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HomeMy WebLinkAbout2012 07.02 City Council Work Session Agenda IOW Cic 0 err 'L� r W of Apache Junction Home of the .S upe137ttion illountains APACHE JUNCTION CITY COUNCIL WORK SESSION CITY COUNCIL CHAMBERS 300 EAST SUPERSTITION BOULEVARD APACHE JUNCTION,ARIZONA 85219 Monday,July 2,2012 7:00 PM AGENDA 1 CALL TO ORDER. 2 ROLL CALL. 3 PRESENTATION AND DISCUSSION WITH REPRESENTATIVES FROM SIEMENS INDUSTRIES,INC. REGARDING SOLAR POWER PURCHASING AGREEMENT. In the efforts to implement vanous energy conservation measures in order to reduce overall utility costs and increase its environmental sustainability,an energy audit was initiated by the city in 2010 One of the recommendations was exploring the use of solar power. This presentation and discussion is regarding a proposed power purchasing agreement(PPA)with Siemens Industries,Inc.for the installation and maintenance of solar panels as covered parking structures at City Hall,Multigenerational Center and Library. Representatives from Siemens Industries,Inc_will give an overview of what the PPA entails,overview of the installation,maintenance and operational processes. 4 PRESENTATION AND DISCUSSION ON THE GIFT TO THE CITY OF FOUR ELECTRIC VEHICLE CHARGING PEDESTALS FROM ELECTRIC TRANSPORTATION ENGINEERING CORPORATION(dba ECOtality North America).TAMMY TEPPER- CUNNINGHAM, SALES MANAGER,WILL BE PRESENT FOR DISCUSSION. In 2009 and again in 2010,ECOtality was awarded a multimillion dollar grant from the U S.Department of Energy to embark on the"EV Project." This ambitious project entails the deployment of approximately 14,000 electric vehicle charging systems in eighteen major cities and metropolitan areas located in six states and the District of Columbia. Approximately two years ago,city staff made it known to ECOtality of its interest to possibly participate in the program.On June 5,2012 the city was offered the gift of four level 2 pedestal chargers including installation at the city's Multigenerational Recreation Center 5. ADJOURNMENT. Copies of this agenda and additional information regarding any of the items listed above may be obtained from the City Clerk's office. 300 East Superstition Boulevard,Apache Junction,AZ Monday through Thursdays,7.00a—6-00p,excluding holidays. If any person with a disability needs any type of accommodation,please notify the Human Resources Office,at (480)474-2617 or(480)983-0095(TOD)at least 72 hours prior to the scheduled time. tif rPac J` a 'Y . yCy • City of Apache Junction Home of the.SapenlilIoiz:\'lO!Uh/M 4 PiZONh Print TO: City Manager's Office FROM: Shane Kiesow, Public Works Manager DATE: July 2,2012 Agenda Type : Work Session Agenda Council Priority Focus Area: TITLE OF AGENDA ITEM: PRESENTATION AND DISCUSSION WITH REPRESENTATIVES FROM SIEMENS INDUSTRIES, INC. REGARDING SOLAR POWER PURCHASING AGREEMENT. ACTION REQUESTED: Presentation and Discussion DISCUSSION/BACKGROUND INFORMATION: In the efforts to implement various energy conservation measures in order to reduce overall utility costs and increase its environmental sustainability, an energy audit was initiated by the city in 2010. One of the recommendations was exploring the use of solar power. This presentation and discussion is regarding a proposed power purchasing agreement(PPA)with Siemens Industries, Inc.for the installation and maintenance of solar panels as covered parking structures at City Hall, Multigenerational Center and Library. Representatives from Siemens Industries, Inc.will give an overview of what the PPA entails, overview of the installation, maintenance and operational processes. FISCAL IMPACT: Budgetary Approval Not Required -OPTIONS/ALTERNATIVES: RECOMMENDATION: Approve ATTACHMENTS: Click to download ❑ Submittal letter ❑ Siemens PPA w attachments ?ACHE �, • Public Works Department • 0 ezty „to/4,4,4 Home of the Superstition Mountains 4H ZoP Date. June 21, 2012 To: Mayor and Members of the City Council Through- George Hoffman, Crty Manager Giao Pham, Intenm Public Works Director From. Shane Kiesow, Public Works Manager Subject. Discussion on Solar Facilities Power Purchasing Agreement City staff has been exploring solar panel options as part of its Energy Audit which began in 2010 in the efforts to implement various energy conservation measures in order to reduce overall utility costs and increase its environmental sustainability. This presentation and discussion is regarding a proposed power purchasing agreement (PPA)with Siemens Building Industries for the installation and maintenance of solar panels as covered parking structures at City Hall, Multigenerational Recreation Center and Library. Representatives from Siemens Building Technologies along with City staff will give an overview of what the PPA entails, overview of the installation, maintenance and operational processes. The enclosed PPA would require City Council approval for the Mayor to sign allowing the City to proceed with the project and also obtain the valuable Salt River Project(SRP) rebates. The viability of this project will depend on the SRP rebates meaning the ultimate goal is to have the solar project pay for itself with no cost to the City and the additional benefit of savings over time. This item is would be a regular session item for July 17th City Council regular session. PPA would need to be executed by August to secure the needed rebates through SRP. 575 E Baseline Avenue, Apache Junction.AZ 85219 • Voice(480)982-1055 • FAX(480)983-5752 or(480)982-8005 SOLAR ENERGY POWER PURCHASE AGREEMENT THIS SOLAR POWER PURCHASE AGREEMENT (this "PPA" or "Agreement") is made and entered into as of this day of July, 2012 (the "Effective Date"), by and between Siemens Industry, Inc, a Delaware corporation, through its Building Technologies Division ("Seller") and the City of Apache Junction, an Arizona Municipal Corporation ("Customer") Seller and Customer are sometimes '^ hereinafter referred to individually as a"Party"and collectively as the"Parties." WHEREAS, in order to effectuate the transactions contemplated hereby, Seller will sell to Salt River Project Agricultural Improvement and Power District, a political subdivision of the State of Arizona ("SRP") all of the Energy Output and all of the Environmental Attributes from the System pursuant to that certain Power Purchase and Sale Agreement between SRP and Seller("PPSA")attached hereto as Exhibit A WHEREAS, Customer desires to purchase from SRP all of the Energy Output and therefore, SRP, Customer and Seller are entering into that certain SRP Commercial Solar Energy Program Supplement to Program Requirements ("SRP Supplement Agreement") (attached hereto as Exhibit B) and Customer and Seller are entering into this PPA to establish the terms and conditions under which Customer will receive and pay for all the Energy Output,to facilitate the transactions contemplated by such agreements WHEREAS, concurrently herewith, Customer and Seller are entering that certain Site Lease Agreement(the"Site Lease") (attached hereto as Exhibit C)pursuant to which Seller agrees to lease a portion of Customer's premises located at 300 E Superstition Boulevard, Apache Junction, Arizona (the "Premises") as more particularly described in the Site Lease. WHEREAS, Seller intends to install and operate a solar energy facility (the "System")as more particularly defined in Exhibit D hereto PIN NOW THEREFORE, for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged,the parties agree as follows. ARTICLE I DEFINED TERMS; RULES OF INTERPRETATION 1 1 Defined Terms. Capitalized terms used in this PPA shall have the meanings ascribed to them in the Schedule of Definitions and Rules of Interpretation attached hereto as Schedule 1 and made an integral part of this PPA by this reference 1 2 Rules of Interpretation. The rules of interpretation in the Schedule of Definitions and Rules of Interpretation shall apply to this PPA unless expressly provided otherwise 1 ARTICLE II TERM 2 1 Term. The initial term of this PPA (the "Initial Term") shall commence on the Effective Date and shall be in effect until 00.00 hours Mountain Standard Time on the 20th anniversary of the Commercial Operation Date. The Term may be extended for additional periods by written agreement of the Parties executed no less than thirty (30) days prior to the expiration of the then current Term (each such extension, an "Extension Term"), with each such Extension Term expiring at 00 00 hours Mountain Standard Time on the respective anniversary of the Commercial Operation Date, unless earlier terminated by either Party pursuant to Section 9.2. The Initial Term and each Extension Term may not be terminated by either Party, except as expressly set forth in this PPA. 2.2 Conditions Precedent. The respective rights and obligations of the Parties under this PPA are expressly conditioned upon the satisfaction in full (or written waiver) of all of the following conditions. (a) Customer and Seller shall have entered into the Site Lease; (b) Seller and SRP shall have entered into the PPSA, (c) Seller, SRP and Customer have entered into the SRP Supplement Agreement; (d) If necessary for the sale of Energy Output pursuant to the terms of this PPA, Customer shall have entered into an interconnection agreement with the local electric utility, (e) Seller shall have entered into all applicable contracts required for the System to be placed in service, (f) Seller shall have obtained all necessary permits, licenses and other approvals required by Applicable Law to install and operate the System; (g) Customer shall have obtained, and provided Seller with proof of, insurance required to be maintained by Customer pursuant to the terms of this PPA; (h) Customer shall have provided Seller with a legal opinion regarding matters customary for a transaction of this type, including regarding the enforceability of this PPA, the Site Lease, and the SRP Supplement Agreement in form and substance satisfactory to Seller, and (i) Seller is not and will not be subject to regulation as a "public service corporation," "utility"or similar term under Arizona utility laws pnor to, on, or following operation of the System 2 If the conditions precedent above are not satisfied by February 1, 2013, Seller may terminate this PPA without penalty and without triggering the default provisions of Article 9 or incurring any liability under this PPA whatsoever Alternatively, in the event that such conditions precedent are not satisfied by such date, the Parties may mutually agree to amend this PPA 2.3 Notice of Commercial Operation. Seller shall notify Customer when the System is capable of Commercial Operation, and shall in such notice certify to Customer the Commercial Operation Date 2 4 Removal of System at End of Term Except as otherwise provided herein, Seller shall be entitled, within 180 days following the end of the Term, and at Seller's sole cost and expense, to remove the System from the Premises Customer shall allow Seller and its agents, consultants, and representatives to have access at all reasonable times to the Premises and the System for purposes of such removal The Seller is responsible to repair any and all damage caused by the removal of the System. 2 5 As-Available Energy The Parties acknowledge that the Energy Output delivered hereunder is delivered "as available"to Customer and Seller's failure to deliver Energy Output for any reason shall not give rise to any default, claim or damages by Customer hereunder 2.6 Survival. Effective as of any termination of this PPA, the Parties will no longer be bound by the terms and conditions of this PPA, except (a) to the extent necessary to enforce any rights and obligations of the Parties, including payment obligations, arising under this PPA prior to and upon termination of this PPA, (b) as provided in Article 13, and (c) that the obligations of the Parties under this PPA with respect to indemnification will survive the termination of this PPA (but only with respect to claims for indemnification based upon events or circumstances occurring or arising on or before the termination of this PPA). ARTICLE III PURCHASE AND SALE, DELIVERY, GOVERNMENTAL CHARGES 3 1 Purchase and Sale of Energy. Commencing on the Commercial Operation Date and continuing throughout the remainder of the Initial Term and any Extension Term, Seller shall make available to Customer through SRP, and Customer shall take delivery of and purchase, at the Delivery Point, all of the Energy Output, whether or not Customer is able to use such Energy Output Customer is responsible for any Energy Output delivered by Seller at the Delivery Point that is in excess of the Energy Output required by Customer at the Premises. Neither Party shall seek to change any of the rates or terms of this PPA by making a filing or application with any local, state or federal agency with jurisdiction over such rates or terms or exercise any rights a Party may have, if any, to seek changes to such rates or terms during the Initial Term or any Extension Term of this PPA 3 3.2 Pnce for Energy Output, Payment. Customer acknowledges that Seller will be paid by SRP for the Energy Output and that Customer shall pay SRP for Customer's receipt of the Energy Output pursuant to the SRP Supplement Agreement, as measured by the Project Metering Device The payment for the Energy Output will be made by Customer pursuant to the SRP Supplement Agreement 3 3 [reserved] 3 4 Payment for Curtailed Energy If Customer curtails or otherwise fails to accept Energy Output produced, or that would otherwise have been produced and delivered to the Delivery Point but for such curtailment or failure to accept, Customer shall pay to Seller at the rate that SRP would have paid Seller under the PPSA for all Energy Output that would have been produced and delivered to the Delivery Point but for Customer's curtailment or failure to accept 3 5 Title and Risk of Loss. Title to and nsk of loss of the Energy Output will pass from Seller to Customer at the Delivery Point Seller warrants that it will deliver the Energy Output to Customer at the Delivery Point free and clear of all liens, security Interests, claims, and other encumbrances 3 6 Governmental Charges. Customer shall be responsible for, and pay, all Governmental Charges imposed on the delivery and sale of Energy Output by Seller through SRP to Customer, whether imposed before, upon or after the delivery of Energy Output to Customer at the Delivery Point Both Parties shall use reasonable efforts to administer this PPA and implement its provisions so as to minimize Governmental Charges In the event any of the sales of Energy hereunder are to be exempted from or not subject to one or more Governmental Charges, promptly upon Seller's request therefore, Customer shall provide Seller with all necessary documentation to evidence such exemption or exclusion 3 7 Station Power. Customer shall provide Seller, at no cost to Seller, with /O• Station Power. 4 ARTICLE IV ENVIRONMENTAL ATTRIBUTES AND ENVIRONMENTAL FINANCIAL INCENTIVES 4.1 Environmental Attributes and Environmental Financial Incentives The Parties agree that Seller will transfer any applicable Environmental Attributes to SRP in accordance with the PPSA Customer shall take reasonable measures to assist Seller in obtaining all Environmental Attributes and Environmental Financial Incentives currently available or subsequently made available in connection with the System. At Seller's request and expense, Customer shall execute all such documents and instruments reasonably necessary or desirable to effect or evidence Seller's, SRP's or its assignee's right, title and interest in and to the Environmental Attributes and the Environmental Financial Incentives, as applicable If the standards used to qualify the Environmental Attributes or Environmental Financial Incentives to which Seller is entitled under this Agreement are changed or modified, Customer shall, at Seller's request and expense, use reasonable efforts to cause the Environmental Attributes and/or Environmental Financial Incentives to comply with new standards as changed or modified. If Customer acts in bad faith in completing documentation or taking actions reasonably requested by Seller, and such acts result in the loss of an Environmental Attribute or Environmental Financial Incentive that would otherwise be available, Customer shall reimburse Seller for the full amount of such lost Environmental Attribute and/or Environmental Financial Incentive. Customer shall not knowingly take any action or suffer any omission that would have the effect of impairing the value to the Seller of the currently available Environmental Attributes and Environmental Financial Incentives 4 2 Reporting of Ownership of Environmental Attributes and Environmental Financial Incentives. Customer shall not report to any Person that any Environmental Attributes or Environmental Financial Incentives relating to the Energy Output belong to any Person other than Seller. 4 3 Capacity Rights Notwithstanding the purchase and sale of Energy Output pursuant to Section 3.1, all Capacity Rights shall remain the property of Seller Seller shall have all right, title and interest m and to any and all Capacity Rights that relate to the System during the Term. ARTICLE V CONSTRUCTION AND INSTALLATION OF THE SYSTEM 5 1 Installation. Subject to Section 5 2, Seller will cause the System to be designed, engineered, installed and constructed substantially in accordance with the terms of this PPA and the Site Lease. Customer shall have the right to review all construction plans. Seller shall procure all materials and equipment for the installation of the System and maintain the same at the Premises Subject to the terms of the Site Lease and to the extent commercially practical, Seller shall perform the installation of the system in a manner that minimizes inconvenience to, and interference with, Customer Notwithstanding the foregoing, in the event that Seller determines m its sole discretion 5 that it is unable to install or interconnect the System at the Premises, it shall be under no obligation to do so, and this PPA shall terminate and be of no further force and effect upon wntten notice from Seller to Customer to that effect. 5.2 Utility Approvals Seller shall be responsible for and bear all costs associated with applying for and obtaining all permits, licenses and approvals required for the installation, operation, and maintenance of the System. Notwithstanding the foregoing, Customer agrees to assist and cooperate with Seller in obtaining all necessary permits, licenses and approvals in connection with the installation, operation and maintenance of the System, including but not limited to the submission of applications for interconnection of the System with the local electric utility, if any Customer shall not make any material changes to its electrical equipment at the Premises after the date on which the applicable utility interconnection application is submitted unless any such changes, individually or in the aggregate,would not adversely affect the approval by such utility of such interconnection. Should the local electric utility or the local inspector fail to approve the interconnection of the System with respect to the Premises or require equipment in addition to the equipment set forth in Exhibit Din connection with the Premises, Seller may terminate this PPA immediately subsequent to notification from the local utility of such failure to approve or additional requirement without further liability to Seller The Parties shall not be obligated to proceed with the installation of the System if the applicable utility or inspector approvals are conditioned upon material upgrades to the existing electrical infrastructure and neither Party elects to provide for such upgrades 5 3 Energy Delivery The Commercial Operation Date shall be the date that Seller has given written notice to Customer and SRP that the deliveries of Energy Output have commenced, consistent with the definition of Commercial Operation Date in the PPSA Notwithstanding anything to contrary, Seller shall not have any liability to Customer for delays to the Commercial Operation Date. 5 4 Customer Cooperation and Responsibilities Customer will cooperate with Seller and any third parties with whom Seller contracts by providing access to the Premises during working hours without unreasonable restrictions Customer shall cooperate with Seller in obtaining and maintaining all permits and licenses required for Commercial Operation as further described in Section 5 2 5 5 Hazardous Materials. (a) The Customer shall disclose m writing to Seller,prior to the execution of the this PPA, all Hazardous Materials present, potentially present, or likely to become present, at the Premises and Customer agrees to accomplish the Remediation of such,at its own cost and expense. Except as disclosed in accordance with the foregoing, the Customer represents that there are no Hazardous Materials at the Premises Seller will notify the Customer immediately if it discovers or suspects the presence of any Hazardous Materials at the Premises 6 PIN (b) In the event that any Hazardous Matenals are later discovered, the existence of such Hazardous Materials shall be deemed to constitute a change in the construction of the System equivalent to a material change in the PPA, which change must be agreed to by Seller and Seller may suspend further performance of its obligations hereunder until the Customer shall have accomplished the Remediation at the Customer's sole cost and expense. Even if an appropriate modification has been entered into pursuant to this section, Seller will continue to have the right to suspend construction and installation until the /'N Premises is free from Hazardous Matenals In such event, Seller will receive an equitable extension of time to complete its obligations, and additional compensation through separate invoice to Customer by Seller,considered extra services, for delays caused by Remediation Any suspension by Seller pursuant to this section shall not relieve the Customer of its obligations hereunder. (c) The Customer warrants that it has provided to Seller a copy of all current jobsite safety policies, mcludmg but not limited to lock-out and tag procedures, laboratory procedures, chemical hygiene plan, material safety data sheets, and other items covered or required to be disclosed or maintained by federal, state, or local laws, regulations or ordinances 5.6 Performance Assurance If Seller at any time has reasonable grounds to believe that Customer's creditworthiness poses a material risk to its performance under this Agreement, Seller may by written notice to Customer require Customer to provide Performance Assurance in an amount specified by Seller within five (5) Business Days of such written notice ARTICLE VI OWNERSHIP,MAINTENANCE OF SYSTEM 6 1 Ownership of System by Seller. Seller shall own the System, and shall be entitled to all ownership benefits of the System, including, without limitation, the right to /1 own, claim and retain any and all Environmental Attributes and Environmental Financial Incentives Seller shall be entitled to file as a protective notice as to Seller's ownership of the System any reasonably necessary Uniform Commercial Code financing statements with such authonties and with any filing office as Seller may determine are reasonably necessary or advisable to protect Seller's interest in the System and/or this PPA Customer authorizes Seller to file(and Customer shall execute if requested by Seller) any Uniform Commercial Code financing statements (including any amendments thereto) or similar filings with such authorities and with any filing offices as Seller may determne are necessary or advisable to protect Seller's interest in the System and/or this PPA. 6 2 Lease of Premises. Pursuant to the terms and conditions of the Site Lease being entered into concurrently herewith,the Parties acknowledge and agree that Seller is leasing the portion of Premises upon which the System is located 6 3 Maintenance of System by Seller Seller shall maintain the System in good condition and repair in accordance with applicable contractor, subcontractor and vendor 7 warranties and guarantees and manufacturer's specifications,all Applicable Laws,and the applicable requirements of the insurance policies mamtamed by Customer (copies of which have been provided to Seller) with respect to the System, and the terms of this PPA. Seller and its agents, consultants, and representatives shall have access at all reasonable times (including under emergency conditions) to the Premises and the System, all System operations, and any documents, materials and records and accounts relating thereto for purposes of inspection and maintenance of the System During any inspection enN or maintenance of the System, Seller, and its agents, consultants and representatives shall comply with Customer's reasonable safety and security procedures, and Seller and its agents, consultants and representatives shall conduct such inspection and maintenance in such a manner as to cause minimum interference with Customer's activities. 6 4 Expansion; Modification Seller may choose at any time to expand or modify the System including, among other reasons (none of which shall be prohibited by this PPA) adding solar power-generating equipment and or interconnection facilities and increasing the electrical capacity Such expansion or modification may require additional space at the Premises Notwithstanding the above, Seller shall not expand or modify the System (except as otherwise contemplated in this PPA) without Customer's consent, which shall not be unreasonably withheld. Customer shall consider in good faith any request by Seller to provide any additional space at no cost to Seller if required by Seller. ARTICLE VII METERING 7.1 Seller shall install separate and independent meters on the System that are reflected on the plans and will be monitored by the Seller Seller shall comply with metering requirements of SRP to include installation of phone/data circuits to meet metering requirements. Seller shall install metering equipment and data circuit for metering by Customer to connect to Customer's energy information system All costs associated with installation of phone/data circuits and monthly fees are to be paid by Seller ARTICLE VIII LOSS,DAMAGE OR DESTRUCTION OF SYSTEM; INSURANCE,FORCE MAJEURE 8 1 System Loss (a) Subject to Customer's obligation to indemnify Seller set forth in Section 11 1, Seller shall bear the risk of any System Loss. (b) In the event of any System Loss that, in the reasonable judgment of Seller, results in less than total damage, destruction or loss of the System, this PPA will remain in full force and effect and Seller has the option, at Seller's absolute and sole discretion and sole cost and expense,to repair or replace the System as quickly as practicable Seller shall be entitled to all proceeds of insurance with respect to the System 8 (c) In the event of any System Loss that, in the reasonable judgment of Seller, results in total damage, destruction or loss of the System, Seller shall, within forty-five (45) days following the occurrence of such System Loss, notify Customer whether Seller is willing,notwithstanding such System Loss, to repair or replace the System. In the event that Seller notifies Customer that Seller is not willing to repair or replace the System, this PPA will terminate automatically effective upon the delivery of such notice, and Seller shall be entitled to all proceeds of insurance with respect to the System, provided, however, that proceeds paid on account of damage to the Premises shall be paid to Customer, and provided, further, that there shall be no further liability to Seller. 8.2 Insurance (a) Each Party will, at its own cost and expense, maintain commercial general liability insurance with limits not less than $2,000,000 for injury to or death of one or more persons in any one occurrence and$1,000,000 for damage or destruction to property in any one occurrence Each Party will name and endorse the other Party as an additional insured in each such policy. For the avoidance of doubt, Seller's property insurance shall cover the System and Customer's property insurance shall cover the Premises upon which the System is located (b) Customer will maintain worker's compensation and employer's liability insurance, including Stop Gap coverage, in compliance with Applicable Laws The limits of employers' liability insurance shall not be less than$1,000,000. (c) Customer shall provide and maintain insurance against any System Loss, including business interruption insurance, in an amount not less than the System Loss Amount, with loss payable to Seller The period of indemnity shall not be less than twelve (12) months. Each policy shall waive the insurer's right of subrogation, except that Customer's policy shall provide that in the event of casualty or loss at the Premises ,�. affecting the System, Seller's property insurer may proceed against the Customer's property insurer. Any such policies of insurance shall expressly provide that said insurance as to Seller shall not be invalidated by any act, omission or neglect of Customer and cannot be canceled without at least fifteen (15) days prior written notice to Seller. As to each such policy, Customer shall furnish to Seller a certificate of insurance from the insurer, which certificate shall evidence the insurance coverage required by this Section 8 2 In the event that Customer is, notwithstanding the use of its commercially reasonable efforts, unable to obtain the insurance required by this Section, Seller shall be entitled to obtain such insurance at Customer's cost and expense. Customer shall, promptly upon demand therefor from Seller, reimburse Seller for the full cost and expense of any such insurance that is obtained by Seller. Notwithstanding the foregoing, Seller shall be responsible for all insurance and shall reimburse Customer for insurance for all periods (computed on a pro rata daily basis) for which the System is not in operation in excess of five (5) days a year in the aggregate (d) The provisions of this PPA shall not be construed so as to relieve any 9 insurer of its obligation to pay any insurance proceeds in accordance with the terms and conditions of valid and collectible insurance policies The liability of the Parties shall not be limited by insurance 8 3 Performance Excused by Force Majeure To the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under this Agreement and such Party (the "Claiming Party") gives notice and details of the Force Majeure to the other Party as soon as practicable (and in any event within five business days after the Force Majeure first prevents performance by the Claiming Party), then the Claiming Party will be excused from the performance of its obligations under this Agreement (other than the obligation to make payment then due or becoming due under this Agreement) The Claiming Party will use commercially reasonable efforts to eliminate or avoid the Force Majeure and resume performing its obligations under this Agreement, provided, however, that neither Party is required to settle any stnkes, lockouts or similar disputes except on terms acceptable to such Party, in its sole discretion. The non-Claiming Party will not be required to perform or resume performance of its obligations to the Claiming Party corresponding to the obligations of the Claiming Party excused by Force Majeure for so long as the claim of Force Majeure continues In case an event of Force Majeure continues for at least one year with respect to the System, then either Party may terminate this Agreement by written notice to the other Party ARTICLE IX EVENTS OF DEFAULT; REMEDIES 9.1 Events of Default An "Event of Default" means, with respect to a Party (a "Defaulting Party"), the occurrence of any of the following. (a) Customer's failure to make, when due, any payment required under this PPA for Energy Output delivered to the Delivery Point, and such remains unremedied for a penod of five (5) days from the due date thereof, (b) the failure to make, when due, any payment or Performance Assurance required under this PPA (other than as described in Section 9.1(a), if such failure is not remedied within twenty(20) days after written notice; (c) the failure to perform any material covenant or obligation set forth in this PPA (except to the extent constituting a separate Event of Default), if such failure is not remedied within thirty (30) days after receipt of wntten notice (or such longer period not to exceed sixty (60) days, provided such failure is capable of being cured within such sixty(60) day period and the Defaulting Party is diligently attempting performance), (d) such Party becomes Bankrupt; (e) such Party fails to provide or maintain in full force and effect any required 10 insurance, (f) Lessor (as defined in the Site Lease), makes a Transfer (as defined in the Site Lease) without prior written notice to Seller, such Lessor transferee does not agree to be bound by the terms of the Site Lease, or both, (g) default by Lessor (as defined in the Site Lease) under the Site Lease, which interferes with the System operation for more than thirty (30) days, and which shall be a Customer default; or (h) termination of the PPSA or the SRP Supplement Agreement,due to (a) Customer's default under the SRP Supplement Agreement, (b) Customer default specified in section 2.3 of the PPSA, or(c)termination or disconnection of a Customer account with SRP 9 2 Remedies for Event of Default. If at any time an Event of Default with respect to a Defaulting Party has occurred and is continuing (except as otherwise provided in Section 9.3), the other Party (the "Non-Defaulting Party") will, without limiting the nghts or remedies available to the Non-Defaulting Party under this PPA or Applicable Law, have the right. (a) by notice to the Defaulting Party, to designate a date, not earlier than the date such notice is effective and not later than forty-five (45) days after the date such notice is effective, as an early termination date("Early Termination Date") in respect of this PPA, (b) to withhold any payments due to the Defaulting Party under this PPA, and (c) to suspend performance due to the Defaulting Party under this PPA. In the event that the Non-Defaulting Party designates an Early Termination Date, this ,.� PPA will terminate as of the Early Termination Date 9 3 Customer Rights Upon Termination for Default In the event that Customer is the Non-Defaulting Party, and that Customer elects to terminate this PPA as provided in Section 9 2, Customer will be entitled, in its sole and absolute discretion, either to. (a) require that Seller remove the System (or to remove and have stored the System at Seller's sole cost and expense if Seller fails to remove the System within forty- five(45) days after the Early Termination Date), or (b)exercise the Purchase Option provided in Section 12 1. 9 4 Seller Rights Upon Termination for Default. In the event that Seller is the Non-Defaulting Party, and that Seller elects to terminate this PPA as provided in Section 9.2, Seller will be entitled, in its sole and absolute discretion, to. 11 (a) require that Customer pay the Default Termination Value calculated as set forth on Schedule 2 hereto, (b) continue to sell all electricity produced by the System directly or indirectly to persons other than Customer and recover from Customer any loss in expected revenues under this Agreement resulting from such sales, and in connection therewith, Customer shall continue to perform its obligations under the Site Lease, including permitting Seller to utilize the Delivery Point or arrange for an alternative delivery point with the Local Distribution Company, (c) remove the System, at Customer's sole cost and expense, and/or (d) exercise all other remedies at law or in equity. 9 5 Remedies Cumulative Except as provided in Sections 9.3 and 9 4, the rights and remedies contained in this Article 9 are cumulative with the other rights and remedies available under this PPA or at law or in equity 9 6 Unpaid Obligations The Non-Defaulting Party shall be under no obligation to prioritize the order with respect to which it exercises anyone or more rights and remedies available under this PPA Notwithstanding anything to the contrary herein, the Defaulting Party shall in all events remain liable to the Non-Defaulting Party for any amount payable by the Defaulting Party in respect of any of its obligations remaining outstanding after any such exercise of rights or remedies 9 7 Suspension of PPSA. In the event that SRP suspends its obligations under the PPSA to purchase Metered Output and Environmental Attributes as a result of a Customer default, Customer shall pay to the Seller an amount equal to the expected number of kWh of Energy that would otherwise have been delivered under this Agreement plus payment for Environmental Attributes that SRP would otherwise have .•. paid ARTICLE X REPRESENTATIONS AND WARRANTIES, ACKNOWLEDGEMENTS 10 1 Representations and Warranties Each Party represents and warrants to the other Party that. (a) the execution, delivery and performance of this PPA and each other document executed and delivered in accordance with this PPA are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; (b) subject to all conditions precedent described herein, this PPA and each other 12 document executed and delivered in accordance with this PPA constitutes its legally valid and binding obligation enforceable against it in accordance with its terms, subject to any bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally, and with regard to equitable remedies, the discretion of the applicable court; (c) it is acting for its own account, and has made its own independent decision to enter into this PPA and each other document executed and delivered in accordance with this PPA, and is not relying upon the advice or recommendations of the other Party in so doing, (d) it is capable of assessing the ments of and understanding, and understands and accepts, the terms, conditions and risks of this PPA and each other document executed and delivered in accordance with this PPA, (e) it understands that the other Party is not acting as a fiduciary for or an adviser to it or its Affiliates, and (f) the various charges and fees contained in this PPA and each other document executed and delivered in accordance with this PPA are the result of arms' length transactions. 10 2 Customer Representation Regarding Premises. Customer further represents and warrants to Seller that. (a) its real property interest in the Premises is fully sufficient for the purposes of this PPA and each other document executed and delivered in accordance with this PPA; (b) to the best of its knowledge following due inquiry, there are no Hazardous Matenals existing at the Premises that will require removal or abatement in order for Seller to install and/or maintain the System as identified herein, and, (c) Customer has reviewed the design of the System and, assuming proper installation without defects, has satisfied itself that the System will not damage the Premises (d) Customer agrees to be in full compliance with SRP's Rules and Regulations and will take no action that would cause termination or disconnection of SRP's Customer account with SRP 10.3 Acknowledgement Regarding Bankruptcy Code The Parties acknowledge and agree that, for purposes of this PPA, (a) neither Seller nor Customer is a "utility" as such term is used in Section 366 of the Bankruptcy Code, and each Party agrees to waive and not to assert the applicability of the provisions of Section 366 in any bankruptcy proceeding wherein such Party is a debtor, and (b) this PPA constitutes a "forward contract" within the meaning of the Bankruptcy Code and agree that each Party is a "forward contract merchant"within the meaning of the Bankruptcy Code. 13 AIN 10 4 Use of Energy Customer represents and warrants that none of the electricity to be generated by the System will be used to generate energy for the purpose of heating a swimming pool 10 5 Acknowledgement Regarding Internal Revenue Code The Parties intend this PPA to be treated as a"service contract"within the meaning of Section 7701(e)(3) of the Internal Revenue Code. The Parties intend that neither Customer nor any party related to Customer shall acquire the nght to operate the System or be deemed to operate the System for purposes of Section 7701(e)(4)(A)(i) of the Internal Revenue Code, and the teens of this PPA shall be construed consistently with the intention of the Parties ARTICLE XI INDEMNITY,LIABILITY LIMITATIONS 11 1 Indemnity. To the fullest extent permitted by law, each Party (the "Indemnitor") hereby indemnifies and agrees to defend and hold harmless the other Party (the "Indemmtee") from and against any and all Indemnity Claims, whether nor not involving a third-party claim, caused by, resulting from, relating to or ansing out of(i) any breach of this PPA, the Site Lease or the SRP Supplement Agreement by the Indemmtor or any of its directors, officers, employees or agents or(ii) any negligence or intentional misconduct on the part of the Indemmtor or any of its directors, officers, employees or agents,provided, however, that the Indemmtor will not have any obligation to indemnify the Indemmtee from or against any Indemnity Claims to the extent caused by,resulting from,relating to or arising out of the negligence or intentional misconduct of the Indemnitee or any of its directors,officers, employees or agents 11 2 Liability Limitations Notwithstanding anything to the contrary, in no event shall either Customer or Seller be liable to the other party for special, indirect, incidental or consequential damages, including commercial loss, loss of use, or lost profits, even if either party has been advised of the possibility of such damages In any event, Seller's aggregate liability for any and all claims, losses, damages or expenses arising out of this PPA, the Site Lease or the SRP Supplement Agreement, or out of any goods or services furnished under this PPA, the Site Lease or the SRP Supplement Agreement, whether based in contract, negligence, strict liability, agency, warranty, trespass, indemnity or any other theory of liability, shall be limited to $1,000,000 ARTICLE XII SYSTEM PURCHASE AND SALE OPTIONS 12 1 Grant of Purchase Option, Exercise. For and in consideration of the payments made by Customer under this PPA, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, Seller hereby grants Customer the right and option to purchase all of Seller's right, title and interest in and to the System Assets upon the expiration of the Initial Term or the applicable Extension Term on the terms set forth in this PPA (the "Purchase Option"). 14 elk Customer shall have from between one hundred eighty (180) and ninety 90) days prior to the expiration of the Initial Term or then applicable Extension Term (the "Exercise Period")to exercise the Purchase Option Customer must exercise the Purchase Option, if at all, by providing a notice (an "Exercise Notice") to Seller Once Customer delivers an Exercise Notice to Seller, such exercise shall be irrevocable. The purchase of the System Assets pursuant to such Purchase Option will, in such case, occur on the day after the conclusion of the Initial Term or then applicable Extension Term (the "Transfer Date"), provided, however, that in the event an Independent Appraiser is used to determine the Purchase Price, the Transfer Date shall occur no later than forty-five (45) days following the date on which the Independent Appraiser issues the Final Determination. The Purchase Price payable by Customer for the System Assets shall be equal to the higher of the Default Termination Value for the last contract year set forth in Schedule 2 or the fair market value as agreed between the Parties, or, if no agreement, as is determined by the Independent Appraiser in accordance with the terms of this Article XII(m either case, the fair market value shall be determined on an in place and in continued use basis in accordance with definitions and standards set forth by the Amencan Society of Appraisers) 12 2 Customer Request for Appraisal of System Value If(a) Customer and Seller are not able to agree on a Purchase Price before the end of the Exercise Period, not later than seventy-five (75) days prior to the end of the Initial Term or any Extension Term, or(b) in the Event of Default with respect to Seller in the notice under Section 9 2, Customer may provide a notice to Seller requinng a determination of the Purchase Price (as defined below)in accordance with Section 12 4 12.3 Selection of Independent Appraiser Within thirty (30) days of Seller's receipt of a notice provided under Section 12.2, Seller and Customer shall mutually agree upon an Independent Appraiser. If Seller and Customer do not agree upon the appointment of an Independent Appraiser within such thirty (30) day period, then at the end of such thirty (30) day period Seller and Customer shall notify each other in writing of their respective designation of three proposed Independent Appraisers. Seller and Customer shall each withm five (5) Business Days of receipt of such notice strike two of the proposed Independent Appraisers designated by Seller and Customer, respectively, other and shall provide notice thereof to the other party The remaining two proposed Independent Appraisers shall, within two (2) Business Days of each party's notice, select one of themselves to perform the valuation and provide notice thereof to Seller and Customer, provided that if either Seller or Customer still objects to the valuation being performed by such selected Independent Appraiser, then, within two(2) Business Days of the selection notice, such two proposed Independent Appraisers shall select a third Independent Appraiser (who may be one of the Independent Appraisers ongmally designated by the parties or another Independent Appraiser) and such third Independent Appraiser shall perform the duties of the Independent Appraiser as set forth herein. Such selection shall be final and binding on Seller and Customer. If no agreement is made as to the selection of an Independent Appraiser, either Party may apply for the judicial appointment of such Independent Appraiser. 15 12.4 Determination of Purchase Pnce The Independent Appraiser shall, within thirty (30) days of appointment, make a preliminary determination of the Purchase Price (the "Preliminary Determination") Upon making such Preliminary Determination, the Independent Appraiser shall provide such Preliminary Determination to Seller and Customer, together with all supporting documentation that details the calculation of the Preliminary Determination Seller and Customer shall have the right to object to the Preliminary Determination within thirty (30) days of receiving such Preliminary Determination Within fifteen(15)days after the expiration of such thirty(30)day period, the Independent Appraiser shall issue the Independent Appraiser's final determination (the "Final Determination") to Seller and Customer, which shall specifically address the objections received by the Independent Appraiser and whether such objections were taken into account in making the Final Determination. Except in the case of fraud or manifest error, the Final Determination of the Independent Appraiser shall be final and bmdmg on the Parties 12.5 Costs and Expenses of Independent Appraiser Seller and Customer shall each be responsible for payment of one half of the costs and expenses of the Independent Appraiser. 12.6 Terms of System Purchase On the Transfer Date (a) Seller shall surrender and transfer to Customer all of Seller's right, title and interest in and to all System Assets and shall retain all liabilities ansmg from or related to the System Assets prior to the Transfer Date, (b) Customer shall pay the Purchase Pnce, by certified check, bank draft or wire transfer and shall assume all liabilities arising from or related to the System Assets from and after the Transfer Date, and (c) both Parties shall (i) execute and deliver a bill of sale and assignment of contract nghts containing such representations, warranties, covenants and other terms and conditions as are usual and customary for a sale of assets similar to the System, together with such other conveyance and transaction documents as are reasonably required to fully transfer and vest title to the System Assets in Customer, and (ii) deliver ancillary documents, mcludmg releases, resolutions, certificates, third person consents and approvals and such similar documents as may be reasonably necessary to complete the sale of the System Assets to Customer ARTICLE XIII CONFIDENTIALITY, PRESS RELEASES 13 1 Confidentiality. (a)Neither Party will use any Confidential Information for any purpose except such Party's performance under this PPA. Furthermore, neither Party will disclose any Confidential Information to any third party other than the Party's or the Party's Affiliates' officers, employees, lenders, prospective lenders, counsel, accountants or advisors (collectively, "Representatives"), who have a need to know such information and who have agreed to keep such terms confidential or are otherwise bound by confidentiality obligations at least as restrictive as those contained herem, provided, however, that a Party may disclose Confidential Information in order to comply with the requirements of any Applicable Law or regulation or any exchange, control area or 16 elk independent system operator rule, tariff or agreement or in connection with any judicial or regulatory proceeding or request by a governmental authority, provided further, however, that each Party will use reasonable efforts to prevent or limit any such disclosure (b) The obligations of the Parties under this Article will survive for a period of two(2)years from and after the termination of this PPA ARTICLE XIV RESERVED ARTICLE XV NOTICES 15.1 Notices All notices, requests, statements or payments ("Notices") will be made to the addresses and persons specified below All Notices will be made in writing except where this PPA expressly provides that notice may be made orally Notices required to be in writing will be delivered by hand delivery,overnight delivery,facsimile, or e-mail (so long as a copy of such e-mail notice is provided immediately thereafter in accordance with the requirements of this section by hand delivery, overnight delivery, or facsimile) Notice by facsimile will (where confirmation of successful transmission is received)be deemed to have been received on the day on which it was transmitted(unless transmitted after 5 00 p m at the place of receipt or on a day that is not a Business Day,in which case it will be deemed received on the next Business Day). Notice by hand delivery or overnight delivery will be deemed to have been received when delivered Notice bye- mail will be deemed to have been received when such e-mail is transmitted, so long as a copy of such e-mail notice is delivered immediately thereafter by hand delivery, overnight delivery, or facsimile When Notice is permitted to be provided orally, notice ^ by telephone will be permitted and will be deemed to have been received at the time the call is received. A Party may change its address by providing notice of the same in accordance with the provisions of this section Customer. City of Apache Junction 300 E Superstition Blvd Apache Junction,AZ, 85219 Attn: City Manager E-mail:CityManagerna,AJCity.Net Fax: (480)474-5129 Seller Siemens Industry,Inc Building Technologies Division 4025 E Cotton Center Blvd Phoenix,AZ 85040 Attn: Darcy Otis—Branch Manager 17 /14%, Fax (866)289-3046 ARTICLE XVI ASSIGNMENT; BINDING EFFECT 16 1 Assignment, Binding Effect The parties shall not, without the pnor written consent of the other, which consent will not be unreasonably withheld or delayed, assign, pledge or transfer all or any part of, or any nght or obligation under, this PPA, whether voluntarily or by operation of law, and any such assignment or transfer without such consent will be null and void Notwithstanding the foregoing, (a) changes in control of Seller shall not be deemed an assignment of this PPA,and(b) Seller shall be entitled to assign its rights and interests in this PPA for collateral purposes in connection with any equity or debt financing of Seller or Seller's Affiliates 16 2 Cooperation with Financing. Customer acknowledges that Seller may be financing the acquisition of the System and Customer agrees that it shall cooperate with Seller and its financing parties in connection with such financing of the System, including (a) providing a wntten consent to assignment on customary terms, and (b) the furnishing of such information, the giving of such certificates, and providing such opinions of counsel and other matters as Seller and its financing parties may reasonably request. 16 3 Assignment of Warranties or Supply Contracts In the event Customer exercises the Purchase Option pursuant to Article XII, Seller shall assign to Customer any then-existing warranties, and, at Customer's request, any equipment, maintenance, operations or supply contracts pertaining to the System or its operation. 16 4 Sale and Assignment of System and PPA Notwithstanding anything to the contrary in this PPA, Customer acknowledges and agrees that Seller may sell, assign, transfer and convey Seller's nght, title and interest in,under and to the System, this PPA, eIN the Site Lease and the SRP Supplement Agreement to one of its Affiliates; provided, however that Seller shall remain liable to perform all of the obligations set forth thereunder,unless Seller is released by Customer. ARTICLE XVII MISCELLANEOUS 17 1 Governing Law/Venue This PPA will be governed by the laws of the State of Anzona without giving effect to pnnciples of conflicts of laws Subject Venue for any litigation arising from this PPA shall only be proper in the Pmal County Superior Court or federal district court located in Phoenix, Arizona The Parties hereby waive any rights to request a change of venue, and waive their rights to a trial by jury to the extent permitted by law. 17 2 Entire Agreement; Amendments This PPA (including the exhibits, any 18 wntten schedules, supplements or amendments constitute the entire agreement between the Parties, and shall supersede any pnor oral or written agreements between the Parties, relating to the subject matter hereof. Any amendment, modification or change to this PPA will be void unless in wntmg and signed by both Parties. 17 3 Non-Waiver No failure or delay by either Party in exercising any right, power, privilege, or remedy hereunder will operate as a waiver thereof Any waiver must be in a wntmg signed by the Party making such waiver 17.4 Severability. If any part, term, or provision of this PPA is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect or impair the validity, legality, or enforceability of any other part, term, or provision of this PPA, and shall not render this PPA unenforceable or invalid as a whole Rather the part of this PPA that is found invalid or unenforceable will be amended, changed, or interpreted to achieve as nearly as possible the same objectives and economic effect as the ongmal provision, or replaced to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision, within the limits of Applicable Law or applicable court decisions, and the remainder of this PPA will remain in full force 17 5 No Third Party Beneficiaries. Nothing in this PPA will provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind 17 6 No Recourse to Affiliates This PPA is solely and exclusively between the Parties, and any obligations created herein on the part of either Party shall be the obligations solely of such Party No Party shall have recourse to any parent, subsidiary, partner, member, Affiliate, lender, director, officer or employee of the other Party for performance or non-performance of any obligation hereunder, unless such obligations were assumed in writing by the Person against whom recourse is sought 17 7 Relationships of Parties This PPA shall not be interpreted to create an association, joint venture, or partnership between the Parties nor to impose any partnership obligation or liability upon either Party. 17 8 Attorneys' Fees If any action, arbitration, judicial reference or other proceeding is instituted between the parties in connection with this PPA, the losing party shall pay to the prevailing party a reasonable sum for attorneys' and experts' fees and costs incurred in bringing or defending such action or proceeding (at tnal and on appeal) and/or enforcing any judgment granted therein The prevailing party shall be determined by the trial of fact based upon an assessment of which party's major arguments or positions taken in the proceedings could fairly be said to have prevailed over the other party's major arguments or positions on major disputed issues 17 9 Counterparts This PPA may be executed in several counterparts, each of which is an original and all of which together constitute one and the same instrument. A 19 signature on a copy of this PPA received by either Party by facsimile is binding upon the other Party as an original Both Parties agree that a photocopy of such facsimile may also be treated by the Parties as a duplicate original. 17 10 Further Assurances The Parties shall do such further acts, perform such further actions, execute and deliver such further or additional documents and instruments as may be reasonably required or appropnate to consummate, evidence, or confirm the agreements and understandings contained herein and to carry out the intent and purposes of this PPA 17 11 Construction of Agreement This PPA and any ambiguities or uncertainties contained herein shall be equally and fairly interpreted for the benefit of and against all parties to this PPA and shall further be construed and interpreted without reference to the identity of the party or parties preparing this document, it being expressly understood and agreed that the parties hereto participated equally in the negotiation and preparation of this PPA or have had equal opportunity to do so Accordingly, the parties hereby waive the legal presumption that the language of the contract should be interpreted most strongly against the party who caused the uncertainty to exist. The captions used herein are for convenience only and are not a part of this PPA and do not in any way limit or amplify the terms and provisions hereof 17 12 Exhibits and Schedules Any and all exhibits and schedules referenced herein and/or attached hereto are hereby incorporated into this PPA by reference 17.13 Conflict of Interest This PPA is subject to Section 38-511, Arizona Revised Statutes r. 20 IN WITNESS WHEREOF,the Parties have executed this PPA as of this day of , 2012. CUSTOMER City of Apache Junction a By Its SELLER Siemens Industry, Inc. By: Its a 21 SCHEDULE 1 TO SOLAR ENERGY POWER PURCHASE AGREEMENT SCHEDULE OF DEFINITIONS AND RULES OF INTERPRETATION 1 Definitions. The definitions provided below and elsewhere in this PPA will apply to the defined terms used in this PPA- "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such entity. "Agreement"or"PPA"shall have the meanmg set forth in the Preamble to this PPA "Applicable Law" means, with respect to any governmental authonty, 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 such governmental authority, enforceable at law or in equity, along with the interpretation and administration thereof by any governmental authonty "Bankrupt" means that a Party or other entity (as applicable). (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger), (ii) becomes insolvent or is unable to pay its debts or fails (or admits in writing its inability) generally to pay its debts as they become due, (ui)makes a general assignment, arrangement or composition with or for the benefit of its creditors, (iv) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditor's nghts, or a petition is presented for its winding-up, reorganization or liquidation, which proceeding or petition is not dismissed, stayed or vacated within 30 days thereafter, (v) commences a voluntary proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, (vi) seeks or consents to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all of its assets; (vii) has a secured party take possession of all or substantially all of its assets, or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets, (viii) causes or is subject to any event with respect to it which,under the Applicable Laws of any jurisdiction,has an analogous effect to any of the events specified in clauses (i) to (vii) inclusive; or (ix) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. "Bankruptcy Code"means the United States Bankruptcy Code "Business Day" means any day except a Friday, Saturday, Sunday, or a Federal Reserve Bank holiday until the Customer's July 2012 policy requiring a "4-10s" schedule is changed or rescinded, in which case Business Day shall include Friday. 22 __ e "Capacity Rights"means rights to capacity associated with the electric generating capability of the System "Claiming Party"has the meaning ascribed to such term in Section 8 3 "Commercial Operation" means that the System is ready for regular, daily operation, has been connected to the Premises electrical system, and is capable of producing Energy Output "Commercial Operation Date" means the date that Seller provides notice to SRP and Customer that the following requirements have been satisfied. (a) the nameplate capacity of the Project has been constructed, commissioned and tested, (b) Seller has obtained all necessary rights under the interconnection agreement for the interconnection and delivery of the Metered Output (as defined in the PPSA) to the Delivery Point, and (c) Seller is capable of making available Metered Output from the Project to the Delivery Point as certified in wasting by Seller to Customer substantially in the form of Exhibit E "Confidential Information" means any non-public confidential or propnetary information of a Party or its Affiliates or any of its or their Representatives relating to this PPA and the System and revealed to the other Party or its Affiliates or any of its or their Representatives during the Term "Contract Year" means the consecutive 12 months period commencing on the Commercial Operation Date "Costs" means any fees, expenses and/or obligations incurred by either Party in connection with this PPA or breach thereof by the other Party. "Customer"shall have the meaning set forth in the Preamble to this PPA. p "Default Termination Value"means the applicable value set forth in Schedule 2. "Defaulting Party" shall have the meaning ascribed to such term in Section 9 1 "Delivery Point" means the point where the Energy Output is delivered under this PPA, which shall be the point where the Energy Output meets the SRP Metering Device. "Early Termination Date" shall have the meaning ascribed to such term in Section 9.2. "Effective Date"shall have the meaning set forth in the Preamble to this PPA. "Energy" means electric energy (three-phase, 60-cycle alternating current, expressed in kilowatt hours 23 /S /EN "Energy Output" means the amount of Energy generated by the System delivered to Customer at the Delivery Point, as metered in whole kilowatt-hours (kWh)by the Project Metering Device. The Energy Output delivered to Customer at the Delivery Point shall be deemed to be equal to the energy measured at the Project Metering Device "Environmental Attributes"means any and all presently existing or future benefits, emissions reductions,environmental air quality credits, emissions reduction credits, renewable energy credits,offsets and allowances,attributable to the Project during the Term,or otherwise attributable to the generation,purchase, sale or use of Metered Output from or by the Project during the Term,howsoever entitled or named, resulting from the avoidance,reduction,displacement or offset of the emission of any gas,chemical or other substance, including any of the same arising out of presently existing or future legislation or regulation concerned with oxides of nitrogen, sulfur or carbon,with particulate matter, soot or mercury, or implementing the United Nations Framework Convention on Climate Change("UNFCCC") or the Kyoto Protocol to the UNFCCC or crediting"early action" emissions reduction, or laws or regulations involving or administered by the Clean Air Markets Division of the Environmental Protection Agency, or any successor state or federal agency given jurisdiction over a program involving transferability of Environmental Attributes,and any right of a purchaser of renewable energy to report ownership of accumulated renewable energy certificates to any agency,authority or other party in compliance with applicable law and include rights under Section 1605(b)of the Energy Policy Act of 1992,and any present or future federal, state or local certification program or emissions tradmg program. Notwithstanding any other provision hereof, Environmental Attributes do not include (a)any investment tax credits and any other tax credits associated with the Project, (b)state, federal or private grants or other benefits related to the Project,or(c)Metered Output(as defined in the PPSA) "Environmental Financial Incentives" shall mean each of the following financial rebates and incentives that is in effect as of the Effective Date or may come into effect in the future (i) performance-based incentives, rebates and any other incentive programs offered by State of Arizona's any municipality's, any utility's or any other state's solar program or initiative„ including, without limitation, tax credits (including investment tax credits arising under the Internal Revenue Code), other tax benefits or grants in lieu thereof(including without limitation the monetization of tax benefits), and accelerated depreciation (collectively, "incentives"), howsoever named or referred to, with respect to any and all fuel, emissions, air quality, energy generation, or other environmental or energy characteristics, resulting from the construction, ownership or operation of the System or from the use of solar generation or the avoidance of the emission of any gas, chemical or other substance into the air, soil or water attributable to the sale of Energy generated by the System during the Term, and(ii)all reporting rights with respect to such incentives. "Event of Default"shall have the meaning ascribed to such term in Section 9.1 24 "Exercise Notice"shall have the meaning ascribed to such term in Section 12.1. "Exercise Period"shall have the meaning ascribed to such term m Section 12 1. "Extension Term"shall have the meaning ascribed to such term in Section 21 "Federal Energy Regulatory Commission" shall mean the United States Federal Energy Regulatory Commission, or any successor agency. "Final Determination"shall have the meaning ascribed to such term m Section 12 4 "Force Majeure"means an event or circumstance which prevents one Party from performing its obligations,which event or circumstance was not anticipated as of the date the transaction was agreed to,which is not within the reasonable control of, or the result of the negligence of,the claiming Party,and which,by the exercise of due diligence,the claiming Party is unable to overcome or avoid or cause to be avoided So long as the requirements of the preceding sentence are met, a"Force Majeure"event may include, but shall not be limited to, flood, drought, earthquake, storm, fire, lightning, epidemic, war,terrorism,not, sabotage or destruction by a third party(other than any contractor retained by or on behalf of the Party) of facilities and equipment relating to the performance by the affected Party of its obligations under this Agreement, action or inaction of governmental authority and strikes,walkouts, lockouts or similar industrial or labor actions or disputes;provided,however,that existence of the foregoing factors shall not be sufficient to conclusively or presumptively prove the existence of a Force Majeure absent a showing of other facts and circumstances which in the aggregate with such factors establish that a Force Majeure as defined in the first sentence hereof has occurred. "Governmental Charges" means all applicable federal, state and local taxes (other than taxes based on income or net worth), governmental charges, emission allowance costs, duties, tariffs, levies, licenses, fees, permits, assessments, adders or surcharges (including public purposes charges and low income bill payment assistance charges), imposed or authorized by a governmental authority, independent system operator, utility, transmission and distribution provider or other similar entity, on or with respect to the Energy or this PPA "Hazardous Materials" means asbestos or any other hazardous or toxic materials, as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the regulations promulgated thereunder, or other applicable federal, state or local law. "Indemmtee"has the meaning ascribed to such term in Section 11 1 "Indemmtor"has the meaning ascribed to such term in Section 11 1. "Indemnity Claims" means all losses, liabilities, damages, costs, expenses and attorneys' fees, whether incurred by settlement or otherwise. 25 "Independent Appraiser" means an individual who is a member of a national accounting, engineering or energy consulting firm qualified by education, experience and training to determine the value of solar generating facilities of the size and age and with the operational characteristics of the System Except as may be otherwise agreed by the Parties, the Independent Appraiser shall not be (or within three years before his appointment have been) a director, officer or an, employee of, or directly or indirectly retained as consultant or adviser to, Seller or any Affiliate of Seller or Customer "Initial Term"has the meaning ascribed to such term in Section 2 1 "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute. "Late Payment Interest Rate" means, for any date, the lesser of (i) [Number in letters] percent([Insert number]%) and(ii) the maximum rate permitted by Applicable Law "Local Distribution Company"means Salt River Project Agricultural Improvement and Power District, the owner of the local electric distnbution system that serves the Premises "Non-Defaulting Party"shall have the meaning ascribed to such term in Section 9 2. "Notices" shall have the meaning ascribed to such term in Section 15 1. "Party"or"Parties" shall have the meaning set forth in the Preamble to this PPA "Performance Assurance" means collateral in form and substance reasonably acceptable to the requesting Party, including but not limited to cash, bank letter of credit, or other security "Person" means an individual, general or limited partnership, corporation, municipal corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority, limited liability company, or any other entity of whatever nature "Preliminary Determination" shall have the meaning ascribed to such term in Section 12.4. "Premises" shall have the meaning set forth in the third WHEREAS clause of this PPA "Project Metering Device" means any and all meters located immediately before the Delivery Point on the Seller's side of the Utility Metering Device needed for the registration, recording and transmission of information regarding the Energy Output "Purchase Option"has the meaning ascribed to such term in Section 12.1 26 "Purchase Price" means the amount to be paid by the Customer in accordance with the provisions of Article XII "Remediation" means the testing and abating, encapsulating, removing, remedying or neutralizing of Hazardous Materials "Representatives"shall have the meaning ascribed to such term in Section 13 1(a) "Schedule of Definitions and Rules of Interpretation" shall have the meaning ascribed to such term m Section 1 1 "Seller"shall have the meaning set forth in the Preamble to this PPA "Site Lease" means the Site Lease Agreement dated concurrently herewith by and between the Parties Station Power"means electric energy consumed in the start-up and operation of the System,which is distinct from the alternating current output of the System "System" means the solar electric generating facility that produces the Energy Output sold and purchased under this PPA. The System is more particular descnbed in Exhibit D "System Assets" means each and all of the assets of which the System is comprised, including Seller's solar energy panels, mounting systems, inverters, integrators and other related equipment installed on the Premises, electric lines required to connect such equipment to the Delivery Point,protective and associated equipment, improvements, and other tangible and intangible assets, permits, property rights and contract rights reasonably necessary for the construction,operation, and maintenance of the System "System Loss" means loss, theft, damage or destruction of the System or System Assets, or any other occurrence or event that prevents or limits the System from operatmg in whole or in part, resulting from or arising out of any cause (including casualty, condemnation or Force Majeure) other than (i) Seller's negligence or intentional misconduct, (ii) Seller's breach of maintenance obligations under the PPA, or(ui) normal wear and tear of the System. "System Loss Amount" means an amount, calculated at any time to be at least equal to the then applicable Default Termination Value. "Term"means the Imtial Term and any Extension Term. "Transaction" means any transaction between the Parties under the terms of the PPA or the Site Lease or any other agreements,instruments,or undertakings between the Parties. "Transfer Date"shall have the meanmg ascribed to such term in Section 12.1. 27 "USD"means United States Dollars 2. Rules of Interpretation In this PPA,unless expressly provided otherwise: (a) the words "herein," "hereunder" and "hereof' refer to the provisions of this PPA and a reference to a recital, Article, Section, subsection or paragraph of this PPA or any other agreement is a reference to a recital, Article, Section, subsection or paragraph of this PPA or other agreement in which it is used unless otherwise stated, (b) references to this PPA, or any other agreement or instrument, mcludes any schedule, exhibit, annex or other attachment hereto or thereto, and references to this PPA, (c) a reference to a paragraph also refers to the subsection in which it is contained, and a reference to a subsection refers to the Section in which it is contained; (d) a reference to this PPA, any other agreement or an instrument or any provision of any of them includes any amendment, variation, restatement or replacement of this PPA or such other agreement, instrument or provision, as the case may be; (e) a reference to a statute or other law or a provision of any of them includes all regulations, rules, subordinate legislation and other instruments issued or promulgated thereunder as in effect from time to time and all consolidations, amendments,re-enactments, extensions or replacements of such statute, law or provision; (0 the singular includes the plural and vice versa, (g) a reference to a Person includes a reference to the Person's executors and administrators (in the case of a natural person) and successors, substitutes (including Persons taking by novation) and permitted assigns, (h) words of any gender shall include the corresponding words of the other gender, (i) "including" means "including, but not limited to," and other forms of the verb "to include"are to be interpreted similarly; (j) references to "or" shall be deemed to be disjunctive but not necessarily 28 exclusive, (i.e., unless the context dictates otherwise, "or" shall be interpreted to mean"and/or"rather than"either/or"); (k) where a period of time is specified to run from or after a given day or the day of an act or event, it is to be calculated exclusive of such day, and where a period of time is specified as commencing on a given day or the day of an act or event, it is to be calculated inclusive of such day, (1) a reference to a Business Day is a reference to a period of time commencing at 9 00 a m local time on a Business Day and ending at 5 00 p m local time on the same Business Day, (m)if the time for performing an obligation under this PPA expires on a day that is not a Business Day, the time shall be extended until that time on the next Business Day; (n) a reference to(i)a month is a reference to a calendar month and(ii) a year is a reference to a calendar year, (o) where a word or phrase is specifically defined, other grammatical forms of such word or phrase have corresponding meanings; (p) a reference to time is a reference to the time in effect in [Insert City, State] on the relevant date, (q) if a payment prescribed under this PPA to be made by a Party on or by a given Business Day is made after 2.00 pm on such Business Day, it is taken to be made on the next Business Day, and (r) if any index used in this PPA at any time becomes unavailable, whether as a result of such index no longer being published or the material alteration of the basis for calculating such index, then Seller and Customer shall agree upon a substitute index that most closely approximates the unavailable index as in effect prior to such unavailability If the base date of any such index is at any time reset, then the change to the index resulting therefrom shall be adjusted accordingly for purposes of this PPA. 29 SCHEDULE 2 TO SOLAR ENERGY POWER PURCHASE AGREEMENT Default termination value Der 9.4(a) Period Termination From the Commercial Value Operation Date Month 1 $ 3,745,241 Month 2 $ 3,757,488 Month 3 $ 3,768,272 Month 4 $ 3,777,449 Month 5 $ 3,785,152 Month 6 $ 3,792,847 Month 7 $ 3,798,915 Month 8 $ 3,803,498 Month 9 $ 3,808,056 Month 10 $ 3,810,967 Month 11 $ 3,812,381 Month 12 $ 3,565,969 Month 13 $ 3,567,093 Month 14 $ 3,568,047 Month 15 $ 3,568,809 Month 16 $ 3,569,398 Month 17 $ 3,569,792 Month 18 $ 3,570,142 Month 19 $ 3,570,316 Month 20 $ 3,570,294 i•., Month 21 $ 3,570,225 Month 22 $ 3,569,978 Month 23 $ 3,569,534 Month 24 $ 3,321,255 Month 25 $ 3,320,495 Month 26 $ 3,319,642 Month 27 $ 3,318,668 Month 28 $ 3,317,599 Month 29 $ 3,316,408 Month 30 $ 3,315,163 Month 31 $ 3,313,821 Month 32 $ 3,312,356 30 a Month 33 $ 3,310,835 Month 34 $ 3,309,216 Month 35 $ 3,307,473 Month 36 $ 3,057,887 Month 37 $ 3,055,807 Month 38 $ 3,053,679 Month 39 $ 3,051,472 Month 40 $ 3,049,216 Month 41 $ 3,046,880 Month 42 $ 3,044,483 Month 43 $ 3,042,036 Month 44 $ 3,039,509 Month 45 $ 3,036,919 Month 46 $ 3,034,279 Month 47 $ 3,031,557 Month 48 $ 2,780,986 Month 49 $ 2,777,909 Month 50 $ 2,774,780 Month 51 $ 2,771,566 Month 52 $ 2,768,298 Month 53 $ 2,764,947 Month 54 $ 2,761,528 Month 55 $ 2,758,054 Month 56 $ 2,754,495 Month 57 $ 2,750,868 Month 58 $ 2,747,185 Month 59 $ 2,743,416 Month 60 $ 2,491,792 Month 61 $ 2,487,649 Month 62 $ 2,483,487 Month 63 $ 2,479,273 Month 64 $ 2,475,038 Month 65 $ 2,470,751 Month 66 $ 2,466,391 Month 67 $ 2,462,011 Month 68 $ 2,457,578 Month 69 $ 2,453,071 Month 70 $ 2,448,542 Month 71 $ 2,443,960 31 Month 72 $ 2,439,303 Month 73 $ 2,434,330 Month 74 $ 2,429,374 Month 75 $ 2,424,397 Month 76 $ 2,419,436 Month 77 $ 2,414,454 Month 78 $ 2,409,396 Month 79 $ 2,404,353 Month 80 $ 2,399,289 Month 81 $ 2,394,148 Month 82 $ 2,389,022 Month 83 $ 2,383,875 Month 84 $ 2,378,650 Month 85 $ 2,373,098 Month 86 $ 2,367,560 Month 87 $ 2,361,998 Month 88 $ 2,356,450 Month 89 $ 2,350,879 Month 90 $ 2,345,228 Month 91 $ 2,339,589 Month 92 $ 2,333,927 Month 93 $ 2,328,184 Month 94 $ 2,322,453 Month 95 $ 2,316,698 Month 96 $ 2,310,862 Month 97 $ 2,304,687 Month 98 $ 2,298,524 •r. Month 99 $ 2,292,334 Month 100 $ 2,286,155 Month 101 $ 2,279,950 Month 102 $ 2,273,661 Month 103 $ 2,267,382 Month 104 $ 2,261,076 Month 105 $ 2,254,686 Month 106 $ 2,248,304 Month 107 $ 2,241,897 Month 108 $ 2,235,403 Month 109 $ 2,228,560 Month 110 $ 2,221,724 32 Month 111 $ 2,214,860 Month 112 $ 2,208,003 Month 113 $ 2,201,118 Month 114 $ 2,194,144 Month 115 $ 2,187,177 Month 116 $ 2,180,180 ,p Month 117 $ 2,173,094 Month 118 $ 2,166,014 Month 119 $ 2,158,905 Month 120 $ 2,151,706 Month 121 $ 2,144,145 Month 122 $ 2,136,587 Month 123 $ 2,128,999 Month 124 $ 2,121,414 Month 125 $ 2,113,798 Month 126 $ 2,106,088 Month 127 $ 2,098,381 Month 128 $ 2,090,643 Month 129 $ 2,082,810 Month 130 $ 2,074,979 Month 131 $ 2,067,117 Month 132 $ 2,059,160 Month 133 $ 2,050,828 Month 134 $ 2,042,496 Month 135 $ 2,034,130 Month 136 $ 2,025,763 Month 137 $ 2,017,363 Month 138 $ 2,008,864 Month 139 $ 2,000,363 Month 140 $ 1,991,828 Month 141 $ 1,983,194 Month 142 $ 1,974,558 Month 143 $ 1,965,887 Month 144 $ 1,957,116 Month 145 $ 1,947,957 Month 146 $ 1,938,794 Month 147 $ 1,929,594 Month 148 $ 1,920,389 Month 149 $ 1,911,147 33 Alen. Month 150 $ 1,901,802 Month 151 $ 1,892,450 Month 152 $ 1,883,061 Month 153 $ 1,873,567 Month 154 $ 1,864,066 Month 155 $ 1,854,528 .� Month 156 $ 1,844,884 Month 157 $ 1,834,839 Month 158 $ 1,824,785 Month 159 $ 1,814,691 Month 160 $ 1,804,587 Month 161 $ 1,794,442 Month 162 $ 1,784,189 Month 163 $ 1,773,924 Month 164 $ 1,763,619 Month 165 $ 1,753,203 Month 166 $ 1,742,776 Month 167 $ 1,732,307 Month 168 $ 1,721,727 Month 169 $ 1,710,733 Month 170 $ 1,699,724 Month 171 $ 1,688,671 Month 172 $ 1,677,603 Month 173 $ 1,666,491 Month 174 $ 1,655,265 Month 175 $ 1,644,022 Month 176 $ 1,632,734 Month 177 $ 1,621,331 Month 178 $ 1,609,910 Month 179 $ 1,598,444 Month 180 $ 1,586,861 Month 181 $ 1,574,849 Month 182 $ 1,562,817 Month 183 $ 1,550,737 Month 184 $ 1,538,637 Month 185 $ 1,526,488 Month 186 $ 1,514,219 Month 187 $ 1,501,928 Month 188 $ 1,489,588 34 Month 189 $ 1,477,126 Month 190 $ 1,464,641 Month 191 $ 1,452,107 Month 192 $ 1,439,449 Month 193 $ 1,426,347 .�. Month 194 $ 1,413,219 Month 195 $ 1,400,039 Month 196 $ 1,386,833 Month 197 $ 1,373,575 Month 198 $ 1,360,188 Month 199 $ 1,346,774 Month 200 $ 1,333,308 Month 201 $ 1,319,712 Month 202 $ 1,306,087 Month 203 $ 1,292,408 Month 204 $ 1,278,600 Month 205 $ 1,264,330 Month 206 $ 1,250,029 Month 207 $ 1,235,671 Month 208 $ 1,221,281 Month 209 $ 1,206,834 Month 210 $ 1,192,252 Month 211 $ 1,177,636 Month 212 $ 1,162,963 Month 213 $ 1,148,153 Month 214 $ 1,133,308 Month 215 $ 1,118,404 Month 216 $ 1,103,363 Month 217 $ 1,087,845 Month 218 $ 1,072,288 Month 219 $ 1,056,670 Month 220 $ 1,041,012 Month 221 $ 1,025,293 Month 222 $ 1,009,431 Month 223 $ 993,529 Month 224 $ 977,564 Month 225 $ 961,454 Month 226 $ 945,303 Month 227 $ 929,088 35 Month 228 $ 912,728 Month 229 $ 895,873 Month 230 $ 878,972 Month 231 $ 862,006 Month 232 $ 844,992 Month 233 $ 827,912 Month 234 $ 810,681 Month 235 $ 793,401 Month 236 $ 776,054 Month 237 $ 758,555 Month 238 $ 741,005 Month 239 $ 723,387 Month 240 $ 705,616 01. 36 SOLAR ENERGY POWER PURCHASE AGREEMENT EXHIBIT A POWER PURCHASE AGREEMENT Between SIEMENS INDUSTRY, INC. AND THE CITY OF APACHE JUNCTION 1 POWER PURCHASE AND SALE AGREEMENT This POWER PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into effective as of , 20 (the "Effective Date"), by and between Siemens Industry, Inc., a Delaware corporation through its Building Technologies Division ("Seller"), and Salt River Project Agricultural Improvement and Power District, a political subdivision of the State of Arizona("SRP"). Seller and SRP are sometimes referred to in this Agreement individually as a"Party"and collectively as the"Parties" RECITALS WHEREAS, Seller intends to develop, design, construct, own and operate a solar- powered electrical generation facility for the benefit of the City of Apache Junction, Arizona ("Customer") located on Customer's premises at 300 E Superstition Boulevard, Apache Junction,Arizona,with a nameplate capacity of 757 kW DC (the"Project"), WHEREAS, Seller has entered into an agreement(the"Project Agreement")pursuant to which Seller has agreed to sell through SRP and Customer has agreed to purchase through SRP all of the energy generated by the Project, and WHEREAS,to facilitate the transaction contemplated by the Project Agreement, SRP has agreed to purchase all Metered Output from the Project and the Environmental Attributes related to the generation of such Metered Output and to resell the Metered Output to Customer, all on the terms and conditions set forth in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged,the Parties agree to the following ARTICLE I DEFINITIONS 1.1. Definitions As used in this Agreement, the following terms, when imhally capitalized, shall have the meanings specified in this Section 1 1 "Commercial Operation Date" means the date that Seller provides notice to SRP that the following requirements have been satisfied. (a) the nameplate capacity of the Project has been constructed, commissioned and tested, (b) Seller has obtained all necessary rights under the interconnection agreement for the interconnection and delivery of the Metered Output to the Metered Output Delivery Point, and (c) Seller is capable of makmg available Metered Output from the Project to the Metered Output Delivery Point "Environmental Attributes" means any and all presently existing or future benefits, emissions reductions, environmental air quality credits, emissions reduction credits, renewable energy credits, offsets and allowances, attributable to the Project during the Term, or otherwise attributable to the generation, purchase, sale or use of Metered Output from or by the Project 2 during the Term, howsoever entitled or named, resulting from the avoidance, reduction, displacement or offset of the emission of any gas, chemical or other substance, including any of the same arising out of presently existing or future legislation or regulation concerned with oxides of nitrogen, sulfur or carbon, with particulate matter, soot or mercury, or implementing the United Nations Framework Convention on Climate Change ("UNFCCC") or the Kyoto Protocol to the UNFCCC or crediting "early action" emissions reduction, or laws or regulations involving or administered by the Clean Air Markets Division of the Environmental Protection Amt. Agency, or any successor state or federal agency given jurisdiction over a program involving transferability of Environmental Attributes, and any right of a purchaser of renewable energy to report ownership of accumulated renewable energy certificates to any agency, authority or other party in compliance with applicable law and include rights under Section 1605(b) of the Energy Policy Act of 1992, and any present or future federal, state or local certification program or emissions trading program Notwithstanding any other provision hereof, Environmental Attributes do not include. (a) any investment tax credits and any other tax credits associated with the Project, (b) state, federal or private grants or other benefits related to the Project, or (c) Metered Output. "Environmental Financial Incentives" shall mean each of the following financial rebates and incentives that is in effect as of the Effective Date or may come into effect in the future (i) performance-based incentives, rebates and any other incentive programs offered by State of Arizona's any municipality's, any utility's or any other state's solar program or initiative„ including, without limitation, tax credits (including investment tax credits arising under the Internal Revenue Code), other tax benefits or grants in lieu thereof(including without limitation the monetization of tax benefits), and accelerated depreciation (collectively, "incentives"), howsoever named or referred to, with respect to any and all fuel, emissions, air quality, energy generation, or other environmental or energy characteristics, resulting from the construction, ownership or operation of the System or from the use of solar generation or the avoidance of the emission of any gas, chemical or other substance into the air, soil or water attributable to the sale of Energy generated by the System during the Term; and (ii) all reporting rights with respect to such incentives N "Interest Rate" means a per annum rate of interest equal to the lesser of(a) the prime lending rate published from time to time by the Federal Reserve Bank H.15 (519) Statistical Release website on such day(or if not published on such day, on the most recently preceding day published)plus 200 basis points or(b)the maximum rate permitted by applicable law. "Metered Output" means the electrical energy output, intermittent and variable within the hour, made available from the Project at the Metered Output Delivery Point, as measured by SRP's meter installed at the Metered Output Delivery Point. "Metered Output Delivery Point" means the meter owned and maintained by SRP that measures the output of the Project "Person" means an individual, partnership, corporation, limited liability company, joint venture, association, trust, unincorporated organization, governmental authority, or other form of entity. 3 .•.. ... ARTICLE II PURCHASE AND SALE 2 1 Purchase of Metered Output by SRP In accordance with and subject to the terms and conditions of this Agreement, commencing on the Commercial Operation Date and continuing through the end of the Term, Seller shall sell to SRP and SRP shall purchase from Seller all of the Metered Output at the rate specified in Exhibit B Seller shall deliver the Metered Output to and make such Metered Output available to SRP at the Metered Output �"°, Delivery Point. SRP shall receive the Metered Output at, and shall take such Metered Output from, the Metered Output Delivery Point. Title to, and risk of loss associated with, Metered Output shall pass from Seller to SRP at the Metered Output Delivery Point Seller shall transfer the Metered Output to SRP free and clear of all liens, security interests, claims and encumbrances or any other interest therein or thereto by any Person 2 2 Sale of Environmental Attributes. Commencing on the Commercial Operation Date and continuing through the end of the Term, Seller shall sell to SRP and SRP shall purchase from Seller all of the Environmental Attributes associated with the Metered Output at the rate of $0 06 per kWh of Metered Output from the Project On or before the Commercial Operation Date, Seller shall deliver to SRP a Bill of Sale in the form of Exhibit A transferring the ownership of all Environmental Attributes to SRP 2.3 SRP's Obligations. SRP's obligation to purchase Metered Output and Environmental Attributes from Seller shall be suspended(a) during an Event of Default by Seller under this Agreement or (b) if Customer is in default of SRP's Rules and Regulations with respect to account number 2.4 Environmental Financial Incentives All Environmental Financial Incentives available in connection with the Project are retained and owned by Seller or its assignee At Seller's request and expense, SRP shall execute such documents and instruments reasonably necessary or desirable to effect or evidence Seller's or its assignee right, title and interest in and to the Environmental Financial Incentives .-. ARTICLE III TERM AND TERMINATION 3 1 Term. This Agreement shall become effective on the Effective Date and, unless terminated earlier as provided in this Agreement, shall remain in full force and effect until the earlier of(a) the termination of the Project Agreement for any reason, (b) the termination of the PPSA for Customer's account number , or (c) midnight Mountain Standard Time on the 20th anniversary of the Commercial Operation Date (the"Term") 3 2 Notice of Commercial Operation Date. Seller shall notify SRP at least five business days in advance of the anticipated Commercial Operation Date and shall confirm to SRP in writing within three business days of when the Commercial Operation Date occurs 4 ARTICLE IV METERING 4.1. Metering. Metered Output delivered to the Metered Output Delivery Point shall be measured by meters owned, installed and maintained by SRP SRP shall maintain and calibrate its meters in accordance with the Distribution Interconnection Agreement Seller may install and maintain its own meters, but SRP's meters shall be used for all purposes under this Agreement In the case where a meter read is unavailable, SRP will make commercially reasonable efforts to estimate generation and/or consumption If testing of the SRP meters in accordance with the Interconnection Agreement indicates that the meters are in error by more than 2%, Seller shall make a corresponding adjustment to the records of the amount of Metered Output based on such test results for (a) the actual penod of time when such error caused inaccurate meter recordings, if such period can be determined to the mutual satisfaction of the Parties, or (b) if such period cannot be so determmed, then a period equal to one-half of the period from the later of(i) the date of the last previous test confirming accurate metering and(ii) the date the meters were placed into service,provided,however, that such period shall in no case exceed two years ARTICLE V BILLING AND PAYMENT 5 1 Monthly Billing SRP shall invoice Seller monthly. Such monthly invoices shall state (i) the amount of Metered Output produced by the Project and delivered to the Metered Output Delivery Point, (u) the amount of energy delivered to the Project by SRP, (in) the applicable price plan with respect to the energy described in clause (ii), (iv) the amount payable by SRP for the Environmental Attributes, and (v) the total amount due for Metered Output and Environmental Attributes delivered during such month. All amounts due under this Section 5 1 shall be due and payable net 21 days from the date of billing Any undisputed portion of the invoice amount not paid within the 21 day period shall accrue interest at the Interest Rate. 5.2 Governmental Charges. Seller shall pay or cause to be paid all taxes imposed by any governmental authority ("Governmental Charges") on or with respect to the Metered Output (and any contract associated with the Metered Output) arising before the Metered Output Delivery Point, including ad valorem taxes and other taxes attributable to the Project, land, land rights or interests in land for the Project SRP shall pay or cause to be paid all Governmental Charges on or with respect to the Metered Output at and from the Metered Output Delivery Point. If Seller is required by law or regulation to remit or pay Governmental Charges which are SRP's responsibility hereunder, SRP shall promptly reimburse Seller for such Governmental Charges. If SRP is required by law or regulation to remit or pay Governmental Charges which are Seller's responsibility hereunder, Seller shall promptly reimburse SRP for such Governmental Charges Nothing shall obligate or cause a Party to pay or be liable to pay any Governmental Charges for which that Party is exempt under the law 5 ARTICLE VI EVENTS OF DEFAULT; REMEDIES 6 1 Events of Default. An "Event of Default" means with respect to a Party (the "Defaulting Party") (a) A Party fails to make any payment when due under this Agreement and fails to cure within 10 days after notice thereof, or (b) A Party fails to comply with any other obligation under this Agreement, and such failure is not cured with 30 days after notice thereof, provided that if such defaulting Party commences to cure such failure dunng such penod and is diligently and in good faith attempting to effect such cure, said penod shall be extended for an additional 90 additional days. 6 2 Remedies for an Event of Default Upon the occurrence and notice to the Defaulting Party, the other Party (the "Non-Defaulting Party") shall have the nght (but not the obligation) to (a) suspend performance of its obligations under this Agreement; and/or (b) receive from the Defaulting Party direct damages incurred by the Non- Defaulting Party in connection with such Event of Default (including during any applicable cure period, whether or not the Non-Defaulting Party has elected to suspend performance during such cure period). 6 3 Termination for an Event of Default If an Event of Default has occurred and is not cured within the applicable cure period, if any, set forth in Section 6 1, the Non-Defaulting Party shall have the right, at any time when such Event of Default is continuing, and in addition to the remedies set forth in Section 6 2, to (a) designate by notice to the Defaulting Party a day, no earlier than the day such notice becomes effective and no later than 20 days after the day such notice becomes effective, on which this Agreement shall terminate; and '.. (b) subject to the express limitations on remedies set forth in this Agreement, pursue any other nght or remedy available under this Agreement or applicable law Except for an Event of Default for nonpayment, if notice of termination has not been received by the date that is 30 days following the last day of any applicable cure period, the Event of Default is deemed to have been waived by the Non-Defaulting Party and no further damages shall accrue with respect to such Event of Default. 6 4 Waiver of Consequential Damages NO PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY NATURE ARISING OUT OF THEIR PERFORMANCE OR NON- PERFORMANCE HEREUNDER 6 ARTICLE VII NOTICES 7 1 Notices All notices to be given under this Agreement shall be made to the addresses set forth below All notices shall be made m writing. Notices shall be delivered by hand delivery, U.S. Mail or express courier. All notices, requests, statements and other communications shall be deemed to have been duly given on (a)the date of delivery if delivered by hand or by express courier, or (b) five days after deposit in the U S Mail Any Party may change its respective notice information upon giving the other Parties at least 10 days' prior notice thereof. If to SRP,addressed to it at. P 0 Box 52025, Mail Station Phoenix,Arizona 85072-2025 Attention If to Seller, addressed to it at Siemens Industry, Inc. Building Technologies Division 4025 E Cotton Center Blvd Phoenix,AZ 85040 Attn• Darcy Otis—Branch Manager Fax- (866)289-3046 ARTICLE VIII MISCELLANEOUS 8 1 Assignment Neither Party may assign this Agreement without the other Party's prior written consent, such consent not to be unreasonably delayed, conditioned or withheld, provided, however, that Seller may in its sole discretion and without the consent of SRP assign any of its rights, duties or obligations under this Agreement to (i)one or more of its affiliates, (u) one or more third parties in connection with a sale-and-leaseback or other financing transaction described below, (iu) any person or entity succeeding to all or substantially all of the assets of Seller or(v) a successor entity in a merger or acquisition transaction (any of the foregoing being a "Permitted Transfer"). Seller shall provide notice to SRP of the occurrence of any such Permitted Transfer 8 2 Governing Law This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the State of Arizona,without regard to its principles of conflicts of law 8.3. Entire Agreement. This Agreement and the SRP Commercial Solar Energy Program Supplement to Program Requirements, entered into among SRP, Seller and Customer constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior discussions and agreements between the Parties with respect to the subject 7 matter hereof There are no prior or contemporaneous agreements or representations affecting the same subject matter other than those expressed herein. 8 4 Amendment. Subject to the SRP Commercial Solar Energy Program Supplement to Program Requirements among SRP, Seller and Customer, no amendment, modification or change to this Agreement shall be enforceable unless set forth m wntmg and executed by both Parties 8.5. Non-Waiver. No waiver by any Party hereto of any one or more defaults by the other Parties in the performance of any of the provisions of this Agreement shall be construed as a waiver of any other default or defaults whether of a like kind or different nature No failure or delay by any Party hereto in exercising any nght, power, privilege, or remedy hereunder shall operate as a waiver thereof. 8 6 Severability Any provision of this Agreement declared or rendered invalid, unlawful, or unenforceable by any applicable governmental authority or deemed unlawful because of a change in applicable law shall not otherwise affect the remaining lawful obligations that arise under this Agreement, provided that the Parties shall use commercially reasonable efforts to reform this Agreement in order to give effect to the original intention of the Parties. 8.7. No Third-Party Beneficianes Nothing in this Agreement shall provide any benefit to any third Person or entitle any third Person to any claim, cause of action, remedy or right of any kind, it being the intent of the Parties that this Agreement shall not be construed as a third-party beneficiary contract. 8.8. Relationships of Parties The Parties shall not be deemed to be in a relationship of partners or joint venturers by virtue of this Agreement, nor shall any Party be an agent, representative, trustee or fiduciary of any other Party Neither Seller nor SRP shall have any authority to bind the other to any agreement. This Agreement is intended to secure and provide for the services of each Party as an independent contractor. 8 9 Junsdiction, Venue Any dispute relating to this Agreement shall be brought exclusively in the Mancopa County, Anzona Supenor Court or in the United States District eIN Court for the District of Arizona By execution and delivery of this Agreement, with respect to such disputes, each of the parties knowingly, voluntarily and irrevocably (a) consents, for itself and in respect of its property, to the exclusive jurisdiction of these courts, and (b) waives any immunity or objection, including any objection to personal jurisdiction or the laying of venue or based on the grounds of forum non convemens, which it may have from or to the bringing of the dispute in such jurisdiction 8 10 Waiver of Jury Trial To the fullest extent permitted by law, each of the Parties waives any right it may have to a trial by jury in respect of litigation directly or indirectly arising out of,under or in connection with this Agreement. 8 11 Attorneys' Fees. If a Party commences a legal proceeding against the other Party because of an alleged breach of such Party's obligations under this Agreement, each Party shall bear its own expenses, including reasonable attorneys' fees, incurred in connection with the legal proceedmg and any appeal thereof 8 8.12 Binding Effect This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. 8.13. Counterparts This Agreement may be executed in counterparts, including in facsimile and electronic formats(including portable document format(.pdf)),each of which is an original and all of which constitute one and the same instrument 8 14 Compliance with Law Each Party shall at all times comply in all respects with all applicable laws As applicable, each Party shall give all required notices, and shall procure and maintain all necessary governmental permits, licenses, and inspections necessary for performance of this Agreement, and shall pay its respective charges and fees in connection therewith. 8 15 Enforcement of Rights At Customer's request, SRP shall have the right but not the obligation, to enforce on Customer's behalf any of Customer's rights and remedies against Seller that arise under the Project Agreement 8 16 Construction. The headmgs in this Agreement are inserted for convenience only, and shall not constitute a part of this Agreement or be used to construe or interpret any of its provisions The parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavonng any party by virtue of the authorship of any provision of this Agreement Any reference to any statute shall be deemed to refer to the statute, as amended, and to all rules and regulations promulgated thereunder, as amended, unless the context requires otherwise The word "include" or "including"means include or including,without limitation 8 17 Collateral Assignment and Cooperation with Financing Seller shall be permitted to sell, transfer, assign or pledge (or grant security interests in) this Agreement to its financing parties ("Lender") as collateral for any financing or refinancing of the Project, provided, Seller shall be responsible at SRP's request for SRP's reasonable costs associated with the review, negotiation, execution and delivery of documents in connection with such assignment, including reasonable attorneys' fees 8 18 Provisions Benefiting Lender With respect to a Permitted Transfer pursuant to Section 8.1, SRP acknowledges and agrees that, upon receipt of written direction from Lender, and notwithstanding any instructions to the contrary from Seller, SRP will recognize Lender, or any third party to whom Lender has reassigned the nghts of Seller under this Agreement, as the proper and lawful successor to Seller fully entitled to receive the rights and benefits of Seller hereunder so long as Lender(or its assignee) performs the obligations of Seller hereunder. SRP shall be protected and shall incur no liability in acting or proceeding in good faith upon any such foregoing written notice and direction by Lender which SRP shall in good faith believe (i) to be genuine and(ii) a copy of which to have been delivered to Seller SRP shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such foregoing notice and direction, but may accept and rely upon them as conclusive evidence of the truth and accuracy of such statements 9 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first above written This Agreement shall not become effective as to either Party unless and until executed by both Parties. Salt River Project Agncultural Improvement and Power Distnct By. — Title. Siemens Industry, Inc By. Title 10 EXHIBIT A BILL OF SALE FOR ENVIRONMENTAL ATTRIBUTES Effective as of ,20_, Siemens Industry, Inc ("Seller"), for good and valuable consideration and pursuant to that certain Power Purchase and Sale Agreement dated , 20 , by and between Salt River Project Agricultural Improvement eIN and Power District, a political subdivision of the State of Arizona ("SRP") and Seller (the "Agreement"),hereby sells, transfers and delivers to SRP all of its right, title, and interest in and to the Environmental Attributes, associated with the generation of energy by the Project Capitalized terms used but not defined herem shall have the same meamngs set forth in the Agreement This Bill of Sale shall only transfer the Environmental Attributes generated by the Project during the term of the Agreement Except as otherwise provided in the Agreement, SRP shall have no interest m any Environmental Attributes generated after expiration or termination of the Agreement Seller attests, represents and warrants (i) its sale of the Environmental Attributes to SRP is and will be its one and only sale of the Environmental Attributes with respect to the energy generated by the Project during the term of the Agreement and no third party has claimed or can claim any interest in such Environmental Attributes, and (ii) the Environmental Attributes are clear of all liens, security interests, claims and encumbrances or any other interest therein or thereto by any Person. Seller shall execute and deliver, at the request of SRP, such further instruments of transfer, and shall take or cause to be taken such other or further actions, as shall reasonably be requested for purposes of carrying out the sale of the Environmental Attnbutes to SRP. Siemens Industry,Inc By Title- 11 /^ EXHIBIT B POWER PURCHASE AND SALE AGREEMENT FOR: City of Apache Junction/Siemens Industry, Inc. City of Apache Junction Solar Project YEAR CONTRACT PRICE PER KWH Yr. 1 $0 1075 Yr 2 $ 01107 Yr 3 $ 0.1140 Yr 4 $0.1175 Yr 5 $0 1210 Yr 6 $0 1246 Yr. 7 $0.1284 Yr 8 $0 1322 Yr 9 $0 1362 Yr 10 $ 0 1403 Yr 11 $ 0 1445 Yr 12 $0.1488 Yr 13 $0 1533 Yr 14 $ 0 1579 Yr 15 $0 1626 Yr 16 $0 1675 Yr 17 $ 0 1725 Yr 18 $ 0 1777 12 Yr 19 $ 0.1830 Yr. 20 $ 0.1885 13 SOLAR ENERGY POWER PURCHASE AGREEMENT EXHIBIT B SRP COMMERCIAL SOLAR ENERGY PROGRAM SUPPLEMENT TO PROGRAM REQUIREMENTS ("SRP SUPPLEMENT AGREEMENT") 1 SRP COMMERCIAL SOLAR ENERGY PROGRAM SUPPLEMENT TO PROGRAM REQUIREMENTS This Supplemental Agreement ("Supplement") supplements the SRP Commercial Solar Energy Program Requirements ("Solar Agreement") signed by the City of Apache Junction, Arizona ("SRP Customer") and Siemens Industry, Inc , a Delaware corporation through its Building Technologies Division ("Solar Provider"), and approved by SRP on , and sets out the terms of SRP's participation with SRP Customer to purchase and provide to SRP Customer the output of a photovoltaic solar facility to be installed and operated on SRP Customer's premises by Solar Provider SRP, SRP Customer and Solar Provider are sometimes referred to in this Agreement individually as a"Party" and collectively as the"Parties." RECITALS A. SRP Customer and Solar Provider are parties to that certain Solar Energy Power Purchase Agreement ("PPA") and that certain Site Lease Agreement, both dated as of the date hereof, pursuant to which the SRP Customer has agreed to provide Solar Provider with a license to a portion of the land owned by the SRP Customer at the SRP Customer's property (the "Premises") in order to own, construct, maintain and operate an approximately 606AC solar photovoltaic generating facility (the "Solar Facility"), and to Purchase all of the Metered Output from the Project through SRP B. SRP and Solar Provider are parties to that certain Power Purchase and Sale Agreement dated as of the date hereof (the "PPSA" and together with the PPA, Site Lease Agreement and the Solar Agreement shall constitute the"Project Documents")pursuant to which Solar Provider has agreed to sell to SRP and SRP has agreed to purchase all of the Metered Output and Environmental Attributes (as defined therein) from the Project at the $ per kilowatt- hour rate specified in Exhibit A to this Supplement(the "Output Rate per KWH") . SRP's Financial Incentive Commitment In connection with this Supplement SRP will provide a financial incentive to SRP Customer for the Solar Facility This incentive will be $0.06 per kilowatt-hour of energy produced by the Solar Facility, as more fully described in the Solar Agreement The incentive will be paid by SRP to Solar Provider on behalf of SRP Customer Solar Provider Solar Provider agrees to sell the output of the Solar Facility to SRP at the rate specified in Exhibit A of this Supplement The terms of the sale are further described in the PPSA. The output of the Solar Facility will be measured by a meter to be installed by SRP. 2 SRP Obligations Pursuant to the terms of the PPSA, SRP shall purchase from Solar Provider all of the Metered Output(as defined in the PPSA) SRP Billing SRP will bill SRP Customer for the entire output of the Solar Facility at the rate specified in Exhibit B, on SRP Customer's regular monthly bill. SRP Customer will have the benefit of SRP's standard buy back rider or net metering nder, as applicable, in the event that SRP Customer is unable to use the entire output of the Solar Facility at any time. SRP's billing will be subject to taxes and other charges as applied generally to SRP Customer's account Right to Enforce PPA SRP Customer and Solar Provider have entered into the PPA for the installation and maintenance of the Solar Facility To the extent that the PPA is inconsistent with the terms of this Supplement,the terms of this Supplement shall govern. SRP Customer and Solar Provider agree that SRP shall have the right, but not the obligation, to enforce, with Customer's consent, any of the terms of the PPA on behalf of SRP Customer and SRP shall have the right to inspect the Solar Facility at any time SRP acknowledges Seller's right to enforce the PPA against Customer SRP shall not be subject to any term of the PPA Environmental Attributes SRP will purchase from Solar Provider all of the Environmental Attributes (as defined in the PPSA), including renewable energy certificates, associated with the energy purchased by SRP and sold to SRP Customer. Rules and Regulations SRP's Rules and Regulations shall apply to this Supplement, but shall be subject to any restrictions under applicable laws. This Supplement shall supplement the Solar Agreement, and is subject to the Distribution Interconnection Agreement, and the Solar Electric Installation Certification, signed by SRP Customer and the Solar Provider This Supplement and each of the Project Documents shall terminate upon the earlier of the (1) termination of the PPSA, (2) termination of the PPA, or (3) the termination or disconnection of SRP Customer's account number with SRP. Miscellaneous Provisions 1. Press Releases. Each Party shall submit to the other Parties for prior approval of any press releases regarding the Project, which approval shall not be unreasonably withheld or delayed The Parties may by mutual written agreement set forth specific statements that may be used by the other Parties in any press releases that address Customer's use of solar or renewable energy provided by the Project. 3 2. Amendments of Project Documents An amendment to any provision of the Project Documents that would matenally affect a right or obligation of a Party or amend the teen of a Project Document shall only be effective and enforceable if it is set forth in a written instrument signed by SRP, SRP Customer and Solar Provider. 3 All notices to be given under this Agreement shall be made in accordance with the Project Documents. 4 None of the Parties may assign this Supplement without the other Parties' prior written consent, such consent not to be unreasonably delayed, conditioned or withheld; provided that Solar Provider may in its sole discretion and without the consent of SRP assign any of its rights, duties or obligations under this Supplement to (i) one or more of its affiliates, (u) one or more third parties in connection with a sale-and-leaseback or other financing transaction where Solar Provider assigns its rights and interests in this Supplement for collateral purposes m connection with any equity or debt financing of Solar Provider or Solar Provider's Affiliates,(iii)any person or entity succeeding to all or substantially all of the assets of Solar Provider, or (iv) a successor entity in a merger or acquisition transaction (any of the foregoing being a"Permitted Transfer"). Seller shall provide notice to SRP and SRP Customer of the occurrence of any such Permitted Transfer 5 This Supplement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the State of Arizona, without regard to its principles of conflicts of law 6 This Supplement and the Project Documents constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior discussions and agreements between the Parties with respect to the subject matter hereof There are no prior or contemporaneous agreements or representations affecting the same subject matter other than those expressed herein 7 No amendment, modification or change to this Supplement shall be enforceable unless set forth in writing and executed by each of the Parties 8 This Supplement may be executed in counterparts, including in facsimile and electronic formats (including portable document format (.pdf)), each of which is an original and all of which constitute one and the same instrument. [SIGNATURES ARE ON THE FOLLOWING PAGE] 4 /IN elN This Supplement shall have an effective date of Salt River Project Agricultural Improvement and Power District By /1 City of Apache Junction By Its Siemens Industry,Inc. By Its 011 5 EXHIBIT A FOR: City of Apache Junction Solar Project Year Output Rate PBI Output Rate per KWH plus PBI per KWH 1 $0.1075 $0.06 $0.1675 2 $ 0.1107 $0.06 $0.1707 3 $ 0.1140 $0 06 $0 1740 4 $ 0.1175 $0.06 $0.1775 5 $ 0 1210 $0 06 $0 1810 6 $0.1246 $0.06 $0.1846 7 $ 0.1284 $0 06 $0 1884 8 $ 0.1322 $0.06 $0.1922 9 $ 0 1362 $0 06 $0 1962 10 $ 0.1403 $0.06 $0.2003 11 $ 0 1445 $0.06 $0.2045 12 $ 0.1488 $0.06 $0.2088 13 $ 0 1533 $0.06 $0.2133 14 $ 0.1579 $0.06 $0 2179 15 $ 0.1626 $0.06 $0.2226 16 $0.1675 $0.06 $0.2275 17 $ 0.1725 $0 06 $0.2325 18 $ 0.1777 $0.06 $0.2377 19 $ 0.1830 $0.06 $0.2430 20 $ 0 1885 $0.06 $0.2485 6 SOLAR ENERGY POWER PURCHASE AGREEMENT EXHIBIT C SITE LEASE AGREEMENT Site Lease Agreement This Solar Facilities Lease ("Lease"), dated as of July , 2012, is by and between Siemens Industry, Inc, a Delaware corporation, through its Building Technologies Division ("Lessee"), and the City of Apache Junction, Arizona, an Arizona Municipal Corporation ("Lessor") (each a "Party"and collectively, the ("Parties") WITNESSETH WHEREAS, concurrently herewith, Lessee and Lessor are entering into that certain Solar Energy Power Purchase Agreement, dated as of the date hereof (the "PPA"), pursuant to which Lessee has agreed to engineer, construct and install the System(s) and provide Lessor with the Solar Services Capitalized terms used herein but not defined herein (including in the recitals hereto) shall have the respective meanings ascribed thereto in the PPA, WHEREAS, in order to construct and install the System(s) and provide the Solar Services, Lessee requires access to certain property owned or leased by Lessor, WHEREAS, in connection with the foregoing, Lessee desires to lease a portion of the Premises from Lessor in order to install and operate the System in furtherance of Lessee's obligations under the PPA and Lessor is willing to grant such lease to Lessee; and NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Lessee and Lessor hereby agree as follows 1. Leased Premises and Related Rights Lessor hereby leases to Lessee, in accordance with the terms and conditions hereinafter set forth, the real property as depicted and described in Exhibit A where the System(s) will be installed (the "Premises") Lessor hereby also grants to Lessee, for a period co-terminus with this Lease, a right-of-way to access the Premises across or through any surrounding or nearby premises owned or leased by Lessor, including any structures or fixtures appurtenant to the Premises, passage through which is necessary or convenient to install or gain access to the System(s)or the Premises 2. Rents. Lessee shall pay Lessor one U S dollar ($1.00) on the Commercial Operation Date as and for rent of the Premises for the full term of this Lease 3. System Construction, Installation and Operation. (a) Lessor hereby consents to the construction of each System by Lessee on the Premises, including, without limitation, solar panels, mounting substrates or supports, wiring and connections, power inverters, service equipment, metering equipment and utility interconnections 2 4.1116. — (b) Lessee shall also have the right from time to time during the term hereof. (i) to install and operate the System(s) on the Premises, (ii) to maintain, clean, repair, replace and dispose of part or all of any System, (iii)to add or remove any System or any part thereof, (iv) to access the Premises with guests for promotional purposes during normal open hours and at other times as are acceptable to the Lessor in its reasonable business judgment, and (v) to perform (or cause to be performed) all tasks necessary or appropriate, as reasonably determined by Lessee, to carry out the activities set forth in this Section 3 (c) Lessor acknowledges that the installation of all or a portion of the System(s)will require installation to the ground and may require physically mounting and adhering the System(s) to the buildings, structures and fixtures appurtenant to the Premises and consents to such mounting or adhering, as applicable 4 Access to Premises Lessor shall provide Lessee with access to the Premises as reasonably necessary to allow Lessee to install and maintain the System(s)as contemplated in the PPA, including ingress and egress rights to the Premises for Lessee and its employees, contractors and sub-contractors and access to solar panels and conduits to interconnect the System(s)with the Premises' electrical wiring. Lessor shall use commercially reasonable efforts to provide sufficient space for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably necessary during the furnishing, installation, testing, commissioning, deconstruction, disassembly, decomissioning and removal of each System and access for rigging and material handling Lessor shall provide Lessee a reasonable area for construction laydown Lessor and its authorized representatives shall at all times have access to and the right to observe the installation of the System, subject to compliance with Lessee's safety rules, but shall not interfere with the installation or handle any Lessee equipment or the System(s) without written ... authorization from Lessee In addition, Lessor shall grant Lessee access to the Premises as reasonably necessary to allow Lessee to operate and maintain the System, including ingress and egress rights to the Premises for Lessee and its employees, contractors and subcontractors and local electric utility personnel Lessor shall provide necessary space for storing parts and supplies Lessee shall operate and maintain the System in a manner that minimizes inconvenience to and interference with Lessor and Lessor's guests' and customers' use of the Premises to the extent commercially practical. 5 System and Output Ownership (a) Lessor acknowledges and agrees that Lessee or one of its affiliates is the exclusive owner and operator of each System, that all equipment comprising the System shall remain the personal property of Lessee and shall not become fixtures, notwithstanding the manner in which the System is or may be attached to any real property of Lessor and Lessor shall have no right, title or interest in any System or any component thereof, notwithstanding that any such System may be physically mounted or adhered to the Premises or structures, buildings and fixtures on the Premises 3 (b) Lessor acknowledges that Lessee is the exclusive owner of electric energy generated by the System and owner of all Environmental Attributes attributable to the System Without the express written consent of Lessee, Lessor shall not make or publish any public statement or notice regarding any Environmental Attribute of the System or the energy output from the System The System shall not be considered an electric public utility, an investor owned utility, a municipal utility, or a merchant power plant otherwise known as an exempt wholesale generator 6 Representations and Warranties, Covenants of Lessor (a) Authorization, Enforceability The execution and delivery by Lessor of, and the performance of its obligations under, this Lease have been duly authorized by all necessary action, do not and will not require any further consent or approval of any other person, and do not contravene any provision of, or constitute a default under, any indenture, mortgage or other material agreement binding on Lessor (including any lease in respect of the Premises as to which Lessor is the tenant) or any valid order of any court, or regulatory agency or other body having authority to which Lessor is subject This Lease constitutes a legal and valid obligation of Lessor, enforceable against Lessor in accordance with its terms, except as may be limited by bankruptcy, reorganization, insolvency, bank moratorium or laws relating to or affecting creditors' rights generally and general principles of equity whether such enforceability is considered in a proceeding in equity or at law (b) Lessor's Title to Premises Lessor represents, warrants and covenants that Lessor has lawful title to (or a valid leasehold interest in) the Premises and that Lessee shall have quiet and peaceful possession of the Premises free from any claim of any entity or person of superior title thereto without hindrance to or interference with or molestation of Lessee's quiet enjoyment thereof, throughout the term of this Lease To the extent Lessor's interest in any of the Premises is a leasehold interest, Lessor have caused each landlord (each, a "Lessor's Landlord") of each such portion of the Premises to execute and deliver an amendment to the Lessor's lease agreement or such other documentation as is reasonably acceptable to Lessee pursuant to which such Lessor's Landlord shall acknowledge and agree that Lessee's rights in the Premises granted hereunder shall run with such Premises throughout the term of this Lease (or until otherwise terminated pursuant to Section 8), notwithstanding any sale, lease, transfer, assignment, mortgage, pledge or other alienation or encumbrance by such Lessor's Landlord of the Premises To the extent the Lessor is the fee simple owner of the Premises, Lessor shall not sell, lease, assign, mortgage, pledge or otherwise alienate or encumber the Premises unless Lessor shall have given Lessee at least 15 days' prior written notice thereof, which notice shall identify the transferee, the Premises to be so transferred and the proposed date of transfer Lessor agrees that this Lease and the right of way granted in Section 1 of this Lease shall run with the Premises and survive any transfer of any of the Premises. In furtherance of the foregoing, Lessor agrees that it shall cause any purchaser, lessee, assignee, mortgagee, pledge or party to whom a lien has been granted to execute and deliver to Lessee a document pursuant to which such party acknowledges and consents to the Lessee's rights in the Premises as set forth herein including, without limitation, an acknowledgement by the transferee that it has no interest in the System(s) and shall not gain any interest in the System(s) by virtue of the Lessor's transfer (c) No Interference With and Protection of System Lessor will not conduct activities on, in or about the Premises, the Building or the Premises that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the System Lessor shall take all reasonable steps to limit access to the Premises to Lessee and Lessee's employees, invitees, agents and representatives Lessor shall implement and maintain reasonable and appropriate security measures on the Premises to prevent Lessor's employees, invitees, agents 4 and representatives, and other unrelated third-parties, from having access to the Premises or the System, and to prevent from occurring any theft, vandalism or other actions that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the System Lessor covenants that it will obtain a non-disturbance agreement ("NDA") from any third party who now has or may in the future obtain an interest in the Premises, including, without limitation, any lenders to Lessor, Lessor's Landlord or the owner of the Premises, which NDA shall (a) acknowledge and consent to Lessee's rights in the Premises, (b) acknowledge that the third party has no interest in the System(s) and shall not gain any interest in the System(s) by virtue of the Parties' performance or breach of this Lease and (c) subordinates any lien the third party may have in and to the System(s) and other property that is or may from time to time hereafter be located at the Premises. (d) Maintenance of Premises Lessor shall keep areas of the Premises that are under its control neat, clean and in good order and condition Lessor shall give Lessee prompt notice of any damage to or defective condition in any part or appurtenance of the Premises (including mechanical, electrical, plumbing, heating, ventilating, air conditioning and other equipment facilities and systems located within or serving the Premises) Lessor shall exercise reasonable care to keep and make the Premises safe and to warn those lawfully on the Premises of existing dangers (e) Utilities. Lessor shall provide Lessee with Station Power during the term of this Lease For purposes of this Lease "Station Power" shall mean electric energy consumed in the start-up and operation of the System, which is distinct from the alternating current output of the System (f) Insolation Lessor acknowledges and agrees that access to sunlight ("Insolation") is essential to the value to Lessee of the leasehold interest granted hereunder and is a material inducement to Lessee in entering into this Lease. Accordingly, Lessor shall not permit any interference with insolation on and at the Premises Without limiting the foregoing, Lessor shall not construct or permit to be constructed any structure on the Premises that could adversely affect insolation levels, permit the growth of foliage that could adversely affect insolation levels, or emit or permit the emission of suspended particulate matter, smoke, fog or steam or other air- borne impediments to Insolation. If Lessor becomes aware of any potential development or other activity on adjacent or nearby properties that could diminish the Insolation to the Premises, Lessor shall advise Lessee of such information and reasonably cooperate with Lessee in measures to preserve existing levels of Insolation at the Premises Notwithstanding any other provision of this Lease, the Parties agree that (i) Lessee would be irreparably harmed by a breach of the provisions of this Section 6(f), (ii) an award of damages would be inadequate to remedy such a breach, and (iii) Lessee shall be entitled to equitable relief, including specific performance, to compel compliance with the provisions of this Section 6(f) (g) Hazardous Materials. There are no substances, chemicals or wastes, identified as hazardous, toxic or dangerous materials in any applicable law or regulation, present on, in or under the Premises in violation of any Applicable Law or regulation Lessor shall not Introduce or use any hazardous, toxic or dangerous materials on, in or under the Premises in violation of any applicable law or regulation If Lessor becomes aware of any such hazardous, toxic or dangerous materials, Lessor shall promptly notify Lessee of the type and location of such materials in writing Lessor agrees to assume full responsibility for (and protect, indemnify and defend Lessee against) any liability or cleanup obligations for any contamination or pollution or breach of environmental laws related to the Premises, unless directly attributable to the actions of Lessee 5 (h) Premises Conditions. Lessor represents and warrants to Lessee that Lessor is unaware of any site conditions or construction requirements (a) that would materially increase the cost of installing the System at the planned locations on the Premises or would materially increase the cost of maintaining the System at the Premises over the cost that would be typical or customary for solar photovoltaic systems substantially similar to the System or (b) that would adversely affect the ability of the System as designed to produce electricity once installed (I) Interconnection Point Lessor represents and warrants to Lessee that there is a suitable electrical interconnection point of sufficient capacity to accommodate the System as designed located within 500 feet of each of the planned locations of the System on the Premises (j) Notice Each Party shall notify the other within twenty-four (24) hours following the discovery by it of any material malfunction of the System or interruption in the supply of electricity from the System. Each Party shall designate and advise the other Party of personnel to be notified in the event of such an emergency Lessee shall correct, or cause to be corrected, the conditions that caused the emergency as soon as reasonably possible in light of the circumstances following the giving of notice to Lessee by Lessor or upon discovery of such emergency by Lessee 7. Representations and Warranties, Covenants of Lessee. (a) Authorization, Enforceability The execution and delivery by Lessee of, and the performance of its obligations under, this Lease have been duly authorized by all necessary action, do not and will not require any further consent or approval of any other person, and do not contravene any provision of, or constitute a default under, any indenture, mortgage or other material agreement binding on Lessee or any valid order of any court, or regulatory agency or other body having authority to which Lessee is subject This Lease constitutes a legal and valid obligation of Lessee, enforceable against Lessee in accordance with its terms, except as may be limited by bankruptcy, reorganization, insolvency, bank moratorium or laws relating to or affecting creditors' rights generally and general principles of equity whether such enforceability is considered in a proceeding in equity or at law (b) Hazardous Materials Lessee shall not introduce or use any hazardous, toxic or dangerous materials on, in or under the Premises inviolation of any applicable law or ` regulation If Lessee becomes aware of any such hazardous, toxic or dangerous materials, Lessee shall promptly notify Lessor of the type and location of such materials in writing Lessee agrees to assume full responsibility for (and protect, indemnify and defend Lessor against) any liability or cleanup obligations for any contamination or pollution or breach of environmental laws related to the use of any hazardous, toxic or dangerous materials on, in or under the Premises that are directly attributable to the actions of Lessee (c) Regulatory Status Lessee represents and warrants that it is not subject to regulation as a "public service corporation," "utility" or similar term under Arizona utility laws prior to, on, or following operation of the System 8 Term and Termination The term of this Lease shall commence on the date hereof and terminate on the date that is 180 days after the termination of the PPA In addition, if and to the extent that the PPA is terminated with respect to any site served by a System on any portion of the Premises, on the date of such partial termination of the PPA, this Lease shall 6 terminate with respect to the portion of the Premises used to service the relevant site, but shall remain in full force and effect with respect to all other portions of the Premises until final termination as contemplated in the immediately previous sentence Lessee may terminate this Lease at Lessee's sole discretion at any time upon three months' written notice to Lessor. In addition, Lessee may terminate this Lease effective upon provision of written notice to Lessor if, within 180 days of the date hereof, Lessee determines that a System cannot be installed and operated according to Lessee's investment criteria Within 180 days after any such termination, Lessee shall remove the System(s) In connection with such removal, Lessor shall continue to provide Lessee (and its affiliates and subcontractors) with access to the Premises without payment of further rent or consideration 9 Insurance. Each of Lessee and Lessor shall obtain and maintain the insurance coverages required under the PPA 10. Taxes. Lessee shall pay all real estate or personal property taxes, possessory interest taxes, business or license tax, use or privilege taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any kind which are assessed, levied, charged, confirmed, or imposed by any public authority due to Lessee's occupancy and use of the Premises (or any portion or component thereof) Lessor shall pay all (i) real and personal property taxes relating to the real property on which the Premises is situated, (ii) inheritance or estate taxes imposed upon or assessed against the Premises, or any part thereof or interest therein, (iii)taxes computed upon the basis of the net income or payments derived from the Premises by Lessor or the owner of any interest therein, and (iv) taxes, fees, service payments, excises, assessments, bonds, levies, fees or charges of any kind which are adopted by any public authority after the date hereof 11. Liability and Indemnity. (a) Lessee Indemnity (i) General Indemnity Lessee shall indemnify, defend and hold harmless Lessor, its affiliates, officers, agents and employees (the "Lessor lndemnitees") from and against any claim, demand, lawsuit, or action of any kind for injury to or death of persons, including, but not limited to, employees of Lessee or Lessor, and damage or destruction of property, including, r` but not limited to, property of Lessee, any utility company or Lessor, or other loss or damage incurred by Lessor, arising out of (i) grossly negligent acts or omissions or willful misconduct of Lessee, its agents, officers, directors, employees or contractors; or (ii) the material breach by Lessee of any of its obligations, representations or warranties under this Lease The obligation to indemnify shall extend to and encompass all costs incurred by Lessor and any Lessor Indemnitee in defending such claims, demands, lawsuits or actions, including, but not limited to, attorney, witness and expert witness fees, and any other litigation related expenses Lessee's obligations pursuant to this Section 11(a) shall not extend to claims, demands, lawsuits or actions for liability to the extent attributable to the negligence or willful misconduct of Lessor, the Lessor or their respective contractors, successors or assigns, or to the acts of third parties. Lessee shall pay any cost that may be incurred by Lessor or the Lessor Indemnitees in enforcing this indemnity, including reasonable attorney fees (ii) Environmental Indemnity Lessee represents, warrants and covenants that Lessor shall have no liability for any past, present or future contamination or pollution, or breach of environmental laws (herein "Environmental Laws"), if any, located on or relating to the Premises, unless directly attributable to the actions of Lessor. Lessee agrees to assume full 7 responsibility for (and protect, indemnify, defend and hold harmless Lessor against) any liability or cleanup obligations for any environmental claims, unless directly attributable to the actions of Lessor Lessee represents, warrants and covenants that it shall not permit any lien, claim, right or other encumbrance to attach to the System and agrees to discharge any lien, claim, encumbrance or interest that attaches to the System (other than liens claims, encumbrances or interests placed on the System by Lessor or Lessor's creditors). (b) Lessor General Indemnity .�. (i) General Indemnity Lessor shall indemnify, defend and hold harmless Lessee, its affiliates, officers, agents and employees (the "Lessee Indemnitees") against any claim, demand, lawsuit, or action of any kind for injury to or death of persons, including, but not limited to, employees of Lessee or Lessor, and damage or destruction of property, including, but not limited to, property of either Lessee or Lessor, or other loss or damage incurred by Lessee, arising out of• (i) grossly negligent acts or omissions or willful misconduct of Lessor, its agents, officers, directors, employees or contractors; or (ii) the material breach by Lessor of any of its obligations, representations or warranties under this Lease. The obligation to indemnify shall extend to and encompass all costs incurred by Lessee and any Lessee in defending such claims, demands, lawsuits or actions, including, but not limited to, attorney, witness and expert witness fees, and any other litigation related expenses Lessor's obligations pursuant to this Section I shall not extend to claims, demands, lawsuits or actions for liability to the extent attributable to the negligence or willful misconduct of Lessee, the Lessee or their respective contractors, successors or assigns, or the acts of third-parties Lessor shall pay any cost that may be incurred by Lessee or the Lessee in enforcing this indemnity, including reasonable attorney fees (ii) Lessor Environmental Indemnity. Lessor represents, warrants and covenants that Lessee shall have no liability for any past, present or future contamination or pollution, or breach of Environmental Laws, if any, located on or relating to the Premises, unless directly attributable to the actions of Lessee Lessor agrees to assume full responsibility for (and protect, indemnify, defend and hold harmless Lessee against) any liability or cleanup obligations for any environmental claims, unless directly attributable to the actions of Lessee Lessor represents, warrants and covenants that it shall not permit any lien, claim, right or other encumbrance to attach to the System and agrees to discharge any lien, claim, encumbrance or interest that attaches to the System (other than liens claims, encumbrances or interests placed on the System by Lessee or Lessee's creditors). (c) No Consequential Damages Notwithstanding any provision in this Lease to the contrary, neither Lessee nor Lessor shall be liable to the other for incidental, consequential, special, punitive or indirect damages, including without limitation, loss of use, loss of profits, cost of capital or increased operating costs, arising out of this Lease whether by reason of contract, indemnity, strict liability, negligence, intentional conduct, breach of warranty or from breach of this Lease The foregoing provision shall not prohibit Lessee or Lessor from seeking and obtaining general contract damages for a breach of this Lease. (d) Waiver The express remedies and measures of damages provided for in this Lease shall be the sole and exclusive remedies for a party hereunder and all other remedies or damages at law or in equity are hereby waived 12 Casualty or Condemnation. In the event the Premises shall be so damaged or destroyed so as to make the use of the Premises impractical as determined by Lessee, then either Lessee may elect to terminate this Lease on not less than twenty (20) days' prior notice to Lessor effective as of a date specified in such notice, and on the date so specified, this Lease shall expire 8 InIlk as fully as if such date were the date set forth above for the expiration this Lease If Lessee does not elect to terminate this Lease pursuant to the previous sentence, Lessor shall exercise commercially reasonable efforts to repair the damage to the Premises and return the Premises to its condition prior to such damage or destruction, and except that Lessor shall in no event be required to repair, replace or restore any property of Lessee comprising part of the System, which replacement or restoration shall be Lessee's responsibility In the event of an award related to eminent domain or condemnation of all or part of the Premises, each Party shall be entitled to take from such an award that portion as allowed by law for its respective property interest appropriated as well as any damages suffered thereby 13 Assignment (a) Neither party shall have the right to assign any of its rights, duties or obligations under this Lease without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed, provided, however, that Lessee may in its sole discretion assign any of its rights, duties or obligations under this Lease (i) to one or more of its affiliates, (ii) to one or more third parties in connection with a collateral assignment of rights, mortgage or pledge, (iii) to any present or future purchaser of the power generated by the System(s), (iv)to any person or entity succeeding to all or substantially all of the assets of Lessee, or (v) to a successor entity in a merger or acquisition transaction, and provided, further, that, any assignee from Lessor assumes in writing the obligations of Lessor hereunder. (b) Any assignee of Lessee or Lessor agrees to assume the obligations of the assignor and such assignee shall bound by the terms of this Lease 14 Reserved 15 Defaults and Remedies. (a) Default If a Party (the "Defaulting Party") fails to perform its obligations hereunder (an "Event of Default"), then it shall not be in default hereunder unless it fails to cure such Event of Default within ten (10) Business Days for any monetary Event of Default or within sixty (60) days after receiving written notice from the other Party (the "Non-Defaulting Party") stating with particularity the nature and extent of such Event of Default and specifying the method ..� of cure (a of Default"); provided, however, that if the nature or extent of the obligation or obligations is such that more than sixty (60) days are required, in the exercise of commercially reasonable diligence, for performance of such obligation(s), then the Defaulting Party shall not be in default if it commences such performance within such sixty (60) day period and thereafter pursues the same to completion with commercially reasonable diligence As used herein "Business Day" means a calendar day excluding Saturdays, Sundays and United States and Arizona State holidays, provided, that in relation to any payment or funds transfer a "Business Day" means a day on which commercial banks are not required or permitted to be closed in the place where the relevant payor, pay or account, payee account and payee is located (b) Payment Under Protest The Defaulting Party may cure any monetary Event of Default by depositing the amount in controversy (not including claimed consequential, special, exemplary or punitive damages) in escrow with any reputable third party escrow, or by interpleading the same, which amount shall remain undistributed until final decision by a court of competent jurisdiction or upon agreement by the Parties No such deposit shall constitute a waiver of the Defaulting Party's right to institute legal action for recovery of such amounts 9 (c) Remedies The Non-Defaulting Party shall have and shall be entitled to exercise any and all remedies available to it at law or in equity, including the right to terminate the Lease pursuant to applicable Law, all of which remedies shall be cumulative Such remedies shall include the right in the Non-Defaulting Party to pay or perform any obligations of the Defaulting Party that have not been paid or performed as required hereunder, and to obtain (i) subrogation rights therefor and (n) immediate reimbursement from the Defaulting Party for the actual, reasonable and verifiable out-of-pocket costs of such payment or performance. Lease may be amended only in writing signed by Lessee and Lessor or their respective successors in interest. 16. Notices. Any notice required or permitted to be given in writing under this Lease shall be mailed by certified mail, postage prepaid, return receipt requested, or sent by overnight air courier service, or personally delivered to a representative of the receiving party, or sent by facsimile (provided an identical notice is also sent simultaneously by mail, overnight courier, or personal delivery as otherwise provided in this Section 16). All such communications shall be mailed, sent or delivered, addressed to the party for whom it is intended, at its address set forth below If to Lessor City of Apache Junction 300 E Superstition Blvd Apache Junction, AZ, 85219 Attn• City Manager E-mail CitvManaaer(&.AJCity Net Fax (480) 474-5129 If to Lessee. Siemens Industry, Inc Building Technologies Division 4025 E Cotton Center Blvd Phoenix, AZ 85040 Attn Darcy Otis— Branch Manager Fax 18662893046 17 Waiver. The waiver by either party of any breach of any term, condition, or /Mk provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein 18. Remedies Cumulative No remedy herein conferred upon or reserved to Lessee or Lessor shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. 19 No Third Party Beneficiaries. This Lease is solely for the benefit of the Parties hereto and no right or cause of action shall accrue by reason hereof for the benefit of any third party not a party hereto, other than the Lessor Indemnities, the Lessee Indemnities and any secured parties 10 20 Headings The headings in this Lease are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Lease 21 Choice of Law This Lease shall be construed in accordance with the laws of the State of Arizona (without regard to its conflict of laws principles) Venue for any litigation arising from this Lease shall only be proper in the Pinal County Superior Court or federal district court located in Phoenix, Arizona The Parties hereby waive any rights to request a change of venue, and waive their rights to a trial by jury to the extent permitted by law 22. Binding Effect. This Lease and its rights, privileges, duties and obligations shall inure to the benefit of and be binding upon each of the parties hereto, together with their respective successors and permitted assigns. 23. Counterparts. This Lease may be executed in counterparts, which shall together constitute one and the same agreement Facsimile or "pdf signatures shall have the same effect as original signatures and each party consents to the admission in evidence of a facsimile or photocopy of this Lease in any court or arbitration proceedings between the parties 24 Entire Lease This Lease and the PPA represent the full and complete agreement between the parties hereto with respect to the subject matter contained herein and therein and supersede all prior written or oral agreements between said parties with respect to said subject matter. In the event of any conflict between the provisions of this Lease and the provisions of the PPA, the provisions of the PPA shall govern and control 25 Further Assurances. Upon the receipt of a written request from the other party, each Party shall execute such additional documents, instruments and assurances and take such additional actions as are reasonably necessary to carry out the terms and intent hereof Neither Party shall unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to this section. At the request of Lessee, Lessor agrees to execute and deliver in recordable form, a memorandum of this Lease for recording in the title records of the county where the Premises are located or other applicable government office 26. Estoppel Either Party hereto, without charge, at any time and from time to time, within five (5) business days after receipt of a written request by the other party hereto, shall deliver a written instrument, duly executed, certifying to such requesting party, or any other .•. person, firm or corporation specified by such requesting party (a) That this Lease is unmodified and in full force and effect, or if there has been any modification, that the same is in full force and effect as so modified, and identifying any such modification; (b) Whether or not to the knowledge of any such party there are then existing any offsets or defenses in favor of such party against enforcement of any of the terms, covenants and conditions of this Lease and, if so, specifying the same and also whether or not to the knowledge of such party the other party has observed and performed all of the terms, covenants and conditions on its part to be observed and performed, and if not, specifying the same, (c) The dates to which amounts due have been paid; and (d) Such other information as may be reasonably requested by a Party hereto. Any written instrument given hereunder may be relied upon by the recipient of such instrument, except to the extent the recipient has actual knowledge of facts contained in the certificate 11 27 Conflict of Interest. This Lease is subject to Section 38-511,Arizona Revised Statutes [signature page to follow] AN ilk 12 ... /. IN WITNESS WHEREOF, the parties have executed this Lease on the day and year first above written I. 1, a1 1 By Name. Title. f 1, a [ 1 By. Name Title. 13 Site Lease Agreement EXHIBIT A Description of Premises The System will be constructed and operate within the property of the City of Apache Junction on three locations • The City Hall Complex Parking Lot-300 E Superstition Blvd = " 'Ott e p.,:* - ..,.- - -,- ,0,. .-11 .•.7n1ts3:Ara) .ti r`f ""! 'jam tII .. •-•. *Jr ,. las i r : - tit. 1 ro• - E Superst,bon I.3:vc IS • Parcel No • 1�00-01-003A, Sec 16-TIN-8E, Pinal County,AZ • Site Address 300 E Superstition Blvd,Apache Junction,AZ 85119 • PV Solar System Size• 300.96kW DC • PV Solar System Shown in Blue Covered parking structures with Solar panels mounted on top • The northeast Library Parking Lot 1177 N Idaho Road Am -4.- , , 41111trin s y N illi' 40.0,. zip, 94 --.$;. . • .- - - : ..- - liF �� _ ` • Parcel No • 100-01-003A, Sec 16-T1N-8E, Pinal County,AZ • Site Address 1177 N Idaho Road,Apache Junction,AZ 85119 • PV Solar System Size• 295.2 kW DC • PV Solar System Shown in Blue Covered parking structures with Solar panels mounted on top Page 1 of 2 • The Multi-Generational Center Parking Lot 1035 N Idaho Blvd NIP1 iiii ter" ,► 10,141 'VW ^.,: ' ° ° A _ t +` ' alir--44 , • 4 Y VII" • .-t-- =.. ''' s... #1 .. • "IN . Victilik +1.72 , ..---- . 40 \ I- eil 4 t shr . leeks` C ..t . y 'a ,., • Parcel No 100-01-003A, Sec 16-T1N-8E,Pinal County, AZ • Site Address. 1035 N Idaho Road,Apache Junction,AZ 85119 • PV Solar System Size 161 28 kW DC • PV Solar System Shown m Blue. Covered parking structures with Solar panels mounted on top. Page 2 of 2 SOLAR ENERGY POWER PURCHASE AGREEMENT EXHIBIT D SYSTEM DESCRIPTION CITY OF APACHE JUNCTION SOLAR ENERGY POWER PURCHASE AGREEMENT Exhibit D-System Description The System will consist of the following components to be installed on the Premises. 1 The System will have approximately 757 kW DC photovoltaic panels(pending final design) installed on the carport structures located m the parking lot areas near the City Hall Complex,the Library, and Multi-Generational Center. 2 The System will have one(1) 250 kW and three(3) 135 kW Satcon PowerGate Plus Inverters(pending final design),and associated combiner boxes 3 The System will have the capability to capture its operational data through the installation of three(3)revenue grade meters(pending final design) /'S SOLAR ENERGY POWER PURCHASE AGREEMENT EXHIBIT E (FORM OF) CERTIFICATE OF COMMERCIAL OPERATION SIEMENS Siemens Industry, Inc., Building Technologies Division CERTIFICATE OF COMMERCIAL OPERATION Solar Energy Power City of Apache Junction and Purchase Siemens Industry, Inc Agreement Agreement Date All terms undefined herein shall be defined as in the Solar Energy Power Purchase Agreement dated as of , 2012, by and between Siemens Industry, Inc and the City of Apache Junction On this day of , 20 the Seller hereby by certifies that (a) the nameplate capacity of the Project has been constructed, commissioned and tested, (b) Customer has obtained all necessary rights under the interconnection agreement for the interconnection and delivery of the Metered Output (as defined in the PPSA) to the Delivery Point, and (c) Seller is capable of making available Metered Output from the Project to the Delivery Point hereby establishing this date as the Commercial Operation Date Seller. Siemens Industry, Inc. Authorized Signature. Printed or Typed Name: Title: Acknowledged and Received. Customer City of Apache Junction Authorized Signature: Printed or Typed Name: Title: FpACHf �. c ofApacheJunction 1/4 f oZ Norm of the .S 11pen-Iitiori Mountain iPIZOtf Print TO: City Manager's Office FROM: Shane Kiesow, Public Works Manager DATE: July 2,2012 .genda Type : Work Session Agenda Council Priority Focus Area: TITLE OF AGENDA ITEM: PRESENTATION AND DISCUSSION ON THE GIFT TO THE CITY OF FOUR ELECTRIC VEHICLE CHARGING PEDESTALS FROM ELECTRIC TRANSPORTATION ENGINEERING CORPORATION (dba ECOtality North Amenca). TAMMY TEPPER-CUNNINGHAM, SALES MANAGER, WILL BE PRESENT FOR DISCUSSION. ACTION REQUESTED: Presentation and Discussion DISCUSSION/ BACKGROUND INFORMATION: In 2009 and again in 2010, ECOtality was awarded a multimillion dollar grant from the U.S. Department of Energy to embark on the"EV Project." This ambitious project entails the deployment of approximately 14,000 electric vehide charging systems in eighteen major cities and metropolitan areas located in six states and the Distnct of Columbia. Approximately two years ago. city staff made it known to ECOtality of its interest to possibly participate in the program. On June 5, 2012 the city was offered the gift of four level 2 pedestal chargers including installation at the city's Multigenerational Recreation Center. FISCAL IMPACT: !OPTIONS/ALTERNATIVES: RECOMMENDATION: Conditional approval. Upon approval by legal in content and form. ATTACHMENTS: Click to download ❑ Submittal letter D License Agreement ❑ Charging Pedestal 0.CH PH • Public Works Department Home of the Superstition Mountains 4R zo Date June 21, 2012 To Mayor and Members of the City Council Through George Hoffman, City Manager Giao Pham, Interim Public Works Director From Shane Kiesow, Public Works Manager Subject. EV Project Charging Pedestals In 2009 and 2010, ECOtality was awarded a multimillion dollar grant from the U.S. Department of Energy to embark on the "EV Project." This ambitious project entails the deployment of approximately 14,000 electric vehicle charging systems in eighteen major cities and metropolitan areas located in six states and the Distnct of Columbia. Approximately two years ago, City staff made it known to ECOtality of its interest to possibly participate and on June 5, 2012 was offered the gift of four level 2 pedestal chargers along with the installation at the City's Multigenerational Recreation Center. City staff looks forward to discussing with City Council the enclosed proposed agreement and the stipulations that participation in the EV Project with ECOtality will entail. This item would be a planned consent item for July 17th City Council regular session. 575 E Baseline Avenue, Apache Junction, AZ 85219 • Voice(480) 982-1055 • FAX(480)983-5752 or(480)982-8005 .i. AM. LICENSE AGREEMENT THIS LICENSE AGREEMENT (this "Agreement") is made effective as of_June 5 , 2012_, between City of Apache Junction a municipal corporation (the "Licensor"), and Electric Transportation Engineering Corporation, dba ECOtality North America, an Arizona corporation, and its successors and assigns ("Licensee") (collectively the"Parties") RECITALS: A The Licensor is the fee owner of certain real properties more particularly described on the attached Exhibit A (collectively"Licensor's Properties"), specific portions of which will be licensed to Licensee pursuant to this Agreement which licensed portions are described and depicted on the attached Exhibit B (collectively the"Licensed Premises") B. Licensee is the owner of the EVSE and Software (collectively the"EVSE") C The United States Department of Energy ("DOE") has provided funding through the American Recovery and Reinvestment Act ("ARRA") to accelerate the development and production of electric vehicles ("EVs") in order to reduce petroleum consumption in the United States D For the use of EVs to expand drivers of EVs will require access to sufficient publicly available Electric Vehicle Supply Equipment ("EVSE") stations exist to provide for convenient re-charging of EVs in locations remote from the drivers' homes E To encourage the development and use of EVs the DOE is supporting the development of a large publicly available EV charging infrastructure in several cities in the United States, through a program known as the "EV Project," which will provide EVSE units at publicly available locations in the United States. F Pursuant to the EV Project Licensee has received a grant from DOE (the"DOE Grant") to install EVSEs and to collect data relating to public use of the EVSEs The data collected from publicly available EVSE and EV Project participants will be analyzed to determine vehicle use and charging patterns in a variety of topographies and climate conditions, to evaluate the effectiveness of the charge infrastructure deployed under the EV Project, and to support the future deployment of EV infrastructure in other regions G Licensor has a long-standing commitment to resource conservation and has been an active participant in energy conservation, energy efficiency and environmental preservation and is committed to protecting the environment and providing a sustainable future for its residents H Licensor is interested in the outcome of the studies and other efforts being undertaken by Licensee as part of the DOE Grant, including the extent to which EVSEs on the Licensed Premises would affect energy use by Licensor and the use of EVs by members of the public Licensee desires to obtain from Licensor certain rights over, under and across Licensor's Property for the purpose of installing, maintaining, operating and removing the EVSE to facilitate Licensee's implementation of the DOE Grant Municipal License Agreement Page 1 of 11 Rev'd Date 5 1 12 CONFIDENTIAL&PROPRIETARY NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows 1 The License Licensor hereby grants to Licensee a revocable license to use and occupy the Licensed Premises (the "License"), on the terms and conditions stated in this Agreement, to install, maintain, and operate the EVSE for the purpose of implementing the DOE Grant 1 1 Limited, Nonexclusive Rights This License is a revocable, nonexclusive, and non- possessory authorization for Licensee to enter upon and use the Licensed Premises solely for the purposes described in § 1 3 on the terms and conditions stated herein Licensee may not use the Licensed Premises for any other purpose or in any other .... manner without Licensor's prior written consent This License in no way restricts Licensor's use or conveyance of the Licensed Premises, any interest therein, or any improvements thereon, or Licensor's use of the Licensed Premises in any manner not inconsistent with the License. This License is not intended to create or convey to Licensee an interest in real property, and may not be recorded without Licensor's prior written permission 12 Rights of Others Nothing in this License may be construed as Licensor's representation, warranty, approval, or consent regarding rights in the Licensed Premises held by other parties, and Licensee is responsible for ascertaining the rights of all third parties in the Licensed Premises and obtaining their consent to the activities described in this License as necessary or appropriate Licensee agrees to obtain, at its sole expense, such other licenses, permits, consents and agreements as may be required to address the rights of others by other appropriate agreements, easements, privileges or other rights, whether recorded or unrecorded, and shall make its own arrangements with holders of such prior rights 1 3 Scope of License, Permitted Uses During the term of this Agreement Licensee shall have reasonable access to the Licensed Premises for the limited purpose of installing, maintaining, using, operating, repairing, and removing the EVSE Licensee may not use the EVSE located on the Licensed Premises for any purpose other than to provide for EV charging, for both privately owned and car share fleet vehicles, and to collect data relating to the use of the EVSE 1 4 Condition of Premises Licensee agrees to accept the Licensed Premises "As Is," without warranty of any kind, express or implied Licensee acknowledges that Licensor is not obligated to construct or install any improvements or facilities of any kind on the Licensed Premises Licensee must use commercially reasonable efforts to maintain the Licensed Premises and any EVSE installed on the Licensed Premises in a condition satisfactory to the Licensor, including the removal from the EVSE and from any areas Alikk that are inaccessible to Licensor of graffiti and other unsightly, dangerous or offensive conditions and must not cause or permit any generation of hazardous waste During the term of this Agreement Licensor will cooperate with Licensee to implement appropriate, mutually agreed upon procedures to assure that the Licensed Premises are maintained in a condition that is satisfactory to both Licensor and Licensee 1 5 Condition of Licensee's EVSE During the term of this Agreement Licensee must maintain the EVSE in a reasonable, safe and operable condition at all times when the EVSE is installed on Licensor's Property Licensor will have no right or responsibility to repair, maintain, or operate the EVSE Licensor will cooperate with Licensee to implement appropriate, mutually agreed upon measures to assure that the EVSE is maintained in operable condition and that if the EVSE is damaged or becomes inoperable that Licensee is promptly notified Licensee will repair or replace, at Licensee's option and at Licensee's sole expense, the EVSE or parts or components thereof as Licensee deems necessary and appropriate Licensee will not be responsible for the condition of the EVSE after the expiration or termination of this Agreement 1 6 Environmental Hazards Licensees agrees not to use or store, or permit to be used stored, on the Licensed Premises, gasoline or petroleum products, hazardous or toxic Municipal License Agreement Page 2 of 11 Rev'd Date 5 1 12 CONFIDENTIAL&PROPRIETARY substances or inflammable materials, herbicides, pesticides, fungicides, algaecides Licensee may not engage in the production, location, transportation, storage, treatment, discharge, disposal, or release upon or under the Licensed Premises of any substance regulated under any local, state or federal environmental protection law or regulation 1.7 Waste, Nuisance Licensee shall not commit or suffer to be committed any waste or impairment of the Licensed Premises and covenants that it shall not do, nor permit to be done, on or about the Licensor's Properties any acts which may be a nuisance 1.8. Compliance with Laws In the exercise of any privilege granted by this License, Licensee must comply with all applicable State, municipal and local laws, and the rules, orders, regulations and other legal requirements, including laws and regulations relating to occupational safety and health and environmental protection, and all orders, writs, judgments, injunctions, decrees or awards of any court or governmental authority with jurisdiction over Licensee or the Licensed Premises. Licensee must obtain promptly and maintain in effect throughout the term of the License all licenses, permits, authorizations, registrations, rights and franchises necessary to conduct the actions required or permitted by the License Furthermore, Licensee will not encourage or permit any use in or upon the Licensed Premises, or any part thereof, in violation of any applicable laws, statutes, rules or regulations of any federal, state or local authority 1 9. Compliance with Licensor Requirements Any use made of the Licensed Premises pursuant to this License, and any construction, maintenance, repair, or other work performed thereon by the Licensee, including the installation and removal of any article or thing, shall be accomplished in a manner satisfactory to the Licensor 1 10 Structures Licensee may not place or construct upon, over or under the Licensed Premises any installation or structure of any kind or character, except such as are specifically authorized herein or in writing signed by Licensor 1 11. Alterations, Damage, Restoration No alterations may be made by Licensee to the Licensed Premises without first obtaining the prior written consent of Licensor and, if applicable, any other person or entity having an interest in or right to use or occupy the Licensed Premises Licensee will bear the costs and expenses, up to a maximum of $_2,250.00_ per pedestal EVSE or $_$1,500 00 per wall mount EVSE, associated with performing any such alterations, including, without limitation, costs of construction and any increased operating costs resulting from such alterations Except as may be otherwise provided in this Agreement, Licensee may not alter, destroy, displace or damage any of Licensed Premises or any neighboring property in the exercise of the privileges granted by this Agreement without the prior written consent of ... Licensor and any other affected landowner, and the express agreement of Licensee promptly to replace, return, repair and restore any such property to a condition satisfactory to Licensor and any other affected landowner upon demand, and at Licensee's sole cost and expense. 1 12 Operation and use of EVSE Licensee must confine activities on the Licensed Premises strictly to those necessary for the enjoyment of the privilege hereby licensed, and must refrain from marring or impairing the appearance of the Licensed Premises, obstructing access thereto, interfering with the transaction of Licensor's business and the convenience of the public, or jeopardizing the safety of persons or property, or causing justifiable public criticism. 1.13 Equipment/Access Revenue Licensor acknowledges that Licensee is providing the initial EVSE to the site as part of a no-cost pilot program and Licensee intends to collect revenues from the EVSE. 1 14 Expense Except as provided in § 1 11, any cost, expense or liability connected with or in any manner incident to the granting, exercise, enjoyment, or relinquishment of this License will be assumed and paid or discharged by the Licensee Such costs shall include, but shall not be limited to, costs to install or remove the EVSE, costs to install Municipal License Agreement Page 3 of 11 Revd Date 5 1 12 CONFIDENTIAL&PROPRIETARY electricity or other power supplies to serve and operate the EVSE, and costs to keep the EVSE free of graffiti and debris 1 15 Assignment Licensee may not assign this License nor sub-license all or any portion of the Licensee's right to use and occupy the Licensed Premises, and any purported assignment or sub-license by Licensee is void This License does not confer on or convey to Licensee any possessory interest in the Licensed Premises, any right to exclusive possession or occupancy of the Licensed Premises, or any right of quiet enjoyment. The privileges granted to Licensee by this Agreement are personal to Licensee and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express and written consent of Licensor 1.16 Responsibility for Others Licensee will be responsible for the conduct and discipline of its employees, contractors, subcontractors, invitees, licensees, and other persons entering upon or using the Licensed Premises pursuant to this Agreement 1.17. Subordination This Agreement and the License granted herein is subject and subordinate to the terms of all ground leases, superior leases, mortgages, deeds of trust, other security instruments, and any other prior rights and matters of record now or hereafter affecting Licensor's interest in Licensed Premises 2 Term of License The License and rights granted by this Agreement will become effective as of _June 5 , 2012 (the "Commencement Date") and unless otherwise agreed in a writing signed by both Parties will automatically expire and terminate upon the conclusion of the EV Project,which is currently scheduled for December 31, 2013 ("Expiration Date") 3 Consideration for License. As consideration for the License and the use of electricity used for the charging of EVs using EVSEs located on the Licensed Premises, Licensee agrees to pay the sum of $1 00 upon execution of this Agreement In addition, Licensee will provide Licensor reports and other information relating to the License and the use of the EVSEs, including data collected from or relating to the use of EVSE's on the Licensed Premises, provided, however, that Licensee will not be required to and will not provide to Licensor any information that is proprietary or confidential. 4 Surrender; Removal of the EVSE On the expiration or any earlier termination of this Agreement, Licensee shall vacate the Licensed Premises and surrender possession of the Licensed Properties to Licensor. 4 1 Licensor's Option to Retain the EVSE upon Expiration of the Term Upon the expiration of the Term, Licensor, in its sole and absolute discretion, may elect to retain the EVSE Licensor shall notify Licensee in writing delivered to Licensee not less than thirty (30) days prior to the expiration of this Agreement, whether Licensor desires to retain the EVSE on some or all of the Licensed Premises If Licensor fails to deliver such written notice within such thirty (30) day period, Licensor will be deemed to have elected to retain the EVSE at the Licensed Premises If Licensor elects to retain the EVSE installed at some or all of the Licensed Premises, Licensor shall become entitled to acquire from Licensee all rights, title, and interest in and to such EVSE at no additional cost, and Licensee agrees to execute and deliver to Licensor such documents as Licensor may reasonably request to evidence the transfer of title 4 2 Removal of the EVSE by Licensee upon Expiration of the Term If Licensor elects not to retain the EVSE at the Properties, Licensee shall remove (at Licensee's sole cost and expense) any or all of the EVSE, and must restore the Licensed Premises to a safe and reasonable condition, as more specifically described in § 4 4 hereof. Should the Licensor elect to continue ECOtality Blink Network and EVSE support, following the Term or earlier termination thereof, such additional services shall be subject to a new written agreement to be entered into between the Parties 4 3 Removal of the EVSE by Licensor If Licensor timely notifies Licensee of Licensor's election to have Licensee remove the EVSE from the Licensed Premises, Licensee will Municipal License Agreement Page 4 of 11 Rev'd Date 5 1 12 CONFIDENTIAL&PROPRIETARY promptly remove the EVSE and restore the condition of Licensed Premises as provided in §4 4 4 4 Restoration Upon expiration or termination of the License and removal of the EVSE Licensee will, at Licensee's sole expense and to Licensor's satisfaction, restore the affected portions of the Licensed Premises (surface and subsurface) to a safe condition, with the electricity to the Charger installation locations capped, the breakers turned off, and the Charger anchor/mounting bolts cut flush/removed 5 Termination 5 1 Without Cause This Agreement may be terminated by Licensee in writing to the Licensor, without cause, at any time and for any reason, including the termination of the EV Project or a reduction in EV Project funding, whereupon the Parties shall be fully released from their respective duties, rights, obligations and liabilities under this Agreement except as provided below 5 2 With Cause This Agreement may be terminated in writing by either party for cause if either party violates any term of this Agreement and fails to cure the same within ten (10) days of receiving written notice of such default Upon such termination of this Agreement for cause, as its sole and exclusive remedy, Licensee shall have the right, but not the obligation, to disable or remove (at its sole cost and expense) any or all of the EVSE installed at the Location and terminate services to Licensor's In the event that Licensee does not elect to remove the EVSE within thirty (30) days following such termination, the EVSE shall be deemed abandoned by Licensee and Licensor shall possess all rights, title and interest in and to the same. 6 Use of the EVSE by Licensor 6 1 Software License During the term of this Agreement, Licensee grants to the Licensor a non-exclusive and non-transferable license, to use Licensee's software in the form in which it is embedded in the EVSE on the delivery date for use in conjunction with other parts of the EVSE on the condition that the EVSE shall be used for its intended purpose only Nothing contained in this Section shall be construed as an assignment or transfer of any copyright, design right or other intellectual property rights in such software, all of which rights are owned by the Licensee 6.2. Limitation of Licensee's Liability Licensee makes no warranty or representation, expressed, implied, oral or statutory, to the Licensor or any third party, with respect to the Software or the EVSE, including, without limitation, any warranty, condition or representation (a) of merchantability, fitness for a particular purpose, satisfactory ..r quality, or arising from a course of dealing, usage, or trade practice, (b) that the products will be free from infringement or violation of any rights, including intellectual property rights of third parties, or (c) that the operation of any software supplied will be uninterrupted or error free 7 Indemnification Licensee shall indemnify, defend, save and hold harmless the Licensor and its officers, officials, agents, and employees from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys' fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as "Claims") for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Licensee or any of its owners, officers, directors, agents, employees or contractors, arising out of or related to Licensee's occupancy and use of the Licensed Premises. It is the specific intention of the Parties that the Licensor shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Licensor, be indemnified by Licensee from and against any and all claims It is agreed that Licensee will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable In consideration for the use and occupancy of the Licensed Premises, the Licensee agrees to waive all rights of subrogation against the Licensor, its officers, officials, agents and employees for losses arising from the use. occupancy or condition of the Licensed Premises. Municipal License Agreement Page 5 of 11 Rev'd Date 5 1 12 CONFIDENTIAL&PROPRIETARY NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY CLAIMS FOR DAMAGES BY EITHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ACTUAL RECOVERIES UNDER SUCH PARTY'S INSURANCE POLICIES. 8 Insurance Requirements Licensee shall procure and maintain for the duration of the License, insurance against claims for injury to persons or damage to property which may arise from or in connection with the License The insurance requirements herein are minimum requirements for the License and in no way limit the indemnity covenants contained in this Agreement Licensee in no way warrants that the minimum limits contained herein are sufficient to protect the Licensor from liabilities that might arise out of the License. Licensor is free to purchase such additional insurance as Licensee determines necessary 8 1 Minimum Scope and Limits of Insurance Licensee shall provide coverage with limits of liability not less than those stated below. An excess liability policy or umbrella liability policy may be used to meet the minimum liability requirements provided that the coverage is written on a"following form" basis 8.1 1 Commercial General Liability—Occurrence Form Policy shall include bodily injury, property damage and broad form contractual liability coverage • General Aggregate $2,000,000 • Products—Completed Operations Aggregate $1,000,000 • Personal and Advertising Injury $1,000,000 • Each Occurrence $1,000,000 Fire Damage (Damage to Rented Premises) * $100,000 The policy shall be endorsed to include the following additional insured language "The Licensor shall be named as an additional insured with respect to liability arising out of the use and/or occupancy of the property subject to this License." 81 2. Additional Insurance Requirements The policies shall include, or be endorsed to include, the following provisions a On insurance policies where the Licensor is named as an additional insured, the Licensor shall be an additional insured to the full limits of liability purchased by the Licensee even if those limits of liability are in excess of those required by this Agreement b The Licensee's insurance coverage shall be primary insurance and non- contributory with respect to all other available sources Aga` 8.1.3. Notice of Cancellation For each insurance policy required by the insurance provisions of this Agreement, the Licensee must provide to the Licensor, within 2 business days of receipt, a notice if a policy is suspended, voided or cancelled for any reason. 8 1 4 Acceptability of Insurers. Insurance is to be placed with insurers duly licensed or authorized to do business in the state and with an "A M Best" rating of not less than B+ VI The Licensor in no way warrants that the above-required minimum insurer rating is sufficient to protect the Licensee from potential insurer insolvency 8 1 5 Venfication of Coverage Licensee shall furnish the Licensor with certificates of insurance (ACORD form or equivalent approved by the Licensor) as required by this Agreement The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf All certificates and any required endorsements are to be received and approved by the Licensor before the License commences Each insurance policy required by this Lease must be in effect at or prior to commencement of this Municipal License Agreement Page 6 of 11 Rev'd Date.5 1 12 CONFIDENTIAL&PROPRIETARY License and remain in effect for the duration of the License Failure to maintain the insurance policies as required by this License or to provide evidence of renewal is a material breach of contract 9 Notices All notices or other communications required or permitted to be provided pursuant to this License must be in writing and may be hand delivered, sent by United States Mail, postage prepaid, or delivered by a nationally recognized courier service Any notice will be deemed to have been given when delivered if hand delivered, when received if sent by courier, or forty-eight (48) hours following deposit in the United States Mail Notices shall be addressed as follows To Licensee Company Attn Title Address City, State, Zip Fax Number To Licensor Electric Transportation Engineering Corporation dba ECOtality North America Attn Legal Department Address 430 S 2nd Avenue City, State, Zip Phoenix, AZ 85003-2418 Fax Number 602-443-9007 10 Interpretation The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated 11 Entire Agreement This Agreement and the exhibits and schedules referenced or attached hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter hereof This Agreement is not intended to confer upon any Person other than the Parties hereto any rights or remedies hereunder 12 Severability If any terms or other provision of this Agreement or the schedules or exhibits hereto shall be determined by a court, administrative agency or arbitrator to be invalid, illegal or unenforceable, such invalidity or unenforceability shall not render the entire Agreement invalid Rather, this Agreement shall be construed as if not containing the particular invalid, illegal or unenforceable provision, and all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent permitted under applicable law Municipal License Agreement Page 7 of 11 Rev'd Date 5 1 12 CONFIDENTIAL&PROPRIETARY 13 Information Subject to applicable law and privileges, each Party hereto covenants with and agrees to provide to the other Party all information regarding itself and transactions under this Agreement that the other Party reasonably believes is required to comply with all applicable federal, state, county and local laws, ordinances, regulations and codes 14 Further Agreements The Parties shall execute or cause their applicable affiliates to execute such additional agreements between the Parties and/or their respective affiliates as may be reasonably necessary to effectuate the intent of this Agreement 15 Binding Effect This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective legal representatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement This Agreement may be amended at any time by mutual consent of Licensor and Licensee, evidenced by an instrument in writing signed on behalf of each of the Parties 16. Amendment and Modification This Agreement may be amended, modified or supplemented only by a written agreement signed by all of the Parties hereto. 17 Failure or Indulgence Not Waiver,. Remedies Cumulative No failure or delay on the part of either Party hereto in the exercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available 18 Authority Each of the Parties represent to the other Party that (a) it has the corporate or other requisite power and authority to execute, deliver and perform this Agreement, (b)the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate or other actions, (c) it has duly and validly executed and delivered this Agreement and (d)this Agreement is its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and general equity principles 19 Third Party Beneficiaries None of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of any Person. No such third party shall obtain any right under any provision of this Agreement or shall by reasons of any such provision make any claim in respect of any liability (or otherwise) against either Party hereto Notwithstanding the foregoing, it is understood that the Licensee's rights hereunder shall inure to the benefit of Licensee's affiliates and their officers, directors and employees 20 Default, Remedies The actual or prospective failure of either party to satisfy any materialOrabe obligation under this Agreement, and the breach of any material representation or warranty stated in this agreement, will be an event of default If a party's default continues without cure for thirty(30) days after delivery of a written notice of default in the manner provided in Section 9, the other party will be entitled to terminate this Agreement for cause, and to all other remedies available at law or in equity, including damages and specific performance The rights and remedies set forth in this agreement are not intended to be exhaustive and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently exist in law or equity or by statute or otherwise Failure or delay by the Licensor to exercise any right, power or privilege will not be deemed a waiver thereof. 21 Attorney's Fees If a suit, action, arbitration or other proceeding of any nature whatsoever is instituted in connection with any controversy arising out of this Agreement or to interpret or enforce any rights under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred 22. Confidentiality and Data Security. Personal identifying information, financial account information, or restricted Licensor information, whether electronic format or hard copy, must be secured and protected at all times to avoid unauthorized access At a minimum, Licensee must encrypt and/or Municipal License Agreement Page 8 of 11 Rev'd Date 5 1 12 CONFIDENTIAL&PROPRIETARY password-protect electronic files This includes data saved to laptop computers, computerized devices or removable storage devices When personal identifying information, financial account information, or restricted Licensor information, regardless of its format, is no longer necessary, the information must be redacted or destroyed through appropriate and secure methods that ensure the information cannot be viewed, accessed, or reconstructed. In the event that data collected or obtained by the Licensee in connection with this Agreement is believed to have been compromised, Licensee shall notify the Licensor immediately Licensee .... agrees to reimburse the Licensor for any costs incurred by the Licensor to investigate potential breaches of this data and, where applicable, the cost of notifying individuals who may be impacted by the breach Licensee agrees that the requirements of this Section shall be incorporated into all subcontractor/subconsultant agreements entered into by the Licensee It is further agreed that a violation of this Section shall be deemed to cause irreparable harm that justifies injunctive relief in court. A violation of this Section may result in immediate termination of this Agreement without notice The obligations of Licensee under this Section shall survive the termination of this Agreement 23. Data Collection for DOE Grant Purposes During the Term of this Agreement Licensor will allow Licensee reasonable access to the EVSE, the Licensed Premises, and existing sources of electrical energy as reasonably necessary to enable Licensee to collect and transmit data regarding public use of the EVSE as may be required by the DOE Grant 24 Miscellaneous Time is of the essence with respect to the performance of every provision of this Agreement in which time of performance is a factor Except as expressly provided herein to the contrary, when a Party is required to do something by this Agreement, it shall do so at its sole cost and expense without right of reimbursement from the other Party Whenever one Party's consent or approval is required to be given as a condition to the other Party's right to take any action pursuant to this Agreement, unless another standard is expressly set forth, such consent or approval shall not be unreasonably withheld, conditioned or delayed 25. Counterparts This Agreement may be executed in separate counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same agreement IN AGREEMENT, each of the Parties hereto has caused this Agreement to be duly executed as of the day and A" year first set forth above LICENSOR* LICENSEE* a municipal corporation Electric Transportation Engineering Corporation dba ECOtality North America By By Name Name Title Title Date Date Municipal License Agreement Page 9 of 11 Rev'd Date 5 1 12 CONFIDENTIAL&PROPRIETARY EXHIBIT A: Description of Licensor's Properties NOTE: This Exhibit A may be amended from time to time to add or delete properties Location No. Property Address Assessor's Parcel No. ..� Municipal Lice Agreement Page 10 of 11 Revd Oats:5.1.12 CONFIDENTIAL&PROPRIETARY EXHIBIT B: Description and/or Depiction of Licensed Premises Location No.1 [Insert metes and bounds or other narrative description,size,etc.] See diagram attached as Exhibit B-1 Location No.2 [Insert metes and bounds or other narrative descnption,size,etc.] See diagram attached as Exhibit B-1 Municipal License Agreement Page 11 of 11 Rev'd Date:5.1.12 CO NFADEN41AL&PROPRIETARY