City of
Rifle
CITY COUNCIL
AGENDA
City Council
Randy Winkler, Mayor
Barbara Clifton, Mayor Pro Tem
Joe Elliott, Councilor
Ed Green, Councilor
Theresa Hamilton, Councilor
Annick Pruett, Councilor
Dana Wood, Councilor
City Hall
City Council Chambers
202 Railroad Avenue
Rifle, CO
Cablecast Live on
Comcast Channel 10
Streamed Live at RifleNOW.org
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REGULAR MEETING
August 2, 2017
WORKSHOP 6:00 P.M.
COUNCIL CHAMBERS
6:00 P.M.
Visitor Improvement Fund Advisory Board (Nathan Lindquist)
6:40 P.M.
Supplemental Budgets for Ute Theater & Events Center and Visitor Improvement
Fund
6:50 p.m.
FMLD Grants
REGULAR MEETING 7:00 P.M.
COUNCIL CHAMBERS
The City Council may take action on any of the following agenda items as presented or modified prior
to or during the meeting, and items necessary or convenient to effectuate the agenda items.
7:00 p.m.
1.
Regular Meeting Call to Order and Roll Call
7:03 p.m.
2.
Consent Agenda – consider approving the following items:
A. Minutes from the July 19, 2017 Regular Meeting
B. (Acting as Liquor Licensing Authority) Liquor License Renewals:
Wal Mart Stores INC dba Walmart #5232, Dillon Companies INC
dba City Market #43.
C. Amending Municipal Enforcement of Driving Under Restraint Ordinance No. 20, Series of 2017 – 2nd reading (Kathy Pototsky)
7:08 p.m.
3.
Citizen Comments
(For items not listed as public hearings on the agenda. Please limit
comments to 3 minutes.)
7:11 p.m.
4.
Action, if any, on Workshop Items (Mayor Winkler)
7:15 p.m.
5.
Public Hearing – Liquor License Application – Western Slope Chicken
LLC. dba Wingchesters (Kristy Christensen)
7:25 p.m.
6.
Consider Oak Leaf Solar Lease Agreement (Jim Neu)
7:35 p.m.
7.
Consider Street Closures for Western Adventure Weekend (Nathan
Lindquist)
7:40 p.m.
8.
Consider revisions to Municipal Code Pertaining to Open Burning of Fires
in the City – Ordinance No. 21, Series of 2017 – 2nd reading (Kathy
Pototsky)
7:50 p.m.
9.
Consider License to Encroach in the Right of Way for Sign at 2102
Airport Road (Nathan Lindquist)
8:00 p.m.
10.
Consider Award of Contract for City Hall Conceptual Drawings (Nathan
Lindquist)
8:15 p.m.
11.
Administrative Reports
The order and times of agenda items listed above are approximate and
intended as a guideline for the City Council.
Next Regular Meeting of Council: August 16, 2017 at 7:00 p.m.
-2-
DEPARTMENT OF PLANNING & DEVELOPMENT
202 Railroad Avenue, Rifle, CO 81650
Phone: 970-665-6490 Fax: 970-625-6268
MEMORANDUM
To:
From:
Date:
Subject:
Honorable Mayor and City Council
Nathan Lindquist, Planning Director
July 25, 2017
Consider changes to Visitor Improvement Fund structure
Recently several seats have opened on the Visitor Improvement Board. Only five of eight seats
are currently filled. Staff and the VIF Board have discussed this as an opportunity to better
achieve VIF’s goals by considering changes to the board structure that would allow VIF board
members to be more strategically selected. Currently seats are open to any citizen or business in
the City.
The ballot measure that created the VIF Lodging Tax sets a goal that the funding should “be used
primarily for visitor improvements and attractions, historic preservation, special events,
beautification projects in the City, and the promotion of the City and its environs”. The ballot
measure does not limit City Council in creating any structure that best meets these goals. The
current structure of the board was created through an ordinance and it may be modified the same
way.
Aligning VIF and the Greater Rifle Improvement Team (GRIT)
The recommended changes would align the VIF Board with GRIT by designating the open seats
on VIF towards representatives of key local organizations including the DDA, the Chamber of
Commerce, the RREDC, Garfield County Fairgrounds, City Council, and City Staff.
GRIT was created to improve collaboration on shared goals such as tourism, economic
development, and quality of life improvements. It has not been a formal body, but a way to foster
collaboration among organizations and the public.
GRIT and VIF already share very similar goals. Merging VIF and GRIT would create a more
streamlined structure (and fewer meetings) for accomplishing priority projects where all groups
are needed to work together. It would align efforts on Rifle’s signature events and promotion of
the Real Western Adventure brand. By including a mix of citizens, business owners, and key
organizations, the board would allow citizens to give input directly to the organizations that work
on the goals of the community.
There appears to be agreement on adding DDA, the Chamber, and the RREDC as designated
seats, if those boards choose to participate. One question raised by VIF board members is the
level of participation that should be codified for representatives from City Council, Garfield
County Fairgrounds, and City Staff. These entities are important to the success of VIF projects
but could be included in the board structure a number of different ways, depending upon what is
appropriate. Staff does not expect final decisions to be made at this workshop; through the Main
Street program we may retain Sheryl Trent for a facilitated session if needed.
DEPARTMENT OF PLANNING & DEVELOPMENT
202 Railroad Avenue, Rifle, CO 81650
Phone: 970-665-6490 Fax: 970-625-6268
Ballot question that created VIF:
SHALL THE CITY OF RIFLE’S TAXES BE INCREASED
BY AN ESTIMATED $350,000.00 ANNUALLY FOR THE
FIRST FULL FISCAL YEAR (2008) AND BY SUCH
AMOUNTS GENERATED ANNUALLY THEREAFTER BY
THE IMPOSITION OF A LODGING TAX COMMENCING
JANUARY 1, 2008 ON THE LEASING OR RENTING OF
ROOMS OR OTHER ACCOMMODATIONS IN
COMMERCIAL LODGING WITHIN THE CITY FOR LESS
THAN 30 DAYS AT THE RATE OF TWO AND ONE-HALF
PERCENT (2.5%) OF THE PRICE PAID OR CHARGED
FOR SUCH LODGING IN THE CITY, WITH THE
FOREGOING TERMS TO BE MORE SPECIFICALLY
DEFINED BY ORDINANCE OF THE CITY COUNCIL, THE
PROCEEDS OF SUCH TAX, TOGETHER WITH
INVESTMENT EARNINGS THEREON, SHALL BE USED
PRIMARILY FOR VISITOR IMPROVEMENTS AND
ATTRACTIONS, HISTORIC PRESERVATION, SPECIAL
EVENTS, BEAUTIFICATION PROJECTS IN THE CITY,
AND THE PROMOTION OF THE CITY AND ITS
ENVIRONS, AND SUCH REVENUES TO BE COLLECTED
BY THE CITY OF RIFLE AS A VOTER APPROVED
REVENUE CHANGE, NOTWITHSTANDING ANY
REVENUE OR EXPENDITURE LIMITATION SET FORTH
IN ARTICLE X, SECTION 20 OF THE COLORADO
CONSTITUTION?
DEPARTMENT OF PLANNING & DEVELOPMENT
202 Railroad Avenue, Rifle, CO 81650
Phone: 970-665-6490 Fax: 970-625-6268
See below for Staff’s recommended changes to the VIF Board sections of the Rifle Municipal
Code. Staff’s recommended changes are underlined in red. Areas where further discussions are
needed between VIF, Council and Staff are in green.
ARTICLE XII - Visitor Improvements Fund Advisory Board
Sec. 2-12-10. - Creation and establishment.
There is hereby created and established a Visitor Improvements Fund Advisory Board, with
powers delegated as provided in this Article, for the purpose of providing advice and
recommendations to the City Council on the use of the Visitor Improvements Fund and performing
other duties as set forth in this Article. (Ord. 33 §4, 2007)
Sec. 2-12-20. - Membership.
(a) The Visitor Improvements Fund Advisory Board shall consist of seven (7) voting members ,
plus one (1) alternate member with voting rights only in the absence of a regular member,
all of which but one (1) shall be bona fide residents of the City or appointed representative
of a business in the City. Membership on the Visitor Improvements Fund Advisory Board
shall be in compliance with Section 2-2-50(b) of this Code. Any nonresident City employee
or nonresident owner or owner-appointed representative of a business in the City appointed
to the Visitor Improvements Fund Advisory Board shall not count against the appointment of
the one (1) nonresident board member provided for above.
The intent of the board structure is to bring together citizens, business interests, and key
organizations in a collaborative partnership that attracts visitors and improve quality of life
for residents. Board membership shall include:
I.
Five (5) members who are citizens residing within the City of Rifle, or
representatives of businesses located in the City of Rifle. Hotel, restaurant, and
retail businesses are preferred but not required.
II.
A representative of the Downtown Development Authority (DDA)
III.
A representative of the Rifle Area Chamber of Commerce
IV.
A representative of the Rifle Regional Economic Development Corporation
I.V.
A representative of Garfield County (non-voting?)
II.VI.
A member of Rifle City Council (non-voting?)
III.V II.
A representative of City of Rifle staff (non-voting?)
Non-voting members shall have equal input with voting members in discussions of all
VIF matters. One (1) of the eight (8) voting seats listed above shall be the alternate
voting seat.
(b) Appointments to the Visitor Improvements Fund Advisory Board shall be made by the City
Council. Persons interested in serving shall complete an application expressing their interest in
serving on the Visitor Improvements Fund Advisory Board and responding to representative
questions as approved by the Board. In the event a regular member of the Visitor Improvements
DEPARTMENT OF PLANNING & DEVELOPMENT
202 Railroad Avenue, Rifle, CO 81650
Phone: 970-665-6490 Fax: 970-625-6268
Fund Advisory Board resigns or is removed from his or her position, the alternate, if interested
in filling that position, will be required to submit an application and participate in the interview
process. The City shall be responsible for advertising for positions that need to be filled. The
chair or acting chair of the Visitor Improvements Fund Advisory Board shall be responsible for
notifying the City Manager if and when there is a vacancy due to a resignation or other reason
within two (2) weeks of the vacancy. (Ord. 33 §4, 2007; Ord. 24 §2, 2012; Ord. 13 §9, 2014)
Sec. 2-12-30. - Compensation and terms of office.
The members of the Visitor Improvements Fund Advisory Board shall serve without compensation
for their services as such, but may receive reimbursement for necessary travel and other
expenses incurred on official duty when such expenditures have received prior authorization within
the municipal budget. The members shall serve three-year staggered terms. Terms shall
commence June 1 of each year. Nothing shall preclude a member from serving succeeding terms
if so appointed. (Ord. 33 §4, 2007; Ord. 20 §7, 2008)
Sec. 2-12-40. - Duties and responsibilities.
It shall be the responsibility of the Visitor Improvements Fund Advisory Board to perform the
following duties:
(1) Act in an advisory capacity to the City Council in all matters pertaining to the Visitor
Improvements Fund, which monies are designated for the development and marketing of
visitor improvements and attractions, special events and beautification projects in the City,
historic preservation, and the general promotion of the City and its environs.
(2) Review the preliminary budget for the Visitor Improvements Fund prepared by the City
Manager and provide input as needed before submission to the City Council.
(3) Create and recommend to the City Council for approval a master plan for the use of the
Visitor Improvements Fund for the development and marketing of visitor improvements and
attractions, special events and beautification projects in the City, historic preservation, and
the general promotion of the City and its environs, and review and update such plan
annually prior to the budget process.
(4) Develop collaboration among citizens, businesses, and key organizations to align efforts
towards achieving the goals of the board.
(45) Perform such other duties not inconsistent with this Article as may be requested by the
City Council or City Manager to other City departments or agencies. (Ord. 33 §4, 2007)
Sec. 2-12-50. - Meetings and officers.
At the first Board meeting following the commencement of new terms on June 1 of each year, the
Visitor Improvements Fund Advisory Board shall organize by electing three (3) of its members to
serve as Chair, Vice-Chair and Secretary, respectively, to serve at the pleasure of the Visitor
Improvements Fund Advisory Board. The Board shall hold such regular and special meetings as
may be required. All proceedings shall be open to the public. A majority of the membership of the
Board shall constitute a quorum. The affirmative vote of a majority of the quorum of the Visitor
DEPARTMENT OF PLANNING & DEVELOPMENT
202 Railroad Avenue, Rifle, CO 81650
Phone: 970-665-6490 Fax: 970-625-6268
Improvements Fund Advisory Board shall be necessary for it to take any action except to adjourn.
A member of the Board shall serve as secretary for the recording of minutes for the Board, who
shall keep a record of its proceedings and transactions. The Secretary may request a member of
the City administration to keep such minutes and records if he or she so desires. The Visitor
Improvements Fund Advisory Board may prescribe regulations for the conduct of its internal
affairs, which shall be consistent with this Article and this Code, and copies of which shall be kept
on file in the office of the City Clerk where they shall be available for public inspection. (Ord. 33
§4, 2007; Ord. 15 §3, 2011)
Sec. 2-12-60. - Removal of members.
Members of the Visitor Improvements Fund Advisory Board may be removed by action of the City
Council for malfeasance or nonfeasance or for unexcused failure to attend three (3) consecutive
meetings of the Board. The Board may recommend such action to the City Council. (Ord. 33 §4,
2007)
To:
Honorable Mayor and City Council
From:
Kristy Christensen, City Clerk
Date:
Thursday, July 27, 2017
Subject:
Liquor License Renewal
The following businesses have filed a liquor license renewal application:
Business Name/Address
Dillon Companies INC
dba City Market # 43
1320 Railroad Ave
Rifle, CO 81650
Type of License
3.2% Beer of Premises
Walmart Store INC
dba Walmart # 5232
1735 Railroad Ave
Rifle, CO 81650
3.2% Beer of Premises
These criteria have been met by Dillon Companies INC, and Walmart INC:
• The applications are completed.
• The fees have been paid.
I recommend approval of these renewal applications.
CITY OF RIFLE, COLORADO
ORDINANCE NO. 20
SERIES OF 2017
AN ORDINANCE OF THE CITY OF RIFLE, COLORADO, ADDING A NEW
SECTION 8-1-245 TO THE RIFLE MUNICIPAL CODE FOR LOCAL
ENFORCEMENT AND PROSECUTION OF INDIVIDUALS DRIVING
UNDER RESTRAINT IN VIOLATION OF COLORADO STATE LAW.
WHEREAS, the City of Rifle (“Rifle” or the “City”) is a home rule municipality
organized under Article XX of the Colorado Constitution and with the authority of the Rifle
Home Rule Charter; and
WHEREAS, Section 42-2-138, C.R.S., prohibits the operation of motor vehicles by
individuals whose driving privilege has been restrained; and
WHEREAS, by HB 17-1162, the Colorado General Assembly authorized local
governments to enforce violations of Section 42-2-138, C.R.S.; and
WHEREAS, the Rifle City Council finds and declares that it is in the interest of the
public health, safety, and welfare to amend the Rifle Municipal Code to authorize the
enforcement and prosecution of violations of Section 42-2-138, C.R.S., in the Rifle Municipal
Court.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF RIFLE, COLORADO,
ORDAINS THAT:
1.
forth in full.
Incorporation of Recitals. The foregoing recitals are incorporated herein as if set
2.
Code Addition. A new Section 8-1-245 of the Rifle Municipal Code is hereby
added to read as follows:
Sec. 8-1-245. – Driving under restraint – penalty.
a. Any person who drives a motor vehicle or off-highway vehicle with knowledge that
the person’s license or privilege to drive, either as a state resident or a non-resident, is
under restraint for an outstanding judgment is guilty of a Class A Traffic Infraction.
b. Notwithstanding any provision of this Chapter to the contrary, any person in violation
of this Section may be punished by a fine not greater than $500.00 and/or
imprisonment for a period of not more than six months.
c. The Rifle Municipal Court shall have jurisdiction over violations of this Section, but
shall not waive or reduce the three-point penalty imposed under state law.
INTRODUCED on July 19, 2017, read by title, passed on first reading, and ordered
published by title as required by the Charter.
City of Rifle, Colorado
Ordinance No. 20, Series of 2017
Page 2 of 2
INTRODUCED a second time at a regular meeting of the Council of the City of Rifle,
Colorado, held on August 2, 2017, passed without amendment, approved, and ordered published
in full as required by the Charter.
Dated this 2nd day of August, 2017.
CITY OF RIFLE, COLORADO
BY:
ATTEST:
_______________________________
City Clerk
_________________________________
Mayor
James S. Neu
Partner/Shareholder
www.mountainlawfirm.com
Glenwood Springs – Main Office
201 14th Street, Suite 200
P. O. Drawer 2030
Glenwood Springs, CO 81602
Aspen
323 W. Main Street
Suite 301
Aspen, CO 81611
Montrose
1544 Oxbow Drive
Suite 224
Montrose, CO 81402
[email protected]
Direct: 970.928.2121
Office: 970.945.2261
Fax: 970.945.7336
*Direct Mail to Glenwood Springs
July 26, 2017
Mayor Randy Winkler
Rifle City Council
Re:
August 2, 2017 City Council Meeting
Dear Mayor Winkler and Members of the Rifle City Council:
The purpose of this letter is to briefly outline items we worked on for the August 2, 2017 Rifle
City Council Meeting.
1.
Ordinance No. 20, Series of 2017 (Municipal Enforcement of Driving Under
Restraint). The State General Assembly recently passed HB 17-1162 to authorize local governments
to enforce penalties for driving under restraint through municipal courts. Under existing state law,
both state residents and non-residents can have their driving privileges revoked in Colorado for failing
to comply with the terms of certain court judgments, including child support payments. Driving under
restraint in these circumstances in punishable by up to six months in jail and a fine of up to $500, as
well as a mandatory three points on the person’s license. Ordinance No. 20 merely codifies the City’s
intent to cite these violations into the Rifle Municipal Court. By adding Section 8-1-245 to the
Municipal Code, individuals caught driving under restraint within the City will be subject to the same
penalties as at the state level.
2.
Ordinance No. 21, Series of 2017 (Revisions to Municipal Code Pertaining to Open
Burning of Fires in the City). On first reading of Ordinance No. 21, Series of 2017 amending Article
10-10 of the Municipal Code regarding the open burning of fires within the City, City Council
requested further revisions to clarify the fire ban for residents. This request was prompted in part by
a perceived conflict between the definitions of “open-burning fires” and “recreational burning”,
which Council was concerned could be read as limiting barbeques and casual backyard fires. Luckily,
that is not the case.
In reviewing the matter for second reading, limited structural changes have been made to
Ordinance No. 21. The definitions currently incorporated into the City Code are taken from the
International Fire Code, which has been adopted by all local jurisdictions and is commonly accepted
and understood by enforcement, so we do not want to amend them. But we do want to point out that
these regulations do not prohibit barbeques or open casual backyard fires that have a total fuel area
of three feet or less in diameter and two feet or less in height.
Page 2
“Open-burning fires” are only those fires that do not
(1) Pass through a smoke stack or chimney; or
(2) Are not enclosed.
For further clarification, a fire is considered enclosed, rather than open, if only apertures,
ducts, smoke stacks, flues, or chimneys are open during the fire. Recreational fires and fires that are
burned pursuant to a valid permit are specifically excepted from the prohibition on open fires and are
allowed. Recreational fires are most relevant and are defined as fires that burn materials other than
rubbish. Where the fire is contained in an incinerator (smoke stack/chimney), outdoor fireplace
(chimney), barbeque grill (duct/flue), or barbeque pit (aperture), the fire is not considered an openburning fire because it is enclosed. Each of these structures can be used without being in violation of
the open-burning ordinance.
The exception provided for recreational burning, therefore, is targeted at allowing casual fires
of three feet or less diameter and two feet or less height that are not enclosed and would otherwise be
considered open—casual backyard fires that are typically just for enjoyment. We do not want to
hamper enforcement by amending the standard definitions used by the various agencies, so it might
be more fruitful to educate the public what they CAN do when the fire ban notices are published, if
that is Council’s concern. We can discuss other options at your meeting.
3.
Oak Leaf Solar Subscription Agreement and Property Lease. Representatives of Oak
Leaf Solar presented to the City Council a couple months ago regarding a Solar Subscription
Agreement to purchase power from a proposed solar garden. We have enclosed their summary of that
presentation for your reference. Oak Leaf also desires to Lease 10 acres on the City’s Energy
Innovation Center (“EIC”) property adjacent to the wastewater treatment plant to construct the
community solar garden. Staff investigated the use of the 10 acres of property and found the enclosed
plat for the EIC which contemplated additional solar generation on the proposed site. With that plan
in place, staff does not object to the use of that portion of the EIC for the community solar garden.
The enclosed form of the Ground Lease with Oak Leaf is standard and contains a 20 year term
with two options to extend for five years each. The Rent is nominal at $100 per acre per year with a
2% escalator for the Initial Term because the primary value of the Lease is in the City’s Subscription
Agreement with Oak Leaf, discussed below. The Subscription Agreement term is 20 years, so if Oak
Leaf exercises the options to extend the Lease Term, the Rent will be market rate or as agreed by the
parties. We also inserted language regarding the environmental covenants associated with the EIC
Property and Oak Leaf’s obligations to comply. The Lease is contingent on the approvals necessary
to construct and operate the solar garden, so in the event the Oak Leaf is not able to move forward
with the project, the Lease will terminate.
In the Community Solar Garden Subscription Agreement, the City is agreeing to purchase
energy at the from Oak Leaf for 20 years starting at $.0667/kWh which increases 1.35% per year. The
current cost of power from Xcel is $.07/kWh generating an instant savings. Oak Leaf has all
obligations to operate and maintain the solar garden. The assumption that the cost of electricity from
Page 3
the grid will increase much faster than the stated cost for the solar power at 1.35% per year creates
the savings and value to the City. The current calculation saves the City $930,000 in energy costs
over the 20 year term. The percentage of the City’s subscription may change for the final version of
the Subscription Agreement as the City’s consumption needs are further evaluated.
As always, please feel free to contact us before the meeting if you have any questions.
Very truly yours,
KARP NEU HANLON, P.C.
James S. Neu
JSN:
Enclosures
To:
Honorable Mayor and City Council
From:
Kristy Christensen, City Clerk
Date:
Wednesday, August 2, 2017
Subject:
Liquor License Application for
Western Slope Chicken LLC.dba Wingchesters
A Liquor License Application has been received for:
Western Slope Chicken,
LLC. dba Wingchesters
717 Taughenbaugh Boulevard
Rifle, CO 81650
Type of License: Hotel and Restaurant
According to Rifle Municipal Code 6.5.50, it is the Clerk’s responsibility, on behalf of the Liquor Licensing
Authority, to investigate the following:
1.
Whether the prohibitions contained in CRS 12-46-104 or 12-47-313 apply to the applicant
FINDING: The prohibitions in the referenced sections do not apply to Western Slope Chicken, LLC.
d/b/aWingchesters.
2.
The number and type of outlets of a nature similar to the applicant’s within one (1) mile in any direction of the
proposed location.
FINDING: There are six other locations within one mile with a Hotel and Restaurant License
The application is complete and the fees for this application have been paid. This hearing was properly noticed in the
newspaper and on the premises. A petition with signatures of Rifle residents that support this application has been
submitted. No other petitions, remonstrances or statements have been received at this time.
The City has received the results of background investigation on the applicants and no negative items appeared on the
background check.
Staff recommends that Council approve the application.
Thank you.
CRS 12-46-104 and 12-47-313 prohibit action upon an application for a license:
•
Within 500 feet of a location for which the City has denied an application for the same type of license within the last 2 years because the reasonable requirements of the neighborhood
and the desires of the adult inhabitants were satisfied by existing licenses;
•
If the applicant does not have legal possession of the premises;
•
At a location where zoning prohibits sale of alcoholic beverages; or
•
Aat a location within 500 feet of a school.
City of Rifle - Solar Garden
Opportunity
Version: Original
March 15, 2017
Oak Leaf Energy Partners
2645 E. 2nd Av enue, Suite 206 Denv er, CO 80206
City of Rifle - Solar Garden Opportunity
1 Executive Summary
March 15, 2017
Mr. Matt Sturgeon
City Manager
City of Rifle
202 Railroad Avenue
Rifle, CO 81650
Dear Mr. Sturgeon:
Thank you for your interest in hosting and subscribing to one of Oak Leaf’s
Community Solar Gardens in Garfield County. We are also interested in the City
participating as a subscriber to two solar gardens we are developing in Mesa
County. Please see attached a proposal outlining the benefits to the City, which
are realized through a land lease and subscription savings.
We are excited about this opportunity and look forward to continuing our
discussions. We will plan on following up with you next week to answer any
questions you might have.
Sincerely,
Michael McCabe
Partner
Oak Leaf Energy Partners
303-893-6945
[email protected]
Page 2 of 7
City of Rifle - Solar Garden Opportunity
2 Proposal
Oak Leaf, founded in 2005, has emerged as one of the largest and most
successful solar development firms in Colorado with over 70 solar projects
commissioned to date.
In December, Xcel awarded Oak Leaf several Community Solar Gardens across
the State, including two in Garfield and surrounding Counties. There are two
opportunities for the City to participate in these gardens: as a host and as a
subscriber.
Host – State law requires the Community Solar Garden to reside in Xcel Energy’s
territory and to interconnect to Xcel’s grid. We have identified a 10-acre site on
City land adjacent to its wastewater treatment plant as shown in the aerial photo
below. We would need a diligence period to conduct engineering studies on the
land and to gain third party approvals (e.g. County and Xcel).
Subscriber – Oak Leaf also proposes the City subscribe to the Community Solar
Garden. There is no upfront cost to the City to subscribe and the City will receive
Page 3 of 7
City of Rifle - Solar Garden Opportunity
a bill credit from Xcel of approximately $.07/kWh. In turn the City would pay Oak
Leaf $.0667/kWh with the spread representing the City’s revenue or profit.
Depending on the City’s subscription level, the City could generate approximately
$930k of revenue during the contract term.
3 Benefits to the City
In summary, by participating in the gardens, the City will benefit in several ways:
1) Economic Benefit – The City will receive a bill credit from Xcel for
subscribing to the garden. This bill credit will be more than the amount the
City pays Oak Leaf. The difference between the bill credit and the City’s
payment to Oak Leaf is the City’s net income for being a subscriber. Of
note, there is no upfront or ongoing capital cost incurred by the City so the
City will earn money from the first day the garden is live.
2) Land Lease – If the City elects to participate as a subscriber and landlord, it
will receive a nominal lease payment from Oak Leaf. Although solar
projects can only support a nominal lease payment we do believe we are a
fantastic neighbor and can easily co-exist with neighboring activities. And
this is a great way to monetize underutilized land assets.
3) Sustainability Initiatives – Participating in the gardens will advance the City’s
sustainability initiatives and provide positive public relations for the
duration of the garden’s existence.
Page 4 of 7
City of Rifle - Solar Garden Opportunity
4 Economics
Please see below two tables, one illustrating the City’s projected revenue from
participating as a subscriber and one illustrating the proposed lease revenue from
hosting the project. The subscription opportunity assumes the City would
subscribe at 40% across three community solar gardens.
City’s Subscription Opportunity Per Garden
Total Xcel
Bill Credits
to
Subscriber
Subscriber
Oak Leaf
Subscription Payments
to Oak Leaf
Price 2
Year
Subscriber
kWh
SG Credit
1
3,902,400
$0.06947
$271,100
0.0667
$260,290
$10,810
2
3
4
5
3,882,888
3,863,474
3,844,156
3,824,935
$0.07121
$0.07299
$0.07481
$0.07668
$276,500
$281,995
$287,581
$293,296
0.0676
0.0685
0.0694
0.0704
$262,483
$264,648
$266,784
$269,275
$14,017
$17,347
$20,797
$24,021
6
7
8
9
3,805,811
3,786,782
3,767,848
3,749,009
$0.07860
$0.08056
$0.08258
$0.08464
$299,137
$305,063
$311,149
$317,316
0.0713
0.0723
0.0733
0.0742
$271,354
$273,784
$276,183
$278,176
$27,782
$31,279
$34,966
$39,140
10
11
12
13
3,730,263
3,711,612
3,693,054
3,674,589
$0.08676
$0.08893
$0.09115
$0.09343
$323,638
$330,074
$336,622
$343,317
0.0752
0.0763
0.0773
0.0783
$280,516
$283,196
$285,473
$287,720
$43,122
$46,878
$51,149
$55,597
14
3,656,216
$0.09577
$350,156
0.0794
$290,304
$59,852
15
16
3,637,935
3,619,745
$0.09816
$0.10061
$357,100
$364,183
0.0805
0.0816
$292,854
$295,371
$64,246
$68,811
17
3,601,646
$0.10313
$371,438
0.0827
$297,856
$73,582
18
3,583,638
$0.10571
$378,826
0.0838
$300,309
$78,518
19
20
3,565,720
3,547,891
$0.10835
$0.11106
$386,346
$394,029
0.0849
0.086
$302,730
$305,119
$83,616
$88,910
$5,644,426
$934,438
Total
1
$6,578,864
Savings
1
Assumes Xcel bill credit increases 2.5% annually
Assumes Oak Leaf price increases 1.35% annually
2
The City’s subscription will offset 75k tons of CO2 equivalent to 218 million miles of driving.
Page 5 of 7
City of Rifle - Solar Garden Opportunity
City’s Hosting Opportunity
We are proposing a nominal lease payment similar to how the City structured its
current solar deal with SunEdison. The City’s economic benefit is primarily
received through the subscription agreement.
Year
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
Page 6 of 7
Lease Payment
$1,000
$1,020
$1,040
$1,061
$1,082
$1,104
$1,126
$1,149
$1,172
$1,195
$1,219
$1,243
$1,268
$1,294
$1,319
$1,346
$1,373
$1,400
$1,428
$1,457
$1,486
$1,516
$1,546
$1,577
$1,608
$1,641
$1,673
$1,707
$1,741
$1,776
Oak Leaf Energy Partners
2645 E. 2nd Av enue, Suite 206
Denv er, CO 80206
Telephone: 303-893-6945
Mobile: 720-496-4342
GROUND LEASE AGREEMENT
BASIC LEASE TERMS SUMMARY
Effective Date
The date that this Lease has been fully executed by both
Landlord and Tenant as reflected on the signature page(s).
Landlord
_City of Rifle, Colorado, a _________________________
Tenant
_Oak Leaf Solar XXXII LLC, a Colorado limited liability
company
Land
10 acres, plus or minus, of the real property located in Garfield
County (the “County”), Parcel ID Number 217718400314 as
approximately depicted on Exhibit A attached hereto.
Initial Diligence Period
(Section 3)
365 days.
Initial Diligence Period
Fee (Section 3)
$0.
Extended Diligence
Periods (Section 3)
One (1) additional 60 day period after the expiration of the
Initial Diligence Period (“First Extended Diligence Period”);
[plus one (1) additional 45 day period after the expiration of the
First Extended Diligence Period (“Second Extended Diligence
Period”)]
Extended Diligence
Period Fees (Section 3)
$0 for the First Extended Diligence Period.
Initial Term
(Section 4)
246 calendar months.
Renewal Terms (Section
4)
Two (2) successive renewal terms of five (5) years each.
Rent
(Section 7)
$100 per Acre (prorated for any fractional Acre) per year,
subject to the terms of Section 2, and subject to Landlord being
party to an active Community Solar Garden Subscription
Agreement, or similar agreement, with an affiliate of Tenant, or
an assignee thereof. In the event Landlord is not party to such
an Agreement, Rent shall be ________ per Acre.
Rent Escalation Date
(Section 7)
The anniversary of the first Rent Payment Date (as defined
in Section 7(a))
[$0 for the Second Extended Diligence Period.]
1
Rent Escalation
Percentage (Section 7)
Two percent (_2_%).
Intended Use
(Section 11)
The construction and operation of a solar photovoltaic power
array (the “System”) for the generation and distribution of
electric power.
Landlord’s Notice
Address (Section 19)
_____________________
_____________________
_____________________
_____________________
Email: _______________
Tenant’s Notice Address
(Section 19)
c/o Michael McCabe, President, Oak Leaf Solar XXXII LLC
2645 East 2nd Avenue – Suite 206
Denver CO 80206
Attn: Asset Management Department
Phone: 303-893-6945
Email: [email protected]
2
GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT (this “Lease”) is made and entered into by and
between Landlord and Tenant, effective as of the Effective Date.
NOW THEREFORE, in consideration of the amounts to be paid to Landlord by Tenant
and the other mutual covenants promises and covenants set forth herein, the receipt and
sufficiency of which is hereby conclusively established, Landlord and Tenant hereby agree as
follows:
1.
Basic Lease Terms Summary. References in the body of this Lease to a portion
of the Basic Lease Terms Summary (e.g., the defined terms in the left-hand column of the Basic
Lease Terms Summary) shall be deemed and construed to incorporate all the terms provided
under each such referenced portion of the Basic Lease Terms Summary. References in the Basic
Lease Terms Summary to a portion of the body of this Lease (e.g., Section references in the lefthand column of the Basic Lease Terms Summary) shall be deemed and construed to incorporate
all the terms provided under each such referenced portion of the body of the Lease.
Notwithstanding anything set forth above, if there is any inconsistency between the Basic Lease
Terms Summary and another portion of this Lease, the terms of the Basic Lease Terms Summary
shall control.
2.
Leased Premises.
(a)
Landlord hereby agrees to lease the Premises (as defined in Section 2(b)
below) to Tenant, and Tenant hereby agrees to lease the Premises from Landlord, upon the terms
and subject to the conditions set forth herein.
(b)
The “Premises” as used herein shall be an area comprised of all or part of
the Land (such area to be determined in accordance with this Section 2), together with all
personal property, improvements and fixtures located on the Land and all other appurtenances,
tenements, hereditaments, rights and easements pertaining to the Land. Landlord acknowledges
and agrees that the exact size, shape and location of the area of the Land that will comprise the
Premises (the “Lease Boundary Line”) has not yet been determined, and any maps or
depictions which Tenant has shown or will show to Landlord (including, without limitation,
Exhibit A attached hereto) are approximations only and are subject to change. During the
Diligence Period (as defined in Section 3(b) below), Tenant shall assess the Land to determine
the most suitable location for the System, and Tenant shall establish the final Lease Boundary
Line in accordance with Section 2(c) below. Until the final Lease Boundary Line is established,
any reference to the Premises herein shall be deemed to include the entirety of the Land.
(c)
Within thirty (30) days following the Construction Commencement Date
(as defined in Section 4(a) below), Tenant shall obtain and deliver to Landlord an ALTA survey
(the “Survey”), which shall set forth and conclusively establish (1) the metes and bounds legal
description of the Lease Boundary Line, and (2) the net acreage (the “Acreage”, and each such
acre, an “Acre”) of the Premises, being the total Acreage located within the Lease Boundary
Line. The parties agree that (A) the Lease Boundary Line and Acreage set forth in the Survey
shall be incorporated into this Lease as if fully set forth herein without amendment to this Lease,
3
and (B) the Acreage set forth in the Survey shall be the Acreage used for purposes of computing
Rent. Landlord acknowledges and agrees that that the final Acreage of the Premises as
established by the Survey may be less than the approximate acreage of the Land set forth in the
Basic Lease Terms Summary, which would have the effect of reducing the Rent payable under
this Lease. If requested by Tenant, Landlord shall provide written consent to the foregoing or an
amendment to this Lease expressly incorporating the Survey into this Lease as provided in this
Section 2(c).
3.
Diligence Period.
(a)
The Initial Diligence Period shall commence on the Effective Date.
Within thirty (30) days after the Effective Date, Tenant shall pay to Landlord the Initial
Diligence Period Fee. Landlord and Tenant acknowledge and agree that the Initial Diligence
Period Fee (and the Extended Diligence Period Fees, if applicable) have been bargained for and
agreed to as consideration for the Diligence Period (as defined below), Tenant’s right to
terminate this Lease pursuant to Section 3(f), and for Landlord’s execution and delivery of this
Lease. Such consideration is in addition to and independent of all other consideration provided
in this Lease, and is nonrefundable in all events. This Section 3(a) shall survive termination of
the Lease.
(b)
Tenant may elect to extend the Initial Diligence Period by the Extended
Diligence Periods by providing written notice to Landlord prior to the expiration of the Initial
Diligence Period (or the preceding Extended Diligence Period, as applicable), and paying to
Landlord the applicable Extended Diligence Period Fee within ten (10) days after the expiration
of the Initial Diligence Period (or the preceding Extended Diligence Period, as applicable). If
Tenant does not elect to exercise the Extended Diligence Period, the applicable Extended
Diligence Period Fee shall not be payable to Landlord. If Tenant has exercised the Extended
Diligence Period and the Rent Commencement Date (as defined in Section 6(a)) occurs prior to
the end of such Extended Diligence Period, any unamortized portion of the applicable Extended
Diligence Period Fee shall be applied against the initial Rent payment. The Initial Diligence
Period and the Extended Diligence Periods, if exercised, shall be collectively referred to as the
“Diligence Period”.
(c)
During the Diligence Period, Tenant (and its agents, representatives,
consultants and affiliates) shall be permitted access to the Premises at reasonable times and upon
reasonable notice to Landlord, for purposes of conducting (at Tenant's expense) any and all
investigations or testing of the Premises as Tenant may deem necessary, appropriate or
convenient, including without limitation, the surveying or investigation of environmental, soils,
biological, cultural, historical, boundary or geotechnical matters. Tenant is hereby authorized to
undertake direct discussions and/or negotiations with any governmental entity or other agency,
body or organization that has jurisdiction over the Premises (including, without limitation, any
city, county state or federal agency) in regards to the Premises and the Intended Use. Tenant
agrees to make available to Landlord copies of any surveys or studies related to the Premises that
are undertaken by Tenant during the Diligence Period.
(d)
Landlord shall provide to Tenant any of the following in Landlord's
possession or control, within five (5) days following the Effective Date: (1) any notice of
4
violation of any law or regulation, including zoning laws applicable to the Premises, (2) any
“Phase I” and other environmental assessment reports regarding the Premises, (3) Landlord's
most recent survey and title insurance policy relating to the Premises, (4) any governmental
permits, licenses or approvals for the Premises, (5) tax bills, contracts and agreements relating to
the Premises, and (6) any other surveys, physical condition reports, notices regarding zoning or
government action with respect to the Premises.
(e)
Landlord agrees to pay any outstanding property taxes, when due,
associated with and accruing to the Land included in the Premises prior to commencement of the
Term that may be required for Tenant to obtain use permits or other entitlements from the county
or other authorities with jurisdiction.
(f)
Landlord acknowledges that Tenant may obtain, at Tenant's expense, a
title insurance policy insuring Tenant's leasehold interest in the Premises. Landlord agrees to
reasonably assist Tenant in obtaining such title policy by supplying any information reasonably
requested by the title insurance company in connection with issuing such title policy.
(g)
During the Diligence Period, Tenant may terminate the Lease, for any
reason or no reason, exercisable upon written notice from Tenant to Landlord of its election to
terminate delivered on or before the expiration of the Diligence Period (as may be extended
pursuant to Section 3(b) above), in which event Landlord and Tenant shall have no further rights
or obligations under this Lease except as otherwise expressly provided in this Lease.
4.
Lease Term. The Initial Term shall commence on the date that Tenant begins
construction of the System on the Premises as confirmed by written notice from Tenant to
Landlord (the “Construction Commencement Date”) and shall continue for the entire Initial
Term unless modified or earlier terminated pursuant to the terms hereof. If the Initial Term does
not commence on the first day of a month, then the Term shall not end until the last day of the
last month of the Initial Term. Provided Tenant has not commenced construction of the System
prior to the expiration of the Diligence Period and that all other conditions for construction of the
System have been satisfied, Tenant agrees to begin construction of the System as soon as
commercially practicable after such expiration, and in any event, within one year of expiration of
the Diligence Period.
(a)
Tenant shall have the option to extend the Initial Term for the Renewal
Terms by providing Landlord with written notice no later than sixty (60) days prior to the
expiration of the Initial Term (or the preceding Renewal Term, as applicable). If Tenant fails to
timely give such notice, Tenant’s right to exercise such Renewal Term shall nevertheless
continue until thirty (30) days after Landlord has given Tenant notice of Tenant’s failure to
exercise such Renewal Term (in which event Tenant may exercise such Renewal Term at any
time until the expiration of such thirty (30) day period). The parties intend to avoid forfeiture of
Tenant’s rights to extend the term of this Lease under any of the Renewal Terms because of
Tenant’s inadvertent failure to give timely notice. The Initial Term and any Renewal Terms, if
exercised, shall be collectively referred to as the “Term”. Rent during the Renewal Terms shall
be at a market rate and agreed to by both Parties. If both Parties cannot agree on the market rate
then Tenant shall hire and pay for an independent real estate appraiser to be selected by both
Parties to determine the market rate.
5
5.
Termination of Lease.
(a)
Tenant shall have the right to terminate this Lease as to all or any part of
the Premises as follows: (i) as of the last day of the one hundred eighty-sixth (186th) month of
the Initial Term (the “Interim Termination Deadline”), exercisable upon written notice to
Landlord given prior to the Interim Termination Deadline, (ii) pursuant to the failure of any
condition described in Section 5(b) below, or (iii) after the expiration of the Diligence Period but
prior to the construction and commercial operation of the System, upon Tenant’s determination,
in Tenant’s sole and absolute discretion, that it would not be commercially reasonable to proceed
with the construction and operation of the System; provided, that if Tenant so terminates
pursuant to this clause (iii) after the occurrence of the Rent Commencement Date, then such
termination shall be effective as of the date that Tenant pays to Landlord a termination fee equal
to the unpaid balance of the total Rent that would otherwise be due for the actual time following
the Rent Commencement Date to the date of termination. If this Lease is terminated as to only a
portion of the Premises, this Lease shall remain in effect as to the remainder of the Premises.
(b)
Tenant's obligation to pay Rent and continue this Lease is at all times
expressly subject to satisfaction of each of the following conditions: (i) Tenant’s obtaining and
maintaining all necessary or required approvals from state, federal and local authorities, which
Tenant shall in good faith attempt to obtain and maintain, (ii) Tenant's obtaining and
maintaining, in good faith, any agreement that is necessary for the operation of the System and
the sale and delivery of the electricity generated by it, including without limitation an
interconnection agreement and power purchase agreement with the applicable utility company,
and (iii) Tenant’s ability, in good faith, to continuously operate the System and utilize the
Premises for the Intended Use. If any of the foregoing conditions are not satisfied at any time
following the Effective Date, Tenant shall have the right to terminate this Lease upon written
notice to Landlord.
6.
Rent Commencement.
(a)
Tenant's obligation to pay Rent shall commence on the earlier of: (i) the
expiration of the Diligence Period (as may be extended pursuant to Section 3(b) above) or (ii) the
Construction Commencement Date (the earlier of such dates, the “Rent Commencement
Date”). For the avoidance of doubt, the Construction Commencement Date shall not be deemed
to have occurred as a result of (and the Rent Commencement Date shall not be triggered by): (1)
Tenant’s due diligence activities on the Premises (including, without limitation, any surveying,
soil or environmental testing or similar work) or (2) any work performed by or on behalf of the
servicing utility company. Upon the occurrence of the Rent Commencement Date, Tenant shall
send a written notice to Landlord confirming the occurrence of the Rent Commencement Date.
(b)
Landlord shall furnish Tenant with a signed, completed form W-9 within
twenty (20) business days following the Effective Date and thereafter within ten (10) days of any
event causing a change in any of the information set forth in the previously-delivered W-9,
including any transfer or assignment of the Landlord's interest in the Lease. Tenant shall be
entitled to delay delivery of Rent or any other payment due under this Lease, including the Initial
Diligence Period Fee, until it receives such W-9.
6
7.
Rent; Payment Schedule; Rent Escalation.
(a)
Rent shall be payable in advance in semi-annual installments due on each
January 15 and July 15 during the Term (each, a “Rent Payment Date”); provided, that the first
installment of Rent shall be due on the Rent Commencement Date and shall be prorated, on a
daily basis, for the period between the Rent Commencement Date and the first Rent Payment
Date. If Tenant elects to terminate this Lease prior to the Rent Commencement Date in
accordance with the terms of this Lease, no Rent shall be due or payable.
(b)
Beginning on the Rent Escalation Date, and for each anniversary
thereafter, the annual Rent shall increase over the annual Rent payable for the immediately
preceding year by the Rent Escalation Percentage.
(c)
If any overdue installment of rent is not received by Landlord within ten
(10) days after Landlord provides Tenant written notice of the delinquency, Tenant will pay a
late fee to Landlord in the amount of five percent (5%) of the unpaid delinquent rent amount, and
Tenant shall pay interest of 1.5% per month on the unpaid balance due from the date of
Landlord’s notice until the principal and the interest is paid in full.
(d)
If the Rent Commencement Date occurs prior to the establishment of the
Lease Boundary Line pursuant to Section 2 above, then the Rent payable on and after the Rent
Commencement Date until the date that the Lease Boundary Line is established (such period, the
“Interim Rent Period”) shall be computed based on the approximate acreage of the Land set
forth in the Basic Lease Terms Summary above. Once the Lease Boundary Line is established,
the Rent payable on and after such date shall be computed based on the final Acreage set forth in
the Survey (and the Rent shall be increased or decreased accordingly). If the Rent is increased as
a result of an increase in the final Acreage as set forth in the Survey, Tenant shall make a onetime payment to Landlord on the next Rent Payment Date equal to the difference between (i) the
amount of Rent which would have been payable during the Interim Rent Period if computed
based on the final Acreage set forth in the Survey, minus (ii) the amount of Rent actually paid
during the Interim Rent Period. If the Rent is decreased as a result of a decrease in the final
Acreage as set forth in the Survey, Tenant shall deduct from the next Rent payment owing to
Landlord an amount equal to the difference between (i) the amount of Rent actually paid during
the Interim Rent Period, minus (ii) the amount of Rent which would have been payable during
the Interim Rent Period if computed based on the final Acreage set forth in the Survey.
(e)
For purposes of clarification only, Tenant and Landlord acknowledge and
agree that Rent shall be determined in accordance with this Section 7 during the entire Term of
the Lease, including any Renewal Term.
8.
Utilities; Maintenance. During the Term, (a) Tenant shall arrange and pay for all
public utility services used on the Premises by Tenant, and (b) Tenant shall be responsible for the
repair and maintenance of the entire Premises, including any portion of the Premises located
outside of the proposed fenced area, which proposed fenced area shall be illustrated on the
Survey prepared pursuant to Section 2(c).
7
9.
Crops. Prior to the Rent Commencement Date, Landlord may plant farm crops or
enter into a lease for the planting of farm crops on the Premises (so long as any such lease does
not have a term longer than one (1) year); provided, that Landlord shall provide Tenant with
written notice thereof prior to the planting of such crops, or commencement of planting activities
such as fertilizing, or execution of any such farm lease, which notice shall include the estimated
date(s) for planting and harvesting such crops. Following receipt of such notice, Tenant may, in
Tenant's sole and absolute discretion, elect to (i) delay the Rent Commencement Date until the
earlier of the date that any crops actually planted on the Premises are harvested or one year
following the date of such notice, or (ii) commence construction of the System and pay the
owner of any crops actually planted an amount equal to the fair market value of the portion of
any crop or agricultural input such as herbicides or fertilizer that cannot reasonably be harvested
and sold solely as a result of the construction of the System. Even if farm crops are planted on
the Premises prior to the Rent Commencement Date, Tenant shall nevertheless have the right to
enter onto the Premises to extract soil samples, perform geotechnical tests, and conduct such
other tests, studies, inspections and analyses on the Premises as Tenant deems necessary, useful
or appropriate.
10.
Tenant’s Property.
(a)
The System and its constituent parts, together with any and all
improvements or other features constructed on, or personal property installed or placed on the
Premises by or for Tenant, including without limitation, machinery, fixtures, trade fixtures,
equipment, racking, inverters, cables, solar panels and other personal property (collectively,
“Tenant's Property”) are personal property within the meaning of Article 9 of the UCC (as
defined in Section 46 below) regardless of the manner of attachment to the Premises. Tenant's
Property is and shall at all times during the Term be deemed to be the property of Tenant (subject
to any Transfer in accordance with Section 26(a)), to be removed at Tenant's expense upon the
expiration or earlier termination of the Term in accordance with Section 13. The creation,
attachment and perfection of security interests in Tenant's Property shall be governed exclusively
by Article 9 of the UCC. For the avoidance of doubt and without limiting the foregoing,
Landlord hereby waives all rights to levy, distraint, possession or landlord’s lien against Tenant's
Property, if any, and shall not cause the creation of, or attachment to, Tenant's Property of any
liens (including mechanics' and judgment liens) or other encumbrances. For the avoidance of
doubt, Landlord is not responsible for payment of any Taxes assessed on Tenant's Property.
(b)
The parties hereto acknowledge that the Premises consist of land only and
do not include Tenant’s Property. Any claim to a lien or encumbrance upon the Premises, arising
from any act or omission of Landlord, shall accrue only against the real estate owned by
Landlord, and not against Tenant’s Property, and shall be subject to this Lease. If any such lien
or encumbrance shall be filed against Tenant’s Property as a result of Landlord's actions,
Landlord shall, without cost or expense to Tenant, promptly and within a reasonable time cause
such lien or encumbrance to be discharged of record by payment, statutory lien release bond,
court order or otherwise as provided by law. Landlord shall not permit any sale, foreclosure or
forfeiture of the Premises by reason of nonpayment of a lien caused by Landlord or anyone
claiming by or through Landlord. Landlord shall immediately notify Tenant of, and send Tenant
a copy of, any notice Landlord receives claiming that Landlord is late or in default regarding any
8
obligation Landlord has to pay money to any lender or third party holding a mortgage or other
lien affecting the Premises.
11.
Use and Occupancy. Tenant shall use the Premises for the Intended Use
(including all lawful uses that are incidental to, or not inconsistent with the Intended Use).
12.
Alterations and Construction Rights. Tenant may, at its expense and without
the consent of Landlord, remove and/or alter any existing improvements on the Premises, and
make any alterations, additions, improvements and changes to the Premises that Tenant deems
reasonably necessary in the operation of its business and the Intended Use, including, without
limitation, installation of the System, fencing, security devices and/or signage, and excavating,
grading, leveling or otherwise modifying the Land; provided, that such alterations, additions,
improvements and changes are made in compliance with applicable laws. Notwithstanding the
foregoing, Tenant shall provide notice to Landlord prior to removing and/or altering any existing
improvements. Landlord shall sign and deliver all applications and other documents, and shall
take all such other actions, as are reasonably requested by Tenant in connection with obtaining
any rezonings, variances or other approvals as Tenant shall deem necessary or desirable in
connection with the operation of the Premises.
13.
End of Term. Within one hundred twenty (120) days after the expiration or
earlier termination of the Term, Tenant shall completely remove all of Tenant's Property and
vacate the Premises. The removal of Tenant's Property shall be completed in a manner that does
not unreasonably and adversely affect the suitability of the Premises to be used for the same
purposes existing as of the Effective Date, and Tenant shall leave the Premises free of any
conditions created by Tenant which present a current unreasonable risk of harm to Landlord or
members of the public. For the avoidance of doubt, Tenant shall have no obligation to restore
any improvements demolished and removed from the Premises as permitted under Section 12
and shall not be required to replant any trees or farm crops removed in connection with the
construction of the System. If Tenant fails to vacate the Premises in accordance with this
Section 13, Landlord shall be entitled to holdover rent in the amount equal to one hundred
twenty-five percent (125%) of Rent for the final year of the Term, prorated on a daily basis, for
each day that Tenant fails to so vacate the Premises. Any such holdover shall be construed as a
tenancy from month-to-month.
14.
Taxes.
(a)
During the Term, and to the extent that the Land is subject to any real
estate or ad valorem taxes and assessments, Tenant shall pay Tenant's Portion (calculated in
accordance with this Section 14(a)) of the Tax Bill, applicable to each tax year or part thereof
which falls within the Term. Landlord shall provide Tenant with copies of all invoices, bills and
notices (collectively, “Tax Bills”) regarding all real estate and ad valorem taxes and assessments
imposed or levied on the Premises by any applicable government taxing authority (each, a
“Tax”, and collectively, “Taxes”), within thirty (30) days of Landlord's receipt of any such Tax
Bill. Landlord shall remit payment directly to the taxing authority for the entire amount of any
Tax Bill and, within thirty (30) days after Landlord notifies Tenant that such payment has been
made, Tenant shall reimburse Landlord for the portion of the Tax Bill allocable to the Premises
(such portion, “Tenant's Portion”), which portion shall bear the same relationship to the total
9
Tax Bill as the Premises bears to the larger tax parcel. Once the Lease Boundary Line is
established, the parties shall confirm Tenant's Portion in a written confirmation. Without
limiting the foregoing, Tenant shall have the right, but not the obligation, at any time during the
Term to pay the entire Tax Bill on Landlord's behalf and deduct any amounts not attributable to
Tenant’s Portion from future installment payments of Rent.
(b)
Without limiting Section 14(a), if Tenant's use of the Premises results in
the revocation of a tax classification which triggers liability for “rollback” taxes, Tenant shall
pay Tenant’s Portion of such rollback tax liability, together with any related interest or penalties,
other than interest and/or penalties arising from Landlord's failure to timely provide Tenant with
a copy of such Tax Bill.
(c)
Upon Tenant's reasonable request, Landlord shall take such reasonable
actions and do such things as necessary or desirable to facilitate any action by Tenant to contest
any Tax Bill or the assessed value of the property on which they are levied, or to otherwise seek
the abatement of Taxes applicable to the Premises, or to seek the separate assessment of the
Premises as a distinct tax parcel if the Premises are included within a larger tax parcel. Tenant
shall have the right, but not the obligation to pursue any such action.
(d)
Notwithstanding anything contained in this Lease, (1) Tenant shall not be
under any obligation to pay any part of any franchise, excise, estate, inheritance, income or
similar tax which is or may become payable by Landlord or which may be imposed against
Landlord or against the Rent payable under this Lease or upon the income or profits of Landlord
by reason of any law now in force or later enacted, and (2) in the event the Premises are
re­assessed for tax purposes because of transfer of ownership of the Land during the Term of this
Lease, Tenant shall not be responsible for payment of any increase in taxes, charges and
assessments attributable to such re-assessment, which increase shall be the sole responsibility of
Landlord.
15.
Fire or Other Casualty. If during the Term, all or part of the Premises or
Tenant's Property are damaged by fire, wind, flood, earthquake or other casualty, with the result
that, in Tenant's sole and absolute discretion, it would not be commercially or economically
reasonable or desirable to repair and restore the Premises and/or Tenant's Property, as applicable,
then Tenant may terminate this Lease by providing Landlord with written notice of the same and
vacating the Premises in compliance with Section 13 hereof. In such circumstances, Tenant shall
not be entitled to a refund of any Rent already paid. Tenant, or its successor in interest, shall be
entitled to 100% of any proceeds from casualty insurance policies maintained by Tenant.
16.
Condemnation.
(a)
If all or part of the Premises and/or Tenant's Property shall be subject to
condemnation, the exercise of the power of eminent domain, or other governmental taking (the
foregoing, collectively, a “Taking”) with the result that, in Tenant's sole and absolute discretion,
the unaffected portion of the Premises is insufficient or otherwise unsuitable for Tenant's
continued use of the Property for the Intended Use or such other use as existed at the time of the
Taking (a “Total Taking”), then Tenant may terminate this Lease by providing Landlord with
written notice of the Total Taking, the Lease shall terminate effective as of the date set forth in
10
such notice, and Tenant shall vacate the Premises in accordance with Section 13.
circumstances, Tenant shall not be entitled to a refund of any Rent already paid.
In such
(b)
If all or part of the Premises and/or Tenant's Property shall be subject to a
Taking that, in Tenant's sole and absolute discretion, does not constitute a Total Taking (a
“Partial Taking”) then (i) concurrently with such Taking this Lease shall terminate with respect
to the affected portion of the Premises, which Tenant shall vacate in accordance with Section 13,
(ii) this Lease shall continue in full force and effect with respect to the unaffected portion of the
Premises and (iii) the Acreage shall be reduced for each Acre (or portion thereof) subject to the
Taking, and the Rent due and owing at the next Rent Payment Date shall be reduced accordingly,
as confirmed in writing by the Parties. Tenant shall not be entitled to a refund of any Rent
already paid. For purposes of clarification only, Tenant shall be entitled to remove Tenant's
Property from any portion of the Premises that is subject to a Taking.
(c)
Tenant shall have the right but not the obligation to participate in any
proceedings with respect to a Taking; in such event Landlord shall cooperate with Tenant to
facilitate such participation. Neither Landlord nor Tenant shall enter voluntarily into any binding
agreement or settlement related to a Taking without the prior consent of the other party, which
consent shall not be unreasonably withheld, conditioned or delayed.
(d)
The proceeds of any Taking shall be apportioned as between Landlord and
Tenant as follows: Landlord shall receive an amount equal to the fair market value of the Land
subject to the Taking and calculated with reference to the value of the Land for the type of use
being made thereof prior to entry into this Lease, which use is acknowledged to be no less
valuable than agricultural use, but not the improvements constructed or placed by Tenant
thereon, and Tenant shall receive such amounts as are necessary to compensate Tenant for the
loss of use of the Premises so Taken, including any improvements constructed or placed by
Tenant on the Land, and the loss or interruption of Tenant’s business and the cost of any
restoration or repair necessitated by such Taking, including consequential losses. If after giving
effect to the foregoing there remain any un-apportioned proceeds, they will be equitably
apportioned as between Landlord and Tenant. Notwithstanding the foregoing, however, in the
event Tenant exercises its right to terminate this Lease under this Section 16, then Tenant shall
first receive all condemnation proceeds until Tenant has received an amount equal to the
appraised value of the System prior to the Taking.
17.
Default; Remedies. The failure by a party hereto to perform its obligations under
this Lease, if not remedied within thirty (30) calendar days of written notice of such failure from
the other party, or if such failure is not capable of being remedied within thirty (30) days,
remedial action is not commenced and diligently pursued within such thirty (30) day period,
shall constitute a default hereunder (a “Default”). Following an event of Default, the nondefaulting party may pursue any available remedies at law or in equity, subject to Section 27(b).
Notwithstanding the foregoing, the non-defaulting party shall take commercially reasonable
measures to mitigate damages resulting from such Default. Tenant may, in its sole and absolute
discretion, elect to cure a Default on the part of Landlord, in which case Tenant shall be entitled
to offset future payments of Rent or other amounts due to Landlord hereunder together with the
reasonable and documented out-of-pocket expenses incurred by Tenant in pursuing to cure such
Default.
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18.
Indemnifications. Landlord shall indemnify, defend and hold Tenant harmless
for, from and against any and all damages or claims caused by Landlord’s negligence or willful
misconduct, or Landlord’s breach of this Lease, that Tenant may be compelled to pay or defend
in connection with this Lease or Tenant's use of the Premises, except to the extent such damages
or claims are directly attributable to the actions or omissions of Tenant or any of Tenant's agents
or employees. Tenant agrees to indemnify, defend and hold Landlord harmless for, from and
against any and all damages or claims caused by Tenant’s negligence or willful misconduct, or
Tenant’s breach of this Lease, that Landlord may be compelled to pay or defend in connection
with this Lease or Tenant's use of the Premises, except to the extent such damages or claims are
directly attributable to the actions or omissions of Landlord or any of Landlord's agents or
employees.
19.
Notices. All notices, elections, demands, requests, and other communications
hereunder shall be in writing, signed by the party making the same and shall be sent by certified
or registered United States mail, postage prepaid, or by national overnight courier service which
provides tracking and acknowledgement of receipts or by email transmission, addressed to the
party to be served at the address indicated in the Basic Lease Terms Summary above or at such
other address as may hereafter be designated in writing by either party hereto, or by any other
method if actually received. The time and date on which mail is postmarked shall be the time and
date on which such communication is deemed to have been given.
20.
Easements. Landlord hereby grants to Tenant during the Term of this Lease (a)
an easement for light, solar energy resources, access (including vehicular and pedestrian ingress
and egress) and utility access over, under and across all property owned by Landlord which is
adjacent to or in the reasonable vicinity of the Premises as reasonably necessary for Tenant’s
conduct of the Intended Use on the Premises and to access the Premises, (b) an easement for any
and all objectively reasonable encroachments of Tenant’s Property onto Landlord’s adjacent
property, it being acknowledged by Tenant that it will endeavor to limit all such encroachments,
and (c) an easement over, under and across the Landlord’s adjacent property for audio, visual,
view, light, flicker, noise, vibration and any other effects attributable to the Intended Use of the
Premises. Without limiting the foregoing, Landlord agrees to execute and deliver any separate
easement or license agreements encumbering the Land and/or other of Landlord’s property
adjacent to or in the reasonable vicinity of the Premises for the benefit of Tenant and the
Premises as Tenant or the utility to which the System is interconnected (the “Utility”) may
reasonably request to facilitate the construction, operation and removal of the System, or
otherwise in connection with Tenant's use of the Premises during the Term (collectively, the
“Easements”). Landlord and Tenant (and the Utility, as applicable) shall in good faith establish
the location and terms of such Easements within twenty (20) days of the request therefor, and
any such Easements shall be confirmed in writing, signed by the parties and recorded in the
County records, and shall run with the Lease and inure to the benefit of Tenant (or the Utility, as
applicable) and its transferees, successors and assigns hereunder, including any Additional
Notice Party.
21.
Non-Disturbance Agreement. Upon Tenant's request, Landlord shall execute,
and shall use commercially reasonable efforts to cause any current beneficiaries of any
mortgages/deeds of trust, or any other parties with rights in, or interests secured by Landlord's
interest in, the Land or any other property owned by Landlord which is subject to an easement
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benefiting Tenant (collectively, “Landlord’s Land”), to enter into an agreement with Tenant
confirming that such party subordinates its rights or interests in Landlord’s Land to this Lease, or
solely with respect to current beneficiaries of any mortgages/deeds of trust or other parties with a
security interest in Landlord’s Land, that such party will not disturb or extinguish Tenant's
interest in Landlord’s Land and in this Lease. Such agreement shall be in form and substance
reasonably agreeable to Tenant and any Additional Notice Party (defined in Section 27). If
Tenant and Landlord are unable to obtain such agreements from any third party holding an
interest in Landlord’s Land, Tenant shall be entitled (but not obligated) to make payments or
performance in fulfillment of Landlord’s obligations to such third party and may offset the
amount of such payments or performance from amounts due Landlord under this Lease;
provided, that if such obligations cannot be satisfied by the payment of money or performance by
Tenant, Tenant shall have the right to immediately terminate this Lease.
22.
Landlord's Representations and Warranties.
(a)
Landlord hereby represents to Tenant, and Tenant acknowledges, that the
Land is located on a former uranium and vanadium processing site and the ore processing
operations conducted on the Land and adjacent locations in the past created radioactive tailings
subject to the Uranium Mill Tailings Radiation Control Act (“UMTRCA”). Prior to Landlord’s
use of the Land and adjacent locations, the Colorado Department of Public Health and
Environment owned the Land and adjacent locations, under the jurisdiction of the United States
Department of Energy for purposes of remediating the Land and adjacent locations. Information
regarding remediation of the Land and adjacent locations can be found under “New Rifle”
project descriptions at the Department of Energy’s Office of Legacy Management website
located at http://www.lm.doe.gov/Rifle/Old_Processing/Documents.aspx.
(b)
Landlord hereby represents and warrants to Tenant that: (a) Landlord
owns the Land in fee simple, and has all requisite right, power and authority to enter into this
Lease, without the consent or joinder of any party not joining in the execution hereof (including
spouses); (b) the execution of this Lease will not constitute a violation of nor be in conflict with
nor constitute a default under any term or provision of any agreement or instrument to which
Landlord is a party or by which the Premises or any part thereof is bound; (c) other than as may
be disclosed in the “New Rifle” project materials available at the Department of Energy’s Office
of Legacy Management website referenced in this Section or as otherwise may be expressly
disclosed by Landlord, no hazardous or toxic substances have been released or manufactured, or
are present on the Premises in amounts in excess of the lawful limit absent a permit, and no
underground storage tanks (whether or not abandoned) exist on or under the Premises; (d)
Landlord has not received any notice of any pending or threatened Taking, zoning change or
legal, regulatory or other noncompliance relating to the Premises, or of any possible widening of
the streets abutting the Premises; (e) Landlord has not received any notice of proposed
curtailment of utility services to the Premises, it being acknowledged by Tenant that electricity,
gas, water, and sewage utility service lines have not been extended to the Land, but that such are
present adjacent thereto; (f) other than as may be disclosed in the “New Rifle” project materials
available at the Department of Energy’s Office of Legacy Management website referenced in
this Section or as otherwise may be expressly disclosed by Landlord, the Premises are free from
any recorded or unrecorded use or occupancy restrictions or declarations of restrictive covenants,
and there are no existing liens, mortgages, or deeds of trust encumbering all or any part of the
13
Premises; (g) there are no service or maintenance contracts affecting the Premises; (h) there are
no delinquent or outstanding Taxes, liens or other impositions levied or assessed against the
Premises or any larger parcel of property of which the Premises is a part; (i) except for this
Lease, other than as may be disclosed in the “New Rifle” project materials available at the
Department of Energy’s Office of Legacy Management website referenced in this Section or as
otherwise may be expressly disclosed by Landlord, there are no leases, options to purchase,
license agreements or other third party rights to use or possess the Premises, whether written or
oral, recorded or unrecorded; (j) Landlord is not in the hands of a receiver nor is an application
for such a receiver pending, nor has Landlord made an assignment for the benefit of creditors,
nor filed, or had filed against it, any petition in bankruptcy nor is Landlord a defendant in any
ongoing or pending litigation proceedings; (k) if Landlord is a limited partnership, trust, limited
liability company, corporation or other business entity, Landlord is in good standing under the
laws of the state of its incorporation and the state in which the Premises are located, and the
undersigned representatives of Landlord have full power and authority to execute and deliver this
Lease; and (l) if Landlord is one or more natural persons, except for the spouse identified on the
signature page to this Lease, such natural persons are unmarried, (m) there is no underground
septic system or leach field located upon the Land; (n) other than as may be disclosed in the
“New Rifle” project materials available at the Department of Energy’s Office of Legacy
Management website referenced in this Section or otherwise as may be expressly disclosed by
Landlord, there are no wells, dry wells, exploration wells or monitoring wells on the Land; (o) no
person or entity has buried any refuse, construction materials, garbage or any other matter of any
kind or nature below the surface of the Land, (p) the Land does not support or affect any
endangered species and is not within an area that is subject to any “environmentally sensitive” or
“non-disturbance” designation under any law or zoning ordinance except potential wetlands, and
(q) no portion of the Land includes any archeological site, burial site, artifact or other condition
of archeological, tribal or historical significance.
(c)
Except as expressly set forth in the Lease, neither Landlord nor any party
related to Landlord makes or has made and warranty or representation, express or implied, and
Landlord hereby disclaims and Tenant waives any warranty or representation, express or
implied, concerning: (i) the physical condition of the Land (including the geology or the
condition of the soils), (ii) the suitability of the Land or its fitness for the Intended Use, (iii) the
land use regulations applicable to the Land, (iv) the feasibility of constructing the System on the
Land, (v) any other matter relating to construction of the System or any other improvements on
the Land.The provisions of this Section 22 will survive the termination or expiration of this
Lease. All of Landlord’s representations and warranties contained in this Lease shall be true as
of the Effective Date and shall be subject to any state of facts arising during the Term of this
Lease without the direct or indirect, active or passive, involvement of Landlord.
23.
Insurance. During the Term, Tenant shall maintain insurance on the terms set
forth below, at Tenant's cost and expense:
(a)
Commercial general liability insurance covering Tenant and System
operations, written on “occurrence” policy forms, including coverage for premises/operations,
products/completed operations, broad form property damage, blanket contractual liability, wild
fire liability and personal injury, with no exclusions for explosion, collapse and underground
perils, or fire, with coverage limits of no less than $1,000,000 for injuries or death to one or more
14
persons or damage to property resulting from any one occurrence, a $2,000,000 general
aggregate, and a products and completed operations liability aggregate limit of not less than
$2,000,000. The commercial general liability policy shall also include a severability of interest
clause with no exclusions or limitations on cross liability.
(b)
Automobile liability insurance covering Tenant, including coverage for
owned, leased, non-owned and hired automobiles for both bodily injury and property damage in
accordance with statutory legal requirements, with combined single limits of no less than
$1,000,000 per accident with respect to bodily injury, property damage or death. To the extent
Tenant does not own any automobiles, contingent liability for hired, leased and non-owned
automobiles may be obtained through endorsement to the general liability policy required in
Section 23(a) above.
(c)
Workers' compensation insurance in accordance with statutory
requirements at any time in which Tenant has employees, including coverage for employer's
liability with a limit of not less than $1,000,000 and such other forms of insurance which Tenant
is required by applicable law to provide for loss resulting from injury, sickness, disability or
death of each of their employees.
(d)
Umbrella or excess liability insurance with limits of not less than
$5,000,000 per occurrence and annual aggregate (inclusive of the coverage requirements and
limits in Sections 23(a), (b) and (c)) covering Tenant and System operations, and with a term
concurrent with that of the commercial general liability insurance and automobile liability
insurance required in Sections 23(a) and (b) above. The umbrella or excess liability insurance
shall include as insured all persons or entities that are named as additional insureds under
Tenant’s commercial general liability insurance.
(e)
All liability policies required in Sections 23(a), (b), (c) and (d) above that
are maintained by the Tenant or on behalf of the Tenant shall expressly provide that all
provisions thereof, except the limits of liability (which shall be applicable to all insureds as a
group) shall operate in the same manner as if there were a separate policy covering each such
insured and shall not contain an exclusion for cross liability.
(f)
Landlord shall be named as an additional insured under the commercial
general liability insurance and umbrella/follow form excess insurance required above, as
reflected in an ISO form CG 20 37 10 01 additional insured endorsement, or equivalent
acceptable to Landlord, issued to Tenant and provided by Tenant to Landlord.
(g)
Insurance coverage limits included in this Lease in no way serve as a
limitation of Tenant’s insurance carrier(s)’ legal liability.
(h)
Upon Landlord's request, Tenant will promptly furnish Landlord with
certificates of insurance evidencing the insurance required to be maintained under this
Section 23.
24.
Landlord Covenants. From and after the Effective Date until the expiration or
earlier termination of the Term:
15
(a)
Landlord shall not, without the prior written consent of Tenant, (i) institute
or consent to any rezoning of the Premises; (ii) further encumber or suffer to exist the further
encumbrance or Transfer of the Premises (except as caused by or on behalf of Tenant) except in
accordance with Section 26 of this Lease; (iii) cause or permit any activities or conditions that
would impair operation of the System (including, without limitation, by erecting or permitting to
be erected any cell towers, water towers, billboards, silos, trees or any other natural or man-made
structures to be placed, constructed, or to otherwise exist on any property owned or controlled by
Landlord that may diminish the quantity of sunlight that otherwise would reach the Premises or
that may cause shade or shadows upon the Premises or any portion thereof, and Landlord shall
not emit or permit the emission from a source on Landlord’s adjacent property or Landlord’s
property within the reasonable vicinity of the Premises of suspended particulate matter, smoke,
fog or steam or other air-borne impediments to insolation on the Premises, or burn or permit the
burning of garbage, plant, shrub, and yard trimmings or other vegetation that could adversely
affect insolation levels on the Premises), and, upon written notice from Tenant regarding existing
uses of or improvements on Landlord’s adjacent property or Landlord’s property within the
reasonable vicinity of the Premises which Tenant reasonably determines will impair Tenant’s use
of the Premises, Landlord and Tenant shall promptly confer and reach an agreement regarding
removal or alteration of such existing uses or improvements; (iv) cause or permit the violation of
any applicable laws, rules, regulations or ordinances applicable to the Premises; or (v)
commence (or have commenced against it) any voluntary or involuntarily proceedings in
bankruptcy, insolvency or similar proceedings with respect to Landlord.
(b)
Landlord shall promptly give Tenant a copy of any notice of any kind
received by Landlord regarding the Premises or any Taxes.
(c)
Landlord shall comply with and perform all of its covenants, agreements
and obligations to third parties, including, but not limited to, payment of government property
taxes and assessments (to the extent required under this Lease), and payment and performance of
any mortgage or other financing obligations owed to lenders, which affect or relate to the
Premises.
25.
Memorandum of Lease. This Lease shall not be recorded; however, within five
(5) days following Tenant's request, Landlord and Tenant shall execute a memorandum of this
Lease in recordable form, setting forth the following provisions of this Lease, including, without
limitation: (a) all information required by law, (b) restrictions on Transfers, (c) any unexercised
Renewal Term Options (d) rights of first offer or of first refusal of Tenant with respect to the
Land, (e) the easement rights granted to Tenant hereunder, and (f) such other provisions of this
Lease as the parties may mutually agree to incorporate therein. Tenant shall cause the
memorandum of lease to be recorded in the County records against the Land and any other
property of Landlord (if applicable).
26.
Assignments; Transfers. This Lease shall be binding upon and inure to the
benefit of the parties hereto and their legal representatives, successors and assigns, subject to the
following terms and conditions:
(a)
Tenant may assign this Lease, in whole or in part, or sublet the Premises
or any part thereof in support of the Intended Use; provided, however, that Tenant shall only
16
assign this Lease or sublet the Premises to a party or parties that, in the opinion of both Landlord
and Tenant, are legally, technically, and financially qualified to operate the Premises in
accordance with the Intended Use. Notwithstanding the foregoing, Tenant may assign this Lease
to an affiliate without Landlord approval. If Tenant assigns its entire interest in this Lease to a
party that expressly assumes in writing all obligations of Tenant under this Lease arising after the
effective date of the assignment, Tenant shall be released or discharged from all of its covenants
and obligations under this Lease, except such obligations as shall have accrued prior to the
effective date of any such assignment or transfer, and Landlord agrees to look solely to Tenant’s
assignee for performance of such obligations.
(b)
Landlord shall give Tenant at least thirty (30) days' prior notice of any
Transfer (as defined in Section 27 below) by Landlord of its interest in the Land or in this Lease
and provide Landlord reasonably detailed information concerning the type of Transfer; the
interests affected by the Transfer; the identity, reputation and financial condition of the proposed
transferee; the qualification or lack of qualification of the proposed transferee in the construction
of the System (if such Transfer is proposed for effectuation prior to completion of the System)
and operation of the System and Premises in keeping with the Intended; and such other
information related to the Transfer and the proposed transferee as City may reasonably request.
Landlord shall approve or disapprove of the proposed Transfer within ten (10) days of receipt of
the Transfer notice, approval not to be unreasonably withheld. Any such Transfer shall be
expressly subject to this Lease. In addition, Landlord shall not transfer the fee interest in the
Premises unless the transferee assumes all of Landlord’s obligations under this Lease, any
easements granted to Tenant (as applicable) and any consents granted to Tenant’s lenders. For
example, but without limiting the foregoing, the Lease shall remain prior in interest to any
mortgage entered into by Landlord after the Effective Date. For Transfers pursuant to the death
or disability of Landlord, Landlord's executor or successor in interest should endeavor to provide
notice of such Transfer (or proceedings that will result in such a Transfer) to Tenant as promptly
as possible under the circumstances. Landlord shall notify Tenant of the closing of such Transfer,
and if applicable, the name and contact information of the successor to Landlord's interest
hereunder and payment instructions for future payments of Rent and other amounts due under the
Lease; provided, that Landlord shall indemnify Tenant for, from and against losses arising from
Tenant's payment of Rent or other amounts as so directed.
27.
Third Party Protections. Tenant may pledge, sell, grant and/or assign, sublease,
mortgage and otherwise transfer (each, a “Transfer”) this Lease or Tenant’s leasehold interest in
the Premises, in whole or in part in connection with the financing or re-financing of Tenant’s
Property. If Tenant shall notify Landlord in writing of the existence of, and contact information
for, any third party (including, without limitation, any tax-credit equity providers) with a security
interest or other interest in the Lease, whether via a collateral Transfer or otherwise (any such
third party, an “Additional Notice Party”), then the provisions of this Section 27 shall apply
until such time as Landlord shall receive written confirmation that such Additional Notice Party's
interests in this Lease, the System or the Premises are released:
(a)
Without limiting Section 31, no assignment, amendment, election to
terminate or other modification of this Lease shall be effective unless approved by the Additional
Notice Party in writing. In the event Tenant acquires fee ownership of the Land, or in the event
of Tenant’s voluntary surrender of the leasehold estate, there shall be no merger of the leasehold
17
estate created by this Lease with the fee without the prior written consent of the Additional
Notice Party, which consent may be granted, conditioned or withheld in the Additional Notice
Party’s sole and absolute discretion.
(b)
If any event of Default by Tenant remains uncured following the
applicable cure period under Section 17, Landlord shall send written notice of such uncured
Default to each Additional Notice Party at the address provided therefor, whereupon the
Additional Notice Party shall have an additional thirty (30) days during which it may, in its sole
and absolute discretion, cure such Default on Tenant's behalf. Landlord may not pursue any
remedy for such Default unless it remains uncured following the expiration of such Additional
Notice Party's thirty (30) day cure period. No notice shall be effective against an Additional
Notice Party unless and until actually received by such Additional Notice Party.
(c)
Neither the bankruptcy nor the insolvency of Tenant shall be grounds for
terminating this Lease as long as the Rent and all other obligations of Tenant hereunder are paid
or performed by or on behalf of Tenant or the Additional Notice Party in accordance with the
terms of this Lease.
(d)
Subject to Section 27(b), if this Lease is terminated pursuant to a Tenant
Default, Landlord shall enter into a new lease with Additional Notice Party or its nominee on the
same terms as set forth herein, and for a term equal to the then-unelapsed portion of the Term.
Such new lease shall be effective as of the date of termination of this Lease. If more than one
Additional Notice Party makes a request for a new lease pursuant hereto, the new lease shall be
delivered to the Additional Notice Party with the highest priority security interest in this Lease,
and the request of any Additional Notice Party without a security interest in this Lease or whose
security interest is subordinate shall be void and of no further force or effect.
(e)
If this Lease is terminated pursuant to a rejection in bankruptcy or other
similar proceeding with respect to Landlord, then Landlord, or its successor in interest to the
Land, if any, shall enter into a new lease with Tenant on substantially the same terms as this
Lease and for the then otherwise unexpired portion of the Term. Such new lease shall be
effective as of the date of termination of this Lease.
(f)
An Additional Notice Party shall have the right, subject to the terms and
conditions of this Lease: (a) to assign its security interest; (b) to enforce its lien and acquire title
to the leasehold estate by any lawful means; (c) to take possession of and operate the Tenant’s
Property, the leasehold estate or any portion thereof and to perform all obligations to be
performed by Tenant hereunder, or to cause a receiver to be appointed to do so; and (d) to
acquire the leasehold estate by foreclosure or by an assignment in lieu of foreclosure and
thereafter to assign or transfer the leasehold estate to a third party. Landlord’s consent shall not
be required for the acquisition of the encumbered leasehold estate or subleasehold estate by a
third party who acquires the same by or subsequent to foreclosure or assignment in lieu of
foreclosure. During any period of possession of the Premises by an Additional Notice Party (or a
receiver requested by such Additional Notice Party) and/or during the pendency of any
foreclosure proceedings instituted by an Additional Notice Party, the Additional Notice Party
shall pay or cause to be paid all other monetary charges payable by Tenant hereunder which have
accrued and are unpaid at the commencement of said period and those which accrue thereafter
18
during said period. Following acquisition of Tenant’s leasehold estate by the Additional Notice
Party or its assignee or designee as a result of either foreclosure or acceptance of an assignment
in lieu of foreclosure, or by a purchaser at a foreclosure sale and subject to the provisions of this
Section 27(f), this Lease shall continue in full force and effect and the Additional Notice Party or
party acquiring title to Tenant’s leasehold estate shall, within thirty (30) days, commence the
cure of all defaults hereunder and thereafter diligently process such cure to completion.
(g)
Subject to the terms and conditions hereof, Landlord hereby waives any
lien, security interest, or claim of any nature that Landlord now has or may hereafter have by
statute, rule, regulation, common law, agreement or otherwise, in and to Tenant’s Property and
other of Tenant’s property that is or may be from time to time hereafter located at the Premises
and/or the Landlord’s adjacent property, if any, and to which Tenant at any time has granted or
will grant a security interest to an Additional Notice Party (all such property and the records
relating thereto shall be hereafter called the “Collateral”).
Landlord recognizes and
acknowledges that any claim or claims (“Claims”) that an Additional Notice Party has or may
have against such Collateral by virtue of any lien or security interest are superior to any lien,
security interest, or claim of any nature that Landlord now has or may hereafter have to such
Collateral by statute, rule, regulation, common law, agreement or otherwise. The waiver
provided for herein shall be effective until the discharge of the Claims. Landlord further agrees
to notify any purchaser of the Premises and/or the Landlord’s adjacent property and any
subsequent mortgagee or other encumbrance holder of the existence of the foregoing waiver of
Landlord’s lien rights, which shall be binding upon the executors, administrators, successors and
transferees of Landlord, and shall inure to the benefit of the successors and assigns of any
Additional Notice Party. Landlord hereby irrevocably agrees and consents to refrain from taking
any action to bar, restrain or otherwise prevent an Additional Notice Party from the Premises for
the purpose of inspecting the Collateral.
(h)
Landlord agrees to execute and deliver such documents and instruments,
including, without limitation, an amendment to this Lease, an amendment to any recorded
memorandum of lease or a subordination agreement, as may be reasonably requested by an
Additional Notice Party or in furtherance of a Transfer related to the financing or re-financing of
the System, to allow such Additional Notice Party reasonable means to protect or preserve the
System or its collateral interest in the Lease; provided, that Landlord shall not be required to
amend this Lease in any way that would extend the Term, decrease the Rent or otherwise in any
material respect adversely affect any rights of Landlord. Each party shall bear its own expenses,
including legal expenses, in connection with any request for the execution and delivery of
additional documents and instruments in accordance with this Section 27(h).
28.
Estoppel. Upon the request of either party (or any Additional Notice Party), the
non-requesting party shall deliver to the requesting party a certificate setting forth the material
terms of the Lease, the existence of any Default under the Lease, the date through which Rent
has been paid and any amounts on deposit with Landlord, the current Rent rate, and such other
reasonable terms requested by the requesting party. The failure by the non-requesting party to
respond to such request within fifteen (15) days shall constitute an event of Default, and in
addition, shall result in the deemed acceptance, approval and confirmation of the truth of the
matters set forth in the certificate sent with the original request.
19
29.
Brokerage Commission. Except as pursuant to a separate agreement between
Tenant and Tenant's broker, if any, Landlord and Tenant each represent and warrant to the other
that they have not dealt with any real estate agent or broker in connection with this transaction.
Landlord and Tenant each hereby indemnify and save the other harmless from and against all
losses, costs and expenses incurred by reason of a breach of such representation and warranty.
30.
Governing Law. This Lease shall be construed and enforced in accordance with
the laws of the state in which the Land is located, and any disputes arising from or relating to this
Lease shall be construed, governed and interpreted and regulated under the laws of such state.
31.
Interpretation; Amendment. The terms of this Lease shall not be amended,
restated, changed or otherwise modified except in a writing signed by Landlord, Tenant and any
Additional Notice Party. If any term or provision of this Lease shall to any extent be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby and each other term and
provision of this Lease shall be valid and enforced to the fullest extent permitted by law.
32.
Integration; Anti-Merger. This instrument, including the attached Exhibits,
contains the complete agreement of the parties regarding the subject matter of this Lease, and
there are no oral or written conditions, terms, understandings or other agreements pertaining
thereto which have not been incorporated herein. This instrument creates only the relationship of
landlord and tenant between the parties as to the Premises; and nothing in this Lease shall in any
way be construed to impose upon either party any obligations or restrictions not expressly set
forth in this Lease. This Lease shall continue until the expiration or termination of the Lease and
Term, and shall not be extinguished by operation of law pursuant to the acquisition by a single
party of the interests in both Tenant and Landlord hereunder.
33.
Exclusive Control; Quiet Enjoyment. Tenant shall have exclusive control,
possession, occupancy, use and management of the Premises on and after the Rent
Commencement Date, subject to any easements or security instruments existing on the Effective
Date or any actions which must be exercised by the Department of Energy or its affiliates with
respect to the UMTRCA, or as caused by Tenant, and Landlord shall warrant and defend
Tenant's right to quietly hold and enjoy the Premises. Tenant, and its agents, guests, subtenants
and designees, and any Additional Notice Party, shall have access to the Premises at all times
after the Rent Commencement Date, and neither Landlord nor any agent of Landlord shall,
without a Tenant representative, enter upon any portion of the Premises after the Rent
Commencement Date except as specifically permitted hereunder. For the avoidance of doubt,
this Lease does not convey any subsurface oil, gas, mineral, liquid or other subsurface rights
(collectively, “Mineral Rights”) to Tenant; provided, however, that Landlord shall not engage
in, and shall not permit, any activity, including, without limitation, the extraction of minerals, oil,
gas, liquid or other substances, if such activity could result, in Tenant's and Landlord’s mutual
opinion, in a failure of subsurface support for the Premises or otherwise impair or adversely
affect Tenant's Property or Tenant's use of the Premises. The foregoing sentence shall be a
covenant running with the Land binding upon any party owning any interest in, or rights to
develop or use such Mineral Rights. To the best knowledge of Landlord, Landlord is the sole
owner of the Mineral Rights and Landlord holds good, indefeasible and insurable title to the
Mineral Rights.
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34.
Waiver. The waiver by any party of any instance of a breach of any covenant or
agreement herein shall not be deemed to constitute waiver of any subsequent breach of the same
or any other covenant or agreement under this Lease.
35.
Nonrecourse. The performance of this Lease by Landlord and Tenant shall be
primarily secured by their respective interests in the Premises. Except for such interests in the
Premises, neither Landlord's property or assets shall be subject to levy, execution or any other
enforcement procedure in connection with the satisfaction of liability under this Lease. If
necessary, Landlord may look to Tenant's property or assets other than Tenant's Property, for
levy, execution or any other enforcement procedure in connection with the satisfaction of
liability under this Lease.
36.
Consents; Further Assurances. Each party shall execute and deliver such further
documents and perform such other acts, as may be reasonably necessary to achieve the parties'
intent in entering into this Lease. The parties further agree that, to the extent the consent or
approval of either of them is required, requested or appropriate under this Lease, such consent or
approval shall not be unreasonably or unduly withheld, delayed, or conditioned, and except as
may otherwise be expressly provided for herein, each party shall bear its own costs and
expenses, including legal costs, in connection with such consent or approval.
37.
Counterparts. This Lease may be executed in any number of counterparts, each
of which shall be deemed an original once executed and delivered. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file,
such signature shall create a valid and binding obligation of the party executing with the same
force and effect as if such facsimile were an original thereof.
38.
Survival. Upon the expiration or earlier termination of this Lease in accordance
with its terms, this Lease shall cease to have force and effect, unless the context requires
otherwise to achieve the parties' intent with respect thereto.
39.
First Refusal to Lease. Without limiting Tenant’s Rights to renew or extend
the Term as set forth in this Lease, in consideration of Tenant meeting all obligations stated in
this Lease, Landlord hereby grants to Tenant a right of first refusal to lease the Premises for a
term commencing at the expiration or termination of this Lease, as extended, only upon the terms
and conditions as contained in any valid, acceptable, bona fide lease offer Landlord or any
subsequent Landlord may receive prior to the cancellation or termination of this Lease, extended.
Tenant shall have twenty (20) days after receipt from Landlord of written notice of such offer,
with a certified full written statement of such offer and copy of the proposed lease (the
“Proposed Lease”), within which time to exercise its option to lease and accept any such lease
terms. Landlord agrees to promptly notify Tenant of receipt of any such acceptable offer to
lease. Tenant shall exercise such right of first refusal by delivery of notice to Landlord accepting
such offer. Thereafter, Tenant shall be deemed to have extended this Lease upon the economic
terms of the Proposed Lease (i.e. rent, payment of taxes and expenses, options to extend, etc.).
Tenant and Landlord shall be bound by all of the economic terms of the Proposed Lease.
Landlord and Tenant shall enter into an amendment of this Lease extending the Term and
incorporating the other economic terms of the Proposed Lease. Notwithstanding Tenant's failure
to exercise such right of first refusal on a single occasion, such right of first refusal shall be a
21
continuing right throughout the balance of the Term and Landlord shall be obligated to submit
any future offers to Tenant.
40.
First Refusal to Purchase. Not applicable.
41.
Exclusivity. Not Applicable.
42.
Confidentiality. Landlord agrees to hold all confidential information of Tenant,
including, without limitation, the terms of this Lease, in strict confidence, and will not disclose
the same to any person, other than as required by applicable law, rule, or regulation. Landlord
acknowledges and stipulates that Tenant may suffer irreparable harm in the event of a breach of
this confidentiality agreement, for which Tenant has no adequate remedy at law. Therefore, in
addition to all other remedies available pursuant to the terms of this Lease or at law, Tenant shall
have the right to obtain immediate injunctive or other equitable relief upon a breach of this
confidentiality agreement by Landlord, without the necessity of giving any notice of such default
or opportunity to cure the same.
43.
Attorneys’ Fees. In the event of any dispute under this Lease, the party against
whom any final judgment is entered agrees to pay the substantially prevailing party all
reasonable costs, charges, and expenses, including attorneys’ fees, expended or incurred in
connection therewith, including costs and fees incurred in collection of the same.
44.
Tax Credits. If under applicable law the holder of a leasehold interest in the
nature of that held by Tenant or Tenant’s assignee becomes ineligible for any tax credit, benefit
or incentive for alternative energy expenditure established by any local, state or federal
government, then, at Tenant’s option, Landlord and Tenant shall amend this Lease or replace it
with a different instrument so as to convert, to the extent practicable, Tenant’s interest in the
Premises to a substantially similar interest that makes Tenant eligible for such tax credit, benefit
or incentive.
45.
Marketing. Following the Construction Commencement Date and continuing
until the expiration or earlier termination of this Lease, Landlord gives and grants to Tenant and
Tenant’s affiliates, and each of their respective licensees, agents, representatives, employees,
successors and assigns (collectively, the “Licensed Parties”), the right and license to
photograph, publish and use photographs (whether still or moving) of the Premises in all media
and types of advertising and promotion by the Licensed Parties. Landlord agrees that all images
of the Premises used and taken by the Licensed Parties are owned by the Licensed Parties and
that the Licensed Parties may obtain copyright in material containing same. If Landlord should
receive any print, negative or other copy thereof, Landlord shall not authorize its use by anyone
else, but Landlord shall be entitled to use such print, negative, or other copy to promote
Landlord’s interests. Landlord agrees that no advertisement, promotion or other material
utilizing or containing the Premises need be submitted to Landlord for approval and the Licensed
Parties shall be without liability to Landlord for any distortion or illusionary effect resulting from
the publication of the Premises. Landlord represents and warrants that the license granted
hereunder (a) does not and will not violate or infringe upon the rights of any third party and
entity; and (b) does not in any way conflict with any existing commitment on Landlord’s part.
22
Nothing herein shall constitute any obligation on the Licensed Parties to make use of any of the
rights set forth in this Section 45.
46.
State Specific Provisions. In the event of any inconsistencies between the terms
and conditions of this Section 46 and the other terms and conditions of this Lease, the terms and
conditions of this Section 46 shall control and be binding:
(a)
As used in this Lease, “UCC” shall mean the Colorado Uniform
Commercial Code as amended, or any replacement or successor statute or code.
(b)
Except as expressly required in the Lease, Tenant shall not be obligated to
pay any amount as rent, additional rent, expense reimbursements, real property taxes, transaction
privilege taxes or otherwise.
(c)
Without limiting Landlord’s covenants under Section 24, Landlord agrees
to exercise prudent dust control practices upon the portion of the Land that is not part of the
Premises and upon any other nearby land that Landlord owns or controls, including but not
limited to complying with all laws and governmental regulations pertaining to dust control.
[end of text]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the
later of the dates indicated below.
LANDLORD:
By:
Printed Name/Title:
Date:
TENANT:
Oak Leaf Energy Partners Ohio LLC
By:
Printed Name/Title:
Date:
Exhibit A
Depiction of the Land
Solar Garden to reside within red area
A-1
COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT
This Community Solar Garden Subscription Agreement (“Agreement”) is made and entered into
by and between Oak Leaf Solar XXXII LLC ("Operator") a Colorado limited liability company
with offices at 2645 E. 2nd Avenue, Suite 206, Denver, CO 80206, or its successors and assigns
and the City of Rifle, (“Subscriber”) a _______________________________ jointly referred to
as the “Parties.”
Recitals
WHEREAS, Operator intends to construct, install, own, operate, and maintain a solar
photovoltaic System at the Premises described on Exhibit C;
WHEREAS, the Parties intend that, pursuant to the Tariff and the Power Purchase
Agreement (“Producer Agreement”), the System will qualify as a Community Solar Garden
and will generate Bill Credits to be applied to Subscriber’s monthly invoices from Public
Service Company of Colorado for retail electric service for Subscriber Meters;
WHEREAS, Subscriber is willing to purchase, or pay to be allocated, Subscriber’s
Allocated Percentage as described in Exhibit C of the Delivered Energy to be generated by the
System commencing on the Commercial Operation Date and continuing through the Term,
and Operator is willing to sell, or cause to be allocated, Subscriber’s Allocated Percentage of
the Delivered Energy to be generated by the System to Subscriber commencing on the
Commercial Operation Date and continuing through the Term, as provided under the terms of
this Agreement;
WHEREAS, this Agreement is for Community Solar Garden SRC053975 located in [
] County.
NOW THEREFORE, in consideration of the foregoing recitals, mutual promises set
forth below, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby agree as follows:
1.
DEFINITIONS.
Capitalized terms are defined as follows:
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly
controlling, controlled by or under common control with such specified Person.
“Agreement” or “Contract” means the Community Solar Garden Subscription Agreement which
consists of this agreement and all exhibits.
“Applicable Law” means, with respect to any Person, any constitutional provision, law, statute,
rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding,
injunction, registration, permit, authorization, guideline, Governmental Approval, consent or
requirement of the federal government or the state of Colorado, enforceable at law or in equity,
including the interpretation and administration thereof by such authority.
“Bankruptcy Event” means with respect to a Party, that either: (i) such Party has (A) applied for
or consented to the appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property; (B) admitted in writing its
inability, or be generally unable, to pay its debts as such debts become due; (C) made a general
assignment for the benefit of its creditors; (D) commenced a voluntary case under any
bankruptcy law; (E) filed a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F)
failed to controvert in a timely and appropriate manner, or acquiesced in writing to, any petition
filed against such Party in an involuntary case under any bankruptcy law; or (G) taken any
corporate or other action for the purpose of effecting any of the foregoing; or (ii) a proceeding or
case has been commenced without the application or consent of such Party in any court of
competent jurisdiction seeking (A) its liquidation, reorganization, dissolution or winding-up or
the composition or readjustment of debts or, (B) the appointment of a trustee, receiver, custodian,
liquidator or the like of such Party under any bankruptcy law, and such proceeding or case has
continued undefended, or any order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect for a period of 60 days.
“Bill Credit” means the monetary value of the electricity generated by the Solar System
commensurate with Subscriber’s Allocated Percentage, as calculated pursuant to the Producer
Agreement and the Tariff, and credited to Subscriber by Public Service Company of Colorado
(“PSCO”) on its monthly invoice for electric service for the Subscriber Meters in accordance
with the Producer Agreement.
“Bill Credit Rate” means the rate in the PSCO community solar garden tariff assigned to the
Subscriber’s meter(s).
“Billing Cycle” means the monthly billing cycle established by PSCO.
“Business Day” means any day other than Saturday, Sunday, or a legal holiday.
“Community Solar Garden” means a community solar garden that qualifies for the
Solar*Rewards Community Program as set forth in C.R.S. §40-2-127, et seq., and Rule 3665, 4
CCR 723-3, related PUC orders and the Tariff.
“Construction Commencement” means the date on which the Operator issues a notice to proceed
under the applicable construction contract for the System.
“Date of Commercial Operation” means the first day of the first full calendar month upon which
commercial operation is achieved following completion of all Interconnection Agreement
requirements and processes, as defined by the Producer Agreement executed by the Operator and
PSCO.
“Delivered Energy” means the amount of alternating current (AC) energy generated by the
System as inverted to AC and delivered to PSCO at the Production Meter (as defined in the
Producer Agreement).
2
“Early Termination Date” means any date the Agreement terminates other than for expiration of
the Term.
“Effective Date” means the date on which the Agreement is signed by authorized representatives
of both Parties in accordance with Section 2.1.
“Environmental Attributes” means, without limitation, carbon trading credits, Renewable Energy
Credits or certificates, emissions reduction credits, emissions allowances, green tags, tradable
renewable credits, or Green-e® products.
“Estimated Remaining Payments” means as of any date, the estimated remaining Payments to be
made through the end of the Term, as reasonably determined and supported by Operator.
“Expiration Date” means the date the Agreement terminates by reason of expiration of the Term.
“Financing Party” or “Lender” means, as applicable (i) any Person (or its agent) from whom
Operator (or an Affiliate of Operator) leases the System, or (ii) any Person (or its agent) who has
made or will make a loan to or otherwise provide financing to Operator (or an Affiliate of
Operator) with respect to the System.
“Governmental Approval” means any approval, consent, franchise, permit, certificate, resolution,
concession, license, or authorization issued by or on behalf of any applicable Governmental
Authority.
“Governmental Authority” means any federal, state, regional, county, town, city, watershed
district, park authority, or municipal government, whether domestic or foreign, or any
department, agency, bureau, or other administrative, regulatory or judicial body of any such
government.
“Installation Work” means the construction and installation of the System and the start-up,
testing and acceptance (but not the operation and maintenance) thereof, all performed by or for
Operator at the Premises.
“Interconnection Agreement” means the Interconnection Agreement entered into or to be entered
into between Operator and PSCO as required by the Producer Agreement.
“PSCO” means PSCO, a Colorado Corporation and any successor thereto and Xcel Energy Inc.,
to the extent it has control over PSCO’s business.
“Person” means an individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture, firm, or other entity, or a
Governmental Authority.
“Producer Agreement” means the Solar*Rewards Community Producer Agreement to be entered
into by and between Operator and PSCO whereby PSCO agrees to purchase all of the energy
produced by the Community Solar Garden and to pay for such energy by providing Bill Credits
to Subscriber (and other Subscribers). A copy of the Producer Agreement will be attached to this
Agreement as Exhibit G.
3
“Premises” means the premises described in Exhibit C.
“PUC” means the Colorado Public Utilities Commission.
“Solar Incentives” means any accelerated depreciation, installation or production-based
incentives, investment tax credits and subsidies and all other solar or renewable energy subsidies
and incentives.
“Subscriber’s Allocated Percentage” means Subscriber’s allocated portion, stated as a
percentage, of the Delivered Energy in a given month, as described in Exhibit C.
“Subscriber Meters” means the meters associated with specific subscriber PSCO
accounts/premises listed in Exhibit I as updated from time to time by the Parties.
“Stated Rate” means a rate per annum equal to one and one-half percent per month or as
otherwise established by Colorado Statute.
“System” or “Solar System” means the integrated assembly of photovoltaic panels, mounting
assemblies, inverters, converters, metering, lighting fixtures, transformers, ballasts, disconnects,
combiners, switches, wiring devices and wiring, more specifically described in Exhibit C.
“System Operations” means Operator’s operation, maintenance and repair of the System
performed in accordance with the requirements of this Agreement.
“Tariff” means the Solar*Rewards Community Program tariff in PSCO’s rate book.
2. TERM AND TERMINATION.
2.1 Effective Date. This agreement is effective upon signature by authorized
representatives of both Parties to the agreement.
2.2
Term. The term of the Agreement begins on the Effective Date and continues for
20 years from the Commercial Operation Date (or such other time period as specified in writing
by the Parties), unless terminated earlier under the provisions of this Agreement. Without
limiting either Party’s termination rights elsewhere in this Agreement, this Agreement will
terminate if (i) Subscriber has moved out of or relocated from the county in which the Solar
System is located or a contiguous county or relocated from the PSCO service territory, and has
not, within 90 days after such move or relocation, assigned this Agreement in accordance with
the provisions of Section 12.3, or (ii) the Producer Agreement is otherwise terminated.
2.3
Operator Termination Before Commercial Operation. If any of the following
events or circumstances occur before Construction Commencement, the Operator may terminate
the Agreement immediately upon written notice, in which case neither Party will have any
liability to the other except for any liabilities that accrued before termination:
(a)
After the performance of due diligence using industry standard methods and
techniques, if there exist site conditions (including environmental conditions and ecological
concerns such as presence of wildlife species) at the Premises or construction requirements that
4
could not have been reasonably known or discovered through due diligence as of the date of this
Agreement and that could reasonably be expected to materially increase the cost of Installation
Work or would adversely affect the electricity production from the System as designed;
(b)
There has been a material adverse change in the (i) rights of Operator to
construct the System on the Premises, or (ii) financial prospects or viability of the Solar System,
whether due to market conditions, cost of equipment or any other reason;
(c)
After timely application to PSCO and best efforts to secure interconnection
services, Operator has not received evidence that interconnection services will be available with
respect to energy generated by the System;
(d)
After the performance of due diligence using industry standard methods and
techniques, Operator has determined and did not previously know that there are easements, other
liens or encumbrances, or other facts, circumstances or developments that would materially
impair or prevent, or have a material adverse effect on, the installation, operation, maintenance
or removal of the System; or
2.4
Subscriber Termination Prior to Installation. If any of the following events or
circumstances occur before Construction Commencement, Subscriber may terminate the
Agreement immediately upon written notice, in which case neither Party will have any liability
to the other except for any liabilities that accrued before termination:
(a) If PSCO or another party with the authority to do so, disqualifies the Operator of the
facility from treatment as Operator of the Community Solar Garden under Colorado Statutes or
Colorado Public Utilities Commission order;
2.5
Force Majeure. Upon the occurrence of a force majeure event, the Agreement may
be terminated consistent with the provisions of Section 10.3 of this Agreement.
2.6
Termination for Default. If either Party defaults on their responsibilities under this
Agreement, the Agreement may be terminated under Section 11.
2.7
Termination upon Mutual Agreement. This Agreement may be terminated at any
time, for any reason, by mutual agreement of the Parties in writing.
3.
CONSTRUCTION, INSTALLATION AND TESTING OF SYSTEM.
3.1
System Acceptance Testing.
(a)
Operator must test the System in accordance with such methods, acts, guidelines,
standards and criteria reasonably accepted or followed by photovoltaic solar system integrators
in the United States and as otherwise required by the Producer Agreement and the PSCO Tariff.
(b)
Commercial Operation occurs when the “Date of Commercial Operation” occurs
under the Producer Agreement. At least a week before the Date of Commercial Operation,
Operator will send a written notice to Subscriber providing the Date of Commercial Operation
and the provided date will be the Commercial Operation Date for the purposes of this
5
Agreement.
Operator has the sole responsibility to notify PSCO of this date and get any
necessary approvals from PSCO.
4.
SYSTEM OPERATIONS.
4.1
Operator as Owner and Operator. The System will be owned by Operator or
Operator’s Financing Party and will be operated and maintained in accordance with the Producer
Agreement and the PSCO Tariff and, as necessary, maintained and repaired by Operator at its
sole cost and expense. Installation of the System, upgrades and repairs will be under the direct
supervision of an NABCEP-certified solar professional. Maintenance will be performed
according to industry standards, including the recommendations of the manufacturers of solar
panels and other operational components.
4.2
Metering. There will be two meters installed and maintained by PSCO, which
will measure the amount of electrical energy flowing to and from the Premises as further
described in the Producer Agreement. The Production Meter (as defined in the Producer
Agreement) will record the amount of Delivered Energy. Operator will make the raw meter data
available to Subscriber upon Subscriber’s request.
5.
DELIVERY OF ENERGY.
5.1
Purchase Requirement. Subscriber agrees to make payments calculated as
Subscriber’s Allocated Percentage multiplied by Delivered Energy generated by the System
beginning on the Commercial Operation Date and continuing for each applicable month of the
Term. If there is a difference between the Bill Credit by PSCO to the Subscriber on the
Subscriber Meter bills, and the Delivered Energy, for any reason not the fault of the Subscriber,
the Subscriber’s payments will be based on the number of kWhs credited by PSCO on the
Subscriber Meter bills.
5.2
Estimated Annual Delivered Energy. The total annual estimate of Delivered
Energy for any given year is the “Estimated Annual Delivered Energy.” The Estimated Annual
Delivered Energy and the estimated amount of electricity to be allocated to Subscriber for each
year of the Term starting on the Commercial Operation Date are identified in Exhibit D. The
estimated amount of electricity allocated to Subscriber is Subscriber’s Allocated Percentage of
the Estimated Annual Delivered Energy.
5.3
Environmental Attributes and Solar Incentives.
(a) Subscriber’s purchase does not include Environmental Attributes or Solar Incentives;
(b) Subscriber disclaims any right to Solar Incentives or Environmental Attributes based
upon the installation of the System, and to avoid any conflicts with fair trade rules regarding
claims of solar or renewable energy use and to help ensure that Environmental Attributes will be
certified by Green-e® or a similar organization Subscriber will, at the request of Operator,
execute documents or agreements reasonably necessary to fulfill the intent of this Section;
6
(c) When reasonably possible, Subscriber and Operator will consult with each other
about press releases or public communications to help ensure that the Operator’s rights to claim
Environmental Attributes are not compromised while allowing both Parties to claim as much
publicity as possible without compromising Operator’s rights; and
(d) Without limiting the foregoing, Subscriber agrees that PSCO will acquire from
Operator under the Producer Agreement all energy generated by the Solar System and all
Renewable Energy Credits (as defined in the Producer Agreement) associated with the Solar
System. Operator and Subscriber agree not to make any statement contrary to PSCO’s
ownership.
5.4
Title to System. Throughout the Term, Operator or Operator’s Financing Party is
the legal and beneficial owner of the System at all times, and the System will remain the personal
property of Operator or Operator’s Financing Party.
5.5
Obligations of Parties. The Parties will work cooperatively and in good faith to
meet all Community Solar Garden program requirements under Applicable Law, the Producer
Agreement and the Tariff, including applicable interconnection and metering requirements. The
Parties agree that beginning on the Commercial Operation Date (a) Operator will transmit all of
the Delivered Energy into the PSCO system for the benefit of Subscriber, and (b) Subscriber (or
its designee) shall be entitled to any and all Bill Credits issued by PSCO resulting from such
transmission and corresponding with Subscriber’s Allocated Percentage.
6.
PRICE AND PAYMENT.
6.1 Consideration. Subscriber shall pay to Operator a monthly payment (“Payment”)
for Subscriber’s Allocated Percentage of Delivered Energy beginning on the Commercial
Operation Date and continuing through the Term. The Subscriber will pay a price per kilowatt
hour (“kWh Rate”) in the first year for its Allocated Percentage of the Delivered Energy up to
but limited to the amount of kWh’s for which the Subscriber receives Bill Credits. The kWh Rate
in the first year is defined as $.0669/kWh for a Subscriber meter using PSCO’s secondary
general tariff and $.06996/kWh for a Subscriber meter using PSCO’s commercial tariff. The
kWh Rate will increase 1.35% per year.
6.2
Invoices. Operator shall invoice Subscriber within 30 days of the last Business
Day of each calendar month (each such date on which an invoice is issued by Operator to
Subscriber, an “Invoice Date”) for the Payment in respect of Subscriber’s Allocated Percentage
of Delivered Energy during the immediately preceding calendar month. Subscriber’s first
invoice under this Agreement shall be for the first full calendar month after the Commercial
Operation Date. For the avoidance of doubt, Subscriber shall (i) neither receive nor be entitled to
any Bill Credits associated with Delivered Energy prior to the Commercial Operation Date, and
(ii) have no obligation to make or any liability for Payments for Delivered Energy prior to the
Commercial Operation Date. If the first month of commercial operation is less than a full
calendar month, the Operator will bill Subscriber for any Delivered Energy on the invoice for the
first full calendar month of operation.
7
6.3
Time of Payment. Subscriber will pay all undisputed amounts due hereunder
within 35 days of the Invoice Date.
6.4
Method of Payment. Subscriber will make all payments under the Agreement by
electronic funds transfer in immediately available funds to the account designated by Operator
from time to time. If Subscriber does not have electronic funds transfer capability, or does not
desire to use electronic funds transfer, payments shall be considered timely if a check is
postmarked by the 30 day due date. All payments that are not paid when due shall bear interest
accruing from the date becoming past due until paid in full at a rate equal to the Stated Rate.
Except for billing errors or as provided in Section 6.5 below, all payments made hereunder shall
be non-refundable, be made free and clear of any tax, levy, assessment, duties or other charges
and not subject to reduction, withholding, set-off, or adjustment of any kind.
6.5
Disputed Payments. If a bona fide dispute arises with respect to any invoice,
Subscriber shall not be deemed in default under the Agreement and the Parties shall not suspend
the performance of their respective obligations hereunder, including payment of undisputed
amounts owed hereunder. If an amount disputed by Subscriber is subsequently deemed to have
been due pursuant to the applicable invoice, interest shall accrue at the Stated Rate on such
amount from the date becoming past due under such invoice until the date paid.
6.6
Billing Adjustments Following PSCO Billing Adjustments. If, as a result of an
PSCO billing adjustment, the quantity of Delivered Energy is decreased (the “Electricity
Deficiency Quantity”) and PSCO reduces the amount of Bill Credits allocated to Subscriber for
such period, Operator will reimburse Subscriber for the amount paid by Subscriber in
consideration for the Electricity Deficiency Quantity. If as a result of such adjustment the
quantity of Delivered Energy allocated to Subscriber is increased (the “Electricity Surplus
Quantity”) and PSCO increases the amount of Bill Credits allocated to Subscriber for such
period, Subscriber will pay for the Electricity Surplus Quantity at the kWh Rate applicable
during such period.
6.7
Non-Appropriation. It is expressly understood and agreed that the obligation of
the Subscriber to make payments to the Operator shall only extend to monies appropriated by the
Subscriber’s governing authority and encumbered for the purposes of this Agreement. The
Operator acknowledges that (i) the Subscriber does not by this Agreement irrevocably pledge
present cash reserves for payments in future fiscal years, and (ii) this Agreement is not intended
to create a multiple-fiscal year direct or indirect debt or financial obligation of the Subscriber. If
an appropriation and resulting encumbrance for this Agreement is not made for a future fiscal
year by the Subscriber (a “Non-Appropriation Event”), Operator, in its sole and absolute
discretion, may terminate this Agreement or waive the City’s payment obligation.
7.
7.1
GENERAL COVENANTS.
Operator Covenants. Operator covenants and agrees to the following:
(a)
Notice of Damage or Emergency. Operator will within 3 business days notify
Subscriber if it becomes aware of any significant damage to or loss of the use of the System or
that could reasonably be expected to adversely affect the System.
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(b)
System Condition. Operator shall make commercially reasonable efforts to ensure
that the System is capable of operating at a commercially reasonable continuous rate.
(c)
Governmental Approvals. While providing the Installation Work and System
Operations, Operator shall obtain and maintain and secure all Governmental Approvals required
to be obtained and maintained and secured by Operator and to enable Operator to perform such
obligations.
(d)
Interconnection Fees. Operator is responsible for all costs, fees, charges and
obligations required to connect the System to the PSCO distribution system, including fees
associated with system upgrades, production, and operation and maintenance carrying charges,
as provided in the Interconnection Agreement (“Interconnection Obligations”). In no event shall
Subscriber be responsible for any Interconnection Obligations.
(e)
Compliance with Producer Agreement, Tariff and Interconnection Agreement.
Operator shall cause the System to be designed, installed and operated in compliance with the
Producer Agreement, the Tariff and the Interconnection Agreement.
(f)
The Producer Agreement requires that Operator (as opposed to PSCO) is
responsible for answering all questions from Subscriber regarding its participation in the Solar
System. Operator is solely responsible for resolving disputes with PSCO or Subscriber regarding
the accuracy of Subscriber’s Allocated Percentage and the Delivered Energy allocated to
Subscriber in connection therewith. Notwithstanding the foregoing, Subscriber acknowledges
that PSCO is responsible for resolving disputes with Subscriber regarding the applicable rate
used to determine the Bill Credit.
(g)
The representations Operator made in its proposal in response to the RFP issued
by Subscriber, including representations as to Operator’s financial ability to operate and maintain
the System are true and correct as of the date of this Agreement.
(h)
The Operator is duly organized and validly existing and in good standing in the
jurisdiction of its organization, and authorized to do business in the State of Colorado.
7.2
Subscriber’s Covenants. Subscriber covenants and agrees as follows:
(a)
Consents and Approvals. Subscriber will ensure that any authorizations required
of Subscriber under this Agreement are provided in a timely manner. To the extent that only
Subscriber is authorized to request, obtain or issue any necessary approvals, permits, rebates or
other financial incentives, Subscriber will cooperate with Operator to obtain such approvals,
permits, rebates or other financial incentives.
(b)
Subscriber Agency and Consent Form. On the Effective Date, Subscriber will
execute and deliver to Operator a Subscriber Agency Agreement and Consent Form in the form
attached hereto as Exhibit A. Subscriber acknowledges that such agreement is required of
Subscriber pursuant to the Producer Agreement.
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8.
REPRESENTATIONS & WARRANTIES.
8.1
Representations and Warranties Relating to Agreement Validity. In addition to
any other representations and warranties contained in the Agreement, each Party represents and
warrants to the other as of the date of this Agreement and on the Effective Date that:
(a)
it is duly organized and validly existing and in good standing in the jurisdiction of
its organization;
(b)
it has the full right and authority to enter into, execute, deliver, and perform its
obligations under the Agreement;
(c)
it has taken all requisite corporate or other action to approve the execution,
delivery, and performance of the Agreement;
(d)
the Agreement constitutes its legal, valid and binding obligation enforceable
against such Party in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other similar laws now or hereafter in
effect relating to creditors’ rights generally;
(e)
there is no litigation, action, proceeding or investigation pending or, to the best of
its knowledge, threatened before any court or other Governmental Authority by, against,
affecting or involving any of its business or assets that could reasonably be expected to adversely
affect its ability to carry out the transactions contemplated herein; and
(f)
its execution and performance of the Agreement and the transactions
contemplated hereby do not constitute a breach of any term or provision of, or a default under,
(i) any contract or agreement to which it or any of its Affiliates is a party or by which it or any of
its Affiliates or its or their property is bound, (ii) its organizational documents, or (iii) any
Applicable Laws.
8.2
Specific Representations and Warranties of Subscriber. Subscriber represents and
warrants to Operator as of the date of this Agreement and on the Effective Date that:
(a)
Subscriber is the sole party in interest agreeing to purchase Subscriber’s Allocated
Percentage and is acquiring Subscriber’s Allocated Percentage for its own account, and not with
a view to the resale or other distribution thereof, in whole or in part, and agrees that it will not
transfer, sell or otherwise dispose of Subscriber’s Allocated Percentage in any manner in
violation of applicable securities laws;
(b) Subscriber is not relying on (i) Operator, or (ii) other subscribers, or any of the
employees, members of boards of directors (or equivalent body) or officers, of those parties, or
this Agreement with respect to tax and other economic considerations involved in the Agreement
(c)
Subscriber’s Allocated Percentage, combined with any other distributed resources
serving the Subscriber Meters, represents no more than 120 percent of Subscriber’s average
annual consumption at the Subscriber Meters over the last twenty-four (24) months;
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(d)
Subscriber is a retail electric service customer of PSCO and the Subscriber Meters
are within the same county or contiguous county as the Solar System;
8.3
Exclusion of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN
SECTIONS 3.1, 4.1, 7.1, THIS SECTION 8, THE SYSTEM OPERATIONS AND
PERFORMANCE PROVIDED BY OPERATOR TO SUBSCRIBER UNDER THIS
AGREEMENT SHALL BE “AS-IS WHERE-IS.”
NO OTHER WARRANTY TO
SUBSCRIBER OR ANY OTHER PERSON, WHETHER EXPRESS, IMPLIED OR
STATUTORY, IS MADE AS TO THE INSTALLATION, DESIGN, DESCRIPTION,
QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE, FUTURE
ECONOMIC VIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE
SYSTEM OR ANY OTHER SERVICE PROVIDED HEREUNDER OR DESCRIBED
HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH ARE EXPRESSLY
DISCLAIMED BY OPERATOR.
9. TAXES AND GOVERNMENTAL FEES. Operator is responsible for all income, gross
receipts, ad valorem, personal property or real property or other similar taxes and any and all
franchise fees or similar fees assessed against it due to its ownership of the System. Operator is
not obligated for any taxes payable by or assessed against Subscriber based on or related to
Subscriber’s overall income or revenues.
10. FORCE MAJEURE.
10.1 Definition. “Force Majeure Event” means any act or event that prevents the
affected Party from performing its obligations in accordance with the Agreement, if such act or
event is beyond the reasonable control, and not the result of the fault or negligence, of the
affected Party and such Party had been unable to overcome such act or event with the exercise of
due diligence (including the expenditure of reasonable sums). Subject to the foregoing
conditions, “Force Majeure Event” shall include the following acts or events: (i) natural
phenomena, such as storms, hurricanes, floods, lightning, volcanic eruptions and earthquakes;
(ii) explosions or fires arising from lightning or other causes unrelated to the acts or omissions of
the Party seeking to be excused from performance; (iii) acts of war or public disorders, civil
disturbances, riots, insurrection, sabotage, epidemic, terrorist acts, or rebellion; (iv) strikes or
labor disputes (except strikes or labor disputes caused solely by employees of Operator or as a
result of such Party’s failure to comply with a collective bargaining agreement); (v) action or
inaction by a Governmental Authority (unless Subscriber is a Governmental Authority and
Subscriber is the Party whose performance is affected by such action nor inaction); and (vi) any
event of force majeure under the Producer Agreement. A Force Majeure Event shall not be
based on the economic hardship of either Party.
10.2 Excused Performance.
Except as otherwise specifically provided in the
Agreement, neither Party shall be considered in breach of the Agreement or liable for any delay
or failure to comply with the Agreement (other than the failure to pay amounts due hereunder), if
and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure
Event; provided that the Party claiming relief under this Article 10 shall immediately (i) notify
the other Party in writing of the existence of the Force Majeure Event, (ii) exercise all reasonable
efforts necessary to minimize delay caused by such Force Majeure Event, (iii) notify the other
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Party in writing of the cessation or termination of said Force Majeure Event and (iv) resume
performance of its obligations hereunder as soon as practicable thereafter; provided, however,
that Subscriber shall not be excused from making any payments and paying any unpaid amounts
due in respect of Subscriber’s Allocated Percentage of Delivered Energy prior to any
performance interruption due to a Force Majeure Event.
10.3 Termination for Force Majeure. Either Party may terminate this Agreement upon
15 days written notice to the other Party if any Force Majeure Event affecting such other Party
has been in existence for a period of 180 consecutive days or longer, unless such Force Majeure
Event expires before the end of the 15 day notice period.
11. DEFAULT.
11.1
Operator Defaults and Subscriber Remedies.
(a)
Operator Defaults. The following events are defaults with respect to Operator
(each, an “Operator Default”):
(i)
A Bankruptcy Event occurs with respect to Operator;
(ii)
Operator fails to pay Subscriber any undisputed amount owed under the
Agreement within 30 days from receipt of notice from Subscriber of such past due amount;
(iii)
Operator breaches any material term of this Agreement and (A) if operator
can cure the breach within 30 days after Subscriber’s written notice of such breach and Operator
fails to so cure, or (B) Operator fails to commence and pursue a cure within such 30 day period if
a longer cure period is needed;
(iv)
The Producer Agreement is terminated for any reason; or
(b)
Subscriber’s Remedies. If an Operator Default described in Section 11.1(a) has
occurred and is continuing, in addition to other remedies expressly provided herein, Subscriber
may terminate the Agreement and exercise any other remedy it may have at law or equity or
under the Agreement. In the event of such termination, Subscriber shall use reasonable efforts to
mitigate its damages
11.2
Subscriber Defaults and Operator’s Remedies.
(a)
Subscriber Default. The following events shall be defaults with respect to
Subscriber (each, a “Subscriber Default”):
(i)
A Bankruptcy Event occurs with respect to Subscriber;
(ii)
Subscriber fails to pay Operator any undisputed amount due Operator
under the Agreement within 30 days from receipt of notice from Operator of such past due
amount; and
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(iii)
Subscriber breaches any material term of this Agreement and (A) if such
breach can be cured within 30 days after Operator’s written notice of such breach and Subscriber
fails to so cure, or (B) Subscriber fails to commence and pursue said cure within such 30 day
period if a longer cure period is needed.
(iv)
A Non-Appropriate event as described in Section 6.7.
(b)
Operator’s Remedies. If a Subscriber Default described in Section 11.2(a) has
occurred and is continuing, in addition to other remedies expressly provided herein, Operator
may terminate this Agreement, sell Subscriber’s Allocated Percentage to one or more persons
other than Subscriber, recover from Subscriber the actual, reasonable and verifiable damages
related to lost Community Solar Garden subscription and REC revenues, and Operator may
exercise any other remedy it may have at law or equity or under the Agreement. In the event of
such termination, Operator shall use reasonable efforts to mitigate its damages.
12. ASSIGNMENT.
12.1
Assignment by Operator. Operator may not assign this Agreement or any interest
therein, without the prior written consent of Subscriber, except as part of a Permitted Assignment
as defined in Section 12.1(a). Operator shall provide Subscriber with such information
concerning the proposed transferee (including any person or entity liable for the performance of
the terms and conditions of this Agreement) as may be reasonably required to ascertain whether
the conditions upon Subscriber’s approval to such proposed assignment have been met.
(a) Permitted Assignment. Operator may, without the consent of Subscriber, (1) transfer,
pledge or assign all or substantially all of its rights and obligations hereunder as security for any
financing and/or sale-leaseback transaction or to an affiliated special purpose entity created for
the financing or tax credit purposes related to System, (2) transfer or assign this Agreement to
any person or entity succeeding to all or substantially all of the assets of Operator; provided,
however, that any such assignee shall agree to be bound by the terms and conditions hereof, (3)
assign this Agreement to one or more affiliates; provided, however, that any such assignee shall
agree to be bound by the terms and conditions hereof or (4) assign its rights under this
Agreement to a successor entity in a merger or acquisition transaction; provided, however, that
any such assignee shall agree to be bound by the terms and conditions hereof. Subscriber agrees
to provide acknowledgments, consents or certifications reasonably requested by any Lender in
conjunction with any financing of the System.
(b) In the event of a Permitted Assignment by Operator of its interest in this
Agreement to a person who has assumed, in writing, all of Operator’s obligations under
this Agreement, Operator, without the necessity of any further document signed or
actions taken by any party, shall be released from any and all further obligations
hereunder, and Subscriber agrees to look solely to such successor-in-interest of the
Operator for performance of such obligations.
Any Financing Party is an intended third-party beneficiary of this Section 12.1.
12.2
Assignment by Subscriber.
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(a)
Subscriber will not assign this Agreement or any interest herein, without the prior
written consent of Operator; provided however that Operator shall not unreasonably withhold,
condition or delay its consent; and provided, further, that Operator’s consent shall not be
required to the assignment by Subscriber to another governmental entity in the event the State of
Colorado reassigns responsibility to such other governmental entity for providing the services
currently undertaken by Subscriber at the facilities associated with the Subscriber Meters, or to
another governmental entity with comparable investment credit rating, and that otherwise meets
the requirements of the Community Solar Garden program.
(b) Subscriber does not need Operator’s consent to change the Subscriber Meters for the
same amount of subscription as long as all the Subscriber Meters are owned by the Subscriber
and meet the requirements of the Community Solar Garden program. For such changes,
Subscriber will notify Operator in writing and Operator will inform PSCO of the change as soon
as practicable.
(c)
Subscriber’s request for Operator’s consent to any proposed change or assignment
as contemplated in Section 12.2 (a) must be in writing and provided to Operator at least 30 days
before the proposed effective date of such change or assignment, which request must include: (i)
Subscriber's name and mailing address; (ii) the current Subscriber Meter(s); (iii) the assignee’s
meters; (iv) the name of the individual or entity to whom Subscriber is requesting to assign this
Agreement (if applicable) and the consideration (if any) proposed to be provided to Subscriber
for such assignment; and (v) the proposed effective date of such proposed change or assignment.
In the case of any assignment of this Agreement in whole or in part to another individual or
entity, (i) such assignee's meters shall be located within PSCO’s service territory and within the
same county as the Solar System or a contiguous county, (ii) such assignee shall execute a new
Colorado Community Solar Program Subscription Agreement substantially in the same form as
this Agreement, specifically including the representations and warranties in Section 8.2; and (iii)
the value of any consideration to be provided to Subscriber for assignment of this Agreement
may not exceed the aggregate amount of Bill Credits that have accrued to Subscriber, but have
not yet been applied to Subscriber’s monthly invoice(s) from PSCO.
(d)
Upon any assignment of this Agreement pursuant to this Section 12.2, Subscriber
will surrender all right, title and interest in and to this Agreement. Any purported assignment in
contravention of this Section 12.2 shall be of no force and effect and null and void ab initio. No
assignment will extend the Term of this Agreement.
13. NOTICES.
13.1 Notice Addresses. Unless otherwise provided in the Agreement, all notices and
communications concerning the Agreement shall be in writing and addressed to the other Party
(or Financing Party, as the case may be) at the addresses below, or at such other address as may
be designated in writing to the other Party from time to time.
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Operator:
Subscriber:
Oak Leaf Solar XXXII LLC
2645 E. 2nd Avenue, Suite 206
Denver, CO 80206
Attn: Counsel
Email: [email protected]
With a copy to
Lender:
13.2 Notice. Unless otherwise provided herein, any notice provided for in the
Agreement shall be hand delivered, sent by registered or certified U.S. Mail, postage prepaid, or
by commercial overnight delivery service, or transmitted by email and shall be deemed delivered
to the addressee or its office when received at the address for notice specified above when hand
delivered, upon confirmation of sending when sent by email (if sent during normal business
hours or the next Business Day if sent at any other time), on the Business Day after being sent
when sent by overnight delivery service, or 5 Business Days after deposit in the mail when sent
by U.S. mail.
13.3 Address for Invoices. All invoices under the Agreement shall be sent to the
address provided by Subscriber. Invoices shall be sent by regular first class mail postage prepaid.
14. INDEMNIFICATION, LIABILITY AND INSURANCE
14.01 Indemnification. Operator shall defend, indemnify, and hold harmless Subscriber, its
present and former council members, officials, officers, agents, volunteers and employees from
any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including
reasonable attorney’s fees, resulting from any act or omission of Operator, a subcontractor,
anyone directly or indirectly employed by them, and/or anyone for whose acts and/or omissions
they may be liable in the performance of the services required by this Agreement, and against all
loss by reason of the failure of Operator to perform any obligation under this Agreement.
14.02 Insurance. With respect to the services provided pursuant to this Agreement,
Operator shall at all times during the term of this Agreement and beyond such term when so
required have and keep in force the following insurance coverages:
Limits
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Commercial General Liability on an occurrence
basis with contractual liability coverage:
1.
General Aggregate
$2,000,000
Products—Completed Operations Aggregate
Personal and Advertising Injury
1,500,000
Each Occurrence—Combined
Bodily Injury and Property Damage
2.
2,000,000
1,500,000
Workers’ Compensation and Employer’s Liability:
Workers’ Compensation
Statutory
If Operator is based outside the state of Colorado, coverage must
comply with Colorado law.
Employer’s Liability. Bodily injury by:
Accident—Each Accident
Disease—Policy Limit
Disease—Each Employee
500,000
500,000
500,000
An umbrella or excess policy over primary liability insurance coverages is an acceptable
method to provide the required insurance limits.
The above establishes minimum insurance requirements. It is the sole responsibility of
Operator to determine the need for and to procure additional insurance which may be needed
in connection with this Agreement. Upon written request, Operator shall promptly submit
copies of insurance policies to Subscriber.
Operator shall not commence work until it has obtained required insurance and filed with
Subscriber a properly executed Certificate of Insurance establishing compliance. The
certificate(s) must name Subscriber as the certificate holder and as an additional insured for the
liability coverage(s) for all operations covered under the Agreement. Operator shall furnish to
Subscriber updated certificates during the term of this Agreement as insurance policies expire.
14.03 Liability. Without Subscriber waiving any statutory immunities, each Party agrees
that it will be responsible for its own acts and omissions and the results thereof, to the extent
authorized by the law, and shall not be responsible for the acts and omissions of another Party
and the results thereof. Subscriber warrants that it has an insurance or self-insurance program
with minimum coverage consistent with the liability limits in Colorado Statutes.
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15. COMPLIANCE
15.01 The Operator must comply with all applicable federal, state, and local laws, rules,
and regulations, including any ruling of the Colorado Public Utilities Commission (PUC).
16. DISCONTINUATION OF COMMUNITY SOLAR GARDEN PROGRAM.
Notwithstanding anything herein to the contrary, this Agreement shall terminate immediately,
without notice, if PSCO terminates the Producer Agreement associated with the Community
Solar Garden identified by the PSCO unique garden identified in Exhibit C. In addition, this
Agreement shall terminate immediately if the Community Solar Garden program is limited or
materially adversely changed prior to Operator executing a Producer Agreement with PSCO, so
long as the Operator has used its best efforts to secure the Producer Agreement up to the point of
program change.
17. MISCELLANEOUS.
17.1 Integration; Exhibits. This Agreement, together with the attached Exhibits,
constitute the entire agreement and understanding between Operator and Subscriber with respect
to the subject matter thereof and supersedes all prior agreements relating to the subject matter
hereof. The Exhibits attached hereto are integral parts of the Agreement and are made a part of
the Agreement by reference.
17.2 Amendments. This Agreement may only be amended, modified or supplemented
by an instrument in writing executed by duly authorized representatives of Operator and
Subscriber. To the extent any amendment changes Subscriber’s Allocated Percentage, such
amendment shall include the representation by Subscriber set forth in Section 8.2(c).
17.3 Cumulative Remedies. Except as set forth to the contrary herein, any right or
remedy of Operator or Subscriber shall be cumulative and without prejudice to any other right or
remedy, whether contained herein or not.
17.4 Limited Effect of Waiver. The failure of Operator or Subscriber to enforce any of
the provisions of the Agreement, or the waiver thereof, shall not be construed as a general waiver
or relinquishment on its part of any such provision, in any other instance or of any other
provision in any instance.
17.5 Survival. The obligations under Section 8.3 (Exclusion of Warranties), Section 9
(Taxes and Governmental Fees), Section 13 (Notices), Section 14 (Data Practices), Section 15
(Indemnification, Liability and Insurance), Section 17 (Miscellaneous), or pursuant to other
provisions of this Agreement that, by their sense and context, are intended to survive termination
of this Agreement, shall survive the expiration or termination of this Agreement for any reason.
17.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado without reference to any choice of law
principles. The Parties agree that the courts of Colorado and the federal Courts sitting therein
shall have jurisdiction over any action or proceeding arising under the Agreement to the fullest
extent permitted by Applicable Law.
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17.7 Severability. If any term, covenant or condition in the Agreement shall, to any
extent, be invalid or unenforceable in any respect under Applicable Law, the remainder of the
Agreement shall not be affected thereby, and each term, covenant or condition of the Agreement
shall be valid and enforceable to the fullest extent permitted by Applicable Law and, if
appropriate, such invalid or unenforceable provision shall be modified or replaced to give effect
to the underlying intent of the Parties and to the intended economic benefits of the Parties.
17.8 Relation of the Parties. The relationship between Operator and Subscriber shall
not be that of partners, agents, or joint ventures for one another, and nothing contained in the
Agreement shall be deemed to constitute a partnership or agency agreement between them for
any purposes, including federal income tax purposes. Operator and Subscriber, in performing
any of their obligations hereunder, shall be independent contractors or independent parties and
shall discharge their contractual obligations at their own risk.
17.9 Successors and Assigns. This Agreement and the rights and obligations under the
Agreement are binding upon and shall inure to the benefit of Operator and Subscriber and their
respective successors and permitted assigns.
17.10 Counterparts. This Agreement may be executed in one or more counterparts, all
of which taken together shall constitute one and the same instrument
17.12 No Reliance. Subscriber is not relying on any representation, warranty or promise
with respect to the Solar*Rewards Community Solar Program or the Solar System made by or on
behalf of PSCO or Operator, except to the extent specifically stated in this Agreement.
17.13 Record Keeping. Operator will maintain books, records, documents and other
evidence directly pertinent to performance of the work under this Agreement in accordance with
generally accepted accounting and utility metering principles and practices, including all meter
production records and adjustments thereto. Operator will also maintain the financial information
and data used in preparation or support of the cost submission for any negotiated Agreement
amendment and provide electronic, printed or copied documentation to the Subscriber as
requested. These books, records, documents, and data must be retained for at least 6 years after
the term of the Agreement, except in the event of litigation or settlement of claims arising from
the performance of this Agreement, in which case the Operator agrees to maintain them until the
Subscriber and any of its duly authorized representatives have disposed of the litigation or
claims.
17.14 Audit. The records, books, documents, and accounting procedures and practices of
the Operator and of any subcontractor relating to work performed pursuant to this Agreement
shall be subject to audit and examination by the Subscriber. The Operator and any subcontractor
shall permit the Subscriber or its designee to inspect, copy, and audit its accounts, records, and
business documents at any time during regular business hours, as they may relate to the
performance under this Agreement. Audits conducted by the Subscriber under this provision
shall be in accordance with generally accepted auditing standards. Financial adjustments
resulting from any audit by the Subscriber shall be paid in full within thirty (30) days of the
Operator's receipt of audit.
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18.15 Dispute Resolution. Operator must submit in writing to the Subscriber any
dispute regarding the meaning and intent of this Agreement or arising from performance of this
Agreement r within 60 days after the dispute arises. The Subscriber or his/her designee must
respond to the Operator in writing with a decision within 60 calendar days following receipt of
the Operator’s dispute. Submission of a dispute to Dispute Resolution is a condition precedent to
the Operator initiating any litigation relating to this Agreement.
Pending final decision of a dispute, the Parties will proceed diligently with the
performance of the Agreement. Failure by the Operator comply precisely with the time
deadlines under this paragraph as to any claim shall operate as a release of that claim and a
presumption of prejudice to the Subscriber.
19. LENDER PROVISIONS
19.1
Lender Collateral Assignment. Subscriber hereby:
(a) Acknowledges and consents to the sale, assignment or conveyance or pledge or the
collateral assignment by Operator to the Lender, of Operator’s right, title and interest in, to and
under this Agreement, as consented to under Section 12.1 of this Agreement;
(b) Acknowledges that any Lender as such collateral assignee shall be entitled to exercise
any and all rights of lenders generally with respect to Operator’s interests in this Agreement;
(c) Acknowledges that it has been advised that Operator has granted a security interest in
the System to the Lender and that the Lender has relied upon the characterization of the System
as personal property, as agreed in this Agreement, in accepting such security interest as collateral
for its financing of the System; and
(d) Acknowledges that any Lender shall be an intended third-party beneficiary of this
Section 19.1.
19.2 Lender Cure Rights Upon System Owner Default. Upon any Event of Default by
Operator, a copy of any notice delivered under Article 11 shall be delivered concurrently by
Subscriber to any Lender at the addresses provided in writing by Operator to Subscriber.
Following receipt by any Lender of any notice that Operator is in default in its obligations under
this Agreement, such Lender shall have the right but not the obligation to cure any such default,
and Subscriber agrees to accept any cure tendered by the Lenders on behalf of Operator in
accordance with the following: (a) a Lender shall have the same period after receipt of a notice
of default to remedy an Event of Default by Operator, or cause the same to be remedied, as is
given to Operator after Operator’s receipt of a notice of default hereunder; provided, however,
that any such cure periods shall be extended for the time reasonably required by the Lender to
complete such cure, including the time required for the Lender to obtain possession of the
System (including possession by a receiver), institute foreclosure proceedings or otherwise
perfect its right to effect such cure, but in no event longer than 180 days; and (b) the Lender shall
not be required to cure those Events of Default that are not reasonably susceptible of being cured
19
or performed by Lender. The Lender shall have the absolute right to substitute itself or an
Affiliate for Operator and perform the duties of Operator hereunder for purposes of curing such
Event of Default. Subscriber expressly consents to such substitution, and authorizes the Lender,
its affiliates (or either of their employees, agents, representatives or contractors) to enter upon the
Premises to complete such performance with all of the rights and privileges of Operator, but
subject to the terms and conditions of this Agreement.
19.3 Upon any rejection or other termination of this Agreement pursuant to any
process undertaken with respect to Operator under the United States Bankruptcy Code, at the
request of the Lender made within ninety (90) days of such termination or rejection, Subscriber
shall enter into a new agreement with the Lender or its assignee having the same terms and
conditions as this Agreement.
19.4 Except as otherwise set forth in this Article 19, the Parties’ respective obligations
will remain in effect during any cure period.
19.5 If the Lender (including any purchaser or transferee), pursuant to an exercise of
remedies by the Lender, shall acquire title to or control of Operator’s assets and shall, within the
time periods described in Section 19.3 above, cure all defaults under this Agreement existing as
of the date of such change in title or control in the manner required by this Agreement and which
are capable of cure by a third person or entity, then such person or entity shall no longer be in
default under this Agreement and this Agreement shall continue in full force and effect.
The remainder of this page is intentionally blank.
20
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their duly
authorized officers on the dates below:
Dated: _______________________
By: _______________________________
OAK LEAF SOLAR XXXII LLC
Dated: _______________________
By: _______________________________
21
Exhibit A
[Insert form of Subscriber Agency Agreement and Consent Form as required by Producer
Agreement]
22
Exhibit B – Reserved
23
Exhibit C Description of Premises and System
Solar System Location:
_[] County_________________
Solar System Size:
Up to 2000 kW (DC) (representing an initial estimate,
which may vary depending on the final design of the
System)
Subscriber’s Allocated
Percentage:
Allocated Percentage: 40.00%
Anticipated Commercial
Operation Date:
[ To be inserted once PSCO completes its interconnection
study.
]
PSCO Unique Garden
Identifier:
SRC053975
24
Exhibit D Estimated Annual Energy.
Estimated Annual Delivered Energy commencing on the Commercial Operation Date, and
continuing through the Term, with respect to System under the Agreement shall be based
on the kWh Rate described in Section 6.1. Estimated production (which will be updated
upon final completion) and allocation to Subscriber is listed below:
Year
Total Garden
Output (kWh)
Subscriber
Percentage (%)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
3,358,000
3,341,210
3,324,504
3,307,881
3,291,342
3,274,885
3,258,511
3,242,218
3,226,007
3,209,877
3,193,828
3,177,859
3,161,969
3,146,160
3,130,429
3,114,777
3,099,203
3,083,707
3,068,288
3,052,947
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
40.00%
Total
64,063,602
Estimated
Annual
Delivered
Energy (kWh)
1,343,200
1,336,484
1,329,802
1,323,152
1,316,537
1,309,954
1,303,404
1,296,887
1,290,403
1,283,951
1,277,531
1,271,144
1,264,788
1,258,464
1,252,172
1,245,911
1,239,681
1,233,483
1,227,315
1,221,179
25,625,441
* For the purposes of the table Term year 1 begins on the Commercial Operation Date
The values in the table above are estimates of (i) the kWhs of Delivered Energy expected
to be generated annually by the System and (ii) the portion of the Delivered Energy
generated annually that is to be allocated to Subscriber pursuant to Subscriber’s Allocated
Percentage, which amount is derived by multiplying the estimated Delivered Energy by the
Subscriber’s Allocated Percentage in each year. The table will be updated upon final
25
design of the System; provided, however, any such updated values are also estimates.
Estimated Delivered Energy may be reduced if the system size is reduced due to square
footage limitations on the leased land.
Operators used the following methodology to develop the above production projections:
National Renewable Energy Laboratory’s PVWatts and SAM software tools.
THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK.
26
Exhibit F Commercial Operation Date Notification
[To be added when the Commercial Operation Date is Finalized]
27
Exhibit G Producer Agreement between Operator and PSCO
To be inserted prior to Commercial Operation Date
28
Exhibit H – Reserved
29
Exhibit I – Subscriber Meters
Subscriber will provide Operator with the Subscriber Meters and the relevant detail below prior
to Construction Commencement.
30
31
DEPARTMENT OF PLANNING & DEVELOPMENT
202 Railroad Avenue, Rifle, CO 81650
Phone: 970-665-6490 Fax: 970-625-6268
MEMORANDUM
To:
From:
Date:
Subject:
Honorable Mayor and City Council
Nathan Lindquist, Planning Director
July 25, 2017
Western Adventure Weekend Street Closures September 23, 2017
Please see attached two maps showing planned street closures during Western Adventure
Weekend on Saturday, September 23rd, as well as a draft Traffic Control Plan.
In the morning there will be street closures for the bike race and 5k run. These should be fairly
short closures and will directly affect about fifteen driveways. The race route utilizes many trails
and was chosen to have the least impacts on residents.
For the 3rd Street Block Party, street closures will be in affect all day on the two blocks of East
and West 3rd Street. Railroad Avenue will be closed between 2nd Street and 4th Street from 5 pm
to 10 pm during the headlining concert, Get the Led Out.
City Staff has begun to notify affected residents and businesses and will continue to do so, as
well as the broader public. Further modifications to the Traffic Control Plan will be made.
Staff requests Council approve these event street closures.
W. 5TH ST.
DETOUR
THRU TRAFFIC
TO
ROAD CLOSED
ROAD
CLOSED
AHEAD
ROAD
CLOSED
AHEAD
DETOUR
W. 4TH ST.
E. 4TH ST.
DETOUR
DETOUR
ROAD
CLOSED
AHEAD
DETOUR
ROAD
CLOSED
ROAD
CLOSED
AHEAD
ROAD
CLOSED
DETOUR
DETOUR
DETOUR
E. 5TH ST.
WHITERIVER AVE.
EAST AVE.
ROAD
CLOSED
AHEAD
DETOUR
RAILROAD AVE.
SPECIAL
EVENT
AHEAD
W. 6TH ST.
DETOUR
RIFLE REGIONAL ECONOMIC
DEVELOPMENT CORP.
(WESTERN ADVENTURE
WEEKEND SEPT. 23RD)
SPECIAL EVENT
STREET CLOSURE
w/DETOURS
3RD ST, EAST ST.
& RAILROAD AVE.
RIFLE, CO.
MUTCD TA-20
6-8-17
SPECIAL
EVENT
AHEAD
ROAD
CLOSED
AHEAD
TO
DETOUR
THRU TRAFFIC
ROAD CLOSED
ROAD
CLOSED
DETOUR
ROAD
CLOSED
ROAD
CLOSED
AHEAD
DETOUR
ROAD
CLOSED
DETOUR
ROAD
CLOSED
AHEAD
SPECIAL
EVENT
AHEAD
ROAD
CLOSED
W. 3RD ST.
E. 3RD ST.
ROAD
CLOSED
AHEAD
DETOUR
ROAD
CLOSED
ROAD
CLOSED
AHEAD
ROAD
CLOSED
AHEAD
DETOUR
E. 1ST ST.
ROAD
CLOSED
AHEAD
HWY
6
HW
SPE
C
EVE IAL
AHE NT
AD
RO
CLO AD
AHE SED
AD
SPECIAL
EVENT
AHEAD
ROAD
CLOSED
AHEAD
CENTENNIAL PKWY (HWY 6)
EAST AVE.
RAILROAD AVE.
TO
DETOUR
THRU TRAFFIC
ROAD CLOSED
E. 2ND ST.
WHITERIVER AVE.
ROAD
CLOSED
AHEAD
W. 2ND ST.
SIGN LIST;
6-36”x48” SPECIAL EVENT AHEAD
15-36” ROAD CLOSED AHEAD
9-48”x36” ROAD CLOSED
3-48”x36” ROAD CLOSED TO THRU TRAFFIC
18-TYPE I (saw) DETOUR (9-double/2-left/2-right/ 5-thru)
ROAD
CLOSED
DETOUR
SPECIAL
EVENT
AHEAD
ROAD
CLOSED
Y1
PREPARED BY
TRAFFIC CONTROL SUPERVISOR;
Cal Whitman 6-8-17
APPROVED BY
CONTRACTOR;
DATE
----------------------------------------APPROVED BY
DATE
CITY/TOWN OF;
----------------------------------------DATE
3
*NOTE;
1) 3RD ST WILL BE CLOSED AT 5am, 9-23-17
BETWEEN RAILROAD AVE & WEST ST / RAILROAD
AVE & EAST ST.
2) CLOSE EAST ST BETWEEN 4TH ST & 2ND ST.
3) RAILROAD AVE TO CLOSE AT 5pm, 9-23-17
BETWEEN 2ND ST & 4TH ST AND OPEN AT 11pm
__________________________________________________
Cal Whitman
V.P./Owner
__________________
BE
PREPARED
TO
STOP
ROAD
WORK
AHEAD
A-1 TRAFFIC CONTROL
& BARRICADE INC.
32597 HWY 6 & 24
SILT, CO 81652
(970)876-0738 office
(970)876-0307 fax
[email protected]
BBB.
ACCREDIITED
BUSINESS
bbb.org
HIGHWAY SAFETY SINCE 1981
BBB.
ACCREDIITED
BUSINESS
bbb.org
WESTERN ADVENTURE WEEKEND DOWNTOWN BLOCK PARTY—STREET CLOSURES
SATURDAY, SEPTEMBER 23, 2017, 4 AM - 11 PM
Residents and businesses are advised of street closures for the Western Adventure Weekend Downtown Block Party
on Saturday September 23, 2017. Parts of 3rd Street and East Avenue will be closed to vehicular traffic for the entire
day. The block of Railroad Avenue on either side of 3rd Street will be closed from 5 pm to 10 pm for the headlining
concert, Get the Led Out. Traffic will detour on West Avenue and Whiteriver Avenue during this time.
For more information see realwesternadventure.com or contact Nathan Lindquist, City of Rifle Planning Director, at
970-665-6499, or [email protected]
Streets closed from 4 am to 11 pm (parts of 3rd Street and East Avenue)
Streets closed from 5 pm to 10 pm (parts of Railroad Avenue)
WESTERN ADVENTURE WEEKEND —MOUNTAIN BIKE AND 5K RACE
STREET CLOSURE NOTICE
SATURDAY, SEPTEMBER 23, 2017, 8:30 AM - 11:00 AM
Residents are advised of temporary street closures lasting up to two and a half hours for this event. The route will
start and finish on 3rd Street. Streets with temporary closures will include 3rd Street, West 2nd Street, Tripp Drive,
West 5th Street, Prefontaine Avenue, and Howard Avenue. To limit street closures the race will use a new 14th Street
Trail, the Fairgrounds, and the Rifle Creek Trail. For more information go to www.realwesternadventure.com or contact Nathan Lindquist, City of Rifle Planning Director, at 970-665-6499 or [email protected]
3RD ST START/FINISH
CITY OF RIFLE, COLORADO
ORDINANCE NO. 21
SERIES OF 2017
AN ORDINANCE OF THE CITY OF RIFLE, COLORADO, AMENDING
SECTION 10-10-40 OF THE RIFLE MUNICIPAL CODE PERTAINING TO
OPEN BURNING ON CITY OWNED AND MAINTAINED PROPERTY.
WHEREAS, the City of Rifle (“Rifle” or the “City”) is a home rule municipality
organized under Article XX of the Colorado Constitution and with the authority of the Rifle
Home Rule Charter; and
WHEREAS, Section 10-10-40 of the Rifle Municipal Code sets forth limitations on the
open burning of fires on City owned and maintained property; and
WHEREAS, the Rifle City Council desires to amend Section 10-10-40 to further clarify
the limitations on open burning within the City and to provide for the enforcement of Countywide fire bans within the City limits; and
WHEREAS, the Rifle City Council finds and declares that it is in the interest of the
public health, safety, and welfare to amend Section 10-10-40 and, in doing so, ensure the orderly
enforcement of open fires.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF RIFLE, COLORADO,
ORDAINS THAT:
1.
forth in full.
Incorporation of Recitals. The foregoing recitals are incorporated herein as if set
2.
Code Amendment. Section 10-10-40 of the Rifle Municipal Code is hereby
amended to read as follows, with double underlined text added and strike through language
deleted:
Sec. 10-10-40. - Open burning prohibited.
(a) Open burning of fires, including the sale, possession or use of fireworks, is prohibited in the
City and Rifle Mountain Park from Memorial Day to Labor Day each year.
(b) Notwithstanding the prohibition of Paragraph (a) of this Section, the following shall be
allowed within the City:
(1) Recreational burning, as defined in this Article. Recreational burning on all City owned
or maintained property is prohibited except in designated areas and within operational
fire rings specifically provided for such purposes; or
(2) Burning done pursuant to the possession of a permit issued by the Rifle Colorado River
Fire Protection District are the sole exceptions to the prohibition of open burning.
Permits may be applied for through the Rifle Colorado River Fire Protection District,
which shall analyze the application based upon the activity requested, the timeframe for
City of Rifle, Colorado
Ordinance No. 21, Series of 2017
Page 2 of 2
the activity and the fire conditions at that time. Permits shall be granted in accordance
with the appropriate sections of the International Fire Code and must be kept on the
premises designated therein, along with approved on-site fire-extinguishing equipment,
available for inspection by fire officials.
(c) Upon determining that the threat of wildfires for the City, Rifle Mountain Park and
surrounding area has abated, and after consultation with the Rifle Colorado River Fire
Protection District, the City Manager may by executive order release the prohibition on open
burning. Notice of a release shall be provided to the City Council at its next meeting
following the issuance of the executive order. Notice shall be provided to the community
through posting in at least six (6) conspicuous public places within the City and, if
applicable, at the information signs in Rifle Mountain Park and through public access
television.
(d) During periods of extreme fire danger, further restrictions, including prohibiting certain
types of recreational burning, or an extension of the prohibition on open burning past Labor
Day may be imposed by executive order of the City Manager, following consultation with
the Rifle Colorado River Fire Protection District. Notice of further restrictions shall be
provided to the City Council at its next meeting following the executive order. Notice shall
be provided to the community through posting in at least six (6) conspicuous public places
within the City and, if applicable, at the information signs in Rifle Mountain Park, and
through public access television.
(e) Temporary and emergency fire restrictions that are issued by Garfield County and applicable
to all of Garfield County shall apply to the City of Rifle and violations will be subject to the
provisions of 10-10-50.
3.
Code Amendment. All references in the Rifle Municipal Code to the “Rifle Fire
Protection District” shall be replaced to read “Colorado River Fire Protection District”.
INTRODUCED on July 19, 2017, read by title, passed on first reading, and ordered
published by title as required by the Charter.
INTRODUCED a second time at a regular meeting of the Council of the City of Rifle,
Colorado, held on August 2, 2017, passed without amendment, approved, and ordered published
in full as required by the Charter.
Dated this 2nd day of August, 2017.
CITY OF RIFLE, COLORADO
BY:
_________________________________
Mayor
City of Rifle, Colorado
Ordinance No. 21, Series of 2017
Page 2 of 2
ATTEST:
_______________________________
City Clerk
DEPARTMENT OF PLANNING & DEVELOPMENT
202 Railroad Avenue, Rifle, CO 81650
Phone: 970-665-6490 Fax: 970-625-6268
MEMORANDUM
To:
From:
Date:
Subject:
Honorable Mayor and City Council
Nathan Lindquist, Planning Director
July 25, 2017
License to Encroach – 2102 Airport Road signage
REQUEST
The applicant, Dan Sullivan, requests Council approval for a monument sign within the Right Of
Way in front of his medical marijuana retail store at 2102 Airport Road.
BACKGROUND
The City receives occasional requests for signs in the ROW when the actual street width does not
take up the full ROW, leaving a wide strip in front of a business that is owned by the City. In the
case of Airport Road, the ROW is 100’ wide while the street itself is only 38’ wide. This leaves
a 25’ strip of ROW in front of 2102 Airport Road. In order to have a monument sign that is
visible to traffic Mr. Sullivan has requested placement of the sign in the ROW (see attached
pictures).
A License to Encroach is revocable at any time should the City need the ROW for any reason,
including expansion of the street, addition of a sidewalk, or drainage improvements. No
improvements are contemplated for this section of Airport Road in the near future. The
precedent for signs in the ROW has been set across the street with the Redi Services, LLC sign,
which is in the ROW.
RECOMMENDATION
Staff recommends Council approve a License to Encroach for a monument sign at 2102 Airport
Road.
REVOCABLE LICENSE TO ENCROACH AGREEMENT
THIS REVOCABLE LICENSE AGREEMENT is made and entered into this ___ day of
___________________, 2017, by and between the CITY OF RIFLE, COLORADO, a Colorado
home rule municipality (the “City”) and 2102 AIRPORT ROAD, LLC, a Colorado limited liability
company (“Licensee”);
W I T N E S S E T H:
WHEREAS, Licensee desires to construct a monument sign (the “Sign”) for use at its retail
building at 2102 Airport Road, Rifle, Colorado (the “Property”); and
WHEREAS, Licensee desires to construct the Sign in the Airport Road right-of-way
located on the southern boundary of the Property to avoid visual disruption from an existing power
pole and requests a license from the City to do so; and
WHEREAS, the City is willing to grant Licensee a license to encroach subject to the terms
and conditions of this License Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1.
Recitals. The foregoing recitals are incorporated by reference herein.
2.
Grant of License/Conditions of Use. The City hereby grants Licensee a license to
encroach and occupy the right-of-way as generally shown on Exhibit A attached hereto and
incorporated herein by this reference. This grant of license is expressly limited to and for the
sole purpose of the construction, maintenance and use of the Sign to be used for retail purposes on
the Property. In the event the City or any other utility needs to remove the Sign for any reason,
the City may do so with no notice to Licensee, and Licensee shall be fully responsible for the costs
of such removal. The City and any other utility shall not be responsible to reconstruct the Sign,
including footings, landscaping and the like.
3.
Term/Revocable. The license shall extend for five (5) years from the date of this
License Agreement, unless it is revoked earlier, and may thereafter be extended by mutual
agreement of the parties upon terms and conditions negotiated at that time. In the event the retail
store on the Property does not operate for three (3) consecutive months, the license granted
hereunder shall terminate. The City may revoke this License at any time it determines in its sole
discretion that the Sign interferes with the purposes of the right-of-way by giving Licensee thirty
(30) days notice to remove the Sign.
1
4.
Indemnification.
Licensee agrees to forever indemnify, defend, and hold
harmless the City against any and all claims, liabilities, or demands whatsoever relating to or
arising out of the use of the Easement, the construction or use of the Sign, or arising out of or
related to this License Agreement.
5.
Severability. Should any portion of this Agreement be declared invalid or
unenforceable by a court of competent jurisdiction, then the remainder of this Agreement shall be
deemed severable, shall not be affected, and shall remain in force and effect.
6.
Entire Agreement. This Agreement is the entire agreement of the parties, and
neither party has relied on any promises or representations except as expressly described herein.
7.
Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Colorado. The District Court in and for Garfield County, Colorado,
shall be the exclusive venue for any dispute arising hereunder. In the event of such a dispute, the
prevailing party shall be entitled to reasonable expenses, including attorney fees.
8.
Recordation. This Agreement shall be recorded in the Office of the Garfield
County Clerk and Recorder’s Office.
WHEREFORE, the parties have executed this agreement effective as of the date first
written above.
CITY OF RIFLE, COLORADO
By:
____________________________________
Kimberly Bullen, Interim City Manager
ATTEST:
_____________________________
Kristy Christensen, City Clerk
2102 AIRPORT ROAD, LLC
By:
_____________________________________
Daniel L. Sullivan, Managing Member
2
STATE OF COLORADO
COUNTY OF GARFIELD
)
) ss.
)
Acknowledged, subscribed and sworn to before me this _____ day of ____________, 2017,
by ______________________________ for 2102 Airport Road, LLC.
WITNESS my hand and official seal. My Commission expires: _______________.
____________________________________
Notary Public (SEAL)
3
EXHIBIT A
4
DEPARTMENT OF PLANNING & DEVELOPMENT
202 Railroad Avenue, Rifle, CO 81650
Phone: 970-665-6490 Fax: 970-625-6268
MEMORANDUM
To:
From:
Date:
Subject:
Honorable Mayor and City Council
Nathan Lindquist, Planning Director
July 25, 2017
Award for Contract to Develop City Hall Conceptual Drawings
REQUEST
Staff has received a quote from Cunningham Group Architecture, Inc for the amount of $5,000
to assist the City with space programming and a conceptual layout for the new City Hall. See
attached for details.
BACKGROUND
The City has been working with Medici Communities and Cunningham Group on the concept of
a new City Hall with workforce housing on the upper floors. This is a promising idea that could
provide housing for critical workforce as well as avoid expensive repairs to the existing City
Hall.
Before proceeding with the project, both the City and the developer need further investigation of
the idea its functionality. For the City, it is important to understand the layout and space needs to
serve the community for decades to come. The facility will need to work for City Staff, City
Council, the site we share with the Library, and the public.
Cunningham Group has extensive experience with designing City facilities. Sharing the same
architect with Medici Communities should results in cost savings and efficiencies. Staff has
confirmed with industry professionals that the amount of $5,000 for this level of work is good
value for the price.
Under the City or Rifle procurement code, professional service contracts under the amount of
$25,000 may be made through an “open market” process, which involves “an informal
evaluation of price, quality, convenience and service from any source, and the exercise of
sound decision-making by the Purchasing Agent based on such information.” Staff confirms
that this proposal meets the specifications of the procurement code.
RECOMMENDATION
Staff requests approval of a contract with Cunningham for $5,000.
Cuningham Group Hourly Rates
Exhibit "A"
*Hourly rates are subject to change on a yearly basis.
2017 Hourly Rates
Description
Rate
Administration
Computer Graphics Specialist
Designer 1-3
Designer 4
Interior Designer 1/2
Interior Designer 3/4
Landscape Designer
Principal
Project Coordinator
Registered Architect 1/2
Registered Architect 3/4
Registered Landscape Architect
Senior Principal
Senior Project Manager
Specifications Writer
Technician 1/2
Technician 3/4
$60 – $150
$70 – $130
$75 – $150
$140 – $195
$75 – $115
$110 – $185
$90 – $120
$200 – $325
$130 – $215
$95 – $160
$135 – $300
$110 – $165
$300
$160– $215
$85 – $150
$75 – $125
$100– $160
Page 1 of 1