iowa Secretary of State's Office. There is typically only a processing time of a few days
necessary to receive such approval. Therefore, staff is requesting that the Council's
approval of the lease option agreement is made contingent upon Ames Greenfield Dev
Co., LLC receiving proof of registration and authorization to do business in the State of
Iowa.
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ALTERNATIVES:
1. Approve the attached revocable lease option agreement with Ames Greenfield Dev Co.,
LLC, contingent upon Ames Greenfield Dev Co., LLC receiving proof of registration and
authorization to do business in the State of Iowa.
2. Take no action, and do not proceed with the potential solar development project.
CITY MANAGER'S RECOMMENDED ACTION:
The next step in determining if a solar farm can be developed at the Ames Municipal
Airport is to enter into a Revocable Lease Option Agreement. An agreement has been
negotiated and is satisfactory to City staff.
It should be emphasized, however, that entering into this agreement does not obligate
the City to any costs nor compel the City to enter into a power purchase agreement. If
the City and the solar developer do not arrive at a mutually agreeable Notice to Proceed
Amendment (i.e., the Power Purchase Agreement), the lease option will lapse and the
project will not proceed to fruition.
Due to the expiration of the federal production tax credits if the project has not
achieved safe harbor status by July 3, it is not possible to delay the approval of this
agreement any later. If the safe harbor deadline is not met, the costs of the project will
be greater and the cost of the energy produced will be substantially higher.
Therefore, it is the recommendation of the City Manager that the City Council adopt Alternative
1, as described above.
ATTACHMENT(S):
Solar Lease Areas.pdf
Solar Lease Areas with Aiport Master Plan.pdf
Recall Strategies - Solar Lease and Easement Agreement FOR APPROVAL BY
COUNCIL.pdf
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ENERGY SERVICES AGREEMENT- SOLAR
This Energy Services Agreement ("Agreement") is made and entered into as of this _____ day of May, 2026 (or, if later,
the latest date of a Party's execution and delivery to the other Party of this Agreement, the "Effective Date"), between
Ames Greenfield Dev Co., LLC d/b/a Ames Greenfield Development Co. LLC, a Delaware limited liability company
("Developer"), and The City of Ames, IA ("Purchaser"; and, together with Developer, each, a "Party" and together, the
"Parties").
RECITALS
A. Purchaser desires that Developer install and operate a solar photovoltaic system at the Premises (as hereafter
defined) for the purpose of providing Energy Services (as hereafter defined), and Developer is willing to have
the Installation Work performed by using one or more qualified contractors holding the appropriate licenses
required in the jurisdiction where the System will be installed;
Developer and Purchaser executed and acknowledged those certain General Terms and Conditions of Energy
Services Agreement between Developer and Purchaser dated as of May , 2026 ("General Conditions")
attached hereto as Exhibit A, which are incorporated by reference as set forth herein; and
B. The terms and conditions of this Energy Services Agreement, excluding the General Conditions incorporated
herein, constitute the "Special Conditions" referred to in the General Conditions.
C. The Parties enter into this Agreement subject to their future ability to mutually agree to an NTP Amendment by
the Outside NTP Amendment Date, setting forth essential terms that have not been settled by the Parties to this
Agreement, and the Parties recognize that they may not be able to successfully negotiate and execute said NTP
Amendment by the Outside NTP Amendment Date, in which case this Agreement may be cancelled by either
Party pursuant to Section 2.5(a)(xi) of the Special Conditions.
In consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Incorporation of General Conditions. The General Conditions are incorporated herein as if set forth in their
entirety.
2. Consideration. In consideration for the agreements herein, Developer shall pay Purchaser One Thousand Dollars
($1,000) within ten (10) days following full execution of this Agreement which payment may be made by an
affiliate of Developer on behalf of Developer.
3. Initial Term. The initial term of the Agreement shall commence on the Effective Date and shall continue for
Twenty-Five (25) years from the Commercial Operation Date (as defined in the General Conditions), unless and
until extended or terminated earlier pursuant to the provisions of the Agreement (the "Initial Term"). After the
Initial Term, at the Purchaser's sole discretion, one of three things shall occur: 1) The Agreement may be renewed
for an additional five (5) year term or for such longer period as agreed upon by the Parties (a "Renewal Term")
at a new kWh Rate to be negotiated; or 2) The ownership of the System will be transferred to the Purchaser upon
Purchaser paying the Option Price in Schedule 3; or 3) The System will be removed from the Premises by
Developer at Developer's sole expense within one calendar year. At least one hundred eighty (180) days, but no
more than three hundred sixty-five (365) days, prior to the expiration of the Initial Term, Developer shall give
written notice to Purchaser of the availability of the Renewal Term. Purchaser shall have sixty (60) days to agree
to continuation of the Agreement for the Renewal Term. The Initial Term and the subsequent Renewal Term,
if any, are referred to collectively as the “Term.” Absent agreement to the Renewal Term this Agreement shall
expire on the Expiration Date, and Purchaser shall notify Developer of Purchaser’s election of either Option 2
(transfer to Purchaser) or Option 3 (Developer to remove System) herein which shall occur prior to the expiration
of the Term.
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4. Exclusive Right to Purchase.
Purchaser shall have the exclusive right to the purchase of electricity produced by the System from Developer.
The electricity purchased by Purchaser from Developer under this Agreement shall not be resold, assigned or
otherwise transferred by Purchaser in any manner where Developer would no longer be designated an Exempt
Wholesale Generator or a Qualifying Facility, as applicable. Neither Party shall assert that Developer is an
electric utility or public service company or similar entity that has a duty to provide service, is subject to rate
regulation, or is otherwise subject to regulation by any governmental authority as a result of Developer’s
obligations or performance under this Agreement
5. Schedules. The following Schedules hereto are hereby incorporated into this Agreement:
Schedule 1 Description of the Premises, System and Subsidy
Schedule 2 Energy Services Payment
Schedule 3 Early Termination Fee
Schedule 4 Estimated Annual Production
Schedule 5 Notice Information
6. System Data. Purchaser acknowledges that the System may collect certain information about the System
performance. Such information may be stored and processed in the United States or any other country in
which Developer or its third-party service providers, or its or their respective affiliates, subsidiaries, or
service providers, maintain facilities. Purchaser consents to any such transfer of information outside of
Purchaser's country so long as it does not violate any laws of the United States, whether federal, state, or
local.
7. Purchase Requirement; Energy Services Payment. "Energy Services" means the supply of electrical energy
output from the System from its alternative electric provider(s). Purchaser agrees to purchase one hundred
percent (100%) of the Energy Services generated by the System and made available by Developer to
Purchaser during each relevant month of the Term, up to a maximum of one hundred ten percent (110%) of
Estimated Annual Production, as defined in Schedule 4. While the Energy Services are calculated and billed
on a per kWh basis as set forth in Schedule 2 of these Special Conditions, they represent a package of
services and benefits.
8. Estimated Annual Production. The annual estimate of electricity generated by the System for each year of
the initial term is set as forth in Schedule 4 of the Special Conditions ("Estimated Annual Production").
9. Minimum Guaranteed Output. If the System fails to generate at least ninety-five percent (95%) of the
Estimated Annual Production for a full Term Year (such amount, the "Minimum Guaranteed Output"), other
than as a result of the acts or omissions of Purchaser or other unaffiliated third parties, equipment failure or
delayed repair of equipment due to the claims process with the equipment manufacturer which are beyond
the reasonable control of Developer, [or any and all Local Electric downtime, as a result of maintenance
and/or failure of the Purchaser transformer or the maintenance and/or failure of other equipment upstream
of the System, or an Event of Force Majeure, Developer shall credit Purchaser an amount equal to
Purchaser's Cost to Cover on the next invoice or invoices during the following Te rm Year, up to the Lost
Savings Cap (such amount, the “Cost to Cover”). The formula for calculating Cost to Cover and Lost
Savings Cap shall be agreed upon by the Parties in the NTP Amendment. The Parties shall negotiate the
NTP Amendment in good faith. Nothing herein shall require either Purchaser or Developer to consent to
any future NTP Amendment, and if the parties cannot mutually agree by the Outside NTP Amendment Date,
then this Agreement may be cancelled by either Party pursuant to Section 2.5(a)(xi) of the Special
Conditions.
10. Sunlight Easements. Purchaser will take all reasonable actions as necessary to prevent other buildings,
structures or flora from overshadowing or otherwise blocking access of sunlight to the System.
11. Federal Regulation of Airport. Developer understands that the Site is located at the Ames Municipal
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Airport, which is subject to federal regulation, and nothing herein shall require Purchaser to violate any
federal regulation, directive or law that exists at the time of this Agreement or which may be repealed,
amended or modified in such a way that materially affects the Parties’ obligations under this Agreement.
12. Use of System. Purchaser will not use electrical energy generated by the System for the purposes of heating
a swimming pool within the meaning of Section 48 of the Internal Revenue Code.
[signature page to follow]
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IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions
contained in this Agreement and intending to be legally bound hereby, Developer and Purchaser have
executed this Agreement as of the Effective Date.
AMES GREENFIELD DEV CO. LLC City of Ames, Iowa
a Delaware limited liability company
By: By:
Name: Name:
Its: Its:
Attested by: __________________
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SCHEDULES
I. Schedule 1 - Description of the Premises, System and Subsidy
A. Premises Physical Address: Agricultural property generally
located on City of Ames Municipal Airport (“AMW”)
property.
APN Number: 0914150020, 0914300000, 0914150010,
0914350010, 0915400020, 0922400200, 0922200405,
0922400400, 0922225010, 0922400120, 0922200305,
0922400320, 0923100000, 0923100020, 0923100030,
0923100040, 0923100310, 0927200125, 0927200105
The final project layout may change and is to be
negotiated subject to mutual agreement in the NTP
Amendment, but shall not exceed 165 acres in size.
Attached hereto is Exhibit B which sets forth areas
available to Developer to constitute the Premises, as
defined by this Agreement.
Site diagram attached: □ Yes X No
The final site diagram is to be negotiated in the NTP
Amendment.
B. Description of Solar System
Anticipated photovoltaic solar energy facility of up to
24.9 MWac of nameplate capacity. Facility planned as
a single-axis tracking system utilizing bifacial panels.
The final description is to be negotiated in the NTP
Amendment.
Solar System Size: Not more than 24.9 MWac (this is an estimate (and not
a guarantee) of the System size; Developer may update
the System Size prior to the Commercial Operation
Date.)
The final system size is to be negotiated in the NTP
Amendment.
C. Anticipated Subsidy or
Rebate
Project expected to receive safe harbor for 2026
valuations of the Investment Tax Credit. Purchaser shall
have no responsibility for the award or non-award of any
tax credit(s).
II. Schedule 2 - Energy Services Payment
Provided that the Parties mutually agree to a NTP Amendment, Purchaser shall pay to
Developer a monthly payment (the "Energy Services Payment") for the Energy Services
provided by the System during each calendar month of the Term equal to the product of (x)
Actual Monthly Production for the System for the relevant month multiplied by (y) the kWh
Rate.
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The "Actual Monthly Production" means the amount of energy recorded by Developer's
metering equipment during each calendar month of the Term.
The kWh Rate with respect to the System under the Agreement shall be in accordance with a
rate schedule as may be mutually agreed by the Parties in the NTP Amendment.
Term
Year
kWh Rate
($/kWh)
1 [TBD]
2 [TBD]
3 [TBD]
4 [TBD]
5 [TBD]
6 [TBD]
7 [TBD]
8 [TBD]
9 [TBD]
10 [TBD]
11 [TBD]
12 [TBD]
13 [TBD]
14 [TBD]
15 [TBD]
16 [TBD]
17 [TBD]
18 [TBD]
19 [TBD]
20 [TBD]
21 [TBD]
22 [TBD]
23 [TBD]
24 [TBD]
25 [TBD]
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III. Schedule 3 - Early Termination Fee
The Early Termination Fee with respect to the System under the Agreement shall be
calculated as may be mutually agreed in the NTP Amendment.
Early
Termination
Occurs in Year:
Column 1
Early Termination Fee
where Purchaser does not
take Title to the System
($/Wdc including costs of
removal)
Purchase Date Occurs on the
91st day following:
(Each “Anniversary” below
shall refer to the anniversary
of the Commercial
Operation Date)
Column 2
Option Price ($/Wdc)
1* [TBD] 1st Anniversary [TBD]
2 [TBD] 2nd Anniversary [TBD]
3 [TBD] 3rd Anniversary [TBD]
4 [TBD] 4th Anniversary [TBD]
5 [TBD] 5th Anniversary [TBD]
6 [TBD] 6th Anniversary [TBD]
7 [TBD] 7th Anniversary [TBD]
8 [TBD] 8th Anniversary [TBD]
9 [TBD] 9th Anniversary [TBD]
10 [TBD] 10th Anniversary [TBD]
11 [TBD] 11th Anniversary [TBD]
12 [TBD] 12th Anniversary [TBD]
13 [TBD] 13th Anniversary [TBD]
14 [TBD] 14th Anniversary [TBD]
15 [TBD] 15th Anniversary [TBD]
16 [TBD] 16th Anniversary [TBD]
17 [TBD] 17th Anniversary [TBD]
18 [TBD] 18th Anniversary [TBD]
19 [TBD] 19th Anniversary [TBD]
20 [TBD] 20th Anniversary [TBD]
21 [TBD] 21st Anniversary [TBD]
22 [TBD] 22nd Anniversary [TBD]
23 [TBD] 23rd Anniversary [TBD]
24 [TBD] 24th Anniversary [TBD]
25 [TBD] 25th Anniversary [TBD]
At Expiration (the end of the Initial Term), the amount in Column 1 shall be deemed to be zero (0).
*Includes Early Termination prior to the Commercial Operation Date.
31
8
IV. Schedule 4 - Estimated Annual Production
Provided that the Parties mutually agree to a NTP Amendment, Estimated Annual
Production commencing on the Commercial Operation Date with respect to System under
the Agreement shall be as negotiated in the NTP Amendment.
Term Year Estimated Production (kWh)
1 [TBD]
2 [TBD]
3 [TBD]
4 [TBD]
5 [TBD]
6 [TBD]
7 [TBD]
8 [TBD]
9 [TBD]
10 [TBD]
11 [TBD]
12 [TBD]
13 [TBD]
14 [TBD]
15 [TBD]
16 [TBD]
17 [TBD]
18 [TBD]
19 [TBD]
20 [TBD]
21 [TBD]
22 [TBD]
23 [TBD]
24 [TBD]
25 [TBD]
Provided that the Parties mutually agree to a NTP Amendment, the values to be set forth in the
table above shall constitute estimates (and not guarantees), of approximately how many kWhs
are expected to be generated annually by the System assuming the System size indicated in
Schedule 1 and based on initial System designs. Developer may deliver to Purchaser an updated
table upon the Commercial Operation Date based on the actual System size and design.
V. Schedule 5 - Notice Information
Purchaser:
City of Ames
Attn: Director of Electric Services
502 Carroll Ave
Ames, IA 50010
Developer:
Ames Greenfield Dev Co. LLC
Attn: Chief Development Officer
301 West Bay Street
Suite 1404
32
9
-With a copy to
City of Ames Legal Department
515 Clark Ave
PO Box 811
Ames, IA 50010
Jacksonville, FL 32202
Financing Party:
[To be provided by Developer when known.]
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Page 10 of 35
Exhibit A
to Energy Services Agreement
GENERAL TERMS AND CONDITIONS OF
ENERGY SERVICES AGREEMENT
These General Terms and Conditions (“General Conditions”) are dated as of the ______ day of May, 2026
and are witnessed and acknowledged by AMES GREENFIELD DEV CO. LLC, a Delaware limited liability
company (“Developer”) and The City of Ames, Iowa (“Purchaser”), as evidenced by their signature on the
last page of this document. These General Conditions are intended to be incorporated by reference into
Energy Services Agreements that may be entered into between Developer and Purchaser or between their
respective affiliates. These General Conditions shall have no binding effect upon Developer or Purchaser,
respectively, except to the extent Developer or Purchaser becomes a party to an Energy Services Agreement
that incorporates these General Conditions.
I. DEFINITIONS.
1.1 In addition to other terms specifically defined elsewhere in the Agreement, where
capitalized, the following words and phrases shall be defined as follows:
"Affiliate" means, with respect to any specified Person, any other Person directly or indirectly controlling,
controlled by or under common control with such specified Person.
"Agreement" means, the Energy Services Agreement.
"Ames Interconnection Agreement" means the interconnection agreement between Developer and the Local
Electric Utility, including any other agreements deemed necessary by MISO for FERC tariffs.
"Applicable Law" means, 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, including the Premises described
herein, enforceable at law or in equity, including the interpretation and administration thereof by such
Governmental Authority.
“Assignment” has the meaning set forth in Section 13.1.
“Bankruptcy Event” means with respect to a Party, that either (i) such Party has (A) applied for or consented to
the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its property; (B) admitted in writing its inability, or be generally unable, to pay its debts
as such debts become due; (C) made a general assignment for t he benefit of its creditors; (D) commenced a
voluntary case under any bankruptcy law; (E) filed a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) taken any
corporate or other action for the purpose of effecting any of the foregoing; or (ii) has a petition in bankruptcy
filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof.
"Business Day" means any day other than Saturday, Sunday or any other day on which banking institutions in
Des Moines, IA are required or authorized by Applicable Law to be closed for business.
"Commercial Operation" has the meaning set forth in Section 3.3(b).
"Commercial Operation Date" has the meaning set forth in Section 3.3(b).
"Confidential Information" has the meaning set forth in Section 15.1.
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"Covenants, Conditions and Restrictions" or "CCR" means those requirements or limitations related to the
Premises as may be set forth in a lease, if applicable, or by any association or other organization, having the
authority to impose restrictions.
"Disruption Period" has the meaning set forth in Section 4.3.
"Early Termination Date" means any date on which the Agreement terminates other than by reason of expiration
of the then applicable Term.
"Early Termination Fee" means the fee payable by Purchaser to Developer under the circumstances described
in Section 11.2, as set forth in Schedule 3, Column 1 of the Special Conditions.
"Effective Date" has the meaning set forth in the preamble to the Special Conditions.
"Energy Services" has the meaning set forth in the Special Conditions.
"Energy Services Agreement" means each Energy Services Agreement (including the Schedules attached
thereto) that may be entered into between Developer and Purchaser or between their respective affiliates that
incorporates these General Conditions by reference.
"Energy Services Payment" has the meaning set forth in Schedule 2 of the Special Conditions.
"Environmental Attributes" shall mean, without limitation, carbon trading credits, renewable energy credits or
certificates, emissions reduction credits, emissions allowances, green tags, tradable renewable credits, State
PTC (if any) or Green-e® products.
"Environmental Documents" has the meaning set forth in Section 7.2(f).
"Environmental Law" means any and all federal, state, local, provincial and foreign, civil and criminal laws,
statutes, ordinances, orders, common law, codes, rules, regulations, judgments, decrees, injunctions relating to
the protection of health and the environment, worker health and safety, and/or governing the handling, use,
generation, treatment, storage, transportation, disposal, manufacture, distribution, formulation, packaging,
labeling, or release to the environment of or exposure to Hazardous Materials, including any such requirements
implemented through Governmental Approvals.
"Estimated Remaining Payments" means as of any date, the estimated remaining Energy Services Payments to
be made through the end of the then-applicable Term, as reasonably determined by Developer.
"Expiration Date" means the date on which the Agreement terminates by reason of expiration of the Term.
"Fair Market Value" means, with respect to any tangible asset or service, the price that would be negotiated in
an arm's-length, free market transaction, for cash, between an informed, willing seller and an informed, willing
buyer, neither of whom is under compulsion to complete the transaction. Fair Market Value of the System will
be determined pursuant to Section 2.4.
"Financing Party" means, as applicable (i) any Person (or its agent) from whom Developer (or an Affiliate of
Developer) leases the System, (ii) any Person (or its agent) who has made or will make a loan to or otherwise
provides financing to Developer (or an Affiliate of Developer) with respect to the System, or (iii) any Person
acquiring a direct or indirect interest in Developer or in Developer's interest in the Agreement or the System as
a tax credit investor.
"Force Majeure Event" has the meaning set forth in Section 10.1.
"Developer" has the meaning set forth in the Preamble.
"Developer Default" has the meaning set forth in Section 11.1(a).
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"General Conditions" means these General Terms and Conditions of the Energy Services Agreement, including
all Exhibits hereto.
"Governmental Approval" means any approval, consent, franchise, permit, certificate, resolution, concession,
license, or authorization issued by or on behalf of any applicable Governmental Authority, including any such
approval, consent, order or binding agreements with or involving a governmental authority under
Environmental Laws.
"Governmental Authority" means any federal, state, regional, county, town, city, or municipal government,
whether domestic or foreign, or any department, agency, bureau, or other administrative, regulatory or judicial
body of any such government.
"Hazardous Materials" means any hazardous or toxic material, substance or waste, including petroleum,
petroleum hydrocarbons or petroleum products, and any other chemicals, materials, substances or wastes in any
amount or concentration which are regulated under or for which liability can be imposed under any
Environmental Law.
"Indemnified Parties" has the meaning set forth in Section 16.1.
"Initial Term" has the meaning set forth in Section 3 of the Special Conditions.
"Installation Work" means the construction and installation of the System and the start-up, testing and
acceptance (but not the operation and maintenance) thereof, all performed by or for Developer (by using one or
more qualified contractors holding the appropriate licenses required in the jurisdiction where the System will
be installed) at the Premises.
"Invoice Date" has the meaning set forth in Section 6.2.
"Liens" has the meaning set forth in Section 7.1(d).
"Local Electric Utility" means the local electric distribution owner and operator providing electric distribution
and interconnection services to Purchaser at the Premises which is City owned.
"Losses" means all losses, liabilities, claims, demands, suits, causes of action, judgments, awards, damages,
cleanup and remedial obligations, interest, fines, fees, penalties, costs and expenses (including all attorneys'
fees and other costs and expenses incurred in defending any such claims or other matters or in asserting or
enforcing any indemnity obligation).
“NTP (Notice to Proceed) Amendment” means an amendment that may be entered into by the Parties pursuant
to a mutual Agreement to the same prior to commencement of construction to agree upon all items listed in the
Agreement that are still to be so negotiated and any other amendments required by either party. Neither party
shall be obligated to consent to any particular NTP Amendment and this Agreement and all obligations that the
Parties have to one another shall be cancelled and terminate in the event that a mutual agreement on an NTP
Amendment cannot be obtained by the Outside NTP Amendment Date. The Parties understand and agree that
this Agreement and the NTP Amendment are subject to the approval of the Ames City Council and no
representations or guarantees of final approval by the City Council are made to Developer.
"Option Price" has the meaning set forth in Section 2.2.
“Outside NTP Amendment Date” means June 30, 2027.
"Party" or "Parties" has the meaning set forth in the preamble to the Special Conditions.
"Person" means an individual, partnership, corporation, limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture, firm, or other entity, or a Governmental Authority.
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"Pre-existing Environmental Conditions" means any: (i) violation of, breach of or non-compliance with any
Environmental Laws with respect to the Premises that first existed, arose or occurred on or prior to Developer's
commencement of construction at the Premises and (ii) the presence or release of, or exposure to, any Hazardous
Materials at, to, on, in, under or from the Premises that first existed, arose or occurred on or prior to Developer's
commencement of construction at the Premises.
"Premises" means the premises described in Schedule 1 of the Special Conditions. The Premises includes the
entirety of any structures and underlying real property located at the address in Schedule 1 of the Special
Conditions.
"Purchase Date" means the first Business Day that occurs after the applicable purchase date set forth in Schedule
3 of the Special Conditions.
"Purchaser" has the meaning set forth in the Preamble.
"Purchaser Default" has the meaning set forth in Section ll.2(a).
“Qualified Transferee” means is a transferee that has (a) experience developing, owning or operating at least
100 MW of DG and scale solar projects in the aggregate (or such third party’s day-to-day operator of the Project
has said experience), and (b) the transferee (or its parent company) has and maintains a net worth based on
assets in the United States of at least Fifty Million Dollars ($150,000,000) to be calculated as if said transferee
owns the Project assets to be transferred.
"Renewal Term" has the meaning set forth in Section 2.
"Representative" has the meaning set forth in Section 15.1.
“Safe Harbor Work” means the installation of a foundation for the breakers that will serve the System; the
foundation will be built offsite, stored and then installed on the Premises. Access to the Premises and the
location of stored materials shall be as determined by the Purchaser, in Purchaser’s sole discretion, provided
Purchaser agrees to use commercially reasonable efforts to find a suitable location for the Safe Harbor Work.
Notwithstanding the foregoing, Purchaser shall not be required to approve any location for Safe Harbor Work
that in Purchaser’s sole judgment interferes with, or otherwise compromises in any way, Airport operations or
safety.
"Security Interest" has the meaning set forth in Section 8.2(a).
"Special Conditions" means each Energy Services Agreement, excluding these General Conditions.
"Stated Rate" means a rate per annum equal to the lesser of (a) the "prime rate" (as reported in The Wall Street
Journal) plus two percent (2%) or (b) the maximum rate allowed by Iowa law.
"System" has the meaning set forth in Schedule 1 of the Special Conditions.
"System-based Incentives" means any accelerated depreciation, installation or production-based incentives,
investment tax credits and subsidies including, but not limited to, the subsidies in Schedule 1 of the Special
Conditions and all other related subsidies and incentives.
"System Operations" means Developer's operation, maintenance and repair of the System performed by
Developer or for Developer (by using one or more qualified contractors holding the appropriate licenses
required by the jurisdiction where the System will be installed) in accordance with the requirements herein.
"Term" means the Initial Term, and the subsequent Renewal Term, if any.
"Term Year" means a twelve (12) month period beginning on the first day of the Term and each successive
twelve
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(12) month period thereafter.
"Termination Date" means the date on which the Agreement ceases to be effective, including on an Early
Termination Date or the Expiration Date.
1.2 Interpretation. The captions or headings in these General Conditions are strictly for
convenience and shall not be considered in interpreting the Agreement. Words in the Agreement that impart
the singular connotation shall be interpreted as plural, and words that impart the plural connotation shall be
interpreted as singular, as the identity of the parties or objects referred to may require. The words "include",
"includes", and "including" mean include, includes, and including "without limitation" and "with out
limitation by specification." The words "hereof', "herein", and "hereunder" and words of similar import refer
to the Agreement as a whole and not to any particular provision of the Agreement. Except as the context
otherwise indicates, all references to "Articles" and "Sections" refer to Articles and Sections of these General
Conditions.
2. TERM AND TERMINATION.
2.1 Term. The Initial Term is as specified in the Special Conditions.
2.2 Purchase Option. On any Purchase Date, so long as a Purchaser Default shall not have
occurred and be continuing, Purchaser has the option to purchase the System for a purchase price (the "Option
Price") equal to the greater of (a) the Fair Market Value of the System as of the Purchase Date, or (b) the
price specified in Schedule 3, Column 2 of the Special Conditions, as of the Purchase Date. To exercise its
purchase option, Purchaser shall, not less than one hundred and eighty (180) days prior to the proposed
Purchase Date, provide written notice to Developer of Purchaser's intent to exercise its option to purchase the
System on such Purchase Date. Within thirty (30) days of receipt of Purchaser's notice, Developer shall
specify the Option Price, and Purchaser shall then have a period of thirty (30) days after notification to confirm
or retract its decision to exercise the purchase option or, if the Option Price is equal to the Fair Market Value
of the System, to dispute the determination of the Fair Market Value of the System. In the event Purchaser
confirms its exercise of the purchase option in writing to Developer (whether before or after any determination
of the Fair Market Value determined pursuant to Section 2.3), (i) the Parties shall promptly execute all
documents necessary to (A) cause title to the System to pass to Purchaser on the Purchase Date, free and cl ear
of any Liens, and (B) assign all vendor warranties for the System to Purchaser, and (ii) Purchaser shall pay
the Option Price to Developer on the Purchase Date, such payment to be made in accordance with any
previous written instructions delivered to Purchaser by Developer or Developer's Financing Party, as
applicable, for payments under the Agreement. Upon execution of the documents and payment of the Option
Price, in each case as described in the preceding sentence, the Agreement shall terminate automatically.
Payment of the Option Price shall be in lieu of and instead of any payments as described in Section 2.2 hereof.
In the event Purchaser retracts its exercise of, or does not timely confirm, the purchase option, the provisions
of the Agreement shall be applicable as if Purchaser had not exercised any option to purchase the System.
2.3 Determination of Fair Market Value. If the Option Price indicated by Developer in
accordance with Section 2.2 is equal to the Fair Market Value (as determined by Developer) and Purchaser
disputes such stated Fair Market Value within thirty (30) days of receipt of such notice from Developer, then
the Parties shall mutually select an independent appraiser with experience and expertise in the Energy
Services industry. Such appraiser shall act reasonably and in good faith to determine Fair Market Value and
shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the
appraiser shall be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal
shall be borne by Purchaser if such appraisal results in a value equal or greater than the value provided by
Developer pursuant to Section 2.3; otherwise, the Parties shall equally share such cost.
2.4 Removal of System at Expiration. Subject to Purchaser's exercise of its purchase option
under Section 2.2, upon the expiration or earlier termination of the Agreement, Developer shall, at
Developer's expense, remove all of its tangible property comprising the System from the Premises on a
mutually convenient date but in no case later than one (1) year after the Termination Date. The Premises shall
be returned to its original condition. For purposes of Developer's removal of the System, Purchaser's
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covenants pursuant to Section 7.2 shall remain in effect until the date of actual removal of the System.
Developer shall leave the Premises in neat and clean order. If Developer fails to remove or commence
substantial efforts to remove the System by such agreed upon date, Purchaser shall have the right, at its option,
to remove the System to a public warehouse and restore the Premises to its original condition at Developer's
cost.
2.5 Conditions of the Agreement Prior to the Commercial Operation Date.
(a) In the event that any of the following events or circumstances occur prior to the
Commercial Operation Date, the relevant Party may provide notice that it is terminating the Agreement, in
which case neither Party shall have any liability to the other except for any such liabilities that may have
accrued prior to such termination:
(i) Developer, if Developer determines that the Premises, as is, are insufficient to
accommodate the System or unsuitable for construction or operation of the System.
(ii) Developer, if Developer determines that there exist site conditions (including
environmental conditions) or construction requirements that were not known as of the Effective Date and that
could reasonably be expected to materially increase the cost of Installation Work or would adversely affect
the electricity production from the System as designed.
(iii) Developer, if Developer determines that there is a material adverse change in
the regulatory environment, incentive program or federal or state tax code (including the expiration of any
incentive program or tax incentives in effect as of the Effective Date) that could reasonably be expected to
adversely affect the economics of the installation for Developer and its investors.
(iv) Developer, if Developer is unable to obtain financing for the System on terms
and conditions satisfactory to it.
(v) Developer, if Developer has not received: (1) a release or acknowledgement
from any mortgagee of the Premise, if required by Developer's Financing Party, to establish the priority of
its security interest in the System, and (2) such other documentation as may be reasonably requested by
Developer to evidence Purchaser's ability to meet its obligations under Section 7.2(d)(ii) to ensure that
Developer will have access to the Premises throughout the Term.
(vi) Either Party, if such Party determines that there has been a material adverse
change in the rights of Purchaser to occupy the Premises that prohibit Developer from developing the solar
project.
(vii) Developer, if Developer determines that there has been a material adverse
change in the ability of Developer to construct the System on the Premises.
(viii) By Developer, if Developer has not received evidence reasonably satisfactory
to it that interconnection services will be available with respect to energy generated by the System.
(ix) By Developer, if Developer has determined that there are easements, CCRs or
other land use restrictions, liens or encumbrances that would materially impair or prevent the installation,
operation, maintenance or removal of the System.
(x) By Developer, if there has been a material adverse change in Purchaser's credit-
worthiness.
(xi) Either Party, if the Parties cannot reach mutual agreement by the Outside NTP
Amendment Date, in which case neither Purchaser nor Developer shall have any obligation to the other and
neither Party shall owe the other Party any costs, fees, damages or other compensation.
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(xii) Developer, if Developer does not receive necessary approvals from the City of
Ames needed to develop the Project.
(xiii) By Developer, if the FAA does not approve either the site of the project on the
Premises, or does not provide complete approval of the solar array such that fewer MW (ac) are built and
therefore Developer is unable to deliver energy in the volumes or pricing agreed in the ESA to Purchaser, or
by Purchaser, if the foregoing has not been completed by Developer by June 30, 2032.
(b) With the exception of 2.5(a)(xi) above which shall result in termination as described
therein, if any of the conditions set forth in Section 2.5(a) are partly or wholly unsatisfied, and Developer
wishes to revise the information in the Special Conditions, then Developer may propose modifications to the
Special Conditions for acceptance by Purchaser. If Purchaser does not accept such modified Special
Conditions, Developer may terminate this Agreement as provided in Section 2.5(a). If Purchaser accepts such
revised Special Conditions, such revised Special Conditions shall be deemed an amendment of the
Agreement, and the Agreement shall remain in force and effect upon execution by both Parties.
(c) Developer acknowledges that portions of the Premises are currently subject to an
agricultural leasehold interest. All of Developer’s activities upon the Premises that precede the Commercial
Operations Date, whether they are Safe Harbor activities, due diligence activities or any activities of an
exploratory or preliminary nature whatsoever, shall by undertaken using commercially reasonable efforts to
minimize disturbance of, and damage to, any growing crops upon any portion of the Premises and/or real
property located at the Ames Municipal Airport. Developer shall fully compensate the City’s
agricultural/farm tenant for the fair market value of any damaged crops and hold the City harmless from any
damages or losses related to Developer’s damage of growing crops.
3. CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.
3.1 Installation Work. Developer will cause the System (by using one or more qualified
contractors holding the appropriate licenses required in the jurisdiction where the System will be installed) to
be designed, engineered, installed and constructed substantially in accordance with Schedule 1 of the Special
Conditions, Ames Interconnection Agreement, as approved by the FAA in coordination with AMW airport,
and Applicable Law. Purchaser shall have the right to review all construction plans and designs, including
engineering evaluations of the impact of the System. Developer shall take care not to damage drainage tiles or
any other existing infrastructure during its performance of the Installation Work, provided that Purchaser
provides all information in Purchaser's possession regarding location of such drainage tiles and other existing
infrastructure. To the extent Developer damages any drainage tiles or other existing infrastructure, Developer
shall be responsible for timely repair or replacement of any such damaged drainage tiles or other existing
infrastructure and shall be responsible for any damage that results (either directly or indirectly) from damaged
drainage tiles or other existing infrastructure. Notwithstanding anything herein to the contrary, Purchaser
agrees that Developer may perform installation of the Safe Harbor Work at any time following full execution
of the Agreement, which shall be installed in a location reasonably agreed to by the Parties , and Developer
shall not install anything else upon the Premises unless and until the Parties mutually agree and execute an
NTP Agreement.
3.2 Approvals; Permits. Purchaser shall assist Developer in obtaining all necessary
consents, approvals and permits required to perform Purchaser's obligations under this Agreement, including
but not limited to those related to the Local Electric Utility, any Governmental Approval, and any consents,
waivers, approvals or releases required pursuant to any applicable contract or CCR.
3.3 System Acceptance Testing.
(a) Developer shall conduct testing of the System in accordance with such methods, acts,
guidelines, standards and criteria reasonably accepted or followed by providers of Energy Services as
outlined in the Ames Interconnection Agreement.
(b) If the results of such testing indicate that the System is capable of providing the Energy
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Services, using such instruments and meters as have been installed for such purposes, and the System has
been approved for interconnected operation by the Local Electric Utility ("Commercial Operation"), then
Developer shall send a written notice to Purchaser to that effect, and the date of such notice shall be the
"Commercial Operation Date".
4. SYSTEM OPERATIONS.
4.1 Developer as Owner and Operator. The System will be owned by Developer or
Developer's Financing Party and will be operated and maintained and, as necessary, repaired by Developer
at its sole cost and expense; provided, any repair or maintenance costs incurred by Developer as a result of
Purchaser's negligence, intentional misconduct, or breach of its obligations hereunder shall be reimbursed by
Purchaser. To the extent Developer damages any drainage tiles or any other existing infrastructure, Developer
shall be responsible for timely repair or replacement of any such damaged drainage tiles and existing
infrastructure and shall be responsible for any damage that results (either directly or indirectly) from damaged
drainage tiles and existing infrastructure.
4.2 Metering. Purchaser may install a nd maintain a utility grade, bidirectional kilowatt -
hour (kWh) meter for the measurement of electrical energy provided by the System at the low side
of the transformer, compensated for losses caused by the transformer . Developer may, at its election,
install a utility grade kilowatt hour (kWh) meter for the measurement of electrical energy delivered by the
System in order to confirm accuracy of Purchaser's meter.
4.3 System Disruptions. In the event that (a) the owner or lessee of the Premises repairs the
Premises for any reason not directly related to damage caused by the System, and such repair requires the
partial or complete temporary disassembly or movement of the System, or (b) any act or omission of
Purchaser or Purchaser's employees, Affiliates, agents or subcontractors (collectively, a "Purchaser Act")
results in a disruption or outage in System production, then, in either case, Purchaser shall (i) pay Developer
for all work required by Developer to disassemble or move the System and (ii) continue to make all payments
for the Energy Services during such period of System disruption (the "Disruption Period"), and (iii) reimburse
Developer for any other lost revenue during the Disruption Period, including any lost revenue associated with
any reduced sales of Environmental Attributes and any reduced System-based Incentives, if applicable, during
the Disruption Period. For the purpose of calculating Energy Services Payments and lost revenue for such
Disruption Period, Energy Services for each month of said months shall be deemed to have been produced at
the average rate over the same month for which data exists (or, if the disruption occurs within the first twelve
(12) months of operation, the average over such period of operation).
5. TITLE TO SYSTEM.
5.1 Throughout the duration of the Agreement, Developer or Developer's Financing Party
shall be the legal and beneficial owner of the System at all times, and the System shall remain the personal
property of Developer or Developer's Financing Party and shall not attach to or be deemed a part of, or fixture
to, the Premises. The System shall at all times retain the legal status of personal property as defined under
Article 9 of the Uniform Commercial Code. Purchaser covenants that it will use reasonable commercial efforts
to place all parties having an interest in or lien upon the real property comprising the Premises on notice of
the ownership of the System and the legal status or classification of the System as personal property. If there
is any mortgage or fixture filing against the Premises which could reasonably be construed as attaching to the
System as a fixture of the Premises, Purchaser shall provide, at Developer's request, a disclaimer or release
from such lien holder. If Purchaser is the fee owner of the Premises, Purchaser consents to the filing by
Developer, on behalf of Purchaser, of a disclaimer of the System as a fixture of the Premises in the office
where real estate records are customarily filed in the jurisdiction of the Premises. If Purchaser is not the fee
owner, Purchaser will, at Developer's request, use commercially reasonable efforts to obtain such consent
from such owner.
5.2 Environmental Attributes And System-Based Incentives. Purchaser's purchase of
Energy Services includes Environmental Attributes, but does not include System-based incentives. System-
based Incentives shall be owned by Developer or Developer's financing party for the duration of this
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Agreement. Purchaser disclaims any right to System-based Incentives based upon the installation of the
System at the Premises, and shall, at the request of Developer, execute any document or agreement reasonably
necessary to fulfill the intent of this Section 5.2. Notwithstanding the foregoing, Purchaser shall be entitled
to claim Production Tax Credits offered by the state of Iowa (the "State PTC") (if any) and Purchaser is
eligible for such State PTC.
6. PRICE AND PAYMENT.
6.1 Consideration. Purchaser shall pay to Developer a monthly Energy Services Payment for the
Energy Services provided during each calendar month of the Term as set forth in the Special Conditions.
6.2 Invoice. Developer shall invoice Purchaser on or about the first day of each month (each, an
"Invoice Date"), commencing on the first Invoice Date to occur after the Commercial Operation Date, for the
Energy Services Payment in respect of the immediately preceding month. The last invoice shall include
Energy Services provided only through the Termination Date of this Agreement.
6.3 Time of Payment. Purchaser shall pay all undisputed amounts due hereunder within
thirty (30) days after the date of the applicable Invoice Date,
6.4 Method of Payment. Purchaser shall make all payments under the Agreement by
electronic funds transfer in immediately available funds to the account designated by Developer from time to
time by written notice to Purchaser. All payments that are not paid when due shall bear interest accruing from
the date becoming past due until paid in full at a rate equal to the Stated Rate.
6.5 Disputed Payments. If a bona fide dispute arises with respect to any invoice, Purchaser
shall not be deemed in default under the Agreement and the Parties shall not suspend the performance of their
respective obligations hereunder, including payment of undisputed amounts owed hereunder. If an amount
disputed by Purchaser is subsequently deemed to have been due pursuant to the applicable invoice, interest
shall accrue at the Stated Rate on such amount from the date becoming past due under such invoice until the
date paid.
7. GENERAL COVENANTS.
7.1 Developer's Covenants. Developer covenants and agrees to the following:
(a) Notice of Damage or Emergency. Developer shall (i) promptly notify Purchaser if it
becomes aware of any damage to or loss of the use of the System or that could reasonably be expected to
adversely affect the System, (ii) immediately notify Purchaser if it becomes aware of any event or
circumstance relating to the System or the Premises that poses a significant risk to human health, t he
environment, the System or the Premises.
(b) Governmental Approvals. While providing the Installation Work, Energy Services, and
System Operations, Developer shall obtain and maintain and secure all Governmental Approvals required to
be obtained and maintained and secured by Developer and to enable Developer to perform such obligations.
(c) Health and Safety. Developer shall take all necessary and reasonable safety precautions
with respect to providing the Installation Work, Energy Services, and System Operations that shall comply
with all Applicable Laws pertaining to the health and safety of persons and real and personal property.
(d) Liens. Other than a Financing Party's security interest in or ownership of the System,
Developer shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge,
lien (including mechanics', labor or materialman's lien), charge, security interest, encumbrance or claim of
any nature ("Liens") on or with respect to the Premises or any interest therein, in each case to the extent such
Lien arises from or is related to Developer's performance or non-performance of its obligations hereunder. If
Developer breaches its obligations under this Section, it shall (i) immediately notify Purchaser in writing, (ii)
promptly cause such Lien to be discharged and released of record without cost to Purchaser, and (iii) defend
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and indemnify Purchaser against all costs and expenses (including reasonable attorneys' fees and court costs
at trial and on appeal) incurred in discharging and releasing such Lien; provided, Developer shall have the
right to contest any such Lien, so long as it provides a statutory bond or other reasonable assurances of
payment that either remove such Lien from title to the Premises or that assure that any adverse judgment with
respect to such Lien will be paid without affecting title to the Premises.
7.2 Purchaser's Covenants. Purchaser covenants and agrees as follows:
(a) Notice of Damage or Emergency. Purchaser shall (i) promptly notify Developer if it
becomes aware of any damage to or loss of the use of the System or that could reasonably be expected to
adversely affect the System, (ii) immediately notify Developer it becomes aware of any event or circumstance
that poses an imminent risk to human health, the environment, the System or the Premises.
(b) Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or suffer
to exist any Liens on or with respect to the System or any interest therein. If Purchaser breaches its obligations
under this Section, it shall immediately notify Developer in writing, shall promptly cause such Lien to be
discharged and released of record without cost to Developer and, to the extent claims against a municipality
are allowable under Chapter 670 of the Code of Iowa, the Iowa Constitution and under any other applicable
Iowa law, and shall indemnify Developer against all costs and expenses (including reasonable attorneys' fees
and court costs at trial and on appeal) incurred in discharging and releasing such Lien.
(c) Consents and Approvals. To the extent that only Purchaser is authorized to request,
obtain or issue any necessary approvals, Governmental Approvals, rebates or other financial incentives,
Purchaser shall cooperate with Developer to obtain or issue such approvals, Governmental Approvals, rebates
or other financial incentives in the name of Developer. Purchaser shall provide to Developer copies of all
Governmental Approvals and CCRs applicable to the Premises, other than those obtained by Developer or to
which Developer is a party.
(d) Access to Premises, Grant of Lease.
(i) Purchaser hereby grants to Developer a commercial lease coterminous with the
Term containing all the rights necessary for Developer to use and occupy portions of the Premises for the
installation, operation, maintenance and removal of the System pursuant to the terms of this Agreement,
including ingress and egress rights and routes of access as designated by Purchaser to the Premises for
Developer and its employees, contractors and subcontractors and access to electrical panels and conduits to
interconnect or disconnect the System with the Premises' electrical wiring. Developer shall provide Purchaser
a minimum of forty-eight (48) hours advance notice of its intent to enter the Premises, unless in instances
where a shorter period of notice is necessary to protect life or property, in which case Developer shall notify
Purchaser as soon as commercially practicable. Developer’s entry onto the Premises shall be subject to the
Purchaser’s right to specify times, dates and areas in which the intended activities shall occur.
(ii) Regardless of whether Purchaser is owner of the Premises or leases the
Premises from a landlord, Purchaser hereby covenants that (i) Developer shall have access to the Premises
and System during the Term of this Agreement and for so long as needed after termination to remove the
System pursuant to the applicable provisions herein, and (ii) Purchaser will not interfere or handle any
Developer equipment or the System without written authorization from Developer; provided, Purchaser shall
at all times have access to and the right to observe the Installation Work or System removal. Purchaser retains
the right to designate approved points of access to and routes within the Premises throughout the Term (and
for the period of time in which Developer must remove the System) which shall be utilized by Developer ;
provided such access routes must be in commercially reasonable locations for Developer to construct, operate
and remove the solar project.
(e) Temporary storage space during installation or removal. Purchaser shall provide
sufficient space at the Premises or other area under the control of Purchaser as may be designated by Purchaser
for the temporary storage and staging of tools, materials and equipment and for the parking of construction
crew vehicles and temporary construction trailers and facilities reasonably necessary during the Installation
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Work, System Operations or System removal, and access for rigging and material handling.
(f) On or before the Effective Date of the Special Conditions, Purchaser shall identify and
set forth in the Special Conditions and unless previously delivered, Purchaser shall, to the extent the same are
known and available, deliver to Developer copies of all reports, agreements, plans, inspections, tests, studies
or other materials concerning the presence of Hazardous Materials at, from or on the Premises including, but
not limited to, soil reports, design drawings, environmental reports, sampling results or other documents
relating to Hazardous Materials that have been identified or may be present on, in or under the Premises
(collectively, the "Environmental Documents"). Thereafter, Purchaser agrees to provide copies of any new
Environmental Documents within ten (10) days of receipt of same. Purchaser hereby agrees to furnish such
other documents in Purchaser's possession or control with respect to Governmental Approvals compliance
with Environmental Law or Hazardous Materials with respect to the Premises as may be reasonably requested
by Developer from time to time.
(g) Notwithstanding anything to the contrary in the Agreement, Purchaser shall operate
and maintain the Premises to comply with the requirements of all applicable Environmental Laws that limit
or govern the conditions or uses of the Premises, without impairing or interfering with Developer's
construction, operation and ownership of the System or occupancy of the Premises. In no event shall
Developer have any liability or obligation with respect to any Pre-existing Environmental Condition on, in
or under the Premises, or operations or maintenance of the Premises required to comply with Environmental
Laws with respect to Pre-Existing Environmental Conditions.
(h) To the extent claims against a municipality are allowable under Chapter 670 of the Code of
Iowa, the Iowa Constitution and under any other applicable Iowa law, Purchaser shall indemnify, hold
harmless and defend Developer from and against all claims, pay costs and expenses, and conduct all actions
required under Environmental Laws in connection with (i) the existence at, on, above, below or near the
Premises of any Pre-existing Environmental Conditions, and (ii) any Hazardous Materials released, spilled
or deposited at, on above or below the Premises by the Purchaser.
8. REPRESENTATIONS & WARRANTIES.
8.1 Representations and Warranties of Both Parties. In addition to any other representations
and warranties contained in the Agreement, each Party represents and warrants to the other as of the Effective
Date that:
(a) it is duly organized and validly existing and in good standing in the jurisdiction of its
organization;
(b) it has the full right and authority to enter into, execute, deliver, and perform its
obligations under the Agreement;
(c) it has taken all requisite corporate or other action to approve the execution, delivery,
and performance of the Agreement;
(d) the Agreement constitutes its legal, valid and binding obligation enforceable against
such Party in accordance with its terms, except as may be limited by applicable bankruptcy and other similar
laws now or hereafter in effect;
(e) there is no litigation, action, proceeding or investigation pending or, to the best of its
knowledge, threatened before any court or other Governmental Authority by, against, affecting or involving
any of its business or assets that could reasonably be expected to adversely affect its ability to carry out the
transactions contemplated herein;
(f) its execution and performance of the Agreement and the transactions contemplated
hereby do not and will not constitute a breach of any term or provision of, or a default under, (i) any contract,
agreement or Governmental Approval to which it or any of its Affiliates is a party or by which it or any of its
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Affiliates or its or their property is bound, (ii) its organizational documents, or (iii) any Applicable Laws; and
(g) its execution and performance of the Agreement and the transactions contemplated
hereby do not and will not require any consent from a third party, including any Governmental Approvals
from any Governmental Authority, that are not identified in the Special Conditions.
(h) No security interest, including any continuation statements or renewals thereof in the
System, shall be granted by Developer at any time that lasts in excess of the Initial Term, or any Renewal
Term but it can only last if the Renewal Term has, in fact, been exercised by Purchaser.
8.2 Representations of Purchaser. Purchaser represents and warrants to Developer as of the
Effective Date and continuing through the Term that:
(a) Purchaser acknowledges that it has been advised that part of the collateral securing the
financial arrangements for the System may be the granting of a first priority perfected security interest (the
"Security Interest") in the System to a Financing Party;
(b) To Purchaser's knowledge, the granting of the Security Interest will not violate any
term or condition of any covenant, restriction, lien, financing agreement, or security agreement affecting the
Premises;
(c) Purchaser is aware of no existing lease, mortgage, security interest or other interest in
or lien upon the Premises that could attach to the System as an interest adverse to Developer's Financing
Party's Security Interest therein;
(d) To Purchaser's knowledge, there exists no event or condition which constitutes a
default, or would, with the giving of notice or lapse of time, constitute a default under this Agreement;
(e) To Purchaser's knowledge, Purchaser has identified and disclosed to Developer in the
Special Conditions (i) all Environmental Documents, (ii) all CCRs, Governmental Approvals or other
restrictions imposed under Applicable Laws with respect to the use of the Premises that could affect the
construction and operation of the System, and (iii) all environmental reports, studies, data or other information
relating to the use of the Premises by Developer within the Purchaser's possession or control;
(f) The Premises is in compliance with Environmental Laws, and that Purchaser holds and
is in compliance with all Governmental Approvals required for the ownership and any current operations or
activities conducted at the Premises; and
(g) Purchaser has identified in the Special Conditions and delivered to Developer all
material reports and information concerning the presence or release of Hazardous Materials on, in or under
the Premises.
Any Financing Party shall be an intended third-party beneficiary of these General Conditions, including
without limitation this Section 8.2 and the Energy Services Agreement.
8.3 EXCLUSION OF WARRANTIES. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY
SET FORTH HEREIN, THE INSTALLATION WORK, SYSTEM OPERATIONS, AND ENERGY
SERVICES PROVIDED BY DEVELOPER TO PURCHASER PURSUANT TO THIS AGREEMENT
SHALL BE "AS-IS WHERE-IS." NO OTHER WARRANTY TO PURCHASER OR ANY OTHER
PERSON, WHETHER EXPRESS, IMPLIED OR STATUTORY, IS MADE AS TO THE INSTALLATION,
DESIGN, DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE,
FUTURE ECONOMIC VIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
SYSTEM, THE ENERGY SERVICES OR ANY OTHER SERVICE PROVIDED HEREUNDER OR
DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH ARE EXPRESSLY
DISCLAIMED BY DEVELOPER.
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9. TAXES AND GOVERNMENTAL FEES.
9.1 Purchaser Obligations. Purchaser shall reimburse and pay for any documented taxes,
fees or charges imposed or authorized by any Governmental Authority and paid by Developer due to
Developer's sale of the Energy Services to Purchaser (other than income taxes imposed upon Developer).
Developer shall notify Purchaser in writing with a detailed statement of such amounts, which shall be invoiced
by Developer and payable by Purchaser. Purchaser shall timely report, make filings for, and pay any and all
sales, use, income, gross receipts or other taxes, and any and all franchise fees or similar fees assessed against
it due to its purchase of the Energy Services. This Section 9.1 excludes taxes specified in Section 9.2.
9.2 Developer Obligations. Subject to Section 9.1 above, Developer shall be responsible
for all income, gross receipts, ad valorem, personal property or real property or other similar taxes and any
and all franchise fees or similar fees assessed against it due to its ownership of the System.
10. FORCE MAJEURE.
Definition. "Force Majeure Event" means any act or event that prevents the affected Party from
performing its obligations in accordance with the Agreement, if such act or event is beyond the reasonable control,
and not the result of the fault or negligence, of the affected Party and such Party had been unable to overcome
such act or event with the exercise of due diligence (including the expenditure of reasonable sums). Subject to
the foregoing conditions, "Force Majeure Event" shall include without limitation the following acts or events: (i)
natural phenomena, such as wind, hurricanes, floods, lightning, volcanic eruptions and earthquakes; (ii)
explosions or fires arising from lightning or other causes unrelated to the acts or omissions of the Party seekin g
to be excused from performance; (iii) acts of war or public disorders, civil disturbances, riots, insurrection,
sabotage, epidemic, terrorist acts, or rebellion; (iv) strikes or labor disputes (except strikes or labor disputes
caused solely by employees of Developer or as a result of such party's failure to comply with a collective
bargaining agreement); (v) action or inaction by a Governmental Authority (unless Purchaser is a Governmental
Authority and Purchaser is the Party whose performance is affected by such action nor inaction). A Force Majeure
Event shall not be based on the economic hardship of either Party, or upon the exp iration of any lease of the
Premises by the Purchaser from the owner of the Premises.
10.1 Excused Performance. Except as otherwise specifically provided in the Agreement,
neither Party shall be considered in breach of the Agreement or liable for any delay or failure to comply with
the Agreement (other than the failure to pay amounts due hereunder), if and to the extent that such delay or
failure is attributable to the occurrence of a Force Majeure Event; provided, the Party claiming relief under
this Article 10 shall as soon as practicable after becoming aware of the circumstances constituting F orce
Majeure (i) notify the other Party in writing of the existence of the Force Majeure Event, (ii) exercise all
reasonable efforts necessary to minimize delay caused by such Force Majeure Event, (iii) notify the other
Party in writing of the cessation or termination of said Force Majeure Event and (iv) resume performance of
its obligations hereunder as soon as practicable thereafter; provided, Purchaser shall not be excused from
making any payments and paying any unpaid amounts due in respect of Energy Services delivered to
Purchaser prior to the Force Majeure Event performance interruption. Subject to Section 10.3 below, the
Parties agree that to the extent permitted by Applicable Law, the Term of this Agreement shall extend on a
day for day basis for every day in which the occurrence of a Force Majeure Event has affected either Party's
performance of its obligations hereunder.
10.2 Termination in Consequence of Force Majeure Event. If a Force Majeure Event shall
have occurred that has affected Developer's performance of its obligations hereunder and that has continued
for a continuous period of one hundred eighty (180) days (or such longer period as reasonably necessary if
related to procure permitting, equipment, labor and/or materials, as applicable), then either Party shall be
entitled to terminate the Agreement upon ninety (90) days' prior written notice to the other Party. If at the end
of such ninety (90) day period such Force Majeure Event still continues, the Agreement shall automatically
terminate. Upon such termination for a Force Majeure Event, neither Party shall have any liability to the other
(other than any such liabilities that have accrued prior to such termination).
10.3 Termination for Convenience. Developer may terminate this Agreement at any time for
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convenience upon written notice to Purchaser and subject to Developer’s obligations under this Agreement
upon termination.
11. DEFAULT.
11.1 Developer Defaults and Purchaser Remedies.
(a) Developer Defaults. The following events shall be defaults with respect to Developer
(each, a "Developer Default"):
(i) A Bankruptcy Event shall have occurred with respect to Developer;
(ii) Developer fails to pay Purchaser any undisputed amount owed under the
Agreement within sixty (60) days from receipt of written notice from Purchaser of such past due amount; and
(iii) Developer breaches any material representation, covenant or other term of the
Agreement and (A) if such breach can be cured within sixty (60)days after Purchaser's written notice of such
breach and Developer fails to so cure, or (B) Developer fails to commence and pursue a cure within such sixty
(60) day period if a longer cure period is needed.
(b) Purchaser's Remedies. If a Developer Default described in Section 11.l(a) has occurred
and is continuing, in addition to other remedies expressly provided herein, and subject to Article 12, Purchaser
may terminate the Agreement and exercise any other remedy it may have at law or equity or under the
Agreement.
11.2 Purchaser Defaults and Developer's Remedies.
(a) Purchaser Default. The following events shall be defaults with respect to Purchaser
(each, a "Purchaser Default"):
(i) A Bankruptcy Event shall have occurred with respect to Purchaser;
(ii) Purchaser breaches any material representation, covenant or other term of the
Agreement if (A) such breach can be cured within sixty (60) days after Developer's notice of such breach and
Purchaser fails to so cure, or (B) Purchaser fails to commence and pursue said cure within such sixty (60)
day period if a longer cure period is needed; and
(iii) Purchaser fails to pay Developer any undisputed amount due Developer under
the Agreement within sixty (60) days from receipt of written notice from Developer of such past due amount.
(b) Developer's Remedies. If a Purchaser Default described in Sections 11.2(a) has
occurred and is continuing, in addition to other remedies expressly provided herein, and subject to Article 12,
Developer may terminate this Agreement and upon such termination, (A) Developer shall be entitled to
receive from Purchaser the Early Termination Fee, and (B) Developer may exercise any other remedy it may
have at law or equity or under the Agreement.
11.3 Cross Default. With respect to any Systems that are co-located at the same Premises, if a Party
defaults under the Agreement related one such System, it shall also be a default of such Party under the
Agreement(s) related to the other co-located System(s); provided, a cure of the original default shall be a cure
of any such cross default. In the event of a cross default, the non-defaulting Party shall be entitled to exercises
its rights with respect to all such Agreements, including terminating all such Agreements (but not less than
all such Agreements) and, if Developer terminates the Agreements due to a Purchaser Default, Purchaser
shall pay the Early Termination Fees for all such terminated Agreements.
11.4 Removal of System. Upon any termination of the Agreement pursuant to this Article 11,
Developer will remove the System pursuant to Section 2.4 hereof, absent any purchase of the System by
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Purchaser pursuant to Section 2.2 hereof.
12. LIMITATIONS OF LIABILITY.
12.1 Except a breach of Section 15.1 or as expressly provided herein, neither Party shall be liable to
the other Party or its Indemnified Persons for any special, punitive, exemplary, indirect, or consequential
damages, losses or damages for lost revenue or lost profits, whether foreseeable or not, arising out of, or in
connection with the Agreement.
12.2 A Party's maximum liability to the other Party under the Agreement, shall be limited to (i) for
Developer, the amounts paid to Developer hereunder under the prior twelve (12) months plus any Cost to
Cover payments, and (ii) for Purchaser, the aggregate Estimated Remaining Payments as of the date of the
events giving rise to such liability, provided, the limits of liability under this Section 12.2 shall not apply with
respect to (i) indemnity obligations hereunder in respect of any personal injury, unaffiliated third party claim
or environmental claims, (ii) any obligation of Purchaser to pay Energy Service Payments, the Early
Termination Fee or the Option Price, and (iii) any obligation of Developer to pay for Cost to Cover in
accordance with the Special Conditions, if applicable.
13. ASSIGNMENT.
13.1 Assignment by Developer. Developer shall not sell, transfer or assign (collectively, an
"Assignment") the Agreement or any interest therein, without the prior written consent of Purchaser, which
shall not be unreasonably withheld, conditioned or delayed; provided, Purchaser agrees that Developer may
(i) assign this Agreement without the consent of the Purchaser to (i) an affiliate of Developer, (ii) any party
providing financing for the System, or (iii) to a Qualified Transferee. In the event that Developer identifies a
secured Financing Party in the Special Conditions, or in a subsequent notice to Purchaser, then Purchaser
shall comply with the provisions set forth in Exhibit A of these General Terms and Conditions and agrees to
provide such estoppels, acknowledgments and opinions of counsel as Developer may reasonably request from
time to time. Any Financing Party shall be an intended third-party beneficiary of this Section 13.1. Any
Assignment
13.2 by Developer without any required prior written consent of Purchaser shall not release
Developer of its obligations hereunder.
13.3 Acknowledgment of Collateral Assignment. In the event that Developer identifies a
secured Financing Party in the Special Conditions, or in a subsequent notice to Purchaser, then Purchaser
hereby acknowledges:
(a) The collateral assignment by Developer to the Financing Party, of Developer's right,
title and interest in, to and under the Agreement, as consented to under Section 13.1 of the Agreement.
(b) That the Financing Party as such collateral assignee shall be entitled to exercise any
and all rights of lenders generally with respect to Developer's interests in this Agreement.
(c) That it has been advised that Developer has granted a first priority perfected security
interest in the System to the Financing Party and that the Financing Party has relied upon the characterization
of the System as personal property, as agreed in this Agreement in accepting such security interest as collateral
for its financing of the System.
Any Financing Party shall be an intended third- party beneficiary of this Section 13.2.
13.4 Assignment by Purchaser. Purchaser shall not assign the Agreement or any interest
therein, without Developer's prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Any Assignment by Purchaser without the prior written consent of Developer shall
not release Purchaser of its obligations hereunder.
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14. NOTICES.
14.1 Notice Addresses. Unless otherwise provided in the Agreement, all notices and
communications concerning the Agreement shall be in writing and addressed to the other Party (or Financing
Party, as the case may be) at the addresses set forth in the Special Conditions, or at such other address as may
be designated in writing to the other Party from time to time.
14.2 Notice. Unless otherwise provided herein, notices and all other communications
contemplated by this Agreement shall be in writing and shall be deemed to have been duly given when
addressed properly and personally delivered to the address listed in Schedule 5 herein, or one day following
a properly addressed mailing is sent via Federal Express or similar overnight courier service.
14.3 Address for Invoices. All invoices under the Agreement shall be sent to the address
provided by Purchaser. Invoices shall be sent by regular first class mail postage prepaid.
15. CONFIDENTIALITY.
15.1 Confidential Obligation. The Parties hereto, along with their respective officers,
directors, employees and professional advisors, shall keep the terms of this transaction (including without
limitation information concerning the Project) secret and confidential. Notwithstanding t he foregoing, the
Parties may disclose such information (a) to their respective officers, directors, members, managers,
employees, agents, contractors, consultants, Affiliates, lenders (existing or potential), investors (existing or
potential) and potential third-party assignees of the Agreement or third-party acquirers of Developer or its
Affiliates (provided and on condition that such potential third-party assignees be bound by a written agreement
restricting use and disclosure of Confidential Information at least as stringent as that set forth herein) solely
for use in connection with their representation of such party or involvement in the transactions contemplated
by this Agreements (in which case, such party shall be responsible for disclosures by its Representatives in
violation of the foregoing restrictions), (b) as may be required by Applicable Law (including open records
laws), subpoena or court order, or (c) to any governmental agency as may be necessary for the development
of the Project or to ensure that the Project complies with applicable federal law. The Parties hereto shall not
make any public announcement regarding this Agreement without the prior written consent of all Parties.
Notwithstanding the foregoing, the Parties understand and agree that the contents of the NTP Agreement will
contain certain items, including but not limited to, the purchase rate, total annual cost, and other information
that will be placed before the Ames City Council for approval and shall be available to the public as required
by Iowa Code Chapters 21 and 22.
15.2 Goodwill and Publicity. Neither Party shall use the name, trade name, service mark, or
trademark of the other Party in any promotional or advertising material without the prior written consent of
such other Party. The Parties shall coordinate and cooperate with each other when m aking public
announcements related to the execution and existence of the Agreement, and each Party shall have the right
to promptly review, comment upon, and approve any publicity materials, press releases, or other public
statements by the other Party that refer to, or that describe any aspect of, the Agreement; provided, no such
publicity releases or other public statements (except for filings or other statements or releases as may be
required by Applicable Law) shall be made by either Party without the prior written consent of the other
Party. At no time will either Party acquire any rights whatsoever to any trademark, trade name, service mark,
logo or other intellectual property right belonging to the other Party. Notwithstanding the foregoing,
Purchaser agrees that Developer may, at its sole discretion, take photographs of the installation process of the
System and/or the completed System, and Developer shall be permitted to use such images (regardless of
media) in its marketing efforts, including but not limited to use in brochures, advertisements, websites and
news outlet or press release articles. The images shall not include any identifying informati on without
Purchaser permission and the installation site shall not be disclosed beyond the type of est ablishment (such
as "Retail Store," "Distribution Center," or such other general terms), the city and state.
15.3 Enforcement of Confidentiality Obligations. Each Party agrees that the disclosing Party
would be irreparably injured by a breach of this Article 15 by the receiving Party or its Representatives of
other Person to whom the receiving Party discloses Confidential Information of the disclosing Party and that
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the disclosing Party may be entitle to equitable relief, including injunctive relief and specific performance, in
the event of any breach of the provisions of this Article 15. To the fullest extent permitted by Applicable Law,
such remedies shall not be deemed to be the exclusive remedies for a breach of this Article 15 but shall be in
addition to all other remedies available at law or equity.
16. INDEMNITY.
16.1 Indemnity. Subject to Article 12, and to the extent claims against the City are allowable
under Chapter 670 of the Code of Iowa, the Iowa Constitution and under any other applicable Iowa law, each
Party agrees that it shall indemnify and hold harmless the other Party, its permitted successors and assigns
and their respective directors, officers, members, shareholders and employees (collectively, the "Indemnified
Parties") from and against any and all Losses incurred by such Indemnified Parties to the extent arising from
or out of (i) any injury to or death of any Person or loss or damage to property of any Person to the extent
arising out of the indemnifying Party's negligence or willful misconduct, or (ii) any unaffiliated third party
claim arising from the indemnifying Party’s negligence or willful misconduct or breach of the Agreement ;
provided, neither Party shall be required to reimburse or indemnify any Indemnified Party for any Loss to the
extent such Loss is due to the negligence or willful misconduct of , or breach of the Agreement by, any
Indemnified Party. Prior to the Commercial Operations Date, all Safe Harbor activities, any due diligence
activities (including but not limited to, inspections, surveys, soil borings, environmental assessments and
other tests Developer deems necessary) and all additional activities upon the Premises that are conducted by
Developer upon the Premises prior to the Commercial Operation Date shall be expressly subject to the
requirements and obligations of this paragraph.
17. INSURANCE.
17.1 Generally. Purchaser and Developer shall each maintain the following insurance
coverages in full force and effect throughout the Term either through insurance policies or acceptable self -
insured retentions: (a) Workers' Compensation Insurance as may be from time to time required under
applicable federal and state law, (b) Commercial General Liability Insurance with limits of not less than
$3,000,000 general aggregate, $1,000,000 per occurrence (which may be carried by way of an umbrella or
excess liability insurance policy), and (c) automobile insurance with limits of not less than $1,000,000
combined single limit per accident for bodily injury and property damage. Additionally, Developer shall carry
adequate property loss insurance on the System which need not be covered by Purchaser's property coverage.
The amount and terms of insurance coverage will be determined at Developer's sole discretion.
17.2 Certificates of Insurance. Each Party, upon request, shall furnish current certificates
evidencing that the insurance required under Section 17.1 is being maintained. Each Party's insurance policy
provided hereunder shall contain a provision whereby the insured agrees to give the other Party thirty (30)
days' written notice before the insurance is cancelled or materially altered.
17.3 Additional Insureds. Each Party's insurance policy shall be written on an occurrence
basis and shall include the other Party as an additional insured as its interest may appear.
17.4 Insurer Qualifications. All insurance maintained hereunder shall be maintained with
companies either rated no less than A- as to Policy Holder's Rating in the current edition of Best's Insurance
Guide (or with an association of companies each of the members of which are so rated) or having a parent
company's debt to policyholder surplus ratio of 1:1.
17.5 Waiver of Subrogation. Developer will provide a waiver of subrogation for any worker
compensation injury that may occur during the installation or maintenance of the solar array.
17.6 Prior to the Commercial Operations Date, all Safe Harbor activities, any due diligence
activities (including but not limited to, inspections, surveys, soil borings, environmental assessments and
other tests Developer deems necessary) and all additional activities upon the Premises that are conducted by
Developer upon the Premises prior to the Commercial Operation Date shall be expressly subject to the
requirements and obligations of this Section 17.
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Page 27 of 35
18. MISCELLANEOUS.
18.1 Integration; Exhibits. The Agreement, together with the Exhibits and Schedules
attached thereto or incorporated by reference, constitute the entire agreement and understanding between
Developer and Purchaser with respect to the subject matter thereof and supersedes all prior agreements
relating to the subject matter hereof which are of no further force or effect. The Exhibits and Schedules
attached to the Agreement, including these General Conditions as incorporated by reference, are integral parts
of the Agreement and are an express part of the Agreement. In the event of a conflict between the provisions
of these General Conditions and any applicable Special Conditions, the provisions of the Special Conditions
shall prevail.
18.2 Amendments. This Agreement may only be amended, modified or supplemented by an
instrument in writing executed by duly authorized representatives of Developer and Purchaser.
18.3 Industry Standards. Except as otherwise set forth herein, for the purpose of the
Agreement the normal standards of performance within the Energy Services industry in the relevant market
shall be the measure of whether a Party's performance is reasonable and timely. Unless expressly defined
herein, words having well-known technical or trade meanings shall be so construed.
18.4 Cumulative Remedies. Except as set forth to the contrary herein, any right or remedy
of Developer or Purchaser shall be cumulative and without prejudice to any other right or remedy, whether
contained herein or not.
18.5 Limited Effect of Waiver. The failure of Developer or Purchaser to enforce any of the
provisions of the Agreement, or the waiver thereof, shall not be construed as a general waiver or
relinquishment on its part of any such provision, in any other instance or of any other provision in any
instance.
18.6 Survival. The obligations under Section 2.4 (Removal of System), Section 5 (Title to
System), Section 7.1 (Developer Covenants), Sections 7.2(d), (e), (f), (g) and (h) (Purchaser Covenants),
Section 8.3 (Exclusion of Warranties), Article 9 (Taxes and Governmental Fees), Article 12 (Limitation of
Liability), Article 14 (Notices), Article 15 (Confidentiality), Article 18 (Miscellaneous), all payment or
indemnification obligations accrued prior to termination of this Agreement, or pursuant to other provisions
of this Agreement that, by their sense and context, are intended to survive termination of this Agreement shall
survive the expiration or termination of this Agreement for any reason.
18.7 Governing Law. This Agreement shall be governed by the law of the State of Iowa with
venue in the appropriate state and/or federal courts for Story County, Iowa. The Parties waive to the fullest
extent permitted by Applicable Law any objection it may have to the laying of venue of any action or
proceeding under this Agreement any courts described in this Section 18.7.
18.8 Severability. If any term, covenant or condition in the Agreement shall, to any extent,
be invalid or unenforceable in any respect under Applicable Law, the remainder of the Agreement shall not
be affected thereby, and each term, covenant or condition of the Agreement shall be valid and enforceable to
the fullest extent permitted by Applicable Law and, if appropriate, such invalid or unenforceable provision
shall be modified or replaced to give effect to the underlying intent of the Parties and to the intended economic
benefits of the Parties.
18.9 Relation of the Parties. The relationship between Developer and Purchaser shall not be
that of partners, agents, or joint ventures for one another, and nothing contained in the Agreement shall be
deemed to constitute a partnership or agency agreement between them for any purposes, including federal
income tax purposes. Developer and Purchaser, in performing any of their obligations hereunder, shall be
independent contractors or independent parties and shall discharge their contractual obligations at their own
risk.
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Page 28 of 35
18.10 Successors and Assigns. This Agreement and the rights and obligations under the
Agreement shall be binding upon and shall inure to the benefit of Developer and Purchaser and their
respective successors and permitted assigns.
18.11 Counterparts. This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument.
18.12 Delivery. This Agreement may be duly executed and delivered by a Party by execution
of the signature page of a counterpart to the other Party.
18.13 Liquidated Damages Not Penalty. Purchaser acknowledges that the Early Termination
Fee constitutes liquidated damages, and not penalties, in lieu of Developer's actual damages resulting from
the early termination of the Agreement. Purchaser further acknowledges that Developer's actual damages may
be impractical and difficult to accurately ascertain, and in accordance with Purchaser's rights and obligations
under the Agreement, the Early Termination Fee constitutes fair and reasonable damages to be borne by
Purchaser in lieu of Developer's actual damages.
18.14 Memorandum of Agreement. Upon request from Developer, Purchaser agrees to
execute a memorandum of this Agreement in a form reasonably acceptable to Developer and Purchaser,
which Developer may record in the real property records of Story County, Iowa.
18.15 Estoppel Certificates, Etc. Each Party shall execute, within ten (10) Business Days
following written request therefor, such estoppel certificates (certifying as to such matters as requesting Party
may reasonably request, including without limitation that no default by requesting Party then exists under
this Agreement, if such be the case) and/or consents to assignment (whether or not such consent is actually
required) and/or non-disturbance agreements as requesting Party, any transferee of Grantee or Financing
Party may reasonably request from time to time.
19. CHANGE IN LAW.
19.1 “Change in Law” means that after the date of the Agreement, an Applicable Law is
amended, modified, nullified, suspended, repealed, found unconstitutional or unlawful, or changed or
affected in any material respect by any Applicable Law. Change in Law does not include changes in federal
or state income tax laws. Change in Law does include material changes in the interpretation of an Applicable
Law.
19.2 If Developer determines that a Change in Law has occurred or will occur that has or
will have a material adverse effect on Developer’s rights, entitlement, obligations or costs under the
Agreement, then Developer may so notify the Purchaser in writing of such Change in Law. Within thirty (30)
days following receipt by the Purchaser of such notice, the Parties shall meet and attempt in good faith to
negotiate such amendments to the Agreement as are reasonably necessary to preserve the economic value of
the Agreement to both Parties. If the Parties are unable to agree upon such amendments within such thirty
(30) day period, then Developer may terminate the Agreement and remove the System and restore the
Premises as required herein without either Party having further liability under the Agreement except with
respect to liabilities accrued prior to the date of termination.
19.3 If a Change in Law renders the Agreement, or Developer’s performance of this
Agreement, either illegal or impossible, then Developer may terminate the Agreement immediately upon
notice to Purchaser without either Party having further liability under the Agreement except with respect to
liabilities accrued prior to the date of termination.
20. SERVICE CONTRACT. The Agreement is a service contract pursuant to Section 7701(e)(3) of the
Internal Revenue Code.
21. FORWARD CONTRACT. The transaction contemplated under the Agreement constitutes a “forward
contract” within the meaning of the United States Bankruptcy Code, and the Parties further acknowledge and
52
Page 29 of 35
agree that each Party is a “forward contract merchant” within the meaning of the United States Bankruptcy
Code.
[Remainder of page intentionally left blank.]
53
Page 30 of20
These General Terms and Conditions are witnessed and acknowledged by Developer and Purchaser below.
Neither Developer nor Purchaser shall have any obligations or liability resulting from its witnessing and
acknowledging these General Terms and Conditions.
"DEVELOPER":
AMES GREENFIELD DEV CO. LLC,
a Delaware limited liability company
By:
Name:
Its:
“PURCHASER”:
THE CITY OF AMES, IA
By:
Name:
Its:
Attested by: ______________
54
Exhibit A
of General Conditions
Certain Agreements for the Benefit of the Financing Parties
Purchaser acknowledges that Developer will be receiving financing accommodations from one or more
Financing Parties and that Developer may sell or assign the System or this Agreement and/or may secure
Developer's obligations by, among other collateral, a pledge or collateral assignment of this Agreement and
a first security interest in the System. In order to facilitate such necessary sale, conveyance, or financing, and
with respect to any such Financing Party, Purchaser agrees as follows:
(a) Consent to Collateral Assignment. Purchaser consents to either the assignment, sale or
conveyance to a Financing Party or the collateral assignment by Developer to a Financing Party, of
Developer's right, title and interest in and to this Agreement.
(b) Notices of Default. Purchaser will deliver to the Financing Party, concurrently with delivery
thereof to Developer, a copy of each notice of default given by Purchaser under the Agreement, inclusive of
a reasonable description of Developer default. No such notice will be effective absent delivery to the
Financing Party. Purchaser will not mutually agree with Developer to cancel, modify or terminate the
Agreement without the written consent of the Financing Party. Purchaser shall have no obligation to notify
a Financing Party hereunder unless and until Developer provides complete address information for said
notice.
(c) Rights Upon Event of Default. Notwithstanding any contrary term of this Agreement:
i. The Financing Party, shall be entitled to exercise, in the place and stead of Developer,
any and all rights and remedies of Developer under this Agreement in accordance with the terms of this
Agreement and only in the event of Developer's or Purchaser's default. The Financing Party shall also be
entitled, to exercise all rights and remedies of secured parties generally with respect to this Agreement and
the System.
ii. The Financing Party shall have the right, but not the obligation, to pay all sums due under
this Agreement and to perform any other act, duty or obligation required of Developer thereunder or cause
to be cured any default of Developer thereunder in the time and manner provided by the terms of this
Agreement. Nothing herein requires the Financing Party to cure any default of Developer under this
Agreement or (unless the Financing Party has succeeded to Developer's interests under this Agreement) to
perform any act, duty or obligation of Developer under this Agreement, but Purchaser hereby gives it the
option to do so.
iii. Upon the exercise of remedies under its security interest in the System, including any sale
thereof by the Financing Party, whether by judicial proceeding or under any power of sale contained therein,
or any conveyance from Developer to the Financing Party (or any assignee of the Financing Party) in lieu
thereof, the Financing Party shall give notice to Purchaser of the transferee or assignee of this Agreement.
Any such exercise of remedies shall not constitute a default under this Agreement.
iv. Upon any default not reasonably susceptible to cure by a Finance Party, including, without
limitation, rejection or other termination of this Agreement pursuant to any process undertaken with respect
to Developer under the United States Bankruptcy Code, at the request of the Financing Party made within
ninety (90) days of such default, Purchaser shall enter into a new agreement with the Financing Party or its
designee having the same terms and conditions as this Agreement.
55
(d) Right to Cure.
Purchaser will not exercise any right to terminate or suspend this Agreement unless it provides the
Financing Party prior written notice by sending notice to the Financing Party (at the address provided by
Developer) of its intent to terminate or suspend this Agreement, specifying the condition giving rise to such
right, and the Financing Party shall not have cured the condition giving rise to the right of termination or
suspension within thirty (30) days after such notice or (if longer) the periods provided for in this Agreement.
The Parties agree that the cure rights described herein are in addition to and apply and commence following
the expiration of any notice and cure period applicable to Developer unless the Financing Party has succeeded
Developer's interests under this agreement. The Parties' respective obligations will otherwise remain in effect
during any cure period; provided, if such Developer default reasonably cannot be cured by the Financing
Party within the cure period applicable to Developer and the Financing Party commences and continuously
pursues cure of the default within such period, the period for cure will be extended for a reasonable period
of time under the circumstances, such extension for cure not to exceed additional ninety (90) days (provided,
if such Financing Party needs to take legal action to repossess the System in order to cure the default, then
such cure period shall be stayed until such time as the repossession by the Financing Party is complete).
i. If the Financing Party (including any purchaser or transferee), pursuant to an exercise of
remedies by the Financing Party, acquires title to or control of Developer's assets and, within the time periods
described in Subsection (c)(i) above, cures all defaults under this Agreement existing as of the date of such
change in title or control in the manner required by this Agreement, then such person or entity shall no longer
be in default under this Agreement, and this Agreement shall continue in full force and effect.
56
Exhibit B
of Energy Services Agreement
Legal Description of Premises
LEGAL DESCRIPTION:
COMMENCING AT THE EAST 1/4 CORNER OF SECTION 15, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE
5TH P.M.;
THENCE N32°56’38”E, 58.74’ TO THE POINT OF BEGINNING; THENCE N00°51’49”E, 710.23’; THENCE
N89°18’22”E, 121.37’; THENCE S75°25’51”E, 593.81’; THENCE S89°36’12”E, 550.64’; THENCE S00°55’32”W,
549.29’; THENCE S89°34’38’W, 1248.56’ TO THE POINT OF BEGINNING, CONTAINING 17.36 ACRES;
AND
COMMENCING AT THE EAST 1/4 CORNER OF SECTION 15, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE
5TH P.M.;
THENCE S86°56’03”E, 1399.01’ TO THE POINT OF BEGINNING; THENCE S16°08’15”W, 931.65’; THENCE
S73°27’39”W, 207.15’; THENCE N80°02’16”W, 117.90’; THENCE S85°05’15”W, 39.55’; THENCE N16°26’13”E,
633.67’; THENCE N72°13’57”W, 138.21’; THENCE N22°13’55”E, 193.77’; THENCE N31°23’24”E, 99.82’; THENCE
N69°17’06”E, 73.26’; THENCE S89°27’14”E, 371.56’ TO THE POINT OF BEGINNING, CONTAINING 8.15 ACRES;
AND
COMMENCING AT THE EAST 1/4 CORNER OF SECTION 15, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE
5TH P.M.;
THENCE S86°05’56”W, 1529.70’ TO THE POINT OF BEGINNING; THENCE S06°25’27”E, 82.93’; THENCE
S50°57’55”W, 68.17’; THENCE S42°43’41”W, 78.77’; THENCE S28°59’33”W, 61.62’; THENCE S21°06’06”W, 69.59’;
THENCE S52°25’41’W, 86.32’; THENCE S77°43’23”W, 97.61’; THENCE N82°54’17”W, 89.28’; THENCE
N63°02’01”W, 101.07’; THENCE N90°00’00”W, 53.12’; THENCE S58°28’06”W, 70.42’; THENCE S46°06’18”W,
140.99’; THENCE S05°46’54”E, 491.01’; THENCE S38°04’06”W, 122.46’; THENCE N42°31’26”W, 519.69’; THENCE
N00°29’38”E, 661.57’; THENCE S89°39’20”E, 1080.86’ TO THE POINT OF BEGINNING, CONTAINING 12.96
ACRES;
AND
COMMENCING AT THE EAST 1/4 CORNER OF SECTION 15, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE
5TH P.M.;
THENCE, S14°08’33”W, 2644.29’ TO THE POINT OF BEGINNING; THENCE S17°37’21”W, 437.21’; THENCE,
N46°44’02”W, 421.87’; THENCE, N28°32’27”E, 117.51’; THENCE N00°13’13”W, 315.18’; THENCE, S89°08’41”E,
92.44’; THENCE, S45°16’02’E, 411.31’ TO THE POINT OF BEGINNING, CONTAINING 4.04 ACRES;
AND
COMMENCING AT THE EAST 1/4 CORNER OF SECTION 15, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE
5TH P.M.;
THENCE S24°45’11”E, 1567.19’ TO THE POINT OF BEGINNING; THENCE S65°59’16”E, 217.74’; THENCE
S83°09’58”E, 137.87’; THENCE S16°38’15”W, 1176.96’; THENCE N88°46’19”W, 185.26’; THENCE N85°30’37”W,
47.01’; THENCE N69°30’15’W, 125.32’; THENCE N16°32’05”E, 1232.12’ TO THE POINT OF BEGINNING,
57
CONTAINING 9.71 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE N01°14’47”E, 2593.15’ TO THE POINT OF BEGINNING; THENCE S89°35’15”E, 584.74’; THENCE,
S00°07’50”W, 27.80’; THENCE, S61°50’51”W, 429.58’; THENCE S42°49’53”W, 117.30’; THENCE S17°30’03”W,
170.75’; THENCE, S00°35’50’W, 148.57’; THENCE S85°25’21”W, 69.03’; THENCE N00°23’56”W, 637.65’ TO THE
POINT OF BEGINNING, CONTAINING 3.17 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE N01°21’00”E, 1603.62’ TO THE POINT OF BEGINNING; THENCE N00°26’48”W, 276.06’; THENCE
N90°00’00”E, 125.56’; THENCE S26°19’32”E, 54.72’; THENCE S79°08’22”E, 190.59’; THENCE S45°29’29”E, 124.85’;
THENCE S86°26’03’E, 203.78’; THENCE S02°54’03”E, 92.43’; THENCE N89°52’20”W, 631.94’ TO THE POINT OF
BEGINNING, CONTAINING 2.60 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE N54°10’27”E, 3390.07’ TO THE POINT OF BEGINNING; THENCE S36°25’16”E, 442.85’; THENCE,
S18°02’05”W, 325.62’; THENCE, S17°15’36”W, 874.57’; THENCE S00°39’14”W, 989.61’; THENCE N80°46’17”W,
86.41’; THENCE N53°53’13’W, 47.75’; THENCE N22°27’17”W, 257.64’; THENCE N28°16’02”W, 210.66’; THENCE
N39°40’10”W, 46.75’; THENCE N38°15’30”W, 158.78’; THENCE N16°41’12”E, 1946.36’ TO THE POINT OF
BEGINNING, CONTAINING 18.00 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE S85°37’42”E, 2104.65’ TO THE POINT OF BEGINNING; THENCE N17°20’05”E, 199.08’; THENCE
S75°53’20”E, 41.60’; THENCE S54°13’05”E, 63.09’; THENCE N71°55’26”E, 40.76’; THENCE S39°40’10”E, 46.75’;
THENCE S28°16’02’E, 210.66’; THENCE S22°27’17”E, 257.64’; THENCE S53°58’13”E, 47.75’; THENCE
S80°46’17”E, 86.41’; THENCE S04°20’15”W, 93.66’; THENCE N89°18’50”W, 42.74’; THENCE, N78°44’11”W, 43.55’;
THENCE N50°46’41”W, 295.50’; THENCE N39°35’32”W, 150.31’; THENCE N61°36’50”W, 88.50’; THENCE
N15°57’55”W, 48.42’; THENCE N40°14’11”W, 51.17’ TO THE POINT OF BEGINNING, CONTAINING 2.74 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE N63°34’38”E, 3473.12’ TO THE POINT OF BEGINNING; THENCE S79°17’48”E, 140.06’; THENCE
S38°10’22”E, 678.09’; THENCE N89°52’41”W, 368.14’; THENCE N00°00’11”W, 329.18’; THENCE N88°57’04”W,
226.89’; THENCE N09°39’40’E, 228.21’ TO THE POINT OF BEGINNING, CONTAINING 2.95 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE S86°34’00”E, 493.52’ TO THE POINT OF BEGINNING; THENCE N00°09’59”E, 316.69’; THENCE
N13°56’09”E, 127.94’; THENCE N41°40’23”E, 69.23’; THENCE N78°38’52”E, 65.90’; THENCE S88°46’18”E, 665.76’;
THENCE S18°20’04’W, 410.61’; THENCE N47°54’00”W, 97.70’; THENCE N89°06’17”W, 81.27’; THENCE
S51°45’44”W, 42.30’; THENCE S89°20’06”W, 78.57’; THENCE N53°28’41”W, 32.62’; THENCE S76°37’12”W,
267.91’; THENCE S52°02’59”W, 160.33’ TO THE POINT OF BEGINNING, CONTAINING 6.32 ACRES;
AND
58
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE S72°25’41”E, 1121.58’ TO THE POINT OF BEGINNING; THENCE S16°18’30”W, 546.27’; THENCE
S20°35’50”W, 1014.96’; THENCE S33°28’58”W, 215.32’; THENCE N00°07’41”E, 1335.05’; THENCE N21°57’09”E,
147.84’; THENCE N49°51’38’E, 119.81’; THENCE N75°37’27”E, 451.31’; THENCE S79°56’27”E, 42.88’ TO THE
POINT OF BEGINNING, CONTAINING 12.21 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE S64°44’31”E, 2206.54’ TO THE POINT OF BEGINNING; THENCE N89°29’06”E, 625.42’; THENCE
S00°43’08”E, 1534.62’; THENCE S86°33’10”W, 215.19’; THENCE S69°45’21”W, 255.48’; THENCE S69°45’21”W,
255.48’; THENCE S82°33’48”W, 270.39’; THENCE S83°35’15”W, 304.62; THENCE S09°01’00’W, 413.33’; THENCE
N89°10’21”W, 203.02’; THENCE N22°54’58”E 67.11’; THENCE N45°16’23”E, 56.26’; THENCE N18°36’34”E,
275.19’; THENCE N60°17’01”E, 67.29’; THENCE N85°23’50”E, 49.85’; THENCE N27°30’24”E, 24.81’; THENCE
N10°38’02”, 1044.14’; THENCE N15°30’43”E 681.58’ TO THE POINT OF BEGINNING, CONTAINING 32.35 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE S24°36’15”E, 3634.43’ TO THE POINT OF BEGINNING; THENCE S07°45’30”W, 934.56’; THENCE
N73°22’47”W, 1354.60’; THENCE N05°56’41”E, 88.64’; THENCE N62°16’52”E, 28.65’; THENCE N42°34’13”E,
309.51’; THENCE, S73°50’33’E, 730.30’; THENCE N16°58’21”E, 398.19’; THENCE N85°01’57”E, 363.92’ TO THE
POINT OF BEGINNING, CONTAINING 15.52 ACRES;
AND
COMMENCING AT THE CENTER OF SECTION 22, TOWNSHIP 83 NORTH, RANGE 24 WEST OF THE 5TH P.M.;
THENCE S01°32’08”E, 2229.98’ TO THE POINT OF BEGINNING; THENCE N89°55’01”E, 184.46’; THENCE,
S24°53’30”E, 100.15’; THENCE S25°03’07”W, 444.09’; THENCE N82°34’25”W, 40.20’; THENCE N00°09’05”E,
487.69’ TO THE POINT OF BEGINNING, CONTAINING 1.66 ACRES.
59