Eagle Point Energy LLC License and Power Purchase AgreementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
Dubuque
All- AmeiicaCity
1111
2007
SUBJECT: Approve a Power Purchase Agreement of Public Works Facility Roof to
Eagle Point Energy to provide Solar Energy to the Building
DATE: July 22, 2011
Economic Development Director Dave Heiar is recommending approval of a 25 -year
License and Power Purchase Agreement with Eagle Point Energy — 1, LLC to install
solar panels on the Public Works facility on Kerper Court and provide electricity to the
facility.
Eagle Point Solar is proposing to install 850 solar panels on the northwest portion of the
roof. The benefits to the City include:
• This furthers the City's Sustainability Initiative
• An electrical cost savings of approximately $3500 per year
• One third of the proceeds from the sale of Solar Renewable Energy Credits
• 32 percent of the building's electrical usage will be provided from solar energy
• 319,556 pounds of CO2 will be reduced annually utilizing solar energy
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
David J. Heiar, Economic Development Director
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: David J. Heiar, Economic Development Director
Dubuque
kittil
All-America City
1
2007
SUBJECT: Approve a Power Purchase Agreement of Public Works Facility Roof
to Eagle Point Energy to provide Solar Energy to the Building
DATE: July 19, 2011
INTRODUCTION
This memorandum presents for City Council a resolution approving a License and
Power Purchase Agreement with Eagle Point Energy —1, LLC to install solar panels on
the Public Works Facility on Kerper Court and provide electricity to the facility.
BACKGROUND
A top priority of the City Council is to make the community more sustainable. City Staff
has been working with Eagle Point Energy — 1, LLC for several months to determine the
viability of utilizing solar energy at the Operations & Maintenance Facility, located at 925
Kerper Court.
DISCUSSION
Eagle Point Solar is proposing to install 850 solar panels on the Northwest portion of the
City's Operation & Maintenance Facility located at 925 Kerper Court. The panels will
provide 260,000 kW AC power to the building to offset electricity usage from Alliant
Energy's power grid. Eagle Point Solar started business in 2009 and has executed 5
installations of solar panels in the region. Eagle Point Solar has informed staff that this
will be the largest installation in the State of Iowa to date.
City Staff with Eagle Point Energy — 1, LLC analyzed two years of electrical bills for the
building. The building is charged two rates; a peak rate (M -F 7am — 9pm) and off -peak
rate (all other times). The peak rates per month vary from $.0918 - $.1958, with a
yearly average of $.1385. The off -peak rates vary from $.0270 - $.0602 with an
average of $.0384.
The building consumed 321,918 peak kWh and 503,382 off -peak kWh. The panels are
estimated to produce 185,714 peak kWh and 74,286 off -peak kWh. A rough calculation
determines that purchasing the power generated from the panels at $.11 per kWh for
both peak and off -peak kWh will reduce the annual electrical bill for the building by
$3,500.
The License and Power Purchase Agreement (PPA) between the City and Eagle Point
Energy — 1, LLC allows Eagle Point Energy — 1, LLC to utilize the portion of the roof
needed for the solar panels and requires Eagle Point to sell the produced power to the
City at $.11 per kWh. The electrical rate will increase by 3% per year for the entire 25
year term of the agreement.
The federal government issues Solar Renewable Energy Credits to solar panel
installations. Solar Renewable Energy Certificates represent the environmental savings
impact of emission free solar energy production. Certain states have Renewable Energy
Portfolio standards ( "RPS ") whereby there are mandated power goals that need to be
reached by a certain date. Companies or individuals can purchase these credits to
increase their renewable energy portfolio. The credits earned by this project will be sold
and the City will receive a third of the proceeds.
The benefits from installing the panels for the building's electrical use are as follows:
• An electrical cost savings of approximately $3500 per year
• One third of the proceeds from the sale of Solar Renewable Energy Credits
• 32 percent of the building's electrical usage will be provided from solar energy
• 319,556 pounds of CO2 will be reduced annually utilizing solar energy
The electricity produced by the solar panels flows through a net meter with Alliant
Energy. Normally, the building will be using more electricity than the panels produce at
any given time. However, there are certain times that the panels will produce more
electricity than the building uses (ex. a sunny Sunday afternoon) and the meter will run
backwards. The kWh put back into Alliant Energy's grid are then credited on a monthly
basis and can be used later at a time when the building is using more electricity than the
panels are producing. Should any kWh credits remain after the month ends, they are
rolled to the next month and can be used then.
The solar panels are estimated to produce one -third of the building's total electric
demand. It should be noted that should electrical efficiencies in the building be made
that reduce the current electrical usage by two- thirds (a reduction of 544,698 kWh), the
building will be selling power back to Alliant Energy. Currently, the price that Alliant
pays for power from power providers (which the City would become assuming the two -
thirds reduction can be achieved) would eliminate the cost savings of the solar panels.
Alliant Energy's rate structure may change in the future and could eliminate this concern
but cannot be assumed that this will happen at this time.
RECOMMENDATION
I recommend the City Council approve the attached resolution approve a License and
Power Purchase Agreement with Eagle Point Energy — 1, LLC.
ACTION STEP
The action step is to approve the attached resolution
F: \USERS\Econ Dev \Eagle Point Solar \PPA\20110719 Memo approve PPA on City Garage.docx
CITY OF DUBUQUE,
IOWA
_ OFFICIAL I�ATICE
NOTICE is,, hereby
given that —the City
Council of Dubuque,
Iowa, will conduct a
public hearing at a
meeting to commence
at 6:30.p.m., on the 1st
day of August, 2011, in
the Historic Federal
Building, 350 West 6th
Street, to consider
disposing of its interest
in the roof space above
the land commonly
known as the western
side of the roof located
at 925 Kerper Court,
Dubuque, Iowa, legally
described as Lot 2 of 2
of . Kerper Industrial-
Park in the City of
Dubuque, Iowa, by
license to Eagle Point
Energy - 1, LLC. (Copy
of supporting docu-
ments are on file.inthe
City Clerk's Office and
may be viewed during
working hours).
Written comments
regarding said disposal'
may be submitted to
the City Clerk's Office
on or before time of
public hearing.
At said time and place
of . public hearing, all
interested citizens and
parties will be given an
opportunity to be
heard for or against
the disposal of said
easements.
Any visual or hearing
impaired persons needs
ing special assistance
or persons with special
accessibility needs
should contact the City
Clerk's Office at (563)
589 -4120 or TTY (563)
690 -6678 at least 48.
hours prior to the
meeting.
Dated this 22nd day of 1
July, 2011
Kevin S. Firnstahl
Acting City Clerk
It 7/22
STATE OF IOWA {SS:
DUBUQUE COUNTY
CERTIFICATION OF PUBLICATION
I, Kathy Hefel - Goetzinger, a Billing Clerk for Woodward Communications, Inc.,
an Iowa corporation, publisher of the Telegraph Herald,a newspaper of general
circulation published in the City of Dubuque, County of Dubuque and State of
Iowa; hereby certify that the attached notice was published in said newspaper on
the following dates: July 22, 2011, and for which the charge is $17.11.
Subscribed to before me, a Notary Public in and for Dubuque County, Iowa,
this 'd day of , , , 20 t1 .
� PG-EX-2
T
y Public in and for Dubuque County, Iowa.
x �
'o
JANET K. PAPE
Commission Number 199859
My Comm, Exp, DEC 11, 2013
RESOLUTION NO. 251 -11
APPROVAL OF A LICENSE AND POWER PURCHASE AGREEMENT
BETWEEN THE CITY OF DUBUQUE, IOWA AND EAGLE POINT ENERGY —
1, LLC AN IOWA LIMITED LIABILITY COMPANY
Whereas, the .City of Dubuque, Iowa (City) is the owner of the real
property legally described as follows:
Whereas, Eagle Point Energy — 1, LLC. desires to license a part of the
property to install solar panels at the facility; and
Whereas, City and Eagle Point Energy — 1, LLC. have negotiated a
License and Power Purchase Agreement, which among other things, provides for
a term through September 1, 2026; and
Whereas, the City Council believes it is in the best interest of the City of
Dubuque to approve the License and Power Purchase Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
Section 1. The City of Dubuque approves the License and Power
Purchase Agreement with Eagle Point Energy — 1, LLC and the City Manager is
authorized to execute said lease on behalf of the City of Dubuque.
Roof space above the land commonly known as the western
side of the roof located at 925 Kerper Court, Dubuque, Iowa,
legally described as Lot 2 of 2 of Kerper Industrial Park in
the City of Dubuque, Iowa; and
Passed, approved and adopted this 1 st day of August, 201
Acting City Clerk
F: \USERS \Econ Dev \Eagle Point Solar \PPA\20110801_Resolution EPS Solar License approval.docx
oy D. Buol, Mayor
AGREEMENT FOR
SOLAR LICENSE AND POWER PURCHASE
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
EAGLE POINT ENERGY -1, LLC
This Agreement for Solar License and Power Purchase (the "Agreement "),
dated the ; "day of 4c.rept , 2011, is made and entered into by and between
the City of Dubuque, Iowa ( "Owner "), and Eagle Point Energy - 1, LLC, an Iowa
limited liability company, located at 923 Peru Road, Dubuque, Iowa 52001
( "Licensee ").
This Agreement is entered into for the purpose of allowing Licensee to install
and operate a solar panel array on property owned by Owner and to allow Licensee
to sell power generated by such solar panel array to Owner at a cost to Owner that
is estimated to be less than the historical cost of power to Owner from other
sources. The parties agree that the approximate cost savings to Owner resulting
from this Agreement is estimated to be $3,500.00 annually. However, such amount
is merely an estimate and is not binding in full or in part in any way upon the
Licensee.
SECTION 1. LICENSE. Owner grants to Licensee, its successors and assigns
(including any Financing Party, as defined in Section 16 hereof), an irrevocable
license coterminous with the Term to use the property commonly known as the
western side of the roof of the building located on the real property located at 925
Kerper Court, Dubuque, Iowa, legally described as Lot 2 of 2 of Kerper Industrial
Park in the City of Dubuque, Iowa (the "Premises ") for the purpose of installing,
operating and maintaining solar panels on the roof and inverters and related
equipment within the building, as more particularly described on Schedule A hereto,
pursuant to the terms hereof (the "System "), including access to electrical panels
and conduits to interconnect or disconnect the System with the Premises' electrical
system. The roof plan for the System is depicted on Exhibit A attached hereto.
SECTION 2. RENT; TERM. Licensee shall pay Owner a license fee for the
license to use the Premises of Ten Dollars ($10) per year (the "Base License Fee ")
plus 1/3 of the Renewable Energy Certificate (REC) sales, if any (the "Additional
License Fee "). The Base License Fee for the Term shall be paid in advance on or
before . The Additional License Fee, if any, shall be credited monthly on
the invoices submitted pursuant to Section 9.2. The term of this Agreement shall
commence on and continue until the twenty -fifth anniversary of the
Commercial Operation Date (as defined in Section 30.1) (the "Term "), unless
terminated earlier pursuant to the terms hereof.
SECTION 3. TITLE. Owner warrants that Owner is the owner of the Premises and
has full authority to enter into this License.
SECTION 4. INSURANCE.
4.1. Owner shall maintain policies of fire and extended coverage insurance on the
Premises, but not including the System. Owner shall also maintain its membership
in the Iowa Communities Insurance Pool or equivalent commercial general liability
insurance (including contractual liability coverage) with limits of not less than
$2,000,000 general aggregate, $1,000,000 per occurrence. All policies shall name
Licensee and Licensee's Financing Party as additional insureds or loss payees, as
applicable.
4.2. Licensee shall provide and maintain at all times during the Term insurance
as required by the attached Schedule Dl as such schedule may from time to time be
amended.
4.3. Licensee shall provide and maintain or cause to be maintained at all times
during the process of constructing and operating the System (and, from time to time
at the request of Owner, furnish Owner with proof of insurance in the form of a
certificate of insurance for each insurance policy):
All risk insurance, written on a Completed Value Form in an amount equal to
one hundred percent (100 %) of the replacement value of the System when
construction is completed.
4.4. Each party having knowledge shall notify the other party and the Licensee's
Financing Party in the case of damage exceeding $5,000.00 in amount to, or
destruction of, the System, the Premises or any portion thereof resulting from fire or
other casualty. Net proceeds of any insurance (the "Net Proceeds ") with respect to
the System shall be paid directly to Licensee or Licensee's Financing Party, as its
interests may appear, and Licensee, if approved by the Licensee's Financing Party,
shall forthwith repair, reconstruct and restore the System to substantially the same
or an improved condition or value as they existed prior to the event causing such
damage and, to the extent necessary to accomplish such repair, reconstruction and
restoration, Licensee will apply the Net Proceeds of any insurance relating to such
damage incurred by Owner to the payment or reimbursement of the costs thereof.
2
SECTION 5. REPAIRS.
5.1. Licensee shall at all times during the term of this License, at Licensee's own
costs and expense, keep the System in good order, condition and repair, and in a
safe, clean and neat condition, in each case in accordance with those methods,
practices, guidelines that are commonly used and accepted by a significant portion
of the photovoltaic solar system industry ( "Good Industry Practice ").
5.2 Licensee shall be responsible for repairing any damage to the Premises
directly caused by the installation, maintenance, or repair of the System. Licensee
further agrees to be responsible for costs arising from resealing the seems in the
rubber membrane on the roof of the premises, which costs are estimated to be
between $10,000.00 and $15,000.00.
5.3 Owner shall keep the Premises in such condition as may be required by law
and by the terms of the insurance policies furnished pursuant to this Agreement.
Owner may at any time conduct an inspection of the Premises to determine
Licensee's compliance with this Section.
5.4. Owner shall have the right to request Licensee upon written notice to
Licensee and Licensee's Financing Party to repair any part of the System which
Owner reasonably determines does not materially comply with the requirements of
this Section, and Licensee shall repair, as the notice may request, any such part of
the System within ten days, or such longer period as may reasonably be required so
long as such repair is being diligently pursued, after receipt of such notice.
5.3. Owner shall have no obligation to Licensee for any maintenance expense of
any kind of the System.
SECTION 6. COMPLIANCE WITH LAW. During the term of this License, Licensee
shall comply in all material respects with all local, state and federal laws applicable
to Licensee's use of the Premises and the System.
SECTION 7. ALTERATIONS. Licensee shall not, without Owner's prior written
consent make any alteration, addition, or modification to any improvement on the
Premises, other than as contemplated in the Agreement with respect to the System.
SECTION 8. USE OF PREMISES. Licensee shall not knowingly use or allow the
Premises or the System to be used or occupied for any unlawful purpose. Licensee
shall not suffer any act to be done or any condition to exist on the Premises or
permit any article to be brought thereon, in each case in connection with its
installation, operation or maintenance of the System, which is dangerous, unless
safeguarded as required by law, or which, in law, constitute a nuisance, public or
private, or which may make void or voidable any insurance in force with respect
thereto.
3
SECTION 9. POWER PURCHASE.
9.1. Purchase of Electricity: Owner will purchase from Licensee all electricity
produced by the System. Such purchase shall be for the electricity only and shall
not include any environmental attributes of the electricity, including any RECs, all of
which shall inure to the benefit of Licensee and Licensee's Financing Party, subject
to Section 9.5.
9.2. Purchase Price: The annual price per kilowatt -hour ( "kWh ") will be as
calculated in accordance with Schedule B.
1) Billing System: Licensee will bill Owner monthly in the amount equal
to the monthly kWh production of the System (as determined by the Data
Acquisition System or Interval Data Recording meter) multiplied by the
applicable Base Price as described in Schedule B.
2) Owner Service: Licensee shall provide all of the following:
a) Licensee will produce and send bills to Owner within fifteen (15)
business days of the end of the billing cycle at the following address:
Public Works Department
925 Kerper Court
Dubuque, IA 52001
b) Licensee will make available, via the Internet, performance
information of the system and the software, at no cost to the Owner,
necessary to retrieve and track the system performance.
3) Owner will make payment for the amount of the bill to Licensee within
20 business days from the invoice billing date.
9.3. Rebates and Other Incentives: Any grant, rebate, incentive payment or
credit from Alliant Energy, or its successor, transferee, or assignee in interest
(hereinafter "Utility "), the United States Department of the Treasury, or other party
paid as a result of the design, construction and operation of the System shall inure
to the benefit of Licensee or Licensee's Financing Party. Owner will cooperate in
good faith as necessary to enable Licensee to obtain all available incentives and
rebates, including assignment to Licensee or Licensee's Financing Party of any
incentive received by Owner from Utility, US Treasury or other party as consistent
with this Agreement.
9.4. Meters: Licensee shall provide a revenue -grade Data Acquisition System or
Interval Data Recording ( "IDR ") meter complete with industry standard telemetry for
communication with ethernet, cellular or other common output capability for the
purposes of metering /monitoring /data collection of solar production. Owner shall
4
have access to data from these meters. Licensee shall measure the actual amount
of electricity supplied to Owner by the System at the Electrical Interconnection Point
using the revenue -grade IDR meter. Meters shall be installed at Licensee's
expense. Licensee shall test the meter annually and at any reasonable time upon
request of Licensee at Licensee's expense. Owner shall reimburse Licensee for the
cost of any test requested by Owner, unless such testing demonstrates that the
meter was operating outside of its allowable calibration. Owner may also conduct
occasional billing inquiry, validation and verification, or reconciliation procedures.
During such Owner conducted procedures, Licensee shall provide Owner with the
data and information used to generate billing determinants, including any interval
meter data representing generation output. Owner will use its reasonable efforts to
provide or arrange for Utility- metered data that can support the billing process,
either directly through a data file transmission or through some arrangement with
Utility.
9.5. Potential Revenue from Renewable Portfolio Standards and /or Renewable
Energy Credits (collectively "RECs "): Licensee shall retain title and is authorized to
market, sell or transfer RECs (including the ownership of the renewable attributes of
System) to any third -party purchaser or purchasers selected by Licensee in
Licensee's sole and absolute discretion; provided that the City of Dubuque will be
granted 1 /3rd of any net REC revenues as an Additional License Fee, which amount
shaii be credited as a partial reduction of its electrical costs and 113rd of the
remaining net REC revenues shall be for the benefit of Licensee's Financing Party
pursuant to the terms of the financing agreement with Licensee. Licensee shall
provide Owner evidence in a form satisfactory to Owner of all sales or transfers of
RECs not more than days after such sales or transfers.
SECTION 10. TERMINATION.
10.1. By Owner. Subject to Section 12, Owner shall have the right to terminate
this Agreement after seven (7) years from the Commencement Date at any time on
ninety (90) days written notice to Licensee and Licensee's Financing Party.
10.2. Termination Fee: In the event that Owner terminates this Agreement for any
reason, other than pursuant to an uncured Event of Default by the Licensee as set
forth in Section 14 of this Agreement, Owner shall pay Licensee a Termination Fee
as listed in Schedule C. Upon payment of the Termination Fee, all right, title,
warrantees and interest in the System shall be deemed transferred to Owner
without further action by either party.
10.3. By Licensee. Licensee shall be allowed to terminate this Agreement with the
written consent of the Licensee's Financing Party at any time for any reason upon
ninety (90) days written notice to Owner. Upon such Termination by Licensee,
Owner shall have no further rights or obligations under this Agreement.
5
SECTION 11. EXPIRATION OF AGREEMENT. At the completion of the 25 year
term of this Agreement, as provided for in Section 2, all right, title and interest in the
System shall be transferred to Owner without further action by either party.
SECTION 12. TEMPORARY SHUTDOWN OF SYSTEM.
12.1. "Temporary Shutdown of the System" means a complete shutdown of
electricity usage at the written direction of Owner to Licensee and Licensee's
Financing Party for longer than 24 hours.
12.2. If an act, omission or event occurs during the Term, other than from actions
by Licensee or circumstances described in Section 13, which significantly reduces
or eliminates the use of electricity from the System or requires the Temporary
Shutdown of System, Owner and Licensee may, by mutual consent and with the
written approval of Licensee's Financing Party, do either of the following as a
means of avoiding default by Owner under this Agreement:
1) Owner may pay Licensee "in -lieu" fees during the duration of the
reduction or shutdown. These "in -lieu" fees shall be based on the actual
payments made by Owner on a daily basis during the same period in the
previous calendar year increased at the rate of 3 %, unless Owner and
Licensee with the written approval of Licensee's Financing Party mutually
agree to an alternative "in -lieu" fee methodology. For the first year of this
Agreement for which no previous year's usage data is available, "in lieu" fees
shall equal the estimated annual output (kWh) of the System, according to
Schedule B, pro rated for the period of the shutdown, multiplied by $.11.
2) Owner and Licensee may negotiate an alternative "in -lieu" fee
methodology that is mutually acceptable and agreed upon by both parties
and with the written approval of Licensee's Financing Party. If no alternative
"in -lieu" fee methodology can be agreed upon with good faith efforts within a
reasonable time following the Temporary Shutdown of the System, the
method described in Section 12.2(1) must be utilized.
Under either alternative, Owner will make a good faith effort to give as much notice
as possible to Licensee and to Licensee's Financing Party prior to System
shutdown.
SECTION 13. FORCE MAJEURE. Neither party hereto shall be liable for any
failure of performance due to causes beyond its reasonable control, the occurrence
of which could not have been prevented by the exercise of due diligence, such as
acts of God, acts of the other party, acts of civil or military authority, fires, floods,
epidemics, windstorms, explosions, natural disasters, sabotage, wars, riots,
changes in laws, regulations, tariffs mandated or approved by federal, state or
governmental or regulatory entities, or court injunction or order provided that written
notice of such delay (including the anticipated duration of the delay) shall be given
6
by the affected party to the other party as soon as possible after the event or
occurrence (but in no event more than 10 days thereafter). During the period of
such delay or failure to perform by Licensee, Owner, at its option, may purchase
electricity from other sources and reduce its schedules to Licensee by such
quantities, without liability to Licensee. The ability of either party to obtain a better
price shall not constitute an event of Force Majeure hereunder.
SECTION 14. EVENT OF DEFAULT.
14.1. By Owner: The following shall be an Event of Default by Owner:
1) Owner's failure to pay undisputed invoices for a continuous period of
thirty (30) or more days.
2) The renovation, damage, destruction or closure of the Premises which
is a result of any event other than Force Majeure and results in the
Temporary Shutdown of the System for more than three (3) consecutive
months and Owner has not terminated this Agreement pursuant to Section
10.2 and paid the Termination Fee.
3) For terms other than those listed in (1) and (2) above, failure by
Owner to perform or comply with any material term of this Agreement within
thirty (30) days of written notice by Licensee, unless Licensee and Licensee's
Financing Party agree in writing to a longer period to cure the default.
14.2 Remedies of Licensee: If an Event of Default by Owner has occurred and is
continuing, in addition to any and all remedies at law or in equity, Licensee shall
have the right to terminate this Agreement and Owner shall pay the Termination
Fee as listed in Schedule C.
14.3. By Licensee: The following shall be considered an Event of Default by
Licensee:
1) Licensee's failure to pay undisputed invoices or credits for a
continuous period of thirty (30) or more days after notice thereof to Licensee
and Licensee's Financing Party.
2) Licensee's failure to maintain the System in accordance with Good
Industry Practice, other than solar intensity, following written notice to
Licensee and Licensee's Financing Party;
3) Reduced output of System electricity for a consecutive twelve (12)
month period below 50% of the annual projected output listed in Schedule B.
4) For terms other than those listed in (1) and (2) above, failure by
Licensee to perform or comply with any material term of this Agreement
7
within ninety (90) days of written notice by Owner to Licensee and Licensee's
Financing Party, unless Owner agrees in writing to a longer period to cure
the default.
14.4 Remedies of Owner: If an Event of Default by Licensee has occurred and is
continuing, in addition to any and all other remedies at law or in equity, Owner shall
have the right at its option, on written notice to Licensee and Licensee's Financing
Party, to terminate this Agreement. Owner shall thereafter have the right to enter
and take possession of the Premises with proper notice and process of law and to
remove the System from the Premises without incurring any liability to Licensee or
to any persons occupying or using the Premises for any damage caused or
sustained by reason of such entry on the Premises or the removal of persons or
property from the Premises.
SECTION 15. ASSIGNMENT. Except as set forth in Section 16, this Agreement
shall not be assignable by either party in whole or in part without the written consent
of the other party.
SECTION 16. FINANCING. Licensee may without the consent of Owner pledge
its interest in this Agreement as security for loans or financing provided by any
Person to Licensee, including pursuant to an equipment lease (any such person
inciudes Licensee's Financing Party). if Licensee's Financing Party requests
additional terms and conditions to those already provided in this Agreement, Owner
agrees to consider any such requests in good faith, but may refuse such requests in
its sole and absolute discretion and may withhold consent or approval of such
additional terms and conditions. If Licensee's Financing Party requires an Estoppel
Certificate, Owner shall provide such certificate to Licensee within thirty (30) days of
request demonstrating Licensee's interest in the Premises for operation of the
System and Licensee's right to access thereof, and such other matters as may
reasonably be requested. Owner acknowledges that as of the date hereof
Licensee's Financing Party is Dubuque Bank and Trust Co. and Owner agrees to
execute and deliver to such Financing Party the consent in the form of Exhibit B
attached hereto.
SECTION 17. DEBT LIABILITY DISCLAIMER / HOLD HARMLESS.
17.1 Owner is not liable for any of Licensee's debts, liabilities, settlements, liens
arising through Licensee, or any other obligations of Licensee or its heirs,
successors, or assigns. Owner 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. Owner shall indemnify, defend and hold Licensee and Licensee's
Financing Party harmless against all costs and expenses (including reasonable
attorneys' fees and court costs) incurred in discharging and releasing such lien.
17.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, no other
warranty to Owner or any other person, whether express, implied, or statutory, is
8
made as to the design, description, quality, merchantability, completeness, useful
life, future economic viability, or fitness for any particular purpose of the System or
any service provided hereunder or described herein, or as to any other matter, all of
which are expressly disclaimed by Licensee.
17.3 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.
SECTION 18. COMPLIANCE WITH APPLICABLE LAWS, INCLUDING UTILITY
INTERCONNECTION STANDARDS. Licensee, at its own cost and expense, shall
comply in all material respects with all applicable laws and regulations relating to
the operation of the System and the generation and sale of electricity to Owner,
including obtaining and maintaining all relevant approvals and permits. In particular,
Licensee agrees throughout the Term to comply in all material respects with any
and all operational standards and requirements imposed by the Utility
Interconnection Agreement with Utility, a copy of which has been provided to
Licensee, and to comply with the interconnection requirements. In all cases,
Licensee's interconnection shall be acceptable to Utility. Owner will cooperate with
Licensee and, if necessary, will provide consents and execute with Utility such
agreements as are necessary to permit the interconnection of the System. This
interconnection shall be done at no cost or liability to Owner and Licensee shall
reimburse Owner for all out -of- pocket costs reasonably incurred in connection with
any interconnection agreement.
SECTION 19. TAXES. Licensee shall pay all lawful taxes, assessments or
charges that at any time may be levied upon any interest in this Agreement
including the System. Licensee shall not be liable or responsible for the payment of
any taxes, assessments or charges in respect of the Premises, all of which shall be
for the account of and payable by Owner.
SECTION 20. CONFIDENTIALITY OF INFORMATION.
20.1. Licensee's Confidentiality Requirement: To the extent allowed by law, any
financial, statistical, personal, technical or other data and information relating to
Owner's operations which are designated confidential by Owner and made available
to Licensee in order to carry out this Agreement shall be protected by Licensee from
unauthorized use and disclosure through the observance of the same or more
effective procedural requirements as are applicable to Licensee for its own
information of serious nature. Owner shall identify all confidential data and
information at the time it is provided.
20.2. Public Records: To the extent allowed by law, any mechanical, technical or
other data and information relating to the System which are designated confidential
by Licensee and made available to Owner in order to carry out this Agreement shall
9
be protected by Owner from unauthorized use and disclosure through the
observance of the same procedural requirements as are applicable to Owner for its
own information of serious nature. Licensee shall identify all such confidential data
and information at the time it is provided. In the event of a request for such
information under the Iowa Public Records Act, Owner shall promptly notify
Licensee and Licensee shall be solely responsible for taking such action as it
deems appropriate to protect the confidentiality of such information.
20.3. Confidentiality does not apply to information which is known to a receiving
party from other sources, which is otherwise publicly available or that is required to
be disclosed to any regulatory or judicial authority.
SECTION 21. AUDIT. Licensee agrees that Owner or its designated
representatives shall have the right upon reasonable written notice to review and to
copy any records and supporting documentation pertaining to the performance of
this Agreement. Licensee agrees to maintain such records for possible audit for a
minimum of three (3) years after each payment, unless a longer period of records
retention is stipulated or required by law. Licensee will, at a minimum, maintain one
complete set of records at a location in Iowa to facilitate such audit. Licensee
agrees to allow the auditor(s) access to such records during normal business hours
and to allow interviews of any employees who might reasonably have information
related to such records. Further, Licensee agrees to include a similar right of Owner
to audit records and interview staff in any subcontract or assignment related to
performance on this Agreement.
SECTION 22. INDEMNIFICATION.
22.1. Indemnification of Licensee. To the extent allowed by law, Owner will
defend, indemnify and hold harmless Licensee, its permitted successors and
assigns (including Licensee's Financing Party) and their respective directors,
officers, members, shareholders and employees (collectively, the "Licensee
Indemnified Parties ") from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) (collectively, "Claims ") imposed upon or
incurred by or asserted against any Licensee Indemnified Party by reason of (a) any
accident, injury to or death of persons or loss of or damage to property occurring on
or about the Premises and resulting from any negligent act or omission of Owner, or
anyone claiming by through or under Owner, during the Term, or (b) any negligent
failure on the part of Owner to perform or comply in any material respect with any of
the material terms of this Agreement. In case any action, suit or proceeding is
brought against any Licensee Indemnified Party by reason of such occurrence,
Owner will, at Owner's expense and discretion, either defend such action, suit or
proceeding, or cause the same to be defended by counsel approved by Licensee
and Licensee's Financing Party, which approval will not be unreasonably withheld.
Owner shall not, however, be required to reimburse, indemnify or defend any
10
Licensee Indemnified Party, to the extent any such Claim is due to the negligence
or willful misconduct of any Licensee Indemnified Party.
22.2. Indemnification of Owner. To the extent allowed by law, Licensee will
defend, indemnify and hold harmless Owner, its permitted successors and assigns
and their respective directors, officers, members, shareholders and employees
(collectively, the "Owner Indemnified Party ") from and against all Claims imposed
upon or incurred by or asserted against any Owner Indemnified Party by reason of
(a) any accident, injury to or death of persons or loss of or damage to property
occurring on or about the Premises during the term of this Agreement and resulting
from any negligent act or omission of Licensee or anyone claiming by, through or
under Licensee during the Term, or (b) any negligent failure on the part of Licensee
to perform or comply in any material respect with any of the material terms of this
Agreement. In case any action, suit or proceeding is brought against any Owner
Indemnified Party by reason of such occurrence, Licensee will, at Licensee's
expense and discretion, either defend such action, suit or proceeding, or cause the
same to be defended by counsel approved by Owner, which approval will not be
unreasonably withheld. Licensee shall not, however, be required to reimburse,
indemnify or defend any Owner Indemnified Party to the extent any such Claim is
due to the negligence or willful misconduct of any Owner Indemnified Party.
SECTION 23. SURVIVAL. The obligations and liabilities under this Agreement
shall survive and continue in full force and effect and shall not be terminated,
discharged or relicensed, in whole or in part, irrespective of the termination or
expiration of the term of this Agreement.
SECTION 24. GOVERNING LAW. This Agreement shall be governed and shall
be interpreted in accordance with the laws of the State of Iowa.
SECTION 25. OWNERSHIP.
25.1. Subject to the rights provided to Owner pursuant to other terms hereof,
during the Term, the System and all alterations, additions or installations made
thereto by Licensee and all Licensee property used in connection with the
installation, operation and maintenance of the System is, and shall remain, the
personal property of Licensee or Licensee's Financing Party ( "Licensee Property ").
In no event shall any Licensee Property be deemed a fixture, nor shall Owner, nor
anyone claiming by, through or under Owner (including but not limited to any
present or future mortgagee of Owner) have any rights in or to the Licensee
Property at any time except as otherwise provided herein. Except as provided in
this Agreement, Owner acknowledges and agrees that Licensee may grant or cause
to be granted to a secured party a security interest in the Licensee Property. Owner
covenants that it will 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 of the Licensee or
Licensee's Financing Party. If there is any mortgage or fixture filing against the
11
Premises that could reasonably be construed as attaching to the System as a
fixture of the Premises, Owner shall provide, at Licensee's or Licensee's Financing
Party's request, a disclaimer or release from such lien holder.
25.2. UCC Property Statement. Licensee shall have the right to file, and Owner
hereby consents to such filing, a statement with the necessary state or local agency
including where the real estate records are located, indicating Licensee's sole
ownership of the System and indicating that no part of the System is to be
construed as a fixture or appurtenance to any property owned by Owner.
SECTION 26. APPLICABLE LAWS AND REQUIREMENTS. All activities
conducted by Licensee pursuant to this Agreement shall be in compliance in all
material respects with all applicable zoning requirements and all applicable Federal,
State, and local laws, ordinances, rules and regulations, and all issued permits and
licenses (collectively "Applicable Laws and Requirements "), and shall be conducted
at Licensee's own cost and expense. Licensee shall provide Owner upon request
with a copy of all permits, approvals and conditions issued by applicable Federal,
State, and local governmental entities. If required, Licensee shall immediately
suspend any use of the System to the extent required by any governmental
authority upon notice by such governmental authority having jurisdiction that any of
Licensee's activities under this Agreement constitutes a violation of any of the
Applicable Laws and Requirements until the violation, if any, is corrected and the
applicable governmental authority concurs that the violation is corrected. Licensee
shall immediately notify Owner regarding any alleged violation. Failure of Licensee
to immediately suspend use of the System and /or to notify Owner in accordance
with this provision after receiving a notice of any violation which may pose a risk to
public health or safety is considered an event of Default by Licensee. Owner agrees
to assist Licensee in obtaining any and all municipal permits and zoning
modifications (if required) to permit construction and use of System on the
applicable municipal facility.
SECTION 27. NO INTERFERENCE WITH OWNER USES /QUIET ENJOYMENT.
Licensee shall operate, maintain and repair the System in a manner that will not
unreasonably obstruct or interfere with Owner's use of Owner's facility or the rights
of any other occupants of Owner's facility. In the event such unreasonable
interference occurs, Owner shall notify Licensee and Licensee's Financing Party in
writing and Licensee agrees to promptly take all reasonable steps necessary to
eliminate such unreasonable interference.
SECTION 28. OWNER INSPECTION OF SYSTEM. Owner shall be permitted
non - emergency access to inspect the System upon seventy -two (72) hours prior
written notice to Licensee. Personnel of Licensee must accompany Owner's
personnel during any non - emergency inspection of the System, unless Licensee
agrees in writing to waive its right to accompany Owner personnel on all non -
emergency inspections. This requirement in no way prohibits Owner from inspecting
any and all portions of Owner's facility other than the System itself. In the event of
12
emergency, Owner may inspect the System unaccompanied and must notify
Licensee within twenty -four (24) hours after such inspection. Owner shall be liable
to Licensee for all fees and costs associated with any inspection of the System
requested or conducted by Owner.
SECTION 29. OWNER'S OBLIGATIONS. Subject to any specific limitations in
this Agreement, Owner shall at all times during the Term use commercially
reasonable efforts to maintain the Premises other than the System, in good
condition and repair so as to be able to receive and utilize the electricity delivered to
Owner from the System. Owner will maintain in good working order and available at
all times, its connection and service contract(s) with the relevant utilities so that
Owner can, upon any suspension or interruption of electricity from the System,
provide Owner with the full requirements for electricity. Without limiting the
foregoing, Owner shall take commercially reasonable actions as necessary to
prevent other buildings, structures or flora from overshadowing or otherwise
blocking access of sunlight to the System. All obligations of Owner in this
Agreement regarding maintenance shall be subject to the right of Owner during
periods of renovation of any part of the Premises to issue a shut down order to the
System, consistent with Section 12 of this Agreement.
SECTION 30. LICENSEE'S OBLIGATIONS, INCLUDING MAINTENANCE AND
REPAIR.
30.1 Installation. Licensee shall install the System in accordance with Good
Industry Practice. Licensee estimates that the installation shall be complete, and
the Commercial Operation Date will occur, within six (6) weeks of the date of this
Agreement. The System shall be deemed to have achieved "Commercial
Operation" when the System has been approved for interconnection with the local
electric utility and the results of such testing demonstrate that the System is capable
of generating electrical energy for four (4) continuous hours in accordance with the
manufacturer's specifications, applicable permits and the Utility's interconnection
requirements. Licensee shall send Owner and the Licensee's Financing Party
written notice of Commercial Operation promptly following its occurrence, certifying
that the requirements have been satisfied and identifying the date on which the
System achieved Commercial Operation, together with any supporting
documentation reasonably requested by Owner. If Owner does not dispute in good
faith the certification in writing within five (5) business days after receipt of such
notice, the date identified in the Licensee's notice as the date on which the system
achieved Commercial Operation shall be the date for the "Commercial Operation
Date" for purposes of this Agreement.
30.2 Operation and Maintenance. Licensee shall cause the System to be
operated and maintained at Licensee's sole expense, including the cost of capital
repairs and replacements of the System, in accordance with Good Industry Practice
throughout the Term. Licensee warrants that all of its operating and maintenance
personnel will be adequately qualified and trained throughout the Term.
13
Preventative maintenance, resulting in System outage, shall not be performed
during on -peak times according to Utility's applicable tariff. Licensee shall have the
right to perform its obligations hereunder through contracts with qualified third
parties. Notwithstanding the preceding sentence, Licensee shall retain ultimate
responsibility to Owner for performance of such obligations.
SECTION 31. FURTHER ASSURANCES. Owner and Licensee shall promptly
perform, execute and deliver or cause to be performed, executed and /or delivered
any and all acts and assurances, including the delivery of any documents, as either
party may reasonably require in order to carry out the intent and purpose of this
Agreement.
SECTION 32. SURRENDER. Licensee shall, on the last day of the Term or upon
any termination of this Agreement resulting in the payment of the Termination Fee
by Owner, surrender and deliver up the Premises, with the System then located
thereon, into the possession and use of Owner, without delay and in good order,
condition and repair, reasonable wear and tear excepted, free and clear of all
lettings and occupancies, free and clear of all liens and encumbrances other than
those existing on the date of this License and those, if any, created by Owner,
without (except as otherwise provided herein) any payment or allowance whatever
by Owner on account of or for any buildings and the System erected or maintained
on the Premises at the time of the surrender, or for the contents thereof or
appurtenances thereto. Licensee's trade fixtures, personal property and other
belongings of Licensee or of any sublicensee or other occupant of space in the
Premises shall be and remain the property of Licensee, and Licensee shall have a
reasonable time after the expiration of the term of this License (not to exceed thirty
(30) days) to remove the same.
SECTION 33. SEVERABILITY. If one (1) or more of the provisions contained in
this Agreement for any reason is held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
SECTION 34. NOTICES, MEANS /RECEIPT. All notices or other
communications required or permitted hereunder shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, national overnight courier service (next business day delivery), or
by facsimile to
TO OWNER:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13th Street
Dubuque IA 52001
Fax 319 589 -4149
14
TO LICENSEE:
TO LICENSEE'S
FINANCING PARTY:
Eagle Point Energy — 1, LLC
923 Peru Road
Dubuque, IA 52001
Fax: 563- 557 -3050
Dubuque Bank and Trust
1398 Central Avenue
Dubuque, IA 52001
Telecopy No: (563) 589 -2184
as may be updated in writing from time to time, and shall be deemed received upon
the earlier of (i) if mailed, three (3) business days after the posting by a U.S. Post
Office; (ii) if personally delivered, the date of delivery to the address of the person to
receive such notice; (iii) if sent by national overnight courier service (next business
day delivery), one (1) business day after delivery to such courier service; or (iv) if
given by facsimile, upon electronic evidence of receipt.
SECTION 35. COUNTERPARTS. This Agreement may be executed in two (2) or
more counterparts, and all the counterparts shall constitute but one and the same
agreement, notwithstanding that not all parties hereto are signatory to the same
counterpart.
SECTION 36. TIME IS OF THE ESSENCE. Time is of the essence of every
provision contained in this Agreement.
SECTION 37. NON - WAIVER. Unless otherwise expressly provided in this
Agreement, no waiver by Owner or Licensee of any provision hereof shall be
deemed to have been made unless expressed in writing and signed by Owner or
Licensee as the case may be. No delay or omission in the exercise of any right or
remedy accruing to Owner or Licensee, as the case may be, upon any breach
under this Agreement shall impair such right or remedy or be construed as a waiver
of any such breach theretofore or thereafter occurring. The waiver by Owner or
Licensee of any breach of any term, covenant or condition herein stated shall not be
deemed to be a waiver of any other term, covenant or condition.
SECTION 38. CAPTIONS. Section titles or captions contained in this Agreement
are inserted as a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Agreement.
SECTION 39. EXHIBITS. All Schedules attached shall be incorporated into this
Agreement by reference as if fully set out herein.
SECTION 40. FINAL AGREEMENT. This Agreement, together with all
schedules and exhibits attached hereto or mentioned herein, completely and
15
exclusively states the agreement of the parties regarding its subject matter and
supersedes all prior proposals, agreements, or other communications between the
parties, oral or written, regarding its subject matter. This Agreement may be
modified only by a writing signed by both the Owner and the Licensee. If any
provision of this Agreement is found unenforceable or invalid, such unenforceability
or invalidity shall not render this Agreement unenforceable or invalid as a whole. In
such event, such provision shall be changed and interpreted so as to best
accomplish the objectives of such unenforceable or invalid provision within the limits
of applicable law. This Agreement may be executed in any number of separate
counterparts and each counterpart shall be considered an original and together
shall comprise the same Agreement. The captions or headings in this Agreement
are strictly for convenience and shall not be considered in interpreting this
Agreement. This Agreement shall become binding when accepted in writing by
Owner and Licensee.
SECTION 41. SERVICE CONTRACT. The Parties intend this Agreement to be a
"service contract" within the meaning of Section 7701(e)(3) of the Internal Revenue
Code of 1986. Owner will not take the position on any tax return or in any other
filings suggesting that it is anything other than a purchase of electricity from the
System.
SECTION ION 42. NO PAR 1 NERSH P. No provision of this Agreement shaii be
construed or represented as creating a partnership, trust, joint venture, fiduciary or
any similar relationship between or among the parties. No party is authorized to act
on behalf of any other party, and no party shall be considered the agent of another
party.
SECTION 43. NO THIRD PARTY BENEFICIARIES. Except as otherwise
expressly provided herein, this Agreement and all rights hereunder are intended for
the sole benefit of the parties hereto and shall not imply or create any rights on the
part of, or obligations to, any other person.
[The next page is the signature page.]
16
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
CITY OF DUBUQUE, IOWA
(OWNER)
By:
Roy D. uol, Mayor
By:
Kevi S. Firnst. hl
Acting City Clerk
EAGLE POINT ENERGY - 1, LLC
(LICENSEE)
By:
Barry Shear, Member /Manager
SCHEDULE A — SYSTEM DESCRIPTION
(TBD BASED ON FINAL SPECIFICATIONS)
The System consists of UL approved components and conforms to building
codes and the requirements of Utility.
The System will consist of 806 SolarWorld SW 250 Monocrystaline solar panels
divided into 62 strings of 13 panels each. The system will be rated at 200 kW.
Each 31 13 panel string will be connected to a PV Powered PVP 100KW -480
inverter to convert the DC power produced by the Solar PV panels into usable
AC electric current. There will be two such inverters. The Inverter power will
match the power already being provided by the Utility.
The PV panels will be mounted on SolarDock ballasted racking which will layout
on the Western side of the building roof avoiding any and all roof mechanicals
that may be present. The SolarDock will reside on weatherproof foam with the
aggregate rock material removed and either used for ballast (in bags), spread
elsewhere on the roof or removed from the roof for a net zero weight gain on the
roof.
SCHEDULE B
SCHEDULE B - Owner shall pay a monthly amount billed based upon the
System's previous month electrical production at the initial (2011) rate of $0.11
per kWh. At each annual anniversary of the Commencement Date the rate will
increase by 3% of the previous year's rate.
The Schedule B Table below indicates the appropriate rate per kWh for each
year of the original Term of this Agreement.
Year
Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Year 9
Year 10
Year 11
Year 12
Year 13
Year 14
Year 15
Year 16
Year 17
Year 18
Year 19
Year 20
Year 21
Year 22
Year 23
Year 24
Year 25
SCHEDULE B TABLE
Rate / kWh
$0.11000
$0.11330
$0.11670
$0.12020
$0.12381
$0.12752
$0.13135
$0.13529
$0.13934
$0.14353
$0.14783
$0.15227
$0.15683
$0.16154
$0.16638
$0.17138
$0.17652
$0.18181
$0.18727
$0.19289
$0.19867
$0.20463
$0.21077
$0.21709
$0.22361
Estimated
Annual
Output (kWh
260,000
258,700
257,407
256,119
254,839
253,565
252,297
251,035
249,780
248,531
247,289
246,052
244,822
243,598
242,380
241,168
239,962
238,762
237,568
236,381
235,199
234,023
232,853
231,688
230,530
SCHEDULE C — TERMINATION VALUES
The Termination Fee shall be the Net Present Value (at a 5% annual discount
rate) of all remaining payments due under the remaining Term of this Agreement,
including all scheduled 3% annual rate increases, based upon the energy
production of the System for the 12 months immediately preceding the
Termination and reduced 0.7% per year for the remaining term of this
Agreement.
SCHEDULE D — INSURANCE SCHEDULE
See attached Insurance Requirements for Tenants and Lessees of City Property
or Vendors (Suppliers, Service Providers) to the City of Dubuque.
P 12 Module Layout
../.°1'..64. 30p
1,! NOMA Spacing
Schedule Sun
Type QTY. Notes Energy
Nodule 55 1 SoittrWorld 231 Partners
Notes One LLC
199.9115 kW DC total array
pow
2
Tte Row spacing
30•SolarOodss
Legend So1a1Wwid 235
GE) solar t4odule 36 4-x45.94..11.3r
44.5 kw
OostruCion 90 Mph
Ballast
30'
Calculations by Area To
Area LL1.5 and Notes
....„. t 1
67 Lbs Ballast • 2 j
13.1 Lbs Dock and Mochres
200 OS total S 2 g g
i Local:
18 -
Giobir. 200 Lbs
- 2.7 PSF
a
' 217 Lbs Ballast L._
133 Lbs Dock and Modves
I :Ill-
295 lbs total
; Local: 295 Lbs r
Or (2.62•10) r.
' 2 IllY1
t !Tel;
Giobai: 295 Lbs
, 4 PSF 1.10/
{7.5401 ) 11M
i 111
r.
a 9
7 6"
A A x
3/3/11
1
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this "Consent "), dated as of
f sr, 2011, is executed by CITY OF DUBUQUE, IOWA (the
"Uddersigned "), and EAGLE POINT ENERGY — 1, LLC, an Iowa limited liability
company ( "Licensee "), for the benefit of DUBUQUE BANK AND TRUST
( "Lessor ").
A. Licensee and Lessor are parties to that certain [Equipment Lease
Agreement] dated as of -§7:'2011 (the "Equipment Lease ") pursuant to
which Lessor has leased to icensee certain solar panels and related equipment
(the "System ").
RECITALS
B. The Undersigned and Licensee have entered into that certain
Agreement for Solar License and Power Purchase dated as of si 2011
(as amended, supplemented or modified from time to time in acco� with its
terms and the terms hereof, the "Contract "), pursuant to which Licensee will
install the System on premises owned by the Undersigned and Undersigned will
purchase the power produced by the System.
C. Pursuant to the Security Agreement dated as of<epJc7 / ,
2011 (the "Security Agreement "), between Licensee and Lessor, 'licensee has
assigned its interest under the Contract and in the System to Lessor as security
for Licensee's obligations under the Equipment Lease.
AGREEMENT
NOW THEREFORE, the Undersigned hereby agrees as follows:
1. The Undersigned consents to the Licensee's transfer, assignment
and grant of a security interest in the Contract and the System to Lessor
pursuant to the terms of the Security Agreement, and agrees with Lessor as
follows:
(a) Upon the occurrence of a default by Licensee under the Contract,
Lessor shall be entitled (but not obligated) to exercise all rights and to cure any
defaults of Licensee under the Contract. Upon a default under the Contract by
licensee and the receipt of notice from Lessor, the Undersigned agrees to accept
such exercise and cure by Lessor and to render all performance due by it under
the Contract and this Consent to Lessor. The Undersigned agrees to make all
payments to be made by it under the Contract directly to Lessor upon receipt of
Lessor's written instructions.
(b) The Undersigned will not, without the prior written consent of
Lessor (such consent not to be unreasonably withheld), (i) cancel or terminate
8 -2
the Contract or suspend performance of its services thereunder except as
expressly provided in the Contract and in accordance with paragraph 1(c) hereof,
or consent to or accept any cancellation, termination or suspension thereof by
Licensee, (ii) sell, assign or otherwise dispose (by operation of law or otherwise)
of any part of its interest in the Contract, or (iii) amend or modify the Contract in
any material respect. The Undersigned agrees to deliver duplicates or copies of
all notices of default delivered under or pursuant to the Contract to Lessor
promptly upon receipt or delivery thereof.
(c) The Undersigned will not terminate the Contract on account of any
default or breach of Licensee thereunder without written notice to Lessor and first
providing to Lessor (i) thirty (30) days from the date notice of default or breach is
delivered to Lessor to cure such default if such default is the failure to pay
amounts to the Undersigned which are due and payable under the Contract or (ii)
a reasonable opportunity, but not fewer than ninety (90) days, to cure such
breach or default if the breach or default cannot be cured by the payment of
money to the Undersigned so long as Lessor or its designee shall have
commenced to cure the breach or default within such ninety (90) -day period and
thereafter diligently pursues such cure to completion and continues to perform
any monetary obligations under the Contract and all other obligations under the
Contract are performed by Licensee or Lessor. If possession of the System is
necessary to cure such breach or default, and Lessor or its designee(s) or
assignee(s) declare Licensee in default and commence foreclosure proceedings,
Lessor or its designee(s) or assignee(s) will be allowed a reasonable period to
complete such proceedings. If Lessor or its designee(s) or assignee(s) are
prohibited by any court order or bankruptcy or insolvency proceedings from
curing the default or from commencing or prosecuting foreclosure proceedings,
the foregoing time periods shall be extended by the period of such prohibition.
The Undersigned consents to the transfer of Licensee's interest under the
Contract to Lessor or a purchaser or grantee at a foreclosure sale by judicial or
nonjudicial foreclosure and sale or by a conveyance by Licensee in lieu of
foreclosure and agrees that upon such foreclosure, sale or conveyance, the
Undersigned shall recognize Lessor or other purchaser or grantee as the
applicable party under the Contract (provided that Lessor or such purchaser or
grantee assumes the obligations of Licensee under the Contract).
(d) In the event that the Contract is rejected by a trustee or debtor -in-
possession in any bankruptcy or insolvency proceeding, or if the Contract is
terminated for any reason other than a default which could have been but was
not cured by Lessor as provided in paragraph 1(c) above, and if, within forty -five
(45) days after such rejection or termination, Lessor shall so request, the
Undersigned will execute and deliver to Lessor a new Contract, which Contract
shall be on the terms and conditions as the original Contract for the remaining
term of the Contract before giving effect to such termination.
(e) In the event Lessor or its designee(s) or assignee(s) elects to
perform Licensee's obligations under the Contract or to enter into a new Contract
as provided in subparagraph (c) or (d) respectively above, Lessor, its designee(s)
and assignee(s), shall have no personal liability to the Undersigned for the
performance of such obligations, and the sole recourse of the Undersigned in
seeking the enforcement of such obligations shall be to such parties' interest in
the System.
(f) In the event Lessor or its designee(s) or assignee(s) succeeds to
Licensee's interest under the Contract or enters into a new Contract, Lessor or its
designee(s) or assignee(s) shall cure any defaults for failure to pay amounts
owed under the Contract, but shall not otherwise be required to perform or be
subject to any defenses or offsets by reason of any of Licensee's other
obligations under the Contract that were unperformed at such time. Lessor shall
have the right to assign all or a pro rata interest in the Contract or a new Contract
entered into pursuant to subparagraph (d) to a person or entity to whom the
System is transferred, provided such transferee assumes the obligations of
Licensee (or Lessor) under the Contract. Upon such assignment, Lessor
(including their agents and employees) shall be released from any further liability
thereunder to the extent of the interest assigned.
2. The Undersigned hereby represents and warrants that:
(a) The execution, delivery and performance by the Undersigned of the
Contract and this Consent has been duly authorized by all necessary corporate
action, and does not and will not require any further consents or approvals which
have not been obtained, or violate any provision of any law, regulation, order,
judgment, injunction or similar matters or breach any agreement presently in
effect with respect to or binding on the Undersigned;
(b) This Consent and the Contract are legal, valid and binding
obligations of the Undersigned, enforceable against the Undersigned in
accordance with their respective terms;
(c) All government approvals necessary for the execution, delivery and
performance by the Undersigned of its obligations under the Contract have been
obtained and are in full force and effect;
(d) As of the date hereof, the Contract is in full force and effect and has
not been amended, supplemented or modified;
(e) Licensee has fulfilled all of its obligations under the Contract, and
there are no breaches or unsatisfied conditions presently existing (or which
would exist after the passage of time and /or giving of notice) that would allow the
Undersigned to terminate the Contract; and
(f) The Contract constitutes the only agreement between the
Undersigned and Licensee with respect to the matters and interests described
therein.
3. All Notices required or permitted hereunder shall be in writing and
shall be effective (a) upon receipt if hand delivered, (b) upon receipt if sent by
facsimile and (c) if otherwise delivered, upon the earlier of receipt or two (2)
business days after being sent registered or certified mail, return receipt
requested, with proper postage affixed thereto, or by private courier or delivery
service with charges prepaid, and addressed as specified below:
If to the Undersigned:
City of Dubuque, Iowa
City Manager
City Hall
50 West 13th Street
Dubuque IA 52001
Telecopy No: (319) 589 -4149
If to Lessor:
Dubuque Bank and Trust
Attn: [
1398 Central Avenue
Dubuque, IA 52001
Telecopy No: (563) 589 -2184
If to Licensee:
Eagle Point Energy — 1, LLC
923 Peru Road
Dubuque, IA 52001
4. This Consent shall be binding upon and inure to the benefit of the
Undersigned, the Licensee, the Lessor and their respective successors,
transferees and assigns (including without limitation, any entity that refinances all
or any portion of the obligations under the Equipment Lease). The Undersigned
agrees to confirm such continuing obligation in writing upon the reasonable
request of Licensee, Lessor or any of their respective successors, transferees or
assigns. No termination, amendment, variation or waiver of any provisions of this
Consent shall be effective unless in writing and signed by the Undersigned,
Lessor and Licensee. This Consent shall be governed by the internal laws of the
State of Iowa, without reference to principles of conflict of laws.
5. This Consent may be executed in one or more duplicate
counterparts, and when executed and delivered by all the parties listed below,
shall constitute a single binding agreement:
6. All references in this Consent to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments thereto,
(b) shall include all documents, instruments or agreements issued or executed in
replacement thereof, and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time.
IN WITNESS WHEREOF, the Undersigned by its officer thereunto duly
authorized, has duly executed this Consent as of the date first set forth above.
CITY OF DUBU!+UE, IOWA
By:
By:
Accepted and agreed to:
DUBUQUE BANK AND TRUST,
as Lessor
Roy D./ uol, Mayor
Title: 5&.44- cz.J I .AL25
EAGLE POINT ENERGY — 1, LLC,
as Licensee
By:
Barry Shear
Member /Manager
Ke in S. Fir stahl,
Acting City Clerk