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CITY OF MUSKEGON
CITY COMMISSION MEETING
JUNE 8, 2021 @ 5:30 P.M.
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
REMOTE MEETING
AGENDA
□ CALL TO ORDER:
□ ROLL CALL:
□ HONORS/AWARDS/PRESENTATIONS:
□ PUBLIC COMMENT ON AN AGENDA ITEM:
□ CONSENT AGENDA:
A. Approval of Minutes City Clerk
B. Lakeshore Art Festival Grant City Clerk
C. Lakeside Social District Permit Recommendation Economic Development
D. 9th Street – Engineering Services Agreement Amendment #001
Public Works
E. McCrea Field Basketball Court Public Works
F. Filtration Plant Communications Tower Public Works – Filtration
G. Musketawa Trail Streetlight Locations Public Works
□ PUBLIC HEARINGS:
A. Transmittal of 2021-2022 Proposed Budget Finance
Recommended-FY2021-22-Budget-Mtg-5-25-21.pdf (muskegon-mi.gov)
□ UNFINISHED BUSINESS:
□ NEW BUSINESS:
A. Mercy Health Arena Roof Lease Public Works
B. Mercy Health Arena Power Purchase Agreement Public Works
C. Request for Proposal Approvals – YEP Programs Community &
Neighborhood Services
□ ANY OTHER BUSINESS:
□ PUBLIC COMMENT:
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► Reminder: Individuals who would like to address the City Commission shall do the following:
► Fill out a request to speak form attached to the agenda or located in the back of the room.
► Submit the form to the City Clerk.
► Be recognized by the Chair.
► Step forward to the microphone.
► State name and address.
► Limit of 3 minutes to address the Commission.
► (Speaker representing a group may be allowed 10 minutes if previously registered with City Clerk.)
□ CLOSED SESSION:
□ ADJOURNMENT:
ADA POLICY: THE CITY OF MUSKEGON WILL PROVIDE NECESSARY AUXILIARY AIDS AND SERVICES TO INDIVIDUALS
WHO WANT TO ATTEND THE MEETING UPON TWENTY-FOUR HOUR NOTICE TO THE CITY OF MUSKEGON. PLEASE
CONTACT ANN MARIE MEISCH, CITY CLERK, 933 TERRACE STREET, MUSKEGON, MI 49440 OR BY CALLING (231) 724-
6705 OR TTY/TDD DIAL 7-1-1-22 TO REQUEST A REPRESENTATIVE TO DIAL (231) 724-6705.
Page 2 of 2
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8, 2021 Title: Approval of Minutes
Submitted By: Ann Marie Meisch, MMC Department: City Clerk
Brief Summary: To approve the minutes of the May 25, 2021 Regular Meeting.
Detailed Summary: N/A
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion: To approve the minutes.
For City Clerk Use Only:
Commission Action:
CITY OF MUSKEGON
CITY COMMISSION MEETING
MAY 25, 2021 @ 5:30 P.M.
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
REMOTE MEETING
MINUTES
The Regular Commission Meeting of the City of Muskegon was held
electronically with the Mayor, Vice Mayor, and Commissioners participating via
Zoom – a remote conferencing service, Clerk staff present at 933 Terrace Street,
Muskegon, MI at 5:30 p.m., Tuesday, May 25, 2021.
ROLL CALL FOR THE REGULAR COMMISSION MEETING:
Present: Mayor Stephen J. Gawron (Muskegon, MI), Vice Mayor Eric Hood
(Muskegon, MI), Commissioners Ken Johnson (Muskegon, MI), Dan Rinsema-
Sybenga (Muskegon, MI), Willie German, Jr. (Muskegon, MI), Teresa Emory
(Muskegon, MI), and Michael Ramsey (Muskegon, MI), City Manager Frank
Peterson, City Attorney John Schrier, and City Clerk Ann Meisch.
HONORS/AWARDS/PRESENTATIONS:
A. 2021-2022 Budget Presentation Only – Finance will present information
regarding the proposed 2021-2022.
Q & A will take place at the June 7, 2021 Worksession Meeting
Beth Lewis-outgoing Finance Director, and Ken Grant-incoming Finance
Director, reviewed the Fiscal Year 2021-2022 budget with the City Commission.
There will be an opportunity for questions on specific items at the June 7, 2021
Worksession meeting. All are encouraged to contact the Finance Department
with any questions about tonight’s presentation over the next few weeks.
B. Updates/Input from Chief Lewis Regarding Public Safety
Chief Lewis updated the City Commission on recent shootings in the area. Chief
Lewis encourages residents/witnesses to please come forward with any
information they have on criminal activity. Questions were asked and comments
were provided by the City Commission. The Police Department is always
strategizing and making decisions about staffing based on current
circumstances.
Page 1 of 10
PUBLIC COMMENT ON AN AGENDA ITEM: Public comments were received.
2021-50 CONSENT AGENDA:
A. Approval of Minutes City Clerk
SUMMARY OF REQUEST: To approve the minutes of the May 10, 2021
Worksession, May 11, 2021 Regular Meeting, and May 17, 2021 Special Meeting.
STAFF RECOMMENDATION: To approve the minutes.
B. 2021-2022 MML Membership Dues City Clerk
SUMMARY OF REQUEST: Approval to pay the 2021-22 MML dues in the amount
of $10,545.00. This is an increase of $146.
MML Dues are $9,586.00; Legal Defense Fund: $959.00; Total: $10,545.00
STAFF RECOMMENDATION: To approve the payment of dues to the Michigan
Municipal League in the amount of $10,545.00
C. Request for Authorization to Sign Planning & Economic Development
SUMMARY OF REQUEST: Request to authorize Hope Griffith from the Planning
Department to sign purchase agreements and closing documents for property
transactions on behalf of the City.
STAFF RECOMMENDATION: Approval to authorize and for the Mayor and
Clerk to sign the resolution.
D. Campbell Field Site Grading Public Works
SUMMARY OF REQUEST: Authorize the award of the RFP – Campbell Field Site
contract to the low bidder, Terra Contractors, including Alternate #001.
Staff solicited bids for site preparation and rehabilitation of the baseball fields
located at Campbell Field.
Bids received are as follows: Alternate #001
• $77,900.00 – Terra Contractors $17,500.00
• $84,595.00 – Accurate Excavators $17,200.00
• $192,000.00 – TJM Services $42,000.00
Alternate #001 includes installation of sidewalk along the Barclay Street frontage
of the park.
This project proposes to utilize funding generated from the PILOT agreement with
Royale Glen Townhouses.
The RFP was posted prior to the updated purchasing policy as such the old
purchasing policy was utilized for this document. Terra Contracting is located
within the City of Muskegon, they do not propose to utilize prevailing wages on
this project.
Page 2 of 10
The project would be constructed during the summer of 2021.
AMOUNT REQUESTED: $95,400.00 AMOUNT BUDGETED: $156,000
FUNDS OR ACCOUNTS: 404-TBD
STAFF RECOMMENDATION: Approve the award of the Campbell Field Site
Prop contract to the low bidder, Terra Contracting with the Alternate #1
selected.
F. Sale – 304 Mason Avenue Planning
SUMMARY OF REQUEST: City staff is seeking authorization to sell the City-owned
home at 304 Mason to Branden M. Goller.
The city constructed this house as part of the phase two of our infill housing
program. Staff is recommending that the purchase agreement be approved,
and 304 Mason Avenue be sold to Branden M. Goller at a cost of $189,900.
STAFF RECOMMENDATION: Authorize the Code Coordinator to complete the
sale of 304 Mason Avenue, as described in the purchase agreement and to
have the Mayor and Clerk sign the deed.
H. Downtown Muskegon Social District Permit Recommendation Economic
Development
SUMMARY OF REQUEST: The City Commission must recommend approval of the
Michigan Liquor Control Commission permits of participating licensed
establishments in the Downtown Muskegon Social District.
With the establishment of the Downtown Muskegon Social District, participating
licensed establishments must receive a Social District permit from the Michigan
Liquor Control Commission. The MLCC must first receive a recommendation for
approval from the City Commission before granting the permits. You handled
the initial eight such requests at your August 25 and September 8, 2020 meetings
and added others as they have been since. The resolution is for Muskegon
Brewing Co. LLC, d/b/a No Name Saloon, which is seeking a Social District
permit from the state and seeking City Commission recommended approval.
The Social District plan identifies 22 potential participating licensees within the
district. Other licensed establishments may file a Social District permit application
in the future.
STAFF RECOMMENDATION: To approve the resolution recommending
Michigan Liquor Control Commission approval of Social District permits in the
Downtown Muskegon Social District and to direct he City Clerk to certify the City
Commission action with the MLCC.
I. Traffic Control Order Traffic/Engineering
SUMMARY OF REQUEST: To approve the submitted Traffic Control Order #68-
(2021) and authorize staff to install a “Stop Sign” on the Southwest corner of 4th
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Street at Western Avenue. This location is currently unregulated as the exit from
the Convention Center.
STAFF RECOMMENDATION: To approve the installation of a “Stop Sign” at the
Southwest corner of 4 Street at Western Avenue per the submitted Traffic
th
Control Order #68-(2021).
Motion by Commissioner Rinsema-Sybenga, second by Commissioner German,
to approve the consent agenda as presented, minus item E and G.
ROLL VOTE: Ayes: Emory, Johnson, Gawron, Hood, Ramsey, German, and
Rinsema-Sybenga
Nays: None
MOTION PASSES
2021-51 REMOVED FROM CONSENT AGENDA:
E. Concession Agreement – TASTEE BBQ-N-CHICKEN Public Works
SUMMARY OF REQUEST: Staff is requesting permission to enter into a 1-yeaar
Contractual Concession Agreement, for 2021, with Keith Carter of TASTEE BBQ-N-
CHICKEN, for a Concession at Pere Marquette Park, as outlined in their proposal.
The business will be operating a mobile food truck, per their proposal.
Commission is $1,000.00 and 5% gross receipts annually.
STAFF RECOMMENDATION: Authorize staff to enter into a 1-year Contractual
Concession Agreement with Keith Carter of TASTEE BBQ-N-CHICKEN, at Pere
Marquette Park for the 2021 season.
Motion by Commissioner Emory, second by Commissioner Rinsema-Sybenga, to
authorize staff to enter into a 1-year contractual concession agreement with
Keith Carter of TASTEE BBQ-N-CHICKEN, at Pere Marquette Park for the 2021
season.
ROLL VOTE: Ayes: Johnson, Gawron, Hood, Ramsey, German, Rinsema-
Sybenga, and Emory
Nays: None
MOTION PASSES
F. Muskegon Lakeside Social District Plan and Map Approval Economic
Development
SUMMARY OF REQUEST: With state enabling legislation for Social Districts, city
staff is proposing a second Muskegon Social District in the Lakeside Business
District for approval of a plan and district map and filing them with the Michigan
Liquor Control Commission.
Public Act 124 of 2020 allows cities to create Social Districts and within them
Common Areas where alcoholic beverages from participating licensed
Page 4 of 10
establishments can be possessed and consumed outside of the establishments’
service areas. A Downtown Muskegon Social District was approved in August
2020 and has created fun and new energy in the downtown, while assisting
participating restaurants and bars to expand business during COVID-19
restrictions. Lakeside Business District establishments have requested the City
Commission adopt a second, smaller Social District in Lakeside. The Lakeside
district would be managed by the city’s business development manager in
conjunction with a number of city departments. The plan addresses a year-
round, seven-day-a-week Social District in terms of marked boundaries, hours of
operation, enforcement, security, design of a cup sticker, sanitation, marketing
and entertainment. Since the May 10 work session, the draft plan and
accompanying map have been developed. The district would include three
establishments. Two non-profit social clubs are included along with the Safe
Harbor Great Lakes Marina in the common area to provide flexibility of future
optional participation. Staff has brought together a working group of
participating establishment representatives to agree to the funding model of
downtown with a 35-cent sticker per cup charge that would pay for all of the
city’s cost in implementing and managing the district. A resolution supporting
the Muskegon Lakeside Social District plan and accompanying district map is
attached. If approved, the resolution, plan and map will be sent to the
Michigan Liquor Control Commission, operational details set and
implementation begun. Participating licensee permit recommendation
approvals will come to the City Commission in separate items if the district is
approved.
STAFF RECOMMENDATION: To approve the Muskegon Lakeside Social District
and map and direct the clerk and mayor to file it with the Michigan Liquor
Control Commission and authorize staff to implement.
Motion by Commissioner Emory, second by Commissioner Johnson, to approve
the Muskegon Lakeside Social District and map and direct the clerk and mayor
to file it with the Michigan Liquor Control Commission and authorize staff to
implement.
ROLL VOTE: Ayes: Gawron, Hood, Ramsey, German, Rinsema-Sybenga, Emory,
and Johnson
Nays: None
MOTION PASSES
2021-52 PUBLIC HEARINGS:
A. Public Hearing on Harbor 31 LLC (Viridian Shores) Redevelopment
Brownfield Plan, 150 Viridian Drive Economic Development
SUMMARY OF REQUEST: To hold a public hearing on the request for a Brownfield
Plan Amendment for the Harbor 31 LLC (Viridian Shores) and to consider the
Page 5 of 10
resolution.
Harbor 31 LLC proposes a Brownfield Amendment for its first phase of the
Viridian Shores at Harbor 31 residential development on 3.5 acres at 150
Viridian Drive, site of the former Teledyne Continental Motors industrial facility.
Plans for the $15.2 million initial investment for redevelopment activities
include the construction of 33 two-story residential homes (including a
combination of 15 single-family free-standing homes and 18 multifamily
duplex style homes). Development is expected to start in Spring 2021 and
continue through 2023. Future project phases include the construction of a
118-unit senior living community, a 134-unit Boardwalk Flats market-rate
apartment building, a 44,000 square foot retail and 120-unit apartment
complex, a four-story 107 room hotel, a retail boat sales and on-demand
boat storage facility and a 100 slip marina with eight dedicated shopper
docks. The project is expected to have a significant economic impact to the
area through the creation of over 1,200 construction-related jobs along with
nearly 550 FTE (full-time equivalent) jobs.
The initial plan includes $4.018M in eligible costs. It is a local-only property tax
capture plan, although through statute the plan is eligible for $76,900 for eligible
environmental costs captured by state educational millage through EGLE. The
local only EGLE eligible costs are $782,000 and include $600,000 for due care
and $80,000 for response activities. Local only MSF eligible costs are $3.159M and
include $40,000 demolition, $60,000 asbestos abatement, $380,000 site
preparation and $730,000 for infrastructure improvements. The initial capture for
phase one is estimated at $1.81M over the 26 years. Capture of tax increment
revenues for Developer reimbursement is anticipated to commence in 2025
(after the sunset of the Smart Zone tax abatement for the property) and end in
2047, a total of 26 years. This Plan Amendment assumes approximately five years
of additional capture of tax increment revenues (following Developer
reimbursement) for deposit into a Local Brownfield Revolving Fund, if available.
There is a 15 percent contingency in the plan. A request for 5% interest is
included for all accrued and unreimbursed eligible activities on a yearly basis.
There is an annual $10,000 administrative fee paid to the BRA. The BRA
approved the Harbor 31 LLC Brownfield Amendment at its May 11, 2021
meeting.
STAFF RECOMMENDATION: To close the public hearing and approve the
Brownfield Amendment for Harbor 31 LLC (Viridian Shores) at 150 Viridian Drive
with the resolution, authorizing the Mayor and City Clerk to sign.
PUBLIC HEARING COMMENCED: No public comments were received.
Motion by Commissioner Rinsema-Sybenga, second by Commissioner Emory, to
close the public hearing and approve the Brownfield Plan Amendment for
Harbor 31 LLC (Viridian Shores) at 150 Viridian Drive with the resolution,
authorizing the Mayor and City Clerk to sign.
Page 6 of 10
ROLL VOTE: Ayes: Hood, Ramsey, German, Rinsema-Sybenga, Emory, Johnson,
and Gawron
Nays: None
MOTION PASSES
B. Public Hearing - Final PUD for 151 N Causeway Planning
SUMMARY OF REQUEST: Request for final Planned Unit Development approval
at 151 N Causeway for the redevelopment of the former power plant site for
new bulk materials storage for shipping, by Verplank Family Holding Company.
The plans include a new 10,000 square foot storage/office building. A site plan is
provided.
STAFF RECOMMENDATION: To approve the final Planned Unit Development
approval at 151 N Causeway for the redevelopment of the former power plant
site for new bulk materials storage for shipping, with the following conditions.
1. The raised drain field must not impede drainage from the bike path or
impact the use of that facility in any way.
2. There must be at least two foot of clearance along the edge of the
paved trail, free of any obstructions.
3. The applicant must also receive a stormwater permit from the Muskegon
County Drain Commissioners office.
PUBLIC HEARING COMMENCED: No public comments were received.
Motion by Vice Mayor Hood, second by Commissioner Johnson, to close the
public hearing and approve the final Planned Unit Development approval at 151
N Causeway for the redevelopment of the former power plant site for new bulk
materials storage for shipping, with the following conditions:
1. The raised drain filed must not impede drainage from the bike path or
impact the use of that facility in any way.
2. There must be at least two foot of clearance along the edge of the paved
trail, free of any obstructions.
3. The applicant must also receive a stormwater permit from the Muskegon
County Drain Commissioners office.
ROLL VOTE: Ayes: Ramsey, German, Rinsema-Sybenga, Emory, Johnson,
Gawron, and Hood
Nays: None
MOTION PASSES
C. Public Hearing – Sewer Project Plan Public Works
SUMMARY OF REQUEST: To host a public hearing relative to the updated City of
Page 7 of 10
Muskegon Project Plan for Sanitary Sewer upgrades. The plan highlights the next
few years of sewer improvement projects.
Staff contracted with Prein & Newhof to complete a required update to our
previous project plan which is required to maintain eligibility for State Revolving
Fund (SRF) financing and grants. These programs are used to finance a
relatively large portion of our water and sewer work in recent years including
projects on Peck Street and Amity Avenue that are currently underway.
This plan represents an update to the previously published 2019 plan which
includes a continuation of many of the projects identified in that plan, as well as
a shift in future focus towards reduction/elimination of inflow and infiltration
issues within the City sewer system as a result of last years’ record high water
levels and treatment costs.
The project plan is currently available on the City website for review.
Prein & Newhof will offer a short presentation of the project plan and public
comment on the plan is encouraged.
STAFF RECOMMENDAITON: Close the public hearing, approve the
wastewater collection system project plan, and authorize the Mayor and Clerk
to sign a resolution in support of the plan.
PUBLIC HEARING COMMENCED: No public comments were received.
Motion by Commissioner Ramsey, second by Commissioner Johnson, to close
the public hearing, approve the wastewater collection system project plan, and
authorize the Mayor and Clerk to sign a resolution in support of the plan.
ROLL VOTE: Ayes: German, Rinsema-Sybenga, Emory, Johnson, Gawron, Hood,
and Ramsey
Nays: None
MOTION PASSES
D. Public Hearing - Request for Industrial Development District from Camcar
Plastics Economic Development
SUMMARY OF REQUEST: Camcar Plastics is requesting the establishment of an
Industrial Development District at their 1732 Glade Street location so that they
may apply for an Industrial Facilities Tax Exemption for a planned addition.
Pursuant to Michigan Public Act 198 of 1974, industrial entities may request a
local unit of government create an Industrial Development District around one
or more parcels which makes these eligible for Industrial Facilities Tax Exemptions
(IFTs). The statute requires a public hearing take place prior to the City
Commission’s consideration of any such district, which can take place during
the same meeting. The only required mailing is to those entities in the district,
which is only the applicant.
Page 8 of 10
STAFF RECOMMENDATION: A motion to open the public hearing on the
request from Camcar Plastics to establish an Industrial Development District at
1732 Glade Street.
PUBLIC HEARING COMMENCED: No public comments were received.
Motion by Commissioner Ramsey, second by Commissioner German, to close
the public hearing on the request from Camcar Plastics to establish an Industrial
Development District at 1732 Glade Street.
ROLL VOTE: Ayes: Rinsema-Sybenga, Emory, Johnson, Gawron, Hood, Ramsey,
and German
Nays: None
MOTION PASSES
2021-53 NEW BUSINESS:
A. Resolution Establishing Industrial Development District at 1732 Glade Street
Economic Development
SUMMARY OF REQUEST: Camcar Plastics is requesting the establishment of an
Industrial Development District at their 1732 Glade Street location so that they
may apply for an Industrial Facilities Tax Exemption for a planned addition.
Pursuant to Michigan Public Act 198 of 1974, industrial entities may request a
local unit of government create an Industrial Development District around one
or more parcels which makes these eligible for Industrial Facilities Tax Exemptions
(IFTs). The statute requires a public hearing take place prior to the City
Commission’s consideration of any such district, which can take place during
the same meeting. The only required mailing is to those entities in the district,
which is only the applicant. In 2019 the City of Muskegon Economic
Development Department worked with the Camcar ownership to support their
acquisition of 1.8 acres surrounding their building that was formerly part of the
vacant Brunswick property. This was completed, and their intention is to build an
addition that will allow their shipping trucks to stop blocking the street. They plan
to apply for an Industrial Facilities Tax Exemption, which requires the
establishment of the proposed district. The City Commission will have the
opportunity to hear cause, ask questions, and get feedback regarding that
application. The approval of the district does not automatically guarantee the
tax abatement.
STAFF RECOMMENDATION: A motion to approve the resolution establishing
an Industrial Development District at 1732 Glade Street as presented.
Motion by Commissioner Rinsema-Sybenga, second by Commissioner Ramsey,
to approve the resolution establishing an Industrial Development District at 1732
Glade Street as presented.
ROLL VOTE: Ayes: Emory, Johnson, Gawron, Hood, Ramsey, German, and
Page 9 of 10
Rinsema-Sybenga
Nays: None
MOTION PASSES
ANY OTHER BUSINESS: Commissioner German asked questions about the
Citizen’s Police Review Board and what it does.
Commissioner Johnson raised the issue of meeting in person, discussion took
place.
PUBLIC COMMENT: Public comments were received.
ADJOURNMENT: The City Commission adjourned at 8:27 p.m.
Respectfully Submitted,
Ann Marie Meisch, MMC – City Clerk
Page 10 of 10
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8, 2021 Title: LAF Grant
Submitted By: Ann Meisch Department: City Clerk
Brief Summary: The City of Muskegon is in the process of pursuing a grant from the Michigan
Council for Arts and Cultural Affairs (MCACA) in the amount of $25,000 to support the 2022
Lakeshore Art Festival. Grant funds will support artists’ fees (performers and artists), art supplies
for the interactive art activities, and marketing efforts to attract a diverse audience. Per the grant
requirements, the funds will be matched 1:1 from the Festival budget through sponsorship dollars.
Detailed Summary:
Amount Requested: Amount Budgeted:
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: To approve the submission of the grant application to MCACA.
For City Clerk Use Only:
Commission Action:
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: 6-8-2021 Title: Lakeside Social District Permit
recommendation
Submitted By: Dave Alexander Department: Economic Development
Brief Summary: The City Commission must recommend approval of the Michigan Liquor Control
Commission permits of participating licensed establishments in the Muskegon Lakeside Social
District.
Detailed Summary: With the establishment of the Muskegon Lakeside Social District, participating
licensed establishments must receive a Social District permit from the Michigan Liquor Control
Commission. The MLCC must first receive a recommendation for approval from the City
Commission before granting the permits. The attached resolution is for Wonderland Distilling Co.,
1989 Lakeshore Drive Suite B and Lakeside Food and Spirits, Inc, dba Marine Tap Room, 1983
Lakeshore Drive. Both are seeking a Social District permit from the state and seeking City
Commission recommended approval. The Lakeside Social District plan contains up to five potential
participating licensees within the district. Other licensed establishments may file a Social District
permit application in the future.
Amount Requested: None Amount Budgeted:
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: To approve the resolution recommending Michigan Liquor Control
Commission approval of Social District permits in the Muskegon Lakeside Social District and to
direct the City Clerk to certify the City Commission action with the MLCC.
Check if the following Departments need to approve the item first:
Police Dept.
Fire Dept.
IT Dept.
For City Clerk Use Only:
Commission Action:
RESOLUTION RECOMMENDING MUSKEGON LAKESIDE SOCIAL DISTRICT
PERMIT APPLICATON APPROVAL
City of Muskegon
County of Muskegon, Michigan
Minutes of a Regular Meeting of the City Commission of the City of Muskegon, County of
Muskegon, Michigan (the “City”), held at Muskegon City Hall, 933 Terrace, Muskegon, MI 49440
and virtually online on the city’s Facebook page on the 8th day of June, 2021 at 5:30 p.m.,
prevailing Eastern Time.
PRESENT:
ABSENT:
The following preamble and resolution were offered by Commissioner
___________________ and supported by Commissioner __________________.
WHEREAS, in accordance with Public Act 124 of 2020 on the establishment of Social
Districts within a Michigan city; and
WHEREAS, COVID-19 pandemic has caused unprecedented economic disruption
worldwide and within our local business community; and
WHEREAS, restaurants and bars, which have been key contributors to the ongoing
success of the Muskegon Lakeside Business District, have been and will continue to be hard hit
by the economic impact of the pandemic; and
WHEREAS, increasing availability of outdoor spaces for dining and drinking will help
Lakeside and its businesses recover; and
WHEREAS, Public Act 124 of 2020 empowers local governments like the City of
Muskegon to enhance its shopping areas with Social Districts and accompanying Common
Areas where purchasers may consume and possess alcoholic beverages sold by multiple
qualified Michigan Liquor Commission licensees who obtain Social District Permits; and
WHEREAS, the City Commission has designated a Muskegon Lakeside Social District
and Common Area, and
WHEREAS, the city has received requests from multiple qualified licensees to
recommend approval of their Social District Permit applications by the Michigan Liquor Control
Commission, and
WHEREAS, the licensed establishments are contiguous to the Common Area within the
Social District, and
WHEREAS, the City Commission desires to recommend approval of the Social District
Permit applications,
NOW, THEREFORE, BE IT RESOLVED THAT:
1. The Muskegon Lakeside Social District Permit Applications from the following
licensees are recommended by the City Commission to consideration and approval
by the Michigan Liquor Control Commission:
a. Wonderland Distilling Co., 1989 Lakeshore Drive, Suite B
b. Lakeside Food and Spirits, Inc. dba Marine Tap Room, 1983 Lakeshore Drive
2. The City Clerk is authorized and directed to provide each applicant with a certification
of this action in the form specified by the Michigan Liquor Control Commission.
AYES:
NAYS:
RESOLUTION DECLARED APPROVED.
Stephen J Gawron, Mayor
Ann Marie Meisch, City Clerk
I hereby certify that the foregoing is a true and complete copy of a resolution adopted by
the City Commission of the City of Muskegon, County of Muskegon, State of Michigan, at a
regular meeting held on June 8, 2021 and that said meeting was conducted and public notice of
said meeting was given pursuant to and in full compliance with the Open Meetings Act, being
Act 267, Public Acts of Michigan, 1976 and that the minutes of said meeting were kept and will
be or have been made available as required by said Act.
Ann Marie Meisch, City Clerk
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8th, 2021 Title: 9th Street – Engineering Services
Agreement Amendment #001
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is seeking approval of Amendment #001 to the Engineering Services Agreement with Fleis &
VandenBrink related to the engineering services provided on the 9th Street sewer upgrade project.
Detailed Summary:
Staff is requesting approval of an amendment to the Engineering Services Agreement with Fleis &
Vandenbrink in the amount of $39,736.50. This request is due to a number of changed conditions and
additional work that staff requested of F&V above and beyond the original scope of work. The original
ESA was signed in 2018 in the amount of $203,520.
The amendment covers additional work required by staff and various other agencies to obtain
additional survey and permits that were not fully anticipated within the original project proposal.
Additionally several items of work became more complex between the original estimate and the final
construction resulting in additional construction inspection time required to complete the oversight.
The project as a whole was originally budgeted for $2,217,530 which included a construction contact
value of $1,878,869.50 plus engineering and other expenses as well as a 6% ($125,520.57)
contingency. The project construction contract finished at $1,913,824.24, leaving a remaining
contingency of $90,565.83. With the proposed adjustment to the ESA the project is still below the
overall target budget.
Staff is recommending approval of the Engineering Services Agreement Amendment.
Amount Requested: Amount Budgeted:
$39,736.50 $90,565.83 = Remaining Contingency
Fund(s) or Account(s): 590-91852 Fund(s) or Account(s): 590-91852
Recommended Motion:
Authorize staff to approve Amendment #001 in the amount of $39,736.50 to the Engineering Services
Agreement with Fleis & VandenBrink.
Check if the following Departments need to approve the item first:
Police Dept.
Fire Dept.
IT Dept.
For City Clerk Use Only:
Commission Action:
May 13, 2021
Leo Evans, City Engineer
City of Muskegon
Department of Public Works
1350 Keating Ave.
Muskegon, MI 49442
RE: SRF Project 1: 9th Street Area Sewers and Project 6: Getty Street Forcemain
Additional Engineering Request
Dear Leo:
We are submitting this request for additional engineering relating to the 9 th Street Sanitary Sewer
Improvements. The following outlines the additional Scope of Services and Fee.
SCOPE OF ADDITIONAL ENGINEERING SERVICES
• Additional inspection with the Bore & Jack operation. A 17 day time extension was granted
to the contractor due to the wood and debris encountered during the bore & jacking. We are
requesting the same 17 days for inspection time (17 days x $1,050/day = $17,850).
• Additional survey & design for the Houston Ave. sewer addition: No Charge.
• Additional inspection for the Houston Ave. sewer addition (5 days x $1,050/day = $5,250).
Below is a summary of our original engineering fees, previously approved additional services, and our
requested additional inspection time.
9TH STREET AREA SEWERS - SRF
Phase Fee
Original Design Engineering $71,160.00
Original Construction Engineering $109,830.00
Previously Approved Additional Services (items italicized below)
• Bike Path Topo Survey $5,735.00
• Michigan Shore Railroad Right of Way Permit Fee $3,500.00
• Angled Parking Layout, Options & Cost Estimates $3,870.00
• Soil Borings & Report for MDOT Bore & Jack Permit $2,250.00
• Heritage Landing Sewer Easement $1,281.50
Total of Previously Approved Additional Services $16,636.50
Requested Additional Services Shown Above $23,100.00
9th Street Total 220,762.50
316 Morris Avenue, Suite 230
Muskegon, MI 49440
P: 231.726.1000
F: 231.726.2200
837930 Additional Engr Ltr.docx www.fveng.com
City of Muskegon │Additional Engineering│ May 13, 2021
Page 2 of 2
GETTY STREET LIFT STATION - SRF
Phase Fee
Original Design Engineering $13,330
Original Construction Engineering $9,200
Getty Street Total $22,530
We appreciate your review and consideration. Please feel free to contact us with questions.
Sincerely,
FLEIS & VANDENBRINK
Don DeVries, PE
Project Manager
837930 Additional Engr Ltr.docx
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8th, 2021 Title: McCrea Field Basketball Court
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is seeking authorization to award a contract in the amount of $43,265.00 to Ryerson Brothers
Excavating for removal and replacement of the existing basketball court at McCrea Field.
Detailed Summary:
Staff solicited bids for replacement of the McCrea Field basketball court via an RFP process. The low
bidder was Ryerson Brothers Excavating. Staff is further recommending that we accept the alternate
bid presented for the colored concrete court.
The proposed court will be constructed of concrete, similar to the courts at Seyferth Park, the alternate
bidding process will utilize several different colorations of concrete to contract the out-of-bounds, three
point, and foul line areas which will require less maintenance to maintain as opposed to paint in the
long run.
Amount Requested: Amount Budgeted:
$43,265.00 $50,000.00
Fund(s) or Account(s): 101-70751 Fund(s) or Account(s): 101-70751
(With CDBG Reimbursement) (With CDBG Reimbursement)
Recommended Motion:
Authorize staff contract with Ryerson Brothers Excavating in the amount of $43,265.00 for the construction of
a new basketball court at McCrea Field.
Check if the following Departments need to approve the item first:
Police Dept.
Fire Dept.
IT Dept.
For City Clerk Use Only:
Commission Action:
PROP 320 SYD TOPSOIL SURFACE, FURN, 4 INCH
PROP 320 SYD HYDROSEEDING
PROPOSED REMOVALS AND WHITE CONCRETE PAD
BACKFILL TO CONCRETE AND FEATHER
OUT TO EXISTING GRADE
.0' 6
6 94 6 .9
8.5 8.2 107
10 PROP 5640 SFT 10 SAWED JOINT GRID 9.4' X 10' OP
OP RO
P PR
PR CONC. BASKETBALL COURT, 4" P 1010 LF RELIEF CUTS TO MEET MDOT
4'
*DO NOT USE CURING COMPOUND, R-39-I STANDARD.DETAILED IN RIGHT 9.
USE PLASTIC SHEETING TO RETAIN MOISTURE THROUGH CURING. PANE OF THIS PAGE.
STAIN AND SEALING WILL NOT FUNCTION WITH COMPOUND.
1%
1%
0'
10. PROJECT LOCATION
NOTES:
0
.0 0 .6
108 107
EX EX
7.42
1 0
EX
Date:
6
.26 .9 .6
6
108 107 107
P
OP P RO OP
PR PR
Revisions:
2.
3.
1.
.0'
60
Drawn: Kevin Parker
Date: May 2021
.0' .38
58 107
EX
Checked:
6
.6
7.1
0 107
Date:
10 EX
EX
.0 '
30
6
.9
6
107
.6 .36
107 P 107
OP RO OP
PR P PR
McCrae Basketball
MDOT TYPICAL R-39-I
'
5.0
OFFICE OF THE CITY ENGINEERCourt
6 .53 .36
.9 107 2 EA PROP BASKETBALL HOOP, 107
107 0" EX
' EX
EX 3'1 12" X 48" FOOTING FOR 4 21 " POLE 5.0
REMOVE HOOP, POLE AND FOOTING AS SPECIFIED BY BISON INC. CITY
700 SYD, PAVT REM WILL PROVIDE POLES FOR THE
CONTRACTOR TO INSTALL
CITY OF MUSKEGON
.0'
109
QUANTITIES THIS SHEET
DESCRIPTION QUANTITY UNIT
PAVT REM
CONC, 6 INCH
BA777XL GOOSENECK HEAVY-DUTY PLAYGROUND POLE
700
5640
2
SYD
SFT
EA
N STANDARD: Saw joints in two stages, in accordance with the following:
a. Place a relief cut directly over the center of the load transfer assembly or over the preformed joint filler. Make the relief cut after the concrete hardens and will not excessively ravel or spall, but
TOPSOIL SURFACE, FURN, 4 INCH 320 SYD 0 3.048 6.096 before random cracks develop in the concrete pavement.Immediately stop sawing if sawing operation causes excessive raveling or spalling, and continue to monitor the concrete hardness before resuming
HYDROSEEDING 320 SYD sawing
FEET b. operations. Do not allow traffic over the expansion joint relief cuts.
01
c. Center the joint groove over the relief cut. Adjust the groove width to compensate for change in the relief cut due to pavement contraction. Immediately stop sawing if sawing operation causes
excessive raveling or spalling, and continue to monitor the concrete hardness before resuming sawing operations. Maintain the curing of the concrete near the joint, and if required, install the permanent
joint sealant or place temporary cover material. Give second stage sawing of expansion joints priority over second stage contraction joint sawing, if higher pavement temperatures are forecast.
If proposing an alternative method for sawing, submit a plan to the Engineer for approval. The Engineer will not allow spalling, raveling, and random cracks in the concrete pavement.
PROP 320 SYD TOPSOIL SURFACE, FURN, 4 INCH
PROP 320 SYD HYDROSEEDING
BACKFILL TO CONCRETE AND FEATHER
PROPOSED REMOVALS AND COLORED CONCRETE PAD, ALTERNATE #1
OUT TO EXISTING GRADE .0'
94
. 0'
PROP 84
6
3020 SFT CONC, 6 INCH .9
.5 6 .26 107
108 1180 SFT COLORED CONC, 6 INCH RED 108 SAWED JOINT GRID SUGGESTED 9.4' X 10' O P
O P 1440 SFT COLORED CONC, 6 INCH BLACK OP PR
PR PR 1010 LF RELIEF CUTS TO MEET MDOT R-39-I
*CURING COMPOUND PER MANUFACTURER PAID FOR STANDARD.DETAILED IN RIGHT PANE OF THIS PAGE.
WITH CONCRETE PAY ITEMS
1% 1%
BLACK CONCRETE
PROJECT LOCATION
NOTES:
3"
5'
0
.00 9" .6
108 9 ' 107
EX R
1 EX
7.42
1 0
EX
Date:
RED CONCRETE
RED CONCRETE
6
.26 .9 .6
6
108 107 107
OP OP OP
PR PR PR
Revisions:
2.
3.
1.
.0' .0' 1'
60 50 12.
Drawn: Kevin Parker
Date: May 2021
.0 ' .38
58 107
EX
Checked:
6
.6
7.1
0 107
Date:
10 EX
EX
6
.9
6
107
.6 .36
107 107
OP OP OP
PR PR PR
McCrae Basketball
MDOT TYPICAL R-39-I
'
5.0
OFFICE OF THE CITY ENGINEERCourt
2 EA PROP BASKETBALL HOOP,
96 7.5
3
12" X 48" FOOTING FOR 4 21 " POLE .36
. 10 107
107 0" EX
'
EX
EX 3' 1
AS SPECIFIED BY BISON INC. CITY 5.0
0' WILL PROVIDE POLES FOR THE
15. CONTRACTOR TO INSTALL
700 SYD, PAVT REM
10" REMOVE HOOP, POLE AND FOOTING
18'
CITY OF MUSKEGON
.0'
109
QUANTITIES THIS SHEET
DESCRIPTION QUANTITY UNIT
PAVT REM
CONC, 6 INCH
COLORED CONC, 6 INCH RED
COLORED CONC, 6 INCH BLACK
700
3020
1180
1140
SYD
SFT
SFT
SFT
N STANDARD: Saw joints in two stages, in accordance with the following:
a. Place a relief cut directly over the center of the load transfer assembly or over the preformed joint filler. Make the relief cut after the concrete hardens and will not excessively ravel or spall, but
0 3.048 6.096 before random cracks develop in the concrete pavement.Immediately stop sawing if sawing operation causes excessive raveling or spalling, and continue to monitor the concrete hardness before resuming
BA777XL GOOSENECK HEAVY-DUTY PLAYGROUND POLE 2 EA sawing
FEET b. operations. Do not allow traffic over the expansion joint relief cuts.
02
TOPSOIL SURFACE, FURN, 4 INCH 320 SYD c. Center the joint groove over the relief cut. Adjust the groove width to compensate for change in the relief cut due to pavement contraction. Immediately stop sawing if sawing operation causes
HYDROSEEDING 320 SYD excessive raveling or spalling, and continue to monitor the concrete hardness before resuming sawing operations. Maintain the curing of the concrete near the joint, and if required, install the permanent
joint sealant or place temporary cover material. Give second stage sawing of expansion joints priority over second stage contraction joint sawing, if higher pavement temperatures are forecast.
If proposing an alternative method for sawing, submit a plan to the Engineer for approval. The Engineer will not allow spalling, raveling, and random cracks in the concrete pavement.
1.10 BID TABULATION
City of Muskegon Project Engineer: KP Date: 5/25/2021
Engineering Department Project Number:
Project description: McCrae Basketball Court
Engineer's Estimate:
Ryerson Brothers Excavating Accurate Excavators Wing Contracting, LLC
Line Item Pay Code Description Units Quantity Unit Price Total Unit Price Total Unit Price Total
1 Basketballl Court Removal, Pavement and Hoop footings 1 LSUM $ 2,250.00 $ 2,250.00 $ 4,445.00 $ 4,445.00 $ 5,950.00 $ 5,950.00
2 Concrete Pad, 6", 94' x 60' including setting 2 new poles and sawed joints 1 LSUM $ 26,249.00 $ 26,249.00 $ 32,650.00 $ 32,650.00 $ 52,693.00 $ 52,693.00
3 Topsoil ( approx 32 CYD) 1 LSUM $ 1,200.00 $ 1,200.00 $ 2,500.00 $ 2,500.00 $ 1,511.00 $ 1,511.00
4 Hydroseeding ( 320 SYD) 1 LSUM $ 500.00 $ 500.00 $ 755.00 $ 755.00 $ 346.00 $ 346.00
5
6 TOTAL BASE BID $ 30,199.00 $ 40,350.00 $ 60,500.00
7
8
Alternate # 1 Replaces Line 2, Colored Concrete Pad, 6", 94' x 60' including
9 setting 2 new poles and sawed joints 1 LSUM $ 39,315.00 $ 39,315.00 $ 43,705.00 NO BID
TOTAL
10 ALTERNATE PRICE $ 43,265.00 $ 51,405.00 $ -
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: 06/08/2021 Title: Filtration Plant Communications Tower
Submitted By: Joe Buthker Department: Public Works - Filtration
Brief Summary: Authorize staff to award the contract for the procurement of the communications
tower at the Water Filtration Plant.
The City Commission approved the purchase of the Water Filtration Plant Communication Tower
at its meeting on February 9, 2021. The original quote for tower materials was $84,618.00, and
staff requested a total of $93,079.80 (an additional 10%) to account for any fluctuations in material
pricing and shipping.
The project manager (Maralat Communications) recommended to not purchase the tower until all
regulatory requirements were completed. Unfortunately, this process took longer than anticipated.
The process is now complete, and staff is ready to purchase the tower.
Staff received an updated quote from Valmont Industries for $94,050.00. Since this is $970.20
more than approved in February, staff is requesting the approval of the purchase of the
communications tower for the updated amount.
Amount Requested: $94,050.00 Amount Budgeted: $300,000.00
Fund(s) or Account(s): 591-92034-5346 Fund(s) or Account(s): 591-92034-5346
Recommended Motion:
Authorize staff to approve the contract with Valmont Industries for the procurement of the
communications tower in the amount of $94,050.00.
Check if the following Departments need to approve the item first:
Police Dept.
Fire Dept.
IT Dept.
For City Clerk Use Only:
Commission Action:
Quotation
Quote Number : 433083-08
Created : 6/1/2021 7:56:18 AM
Revised :
Valmont Industries, Inc.
28800 Ida Street
Valley, NE 68064
Prepared for : City of Muskegon Address1 :
Attention : Address2 :
City :
Budgetary : No State :
RFQ : Zip :
Phone :
Email :
Project : City of Muskegon- Water Filtration Plant - Muskegon, MI -
195' Monopole (stamped design)
NOTICE
Quoted prices will be held firm for 15 days. Prices are subject to change if product is not shipped
within 2 months of Purchase Order receipt.
Item Description Qty Unit Price
1 195' MONOPOLE - 194' POLE WITH 1' ESTIMATED FOUNDATION PROJECTION 1 $85,558
Price Includes:
- Steel templates and anchor bolts.
- Pole sections and accessories to be hot dipped galvanized.
- Transmission line entry ports at the base of the pole.
- Transmission line exit ports at each specified antenna level.
- Pole assembly hardware.
- Removable climbing steps with galvanized Tuf-Tug cable type safety climb system (less
harness).
- Includes TIA-G standard grounding provisions welded to pole.
- Includes 4'-7' adjustable lightning rod
1 $85,558
NOTES
DELIVERY Estimated lead time is 8 to 10 weeks. Please note that lead times are estimated and can fluctuate due
to production capacity. Please contact customer service to verify current lead times or if a better
delivery date is possible when placing an order. A complete soil report and plot plan (for guyed towers)
must be received by Valmont prior to manufacturing.
FINISH SYSTEM Galvanized (GV) Base Coat: Hot-Dip Galvanized to ASTM A123 Spec: F-1.
FREIGHT Estimated Cost, with unloading of truck by others to Muskegon, MI, nearest access point to the site, $7,992.00
via flat bed tractor trailer. Any special handling by other. (3 truck(s) required)
Estimated anchor steel freight shipped direct from our supplier. Average anchor steel lead time is 3 to $500.00
4 weeks.
GENERAL It is the customers responsibility to inform Valmont Structures if this project is federally funded and if
the "Buy America Act" or "Buy American Act" applies. Valmont reserves the right to re-quote if either of
these "Acts" are applicable.
Last Run Time: 6/1/2021 7:59:39 AM Page: 1 of 2
Quotation
Quote Number : 433083-08
Created : 6/1/2021 7:56:18 AM
Revised :
Valmont Industries, Inc.
28800 Ida Street
Valley, NE 68064
GENERAL Products may be foreign built - if this is not acceptable please request a revised quote.
Foundation design and formal pole calculations not included. Available upon request.
GENERAL NOTES Please send orders to Lisa Taylor (lisa.taylor@valmont.com).
MATERIAL PRICE Due to material price fluctuations, Valmont reserves the right to review all material pricing prior to
accepting any order. Any order placed on hold is subject to a price review at the time of its release.
Valmont may be required by state law to collect Sales/Use Tax at the time of shipment. If required, this
tax will appear as a separate item on the invoice. If you have a tax exempt certificate, submit it at the
time of order.
MONOPOLE For pole weight, base reactions and design/antenna loads, please refer to Valmont Permit Drawing
File ID 433083-P1R1.
Pole sizes are preliminary only and may change slightly at time of order entry.
Foundation build and tower erection are by others.
* Valmont reserves the right to apply storage charges of three-hundred and fifty dollars ($350.00) per month
for structures kept in our yard beginning the 1st of the month following the original ship date.
* Quote is subject to Valmont's standard terms and conditions. See attached copy.
* All quotations subject to acceptance by Valmont at time of order placement.
* F.O.B Valmont Factory
* Terms: NET 30 Days (upon approved credit)
* Prepared by McKynna Kelly
Project Administrator
Valmont Industries Inc.
Last Run Time: 6/1/2021 7:59:39 AM Page: 2 of 2
COMMUNICATIONS
STANDARD TERMS AND CONDITIONS OF SALE
AGREEMENT: This document (“Document”) contains the standard terms and conditions of sale by Valmont Industries, Inc. (“Supplier”), to Purchaser, of products, materials, other goods,
equipment, operations, or services (“Product”). If this Document is a quotation, then the offer contained herein shall remain open for thirty (30) days from the date it was issued, unless
otherwise specified, and Purchaser shall be deemed to have accepted the offer and terms and conditions contained herein upon the earlier of: (1) Purchaser’s signature and return of this
Document to Supplier by fax or any other means; (2) Supplier’s receipt of any order or any other writing from Purchaser indicating Purchaser’s acceptance and agreement to the terms hereof;
or (3) Purchaser’s acceptance of any shipment of Product. Whether this Document is a quote, an invoice, or otherwise, the terms and conditions of the parties’ agreement shall consist solely of
the terms and conditions contained in this Document, together with any separate written agreement previously executed by both Purchaser and Supplier, any invoices generated in connection
herewith, and any written addenda to the foregoing that are signed by Purchaser and Supplier (all of which are hereinafter collectively referred to as the “Agreement”). Any additional or
different terms contained in any order or other document submitted by Purchaser to Supplier shall be deemed rejected, unless expressly accepted in writing by Supplier. In no event shall
Supplier’s silence or failure to respond to any such additional or different terms be deemed to constitute acceptance or approval thereof. If this Document is a quotation, then failure of the
Purchaser to reject these terms and conditions in writing upon the first to occur of the receipt of this or any other document from or on behalf of the Supplier containing these terms and
conditions or the delivery of Product pursuant to the Agreement shall constitute final acceptance of the terms and conditions hereof. To the extent this invoice is in any way deemed to be an
acceptance of an offer of the Purchaser, any such acceptance of the Supplier is expressly conditioned upon the consent of the Purchaser to the terms and conditions of the Agreement.
MODIFICATIONS, RESCISSION & CANCELLATION: The Agreement may be modified or rescinded only in writing signed by duly authorized representatives of the parties. For any changes
requested by Purchaser to the specification, style, or quantity of the Product, Purchaser shall pay the Supplier a charge equal to the actual additional cost incurred by the Supplier as a result of
such change plus a reasonable percentage of such actual cost for overhead and profit. Orders may be canceled only with Supplier’s written consent and upon terms which will save Supplier
from loss, including all out-of-pocket costs and lost profits.
LIMITED WARRANTY: Supplier warrants the Product to be free of material and workmanship defects for a period of two years from the date of shipment, but said warranty is limited to
material and workmanship of Product designed and manufactured by the Supplier. For any product manufactured using items supplied by Purchaser or Purchaser’s designee, Supplier makes
no warranty concerning the design, fabrication, or manufacture of the items supplied. Such items shall carry only the respective designer’s, fabricator’s, or manufacturer’s warranty, if any. For
product manufactured or fabricated by Supplier according to specifications or designs provided by Purchaser or Purchaser’s designee, Supplier makes no warranty concerning the adequacy or
sufficiency of the specifications or designs themselves. All warranty claims alleging defects of materials or workmanship must be submitted in writing within seven (7) days after the discovery of
the defect or such claim shall be considered waived. Supplier will not accept Product returned to it for repair or replacement, unless Supplier is previously notified of the defect in writing and
the return or correction is authorized by Supplier in writing. Any Product deemed by Supplier, in its sole discretion, to be defective in material or workmanship will be repaired or replaced, at
Supplier’s option, F.O.B. Supplier’s plant. Supplier’s obligation to repair or replace any defective Product shall not include any obligation to reimburse the Purchaser for transportation,
installation, removal, unauthorized repairs, or any other expenses that may be incurred by the Purchaser or others in relation to any Product defect. THIS WARRANTY EXCLUDES (I)
FATIGUE FAILURE OR SIMILAR PHENOMENA RESULTING FROM INDUCED VIBRATION, HARMONIC OSCILLATION OR RESONANCE ASSOCIATED WITH MOVEMENT OF AIR
CURRENTS AROUND THE PRODUCT. FURTHER, LABOR REQUIRED TO REMOVE AND/OR REINSTALL ORIGINAL OR REPLACEMENT PARTS SHALL BE THE RESPONSIBILITY
OF THE CUSTOMER; (II) DAMAGE CAUSED BY IMPROPER INSTALLATION, OVERLOADING, MISUSE, ABUSE, ACCIDENT OR NEGLECT. In addition, this warranty does not cover
alterations, modifications, or additions unless the change is acknowledged and accepted, in advance in writing, by Valmont; and (iii) if the products are to be used on an existing foundation or
on other structures, the customer assumes all responsibility for the structural integrity of the existing foundation, anchorage or structures and all the consequences arising therefrom.
THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES GIVEN BY SUPPLIER, AND SUPPLIER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING FROM STATUTE, COMMON LAW,
CUSTOM, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE. THE REMEDY OF REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT SET FORTH IN THE
FOREGOING WARRANTIES SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO ANY PERSON. SUPPLIER SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, EXPENSE, OR
DAMAGE, WHETHER DIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHERWISE (INCLUDING LOST PROFITS, LOSS OF CONSTRUCTION BONUS OR INCENTIVES), RESULTING
FROM THE POSSESSION, INSTALLATION, ERECTION, START-UP, USE, MAINTENANCE, OPERATION, REMOVAL, OR RESALE OF SUPPLIER’S PRODUCT OR CAUSED BY ANY
DEFECT, FAILURE, OR MALFUNCTION OF ANY PRODUCT, WHETHER A CLAIM FOR SUCH DAMAGES IS BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, OR
OTHERWISE. NO PERSON HAS THE AUTHORITY TO BIND THE SUPPLIER TO ANY REPRESENTATION OR WARRANTY OTHER THAN THE FOREGOING LIMITED WARRANTIES
AS DISCLAIMED.
DELIVERY, FREIGHT & RISK OF LOSS: All products are sold F.O.B. factory, full freight allowed within the continental United States, consisting of the lower 48 contiguous states, unless
otherwise specified in writing. For shipment destinations outside the continental U.S., freight charges will be prepaid to the nearest port of exit with all other applicable charges from said point
of delivery being the responsibility of the customer, unless otherwise noted. The method of shipment will be solely determined by Valmont, using a common carrier of Valmont’s choice and
delivered to the nearest destination. The customer assumes and will pay all charges for special services such as cartage, airfreight, express deliveries, parcel post and multiple deliveries on
one order. For orders less than $1,500, freight may not be included and may be prepaid and charged to the customer. Orders below $500 may incur a processing fee. Freight charges for
anchor bolts or accessories shipped independent of the structures (at the customer’s request) may be billed separately and paid by the customer, unless otherwise specified in writing. Risk of
Loss, including transportation delays and losses, shall pass to Purchaser upon the earlier of (i) completion of the Product’s manufacture, if shipment is delayed by Purchaser, (ii) delivery of the
Product to the Purchaser in cases where shipment is F.O.B. destination, or (iii) delivery of the Product to the carrier in cases where shipment is collect or is F.O.B. point of shipment.
PRICING: All prices and discounts are subject to change without advance notice except those shown on a specific quotation indicating the prices to be firm for thirty (30) days from the date of
the quotation. For quotations accepted by Purchaser, Purchaser agrees that if the contract documents or designs or the prices of raw materials change from that contained in the quotation,
Supplier has a right to charge additional compensation for increased costs, including, without limitation, costs related to freight and raw materials, as well as for increased margin associated
therewith. Orders delayed or put on customer hold may not be price protected beyond the date of a general price increase announcement.
RETURNS & CLAIMS FOR SHORTAGES: Supplier will not accept returns for custom-made Product for any reason, provided that Supplier will accept returns made solely for repair or
replacement under the foregoing express warranties, but only if Supplier has previously authorized said returns in writing. Standard (non-custom) Product may not be returned without the
written consent of Supplier obtained within thirty (30) days after shipment, and only upon the following conditions: (i) all returned Product must be in excellent and merchantable condition and in
the original packaging; (ii) the outbound and return freight must be pre-paid; and (iv) the return is subject to certain charges depending on current pricing and product. All claims for shortages
must be made in writing within 30 days of receipt of shipment at destination.
PRODUCT SHIPPED WITH PROTECTIVE COVERING: Product received at the point of destination with protective covering should be unwrapped immediately and inspected. Any exposure
to moisture during transportation or storage may cause the wrapping materials to stain the Product. Product is wrapped for protection during shipment.
INSTALLATION: Purchaser shall be solely responsible at its cost for the installation and erection of the Product purchased. Although Supplier may, in some cases, provide data, manuals,
instructions, designs, drawings or specifications to aid Purchaser with installation or start-up, SUPPLIER ASSUMES NO RESPONSIBILITY FOR PROPER INSTALLATION OR SUPPORT OF
THE PRODUCT WHEN ERECTED AND DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO SUCH INSTALLATION OR SUPPORT, WHETHER OR NOT DATA,
MANUALS, INSTRUCTIONS, DESIGNS, DRAWINGS OR SPECIFICATIONS ARE PROVIDED.
DELAYS: Supplier will deliver or ship with reasonable promptness, but shall not be liable for delays for any reason beyond the Supplier’s reasonable control, including, but not limited to,
delays caused by acts of God, war, riot, embargoes, acts of civil or military authorities, fires, floods, accidents, quarantine restrictions, mill conditions, strikes, differences with workmen, delays
in transportation, shortages of cars, fuel, labor or materials. IN ANY SUCH EVENT, SUPPLIER SHALL HAVE SUCH ADDITIONAL TIME WITHIN WHICH TO PERFORM AS MAY BE
REASONABLE AND NECESSARY UNDER THE CIRCUMSTANCES, AND SUPPLIER SHALL NOT BE LIABLE TO PURCHASER FOR ANY DAMAGES ARISING FROM SUCH DELAYS,
LOSS OF USE OR FOR OTHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND WHATSOEVER. IN NO EVENT SHALL SUPPLIER BE
LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR LABOR RESULTING FROM FAILURE OR DELAY IN DELIVERY.
Lighting, Traffic and Communication Structures
Valmont Industries, Inc. 1545 Pidco Drive Plymouth, Indiana 46563-1354 USA
574-936-4221 877-467-4763 Fax 574-936-6796 valmont.com valmont-towers.com
CREDIT APPROVAL & SECURITY FOR PAYMENT: Acceptance of any offer of Supplier is subject to Supplier’s approval of Purchaser’s credit, and Supplier may at any time decline to make
any shipment or delivery, or to perform any services, except upon receipt of payment or security, or upon such other terms as may be satisfactory to Supplier. To secure the payment of any
and all amounts due Supplier under this Agreement or any other contract between the parties, Supplier retains and the Purchaser grants to Supplier a security interest in the Product purchased
hereunder and agrees to execute and deliver to Supplier such financing statements or to take any other action necessary to perfect Supplier’s security interest as Supplier may reasonably
request.
TERMS, INVOICES, PAYMENT, LATE CHARGE & TAXES: Payment terms are NET thirty (30) days from the date of Supplier’s invoice, unless otherwise specified and approved in advance
in writing from the Valmont Credit Department. Invoices will be rendered upon delivery of each order to Purchaser. All payments shall be made to the “remit to” location as stated on the
Supplier’s invoice. Supplier reserves the right to invoice, and Purchaser agrees to pay for, any or all Product ready for shipment, together with expenses, costs, and losses associated
therewith, whenever shipment is delayed pursuant to Purchaser's written instructions or for other reasons beyond Supplier’s control. Invoices for anchor bolts shipped in advance of the
structures may be billed at the time of such anchor bolt shipment. A monthly late charge of 1.5% of the invoice amount or $50, whichever is greater, will be assessed on all past-due amounts.
Any tax or other charge imposed by law on the sale of goods or the performance of services shall be paid by the Purchaser, unless the law specifically provides that such payment must be
absorbed by Supplier. Purchaser shall inform the Supplier, in advance in writing, of such taxes or other charges imposed by state, municipal, or other law that are to be paid by the Supplier.
DEFAULT OF PURCHASER: In the event that (i) Purchaser fails to pay any invoice when due; (ii) Purchaser breaches this Agreement or any other contract with Supplier or any of its affiliated
companies; or (iii) Purchaser’s financial strength becomes unsatisfactory, Purchaser shall thereby be in default, and Supplier reserves the right, in its sole discretion, to do any one or more of
the following: (i) cancel this Agreement and any work in progress, shipments, and pending orders without further notice; (ii) declare all sums owing from Purchaser to Supplier to be due and
payable; (iii) require payment in advance of performance, in certified funds; (iv) foreclose any security interest; (v) require other security satisfactory to Supplier. Purchaser shall be liable to
Supplier for any and all damages, whether direct, indirect, consequential, special or any other kind of damages, caused by or arising out of any breach of this agreement, provided that the
exercise of any rights under this contract shall not bar Supplier from exercising its rights under the UCC or any other applicable law. The Purchaser waives any applicable statutory exemptions
and shall pay all expenses incurred by Supplier in the collection of the amounts due under the Agreement, including attorneys' fees.
INDEMNIFICATION & GOVERNING LAW: Purchaser shall indemnify and hold Supplier harmless from all expenses (including attorneys’ fees), claims, demands, suits, judgments, actions,
costs, and liabilities (including without limitation those alleging Supplier‘s own negligence) which may arise from, relate to, or be connected with the Purchaser’s possession, installation,
erection, start-up, use, maintenance, operation, removal, or resale of the Product described herein and any manuals, instructions, designs, drawings or specifications related thereto. All
disputes relating to the execution, interpretation, construction or enforcement of the rights and obligations of the parties hereto shall be governed by the laws of, and resolved in the State and
Federal courts in the State of Nebraska, and the parties hereby consent to venue in Omaha, Nebraska. THE PURCHASER AND SUPPLIER EACH HEREBY WAIVE THEIR RIGHT TO A
TRIAL BY JURY ON ANY CLAIM (INCLUDING COUNTERCLAIMS) ARISING WITH RESPECT TO THE GOODS PURCHASED HEREUNDER. Any lawsuit based on or related in any way
to the Agreement or the Product described therein must be commenced within two (2) years after delivery of the Product or other goods to the Purchaser or it shall be barred.
Lighting, Traffic and Communication Structures
Valmont Industries, Inc. 1545 Pidco Drive Plymouth, Indiana 46563-1354 USA
574-936-4221 877-467-4763 Fax 574-936-6796 valmont.com valmont-towers.com
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8th, 2021 Title: Musketawa Trail Streetlight
Relocations
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is seeking authorization to relocate seven (7) streetlights within the Port City Industrial Park to
facilitate construction of the Musketawa Trail Connector project.
Detailed Summary:
Final design and alignment of the Musketawa Trail Connector project required relocation of several
streetlights along Black Creek Drive, Latimer Drive and Port City Boulevard within the Industrial Park.
The work is done by Consumers Energy through contract, however the cost of the relocations is the
cities responsibility.
Funding for this request is included in the proposed budget for project number 202-99118-5346 within
the 21/22 fiscal year.
Amount Requested: $35,048.00 Amount Budgeted: $650,000
Fund(s) or Account(s): 202-99118 Fund(s) or Account(s): 202-99118
Recommended Motion:
Authorize staff to contract with Consumers Energy in the amount of $35,048 for the relocation of the
streetlights along Black Creek Drive, Latimer Drive and Port City Boulevard as necessary for the construction
of the Musketawa Trail Connector.
Check if the following Departments need to approve the item first:
Police Dept.
Fire Dept.
IT Dept.
For City Clerk Use Only:
Commission Action:
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8, 2021 Title: Transmittal of 2021-22 Proposed
Budget
Submitted By: Ken Grant, Finance Director Department: Finance
Brief Summary: At this time staff is transmitting to the City Commission the proposed budget for
fiscal year 2021-22 which starts July 1, 2021. Electronic versions of the budget have been
distributed to Commissioners. Additionally, the budget is available for inspection on the City’s
website and at the City Clerk’s office.
An overview of the proposed budget was reviewed at the May 25, 2021 regular Commission
meeting and Commissioners were encouraged to send their questions to the finance department in
the weeks between then and now. The June 7, 2021 work session presented an opportunity for
further discussion and inquiry. A public hearing on the budget is being held at the regular
Commission meeting on June 8, 2021. City ordinance requires that the budget be adopted by the
Commission on or before the second Commission meeting in June.
Recommended-FY2021-22-Budget-Mtg-5-25-21.pdf (muskegon-mi.gov)
Detailed Summary: N/A
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion: Approval of the proposed budget for fiscal year 2021-22.
For City Clerk Use Only:
Commission Action:
CITY OF MUSKEGON
RESOLUTION OF APPROPRIATION
2021-22 BUDGET
WHEREAS, the City Manager has submitted a proposed Budget for 2021-22 in accordance
with City Ordinance and Michigan Public Act 621 of 1978 known as the "Uniform Budgeting and
Accounting Act"; and,
WHEREAS, the 2021-22 proposed Budget has been reviewed by the City Commission
following a public hearing for which due notice was given; NOW, THEREFORE, BE IT RESOLVED
that the Budget for the City of Muskegon for the fiscal year beginning July 1, 2021 is hereby
determined and adopted as follows:
GENERAL FUND
FUND
ACTIVITY
NUMBER FUND/ACTIVITY NAME AMOUNT
101-10101 City Commission $87,223.00
101-10102 City Promotions & Public Relations $76,200.00
101-10145 City Attorney $380,000.00
101-10172 City Manager $529,550.00
101-10875 Support to Outside Agencies $405,329.00
101-10891 Contingency and Bad Debt Expense $50,000.00
101-20215 City Clerk & Elections $688,230.00
101-20220 Employee Relations $241,545.00
101-30202 Finance Administration $643,850.00
101-30203 Pension Administration $2,908,506.00
101-30205 Income Tax Administration $414,753.00
101-30209 Assessing Services $355,908.00
101-30248 Information Systems Administration $550,571.00
101-30253 City Treasurer $647,227.00
101-30851 Insurance Premiums $389,881.00
101-30906 Debt Retirement $1,082,000.00
101-30999 Transfers to Other Funds $1,115,000.00
101-40301 Police $10,234,869.00
101-50336 Fire $3,089,026.00
101-50338 Central Fire Station $75,000.00
101-50387 Building Code Inspections and Enforcement $2,007,745.00
101-60265 City Hall Maintenance $325,711.00
101-60446 Community Event Support/Downtown BID $92,100.00
101-60448 Streetlighting $350,000.00
101-60523 Sanitation $2,037,262.00
101-60550 Stormwater Management $14,000.00
101-70276 Cemeteries Maintenance $473,402.00
101-70585 Parking Operations $45,600.00
101-70628 Social District $36,750.00
101-70751 Parks Maintenance $1,899,516.00
101-70757 McGraft Park Maintenance $123,075.00
101-70771 Forestry $80,000.00
101-80400 Planning, Zoning and Economic Development $556,100.00
101-90000 Major Capital Improvements $1,829,588.00
Grand Total General Fund Appropriations
$33,835,517.00
OTHER BUDGETED FUNDS
FUND
ACTIVITY
NUMBER FUND/ACTIVITY NAME AMOUNT
202,204 Major Streets and State Trunklines 5,892,486
203 Local Streets 1,906,959
264 Criminal Forfeitures 12,000
BE IT FURTHER RESOLVED that the revenues and other financing sources (including use of
prior year balances) for Fiscal Year 2021-22 are estimated as follows:
GENERAL FUND
FUND/ACTIVITY NAME AMOUNT
Taxes $ 17,348,776
Licenses and Permits 2,284,000
Federal Grants 333,344
State Grants 924,000
State Shared Revenue 4,399,008
Charges for Sales & Services 5,015,525
Interest & Operating Transfers 510,700
Fines & Fees 600,944
Other Revenue 2,540,275
Total General Fund Revenue
Appropriations $33,956,572
OTHER BUDGETED FUNDS
FUND
ACTIVITY
NUMBER FUND/ACTIVITY NAME AMOUNT
202,204 Major Streets and State Trunklines 5,995,848
203 Local Streets 1,555,000
264 Criminal Forfeitures 5,020
BE IT FURTHER RESOLVED that the operating expense projections for the following non-budget
funds are hereby approved:
FUND
ACTIVITY
NUMBER FUND/ACTIVITY NAME AMOUNT
305 TIFA Debt Service $50,000
394 Downtown Development Authority Debt 607,654
290 Local Finance Development Authority Debt 282,300
295 Brownfield Redevelopment Authority (Betten) 21,000
296 Brownfield Redevelopment Authority (Former Mall) 275,000
298 Brownfield Redevelopment Authority (Terrace Point) 457,701
252 Farmers Market & Kitchen 242 296,007
254 L C Walker Arena 1,848,805
404 Public Improvement Fund 275,000
482 State Grants Fund 3,545,075
590 Sewer 11,743,287
591 Water 16,750,518
594 Marina/Launch Ramp 472,200
661 Equipment 3,426,379
642 Public Service Building 1,780,912
643 Engineering Services Fund 578,196
677 General Insurance Fund 5,295,415
BE IT FURTHER RESOLVED, that there is hereby appropriated for said fiscal year the several
amounts set forth above which, pursuant to the "Uniform Budget and Accounting Act", define the
City of Muskegon's appropriation centers, and
BE IT FURTHER RESOLVED, that the City Manager is hereby empowered to transfer
appropriations within appropriation centers, and
BE IT FURTHER RESOLVED, that there is hereby levied a general tax as herein fixed on each
dollar of taxable valuation for the purposes herein outlined, said levy to be applied on all taxable
real and personal property in the City of Muskegon as set forth in the assessment roll dated May
2021:
PURPOSE MILLAGE (MILLS)
General Operating 9.9181
Sanitation Service 2.9754
Promotion .0788
Total 12.9723
At a meeting of the City Commission of the City of Muskegon, on the _____ Day of June , the
foregoing resolution was moved for adoption by__________________. Commissioner
___________________ supported the motion.
Resolution declared adopted.
_________________________________ __________________________________
Mayor City Clerk
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8th, 2021 Title: Mercy Health Arena Roof Lease
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is seeking authorization to enter into a lease agreement with New Energy Equity to install a solar
array on the roof of the Mercy Health Arena.
Detailed Summary:
This topic was previously discussed at the July 2020 work session meeting, and again at a meeting in
April 27th to recommend a property tax exemption for the site.
Staff has worked with Charthouse Energy and New Energy Equity, along with separate expert legal
counsel from Miller, Canfield, Paddock and Stone to prepare the necessary documents to facilitate the
installation and operation of a solar array on the roof of the Mercy Health Arena. This installation as
designed should recognize substantial energy savings over the life of the system.
This document allows for the lease of the roof space to New Energy Equity and have been reviewed
and accepted by city retained legal counsel to be in the best interest of the city.
Amount Requested: $0 Amount Budgeted: $0
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion:
Approve the Rooftop System Site Lease Agreement and authorize the City Manager to sign the agreement
contingent upon approval of the personal property tax exemption by the state tax commission.
Check if the following Departments need to approve the item first:
Police Dept.
Fire Dept.
IT Dept.
For City Clerk Use Only:
Commission Action:
Execution Version
Mercy Health Arena Solar Project
ROOFTOP SYSTEM SITE LEASE AGREEMENT
This ROOFTOP SYSTEM SITE LEASE AGREEMENT (this “Lease”) is made and
entered into as of May 28, 2021 (the “Effective Date”) by and between New Energy Equity LLC,
a Delaware limited liability company having an office located at 2530 Riva Road, Suite 200,
Annapolis, MD 21401 (“Lessee”), and the City of Muskegon, Michigan, a Michigan Municipal
Corporation located at 933 Terrace St, Muskegon, Michigan (“Lessor”). Each of Lessor and
Lessee are sometimes referred to as a “Party” and collectively as the “Parties.” “Lessee” shall
include any permitted assignees pursuant to an assignment under Section 16.1 of this Lease.
WHEREAS, Lessor is the owner of certain improved real property located in City of
Muskegon known as the Mercy Health Arena (the “Premises”), and desires to grant a non-
exclusive lease of the rooftop areas on said improvements, all as more particularly described on
Exhibit A attached hereto (the “Project Site”), and which includes the area on which the System
will be installed as depicted on Exhibit A (the “Project Area”);
WHEREAS, pursuant to the terms of this Lease and that certain Power Purchase
Agreement between Lessee as Seller and Lessor as Purchaser, dated as of the date hereof, as it may
subsequently be amended (“PPA”) Lessee will develop, own, and operate certain photovoltaic
solar energy generation equipment (the “System”) as described in Exhibit C, and associated
facilities and desires to obtain a non-exclusive lease of the Project Site, in order to install and
operate the System in the Project Area.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree as follows:
AGREEMENT
1. DEFINITIONS. Capitalized terms shall have the meanings assigned to them herein or in
the body of the PPA.
2. LEASE.
2.1 Lease. For and in consideration of the Lease on the part of Lessee contained herein,
and under and subject to the terms and conditions hereof, Lessor hereby leases to Lessee and
Lessee leases from Lessor, as hereinafter set forth, a non-exclusive right to the Project Site and
exclusive right to the Project Area, including all air space thereof, located in the City of Muskegon,
Muskegon County, State of Michigan. Upon completion of construction of the System, Lessee
shall provide a revised Exhibit A to reflect the as-built configuration of the System and Project
Area. Therefore, this Agreement is an interest in and encumbrance upon the Premises which shall
run with the land and shall be binding upon the Premises, and Lessor and its successors and assigns
for the benefit of Lessee and its successors and assigns.
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Execution Version
2.2 Term. The initial term of this Lease (the "Initial Term") shall commence on the
Effective Date and, subject to the provisions in this Lease regarding earlier termination, shall be
coterminous with and extend for the duration of the term of the PPA plus 180 days (the “Term”).
This Lease shall be renewed for an additional term plus 180 days (an "Extension Term") if the
term of the PPA is extended as provided in the PPA. In the event of an Extension Term, such
extension period shall be upon the same terms and conditions as are provided for in this Lease for
the Initial Term. As used in this Lease, the "Term" of this Lease shall collectively refer to the
Initial Term and any Extension Term, as applicable. In the event Lessor exercises an option to
purchase pursuant to the PPA or Lessee otherwise transfers the equipment constituting tbe System
to Lessor under the PPA, this Lease shall terminate as of the date of the closing of such purchase
or transfer. In the event the PPA is terminated or expires for any other reason, subject to the rights
of Seller and any assignees of Seller as defined by and under the PPA, Lessee shall (i) surrender
the Premises in accordance with Section 5.1.9 of this Lease; and (ii) remove the System in
accordance with the PPA. For the avoidance of doubt, if Lessor does not exercise its purchase
option under the PPA, Lessor hereby grants Lessee a license to enter and remove the System upon
the expiration or termination of this Lease in accordance with the PPA.
2.3 Payment to Lessor. Lessee shall pay to Lessor as rent the one-time sum of $1.00
(the “One-Time Payment”) within fifteen (15) days after the Effective Date. Lessor acknowledges
and agrees that the One-Time Payment constitutes payment in full of rent for the Term and the
Extension Term, and no additional amount shall be due or owing to Lessor under this Agreement.
2.4 Permitted Uses. Lessee shall have the exclusive right to occupy and use the Project
Area for solar energy conversion, for the collection and transmission of electric power, and for
related and incidental purposes and activities (collectively, “Operations”) including, but not
limited to, the construction, installation, improvement, relocation, operation, maintenance and
repair of the System and removal of the System. Lessee agrees that said right shall be non-
exclusive to other uses of the rooftop areas and the Premises provided that such other uses shall in
no event impair or interfere with the Operations. Lessee will use the Premises in a careful, safe
and proper manner and will not subject the Premises to use that would damage the Premises.
Lessee shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise, vibrations
to emanate from the Premises in a manner that would constitute a nuisance, nor take any other
action which would constitute a nuisance or which would disturb, endanger or unreasonably
interfere with any other operations on the Premises. All operations and activities of any Lessee
Party on the Premises shall fully comply with all applicable governmental laws, ordinances, codes,
rules and requirements.
2.5 Lessee’s Exercise of Rights. Lessee may construct and install the System on the
Premises in the manner Lessee deems reasonable and appropriate; provided, however, that Lessee
shall not unreasonably interfere with Lessor’s use, operation, or maintenance of the Premises. The
System shall be installed exclusively within the areas of the Project Area including any
transmission line areas within the Project Site.
2.6 Premises Utilities. Lessor shall provide existing and available utilities to the Project
Site in connection with Lessee's construction, start-up, maintenance, repair, replacement, operation
and removal of the System. Lessor acknowledges and agrees that Lessee’s use of the Premises
includes the nonexclusive appurtenant right to the use of water lines, sewer lines, storm water lines,
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Execution Version
power lines, and utility and telephone and communication lines provided those uses are directly
related to its Operations at the Premises.
2.7 Construction Laydown Area. Lessor shall provide Lessee sufficient space on the
Premises or on other property to which Lessor possesses the right to grant access, for the temporary
storage and staging of tools, materials and equipment reasonably necessary during installation and
any maintenance, repair, replacement or removal of the System, which shall be made available for
construction and system removal, provided that Lessee shall use commercially reasonable efforts
to minimize disruption to Lessor’s operations, and provided further that Lessee understands and
acknowledges that space is limited at the Premises. Lessor and Lessee shall coordinate and
cooperate in determining the amount of space and specific portion of the Premises necessary for
such purposes.
2.8 Notice. Except as may be required by an emergency, Lessee shall give Lessor
reasonable written or telephonic notice before any entry onto the Premises outside of normal
business hours by Lessee’s employees, agents, or contractors. Notwithstanding anything to the
contrary in this Agreement, Lessee shall be permitted to access the Premises (i) during normal
business hours; and (ii) twenty-four (24) hours a day, seven (7) days a week for emergency
purposes as reasonably determined by Lessee. In the event Lessee enters the Premises due to an
emergency, Lessee shall promptly notify Lessor of its entry and the nature of the emergency.
Unless otherwise agreed in advance, normal business hours shall mean Monday through Saturday,
8AM through 5PM.
3. EASEMENTS.
3.1 Access Easement and Use Rights. Lessor grants Lessee a nonexclusive easement
for access and use of the Premises, on, under, over, and across the Premises, as mutually agreed
upon and diagramed in Exhibit E (collectively, the “Easement Area”), for the purposes of locating,
installing, operating, maintaining, improving, repairing, relocating, and removing the System on
the Premises (the “Use Rights”). The Use Rights include the right of parking, access, and ingress
to and egress from the System on, over, and across the Easement Area during the Term, and shall
survive for a period of one hundred eighty (180) days following the termination of this Lease for
the purpose of removing the System. Without limiting the foregoing grant, Lessor covenants that
the Use Rights may be used to achieve all the purposes set forth in this Agreement. Throughout
the Term of the Lease, as described below, Lessor hereby grants Lessee an easement through the
Premises, including all elevators, stairways or other access points of egress and ingress for
purposes of accessing the Premises for the purposes described herein and pursuant to the terms
and conditions set forth below.
3.2 Solar Easement. Lessor hereby grants Lessee a solar easement on, over, and above
the Premises for the free passage of solar radiation to the System. Lessor shall not obstruct, or
allow any tenant, contractor, employee or assignee of Lessor to obstruct, the passage of direct solar
radiation to the System. Trees, structures, and improvements located on the Premises as of the
Effective Date shall be allowed to remain, and Lessee may not require their removal; provided that
Lessee may require that any trees or other vegetation be pruned or trimmed to the point that they
do not obstruct the passage of direct solar radiation across the Premises to the System to a degree
greater than on the Effective Date. Neither Lessor nor any of Lessor’s tenants, contractors,
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Execution Version
employees or assignees shall place or plant any trees, structures, or improvements on the Premises
after the Effective Date that may, in Lessee’s sole judgment, impede or interfere with the passage
of direct solar radiation to the System, unless Lessor has received prior written approval from
Lessee. Lessee and Lessor further agree to execute and record such instruments or addenda to this
Lease as may be required under applicable State or local law to evidence the solar easement granted
in this Section.
4. RIGHTS OF LESSEE.
4.1 Solar Resources. Other than de minimis solar energy collection for onsite signage
or lights, Lessee shall have the sole and exclusive right to convert all of the solar resources of, and
to conduct Operations on, the Project Area. Lessor shall not grant any rights in the Project Area
purporting to permit others to conduct Operations in the Project Area in derogation of Lessee’s
sole and exclusive rights and privileges hereunder. Without the prior written consent of Lessee,
Lessor shall not (i) waive any right available to Lessor or grant any right or privilege subject to the
consent of Lessor by law or contract, including without limitation any environmental regulation,
land use ordinance, or zoning regulation, with respect to setback requirements, or other restrictions
and conditions respecting the placement of the System on the Premises; or (ii) grant, confirm,
acknowledge, recognize, or acquiesce in any right claimed by any other Person to conduct
Operations on the Premises, and Lessor agrees to give Lessee notice of any such claims and to
cooperate with Lessee in resisting and disputing such claims.
4.2 Signage. All permanent signs located on the Premises by Lessee shall be subject
to the reasonable requirements of the Lessor. Temporary Lessee signage during construction shall
be permitted, subject to Lessor's prior approval as to the type, size, number, location and duration
of such proposed signs, which approval shall not be unreasonably conditioned, withheld or
delayed. All other signage shall be prohibited.
4.3 Enforcement of Legal Rights. Lessee shall have the right to enforce Lessor’s rights
under applicable laws protecting solar energy systems from obstruction. Lessor shall cooperate
with any efforts by Lessee to enforce such rights. Lessee shall have the right to record the interest
granted hereunder through a memorandum of leased filed in the appropriate office, and Lessor
shall execute such memorandum and otherwise reasonably cooperate in its recordation.
4.4 Non-Interference. In no event during the Term will Lessor construct, build or
locate, or allow others to construct, build, or locate any equipment or facilities (solar or otherwise)
that would interfere with the System or otherwise engage in, or allow others to engage in activity,
that might impede the System’s access to the sun or decrease the output or efficiency of the System
or otherwise interfere with the Operations.
5. CONSTRUCTION, COMMERCIAL OPERATIONS AND SYSTEM REMOVAL.
5.1 Construction. Lessee and its contractors are responsible for designing, constructing,
operating and maintaining the System in compliance with any and all applicable permits or
authorizations needed from any governmental authority or utility for construction, operations,
maintenance, and decommissioning of the System. In accordance with the terms of this Lease and
the PPA, Lessee shall install or cause to be installed by its contractors the System in a good and
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Execution Version
workmanlike manner free from defects, which, upon the Commercial Operation Date, such System
will have an aggregate approximate nameplate generating capacity rating as shown in Exhibit B
of the PPA, as it may be amended following construction to address final system size.
5.1.1 Consent. Lessor hereby consents to the construction of the System, at
Lessee’s sole cost and expense, in accordance with the plans and specifications set forth on the
attached Exhibit C.
5.1.2 Safety and Compliance. Lessee shall, or take reasonable measures to cause
its contractors and subcontractors to, comply with Lessor’s reasonable and customary safety
requirements and to coordinate construction of the System with Lessor so as to reasonably
minimize disruption to the Premises and to Lessor’s normal operations and activities thereon.
Lessee shall further take reasonable measures to cause its contractors, subcontractors, employees
and representatives to comply at all times comply with all applicable federal, state and local laws,
ordinances, rules, and regulations applicable to the construction, ownership, operation and or
maintenances of the System.
5.1.3 Hazardous Materials. Lessee shall not use, store or release Hazardous
Materials on the Premises. As used in this Agreement, “Hazardous Materials” means any
substance, material, waste, pollutant, or contaminant listed or defined as hazardous or toxic under
any applicable law, and asbestos and petroleum, including crude oil or any fraction thereof, natural
gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas) or per- and polyfluoroalkyl substances
5.1.4 Additional Requirements. Lessee and Lessor shall use commercially
reasonable efforts to agree to an approved construction schedule at the time of signing this
Agreement. Otherwise, Lessee shall submit to Lessor for Lessor’s approval, at least fifteen (15)
days prior to the proposed construction start date, a proposed construction schedule identifying the
times at which Lessee desires to conduct construction activities on the Premises. If Lessor objects
to the proposed construction schedule, Lessor and Lessee shall cooperate to come to an agreement
upon such schedule not later than 30 days following the date proposed. If at any time during the
Term of this Agreement either Party requests a change to the construction schedule, the parties
shall reasonably cooperate with each other in seeking to revise the construction schedule in writing.
5.1.5 Changes, Alteration and Additions. Lessee has provided Lessor with initial
drawings of the System, which may be revised by Lessee as the configuration of the System is
finalized (the “Drawings”). In the event the System configuration is materially changed from the
original Drawings provided, Lessor shall, within fifteen (15) business days of receipt thereof,
either (i) approve such Drawings; or (ii) provide Lessee with comments to such Drawings. If
Lessor does not provide approval or comments to Lessee within such fifteen (15) business day
period, the Drawings shall be deemed approved by Lessor. If Lessor provides comments to such
Drawings during such fifteen (15) business day period, Lessee shall, in good faith, work to finalize
the Drawings reasonably addressing the Lessor’s comments. Except as otherwise set forth in the
Drawings, Lessee shall not make any alterations, additions, or improvements to the Premises
("Alterations") without the prior written consent of Lessor, which shall not be unreasonably
withheld, conditioned or delayed. All Alterations shall be done in a good and workmanlike manner
and so as not to damage or alter the primary structure or structural qualities of the Premises, shall
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Execution Version
be lien-free upon completion, and shall be undertaken and completed in accordance with
applicable laws.
5.1.6 Acknowledgment of Lessor for Roof Mounted Systems. Lessor
acknowledges that the installation of all or a portion of the System will require physically mounting
and adhering the System to the roof of the Premises, including penetrations into the roof surface.
Lessor agrees to review and approve any System load studies provided by Lessee, including those
relating to the weight of the System and the integrity of the roof. Installation of the System shall
be completed in a manner so as not to damage the building upon which such System is installed.
If damage to a building occurs as a result of Lessee’s acts or omissions, Lessee shall promptly
repair such damage at its sole cost and expense. Lessee or its contractors shall, at Lessee’s sole
cost and expense, operate and maintain the System in good repair and condition, in accordance
with all applicable laws, in such a manner so as not to unreasonably interfere with any other
equipment or systems (including HVAC systems, satellite, antennae, or other transmission facility)
existing as of the Effective Date on the building or their equivalent replacements after the Effective
Date.
5.1.7 Notification. During Construction. Lessee shall promptly notify Lessor in
writing of any actions, claims, suits, notices of violation, fines, penalties, orders, revocations, and
other proceedings related to violations or alleged violations of environmental laws, including, but
not limited, to permits issued thereunder, which are asserted against Lessee or any of Lessee's
personnel in connection with the System or their activities on, along, adjacent to or near the
Premisesby any governmental authority. Lessee will keep Lessor informed on a regular basis of
the progress made towards resolution of such events.
5.1.8 Commercial Operation. Lessee will notify Lessor in writing when the
System has achieved Commercial Operation. This notification shall provide confirmation of the
satisfaction or occurrence of all of the conditions set forth in this Section 5.1.8 (the “Conditions").
The Conditions are:
(a) The System is capable of delivering Energy Output to the Point of
Delivery as provided in Section 4.9 of the PPA;
(b) Lessee has provided a list of the System’s panels, inverters, and
rakcing, showing the make, model and nameplate capacity of such equipment, and has
indicated the nameplate capacity of the System;
(c) Lessee or its contractors have obtained all permits, consents,
licenses, approvals, and authorizations required to be obtained from any governmental
authority or utility to operate the System in compliance with applicable law which are in
full force and effect, and that Lessee is in compliance with the terms and conditions of this
Lease in all material respects.
5.1.9 Removal Upon Termination. Upon the termination or expiration of this
Lease for any reason, Lessee shall, within one hundred eighty (180) days after the date of
expiration, or such further period as mutually agreed by the Parties, remove the System from the
Premises, and restore the rooftop to its condition as of the Effective Date, normal wear and tear
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excepted. Removal of the System shall be at the cost of Lessee (the “Demobilization Period”).
Upon the expiration of the Term Lessee shall promptly upon surrender will deliver all keys and
building security cards for the Premises to Lessor. Any Lessee Improvements not removed prior
to the expiration or termination of this Agreement (as extended by any applicable Demobilization
Period) shall be deemed abandoned and may be removed and disposed of by Lessor in such manner
as Lessor shall determine, and Lessee shall pay to Lessor the reasonable cost and expense incurred
by Lessor in effecting such removal and disposition and in making any required repairs to the
Premises, other than repairs for normal wear and tear or conditions not caused by the System
removal.
6. THE PREMISES.
6.1 Confirmation of Ownership and Suitability. Lessor is the fee title owner of the
Premises. At the request of Lessee, Lessor shall obtain executed and acknowledged instruments
and such other documents as Lessee or Lessee’s title company may require to confirm Lessor’s
ownership of the Premises or to complete or evidence the full granting of the leasehold interest in
the Premises as intended by this Agreement. Lessee shall be responsible for obtaining any Premises
or Project Area surveys, if necessary, that are not already in Lessor’s possession. Lessor shall not
be responsible for any third-party costs associated with this Section 6.1. Lessor shall reasonably
cooperate with Lessee and its contractors in their conduct of appropriate investigation of the
rooftop at the Premises before System installation commences.
6.2 Liens.
6.2.1 Subordination. If any recorded or unrecorded lien, encumbrance, covenant,
condition, reservation, restriction, easement, lease, sublease, occupancy, tenancy, mineral right,
option; right of first refusal or other matter (each, an "Encumbrance") is found or claimed to exist
against the Premises or any portion thereof (regardless whether such Encumbrance existed as of
the date hereof or was created thereafter), and Lessee determines that such Encumbrance might
delay, interfere with or impair the operation of the System in accordance with the terms of the
PPA, the exercise of any of Lessor's other rights under this Lease, or the financing of any project,
then Lessor shall upon Lessee’s request obtain a subordination, non-disturbance agreement,
consent or other agreement (in a form and containing provisions reasonably requested by Lessee)
from the holder of such Encumbrance. Lessor shall fully and promptly cooperate with Lessee's
efforts regarding the same, and Lessor shall be reimbursed for its reasonable costs for such
cooperation.
6.2.2 Notice to Premises Lienholders and Release. Lessor shall give effective
notice of Lessee’s ownership of the System and the System’s status as personal property to all
parties having an interest in or any mortgage, pledge, lien (including mechanics’, labor or
materialmen’s liens), charge, security interest, or encumbrance of any nature (individually a
“Lien,” and collectively, “Liens”) upon the real property and fixtures that are part of the Premises.
If there is any Lien against the Premises that could reasonably be construed as prospectively
attaching to the System as a fixture of the Premises, Lessor shall obtain a disclaimer or release of
such Lien. Lessor consents to the filing of a disclaimer of the System as a fixture of the Premises
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in the office where real estate records are customarily filed in the jurisdiction of the Premises, and
any other filing by Lessee in a public office regarding its ownership of the System deemed
necessary or appropriate by Lessee, and Lessor hereby appoints Lessee as its agent with regarding
to any such filing and authorizes Lessee to take required actions on Lessor’s behalf required for
such filing.
6.2.3 System Liens. Lessor shall not directly or indirectly allow any Lien on or
with respect to the System by, through or under Lessor. If Lessor becomes aware of a Lien on the
System by, through or under Lessor, Lessor shall promptly give Lessee written notice of such Lien
and shall take such action as is necessary or appropriate to have such Lien discharged and removed.
Lessor shall indemnify Lessee against all reasonable costs and expenses (including reasonable
attorneys’ fees and court costs at trial and on appeal) incurred in discharging and releasing any
such Lien.
6.2.4 Premises Liens. Lessee shall not directly or indirectly allow any Lien by,
through or under Lessee, on or with respect to the Premises or any interest therein, excluding
Lessee’s leasehold interest created pursuant to this Agreement and its rights in the System, or any
other asset of Lessor, including, without limitation, any Lien arising from or relating to the
construction, ownership, maintenance or operation of the System by Lessee. Lessee shall defend
and indemnify Lessor against all costs and expenses (including reasonable attorneys’ fees and
court costs at trial and on appeal) incurred in discharging and releasing any such Lien.
6.3 Quiet Enjoyment. Lessee shall enjoy quiet and peaceful use, enjoyment and
possession of the Project Area, free from any claim of any entity or person of superior title thereto
without hindrance to or interference with or molestation of Lessee’s quiet enjoyment thereof, and
neither Lessor nor any person claiming by, through or under Lessor shall disturb Lessee’s quiet
and peaceful use, enjoyment and possession of the Project Area.
6.4 No Interference. Lessor hereby agrees, for itself, its agents, employees,
representatives, successors, and assigns, that it will not initiate or conduct activities that it knows
or reasonably should know may damage, impair, or otherwise adversely affect the System or its
functions or the Operations, including without limitation activities that may adversely affect the
System’s exposure to sunlight. Lessor further covenants for itself and its agents, employees,
representatives, successors, and assigns that it will not (i) interfere with or prohibit the free and
complete use and enjoyment by Lessee of its rights granted under this Lease; (ii) take any action
that will interfere with the availability and accessibility of solar radiation over and above the
Premises; (iii) take any action that will or may interfere with the transmission of electrical energy
to or from the Premises; (iv) take any action that may impair Lessee’s access to the Premises for
the purposes specified in this Lease; (v) plant or maintain any vegetation or erect or maintain any
structure that will, during daylight, cast a shadow on the System; or (vi) take any action that may
impair Lessee’s access to any portion of the System.
6.5 System Property of Lessee; Transfer of the Premises. Lessor acknowledges and
agrees that (i) Lessee is the exclusive owner and operator of the System and all equipment
(including, but not limited to, photovoltaic modules or panels, inverters, meters, wire, data
monitoring equipment, and cabling), components and moveable property of Lessee attached to or
used in the operation of the System up to the point of interconnection; (ii) no portion or component
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of the System is a fixture; and (iii) in the event that the Premises are sold, leased, assigned,
mortgaged, pledged, or otherwise alienated or encumbered (a “Transfer”), such Transfer shall not
attach to or affect the System, or Lessee’s ownership rights to the System.
6.6 Transfer of Premises. Lessor shall not Transfer all or any portion of the Premises
unless the transferee agrees in writing that its interest in the Premises is subject and subordinate in
all respects to the terms of this Lease. Lessor shall give Lessee at least sixty (60) days’ prior notice
of any Transfer of all or any portion of the Premises. Any such notice shall identify the transferee,
the portion of the Premises to be transferred, and the proposed date of the Transfer.
6.7 Premises Security, Health and Safety. Lessor shall provide reasonable measures
for the security of the Premises, including restricting access to the area on which the System is
located and providing monitoring of the Premises’ security alarms, if applicable. Lessor shall
maintain the Premises in a structurally sound and safe condition consistent with all applicable laws.
If Lessor becomes aware of any circumstances relating to the System that creates an imminent risk
of damage or injury to the System or any employee of Lessee, Lessor shall promptly notify Lessee.
6.8 System Security. Lessee may install all security measures that Lessee, in its sole
discretion, determines are or may be reasonably necessary for the System. Such measures may,
but will not necessarily, include warning signs, fences, barbed wire closed and locked gates, and
other measures appropriate and reasonable to protect against damage or destruction of the System
or injury or damage to persons or property resulting from the System and Operations.
6.9 Maintenance of Premises. Lessor shall, without interfering with the operation of
the System, maintain the Premises in good condition and repair, including the integrity of the roof,
so that Lessee is able to comply with its obligations under this Lease. Lessor shall use
commercially reasonable efforts to maintain Lessor’s electrical energy equipment located on the
Premises in good condition and repair so as to be able to receive and use the Energy generated by
the System. Lessor shall maintain its connection(s) and service contract(s) with its local utility, or
any successors thereto, so that Lessor can, upon any suspension or interruption of delivery of
energy from the System, provide the Premises with its full requirements for electricity.
6.10 System Maintenance. During the Term, Lessee shall, at Lessee’s sole cost,
maintain the System, the Project Area and all areas of the Premises used by Lessee in the
Operations, in accordance with applicable laws and standard industry practices in such a manner
so as not to unreasonably interfere with any other Rooftop Property and ensure that no damage or
deterioration of the Building or the Building’s roof systems, including roof membrane and drain
systems, results from the installation of the System or the Operations. Lessee shall promptly notify
Lessor of any matters of which it is aware pertaining to any damage to or loss of use of the System
or that could reasonably be expected to adversely affect the System or the Premises. Lessee or its
contractors shall repair any damage to the System arising out of any circumstance, other than
obligations of the Lessor identified in this Lease and the acts or omissions or malfeasance of
Lessor’s agents or employees. All Maintenance and Repair conducted by or on behalf of Lessee
shall be performed in a manner which would not reasonably be expected to void the warranty that
Landlord holds on the roof (including roof membrane) or significantly damage the Roof.
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6.11 Roof Maintenance. Lessor shall be solely responsible for, and bear all costs and
expense relating to, maintaining the roof of the buildings on which the System is located, including
all required repair (including leak repair), remediation and maintenance of such roof, unless and
to the extent such repair, remediation and maintenance is required as a direct result of the
installation, maintenance, or repair of the System. Lessor shall consult with Lessee before
performing any required roof repair, remediation and maintenance that may affect the System, and
Lessee shall be permitted to witness any such repair, remediation and maintenance. In the event
the System must be temporarily disconnected or removed in order for Lessor to perform roof
repair, remediation or maintenance, Lessor shall consult with Lessee in advance of any such
activity, Lessee shall disconnect and remove the System at Lessor’s expense, and Lessor shall pay
to Lessee lost income and Environmental Attribute (defined below) damages for the period during
which the System is disconnected. Lessor shall be responsible for maintaining and enforcing all
warranties relating to the roof.
6.12 System Relocation. In the event of an emergency, Lessor may request that Lessee
relocate the System, at Lessor’s expense, to another suitable location on the Premises, provided
that (a) the Parties shall use reasonable efforts to perform the relocation during the months of
October through March and outside of normal business hours; and (b) Lessor shall pay to Lessee
lost income and Environmental Attribute damages for the period during which the System is
disconnected in connection with such relocation.
6.13 Clean Condition. Lessee shall not unreasonably clutter the Project Site or the
Premises and shall collect and dispose of any and all of Lessee’s refuse and trash.
6.14 Taxes. Lessor shall pay when due, if any, all real property taxes and assessments
possessory interest taxes, business or license taxes or fees, service payments in lieu of such taxes or
fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any
kind which are assessed, levied, charged, confirmed, imposed or levied against the Premises by any
governmental body or public authority.
6.15 Environmental Attributes. The Parties further agree that all Environmental
Attributes and Solar Incentives (defined below) belong solely to Lessee (and/or to any
persons/entities listed as Lessee’s permitted assigns or sub-lessee(s) in Section 15.1) and shall
remain the personal property of Lessee (and/or of any persons/entities listed as Lessee’s permitted
assigns or sub-lessee(s) in Section 15.1 below) and shall not attach to or be deemed a part of, or
fixture to, the Premises. The Solar Facility and other improvements shall at all times retain the
legal status of personal property as defined under Article 9 of the Michigan Uniform Commercial
Code. “Environmental Attributes” shall mean, without limitation, carbon trading credits,
renewable energy credits or certificates, emissions reduction credits, emissions allowances, green
tags, tradable renewable credits, or Green-e® products with respect to the System. “Solar
Incentives” include, without limitation, any accelerated depreciation, installation or production-
based incentives, investment and production tax credits and subsidies arising from the System.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations of Lessor. Lessor represents and warrants to Lessee that:
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7.1.1 Lessor has the requisite legal capacity to enter into this Lease and fulfill its
obligations hereunder, that the execution and delivery by it of this Lease and the performance by
it of its obligations hereunder have been duly authorized by all requisite action of its board of
directors or other governing body, and that the entering into of this Lease and the fulfillment of its
obligations hereunder does not contravene any law, statute or contractual obligation of Lessor;
7.1.2 This Lease constitutes Lessor's legal, valid and binding obligation
enforceable against it 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;
7.1.3 No suit, action or arbitration, or legal administrative or other proceeding is
pending or has been threatened against the Lessor that would have a material adverse effect on the
validity or enforceability of this Lease or the ability of Lessor to fulfill its commitments hereunder,
or that could result in any material adverse change in the business or financial condition of Lessor;
7.1.4 Lessor owns the Premises in fee simple, subject to no liens or encumbrances
except as set forth in Exhibit B. All persons or entities having any ownership or possessory interest
in the Premises are signing this Agreement;
7.1.5 To Lessor’s Knowledge, there are no Hazardous Materials on or under the
Premises;
7.1.6 No governmental approval (other than any governmental approvals which have
been previously obtained) is required in connection with the due authorization, execution and delivery
of this Lease by Lessor or the performance by Lessor of its obligations hereunder which Lessor will
be unable to obtain in due course; and
7.2 7.1.7 Representations of Lessee. Lessee represents and warrants to Lessor that:
7.2.1 Lessee has the requisite limited liability company capacity to enter into this
Lease and fulfill its obligations hereunder, that the execution and delivery by it of this Lease and
the performance by it of its obligations hereunder have been duly authorized by all requisite action
of its members, and by its board of managers or other governing body, and that the entering into
of this Lease and the fulfillment of its obligations hereunder does not contravene any law, statute
or contractual obligation of Lessee;
7.2.2 This Lease constitutes Lessee’s legal, valid and binding obligation
enforceable against it 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;
7.2.3 No suit, action or arbitration, or legal administrative or other proceeding is
pending or has been threatened against the Lessee that would have a material adverse effect on the
validity or enforceability of this Lease or the ability of Lessee to fulfill its commitments hereunder,
or that could result in any material adverse change in the business or financial condition of Lessee;
and
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7.2.4 No governmental approval (other than any governmental approvals which
have been previously obtained) is required in connection with the due authorization, execution and
delivery of this Lease by Lessee or the performance by Lessee of its obligations hereunder which
Lessee will be unable to obtain in due course.
8. DEFAULT; REMEDIES.
8.1 Lessee Default. Each of the following events shall constitute a “Lessee Default”:
8.1.1 Lessee materially breaches any term of this Lease and (i) if such breach is
capable of being cured within thirty (30) days after Lessor’s notice of such breach, Lessee has
failed to cure the breach within such thirty (30) day period, or (ii) if Lessee has diligently
commenced work to cure such breach during such thirty (30) day period but such breach is not
capable of cure within such period, Lessee has failed to cure the breach within a further one
hundred fifty (150) day period (such aggregate period not to exceed one hundred eighty (180) days
from the date of Lessor’s notice);
8.1.2 (i) Lessee commences a voluntary case under any bankruptcy law; (ii)
Lessee fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any
petition filed against Lessee in an involuntary case under any bankruptcy law; or (iii) any
involuntary bankruptcy proceeding commenced against Lessee remains undismissed or
undischarged for a period of sixty (60) days;
8.1.3 Lessee attempts any Assignment of this Lease or Sublease of the Premises
or any portion thereof in violation of the terms herein;
8.1.4 Lessee fails to carry or maintain the insurance required in this Lease or the
PPA, and such failure is not cured within thirty (30) days following notice from Lessor of such
failure; or
8.1.5 Failure by the Lessee to comply with the same term or condition of this
Lease on three or more occasions (regardless of cure), if the Lessee has given Lessor notice of
each prior failure within sixty (60) days after each such failure occurred and such failure has a
material adverse effect on Lessor or the Premises.
8.2 Lessor’s Remedies. If a Lessee Default has occurred and is continuing, Lessor may
terminate this Lease by written notice to Lessee following the expiration of the applicable cure
period and may exercise any other remedy it may have at law or equity. The various rights and
remedies reserved to Lessor in this Lease or otherwise shall be cumulative and, except as otherwise
provided by Michigan law, Lessor may pursue any or all of its rights and remedies at the same
time. No delay or omission of Lessor to exercise any right or remedy shall be construed as a
waiver of the right or remedy or of any breach or Default by Lessee. In the absence of an expresses
written waiver, no action by Lessor shall constitute a waiver of any preceding breach or Event of
Material Default by Lessee of any provision of this Lease, regardless of Lessor’s knowledge of the
preceding breach or Default, or (ii) a waiver of Lessor’s right to exercise any remedy available to
Lessor by virtue of the breach or Event of Material Default. Tenant hereby waives any right of
redemption or relief from forfeiture under Michigan law, or under any successor statute, in the
event this Lease is terminated by reason of any breach or Event of Material Default by Lessee. No
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act or thing done by Lessor or Lessor’s agents during the Term shall be deemed an acceptance of
a surrender of the Premises, and no agreement to accept a surrender shall be valid unless in writing
and signed by Lessor.
8.3 Lessor Defaults. The following events shall be defaults with respect to Lessor
(each, a “Lessor Default”):
8.3.1 Lessor materially breaches any term of this Lease and (i) if such breach is
capable of being cured within thirty (30) days after Lessee’s notice of such breach and Lessor has
failed to cure such breach within such thirty (30) day period or (ii) if Lessor has diligently
commenced work to cure such breach during such thirty (30) day period but such breach is not
capable of cure within such period, Lessor has failed to cure the breach if not cured within a further
one hundred fifty (150) day period (such aggregate period not to exceed one hundred eighty
(180) days from the date of Lessee’s notice); or such longer cure period as may be agreed to by
the Parties; and
8.3.2 (i) Lessor commences a voluntary case under any bankruptcy law or laws
authorizing municipal insolvency proceedings; (ii) Lessor fails to controvert in a timely and
appropriate manner, or acquiesces in writing to, any petition filed against Lessor in an involuntary
case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against
Lessor remains undismissed or undischarged for a period of sixty (60) days.
8.4 Lessee’s Remedies. If a Lessor Default has occurred and is continuing, Lessee may
terminate this Lease by written notice to Lessor following the expiration of the applicable cure
period. Lessee may also exercise any other remedy it may have at law or equity, including
recovering from Lessor all resulting damages, which damages shall include, but not be limited to,
the lost income and Environmental Attribute damages and all other amounts of any nature relating
to this Lease.
9. LIMITATIONS.
9.1 Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
THE PARTIES AGREE THAT TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO
EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE, WHETHER IN
CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER
BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, EXEMPLARY
OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSS OR
INTERRUPTION OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE
SYSTEM OR THIS LEASE. THE FOREGOING NOTWITHSTANDING, THE LOST INCOME
AND ENVIRONMENTAL ATTRIBUTE DAMAGES SHALL NOT BE CONSIDERED
CONSEQUENTIAL DAMAGES AND SHALL NOT BE SUBJECT TO THE LIMITATIONS
SET FORTH IN THIS SECTION.
9.2 Equitable Relief. The Parties acknowledge that money damages would not be a
sufficient remedy for any breach of this Lease, and that, accordingly, in the event of any such
breach or threatened breach, either Party shall be entitled to immediately seek any and all remedies
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available to it at law or in equity, including but not limited to an injunction or specific performance,
from a court of competent jurisdiction.
10. FINANCING ACCOMMODATIONS.
10.1 Lessor Acknowledgment. Lessor acknowledges that Lessee may finance the
System and that Lessee’s obligations may be secured by, among other collateral, a pledge or
collateral assignment of this Lease and a security interest in the System. In order to facilitate such
financing, and with respect to each party providing any such financing (a “Financing Party”),
Lessor agrees as follows:
10.1.1 Consent to Collateral Assignment. Lessee shall have the right to assign this
Lease as collateral for financing or refinancing of the System, and Lessor hereby consents to the
collateral assignment by Lessee to any Financing Party of Lessee’s right, title, and interest in and
to this Lease.
10.1.2 Financing Party’s Rights Following Default. Notwithstanding any contrary
term of this Lease:
(a) Financing Party, as collateral assignee, shall be entitled to exercise,
in the place and stead of Lessee, any and all rights and remedies of Lessee under this Lease
in accordance with the terms of this Lease. Financing Party shall also be entitled to exercise
all rights and remedies of secured parties generally with respect to this Lease and the
System.
(b) Financing Party shall have the right, but not the obligation, to pay
all sums due under this Lease and to perform any other act, duty, or obligation required of
Lessee hereunder or cause to be cured any default or event of default of Lessee in the time
and manner provided by the terms of this Lease. Nothing herein requires Financing Party
to cure any default of Lessee (unless Financing Party has succeeded to Lessee’s interests)
to perform any act, duty, or obligation of Lessee, but Lessor hereby gives Financing Party
the option to do so.
(c) Upon the exercise of remedies under its security interest in the
System, including any sale thereof by Financing Party, whether by judicial proceeding or
under any power of sale, or any conveyance from Lessee to Financing Party, Financing
Party shall give notice to Lessor of the transferee or assignee of this Lease. Any such
exercise of remedies shall not constitute a Lessee Default.
(d) Upon any rejection or other termination of this Lease pursuant to
any process undertaken with respect to Lessee under the United States Bankruptcy Code,
at the request of Financing Party made within ninety (90) days of such termination or
rejection, Lessor shall enter into a new site lease agreement with Financing Party or its
assignee on substantially the same terms as this Lease.
10.1.3 Financing Party Cure Rights. Lessor shall not exercise any right to
terminate this Lease unless Lessor has given prior written notice to each Financing Party of which
Lessor has notice. Lessor’s notice of an intent to terminate or suspend must specify the condition
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giving rise to such right. Financing Party has the longer of thirty (30) days and the cure period
allowed for a default of that type under this Lease to cure the condition; provided that if the
condition cannot be cured within such time, Financing Party may have up to an additional ninety
(90) days to cure if Financing Party commences to cure the condition within the thirty (30) day
period and diligently pursues the cure thereafter. Lessor’s and Lessee’s obligations under this
Lease shall otherwise remain in effect, and Lessor and Lessee shall be required to fully perform
all of their respective obligations under this Lease during any cure period.
10.1.4 Continuation Following Cure. If Financing Party or its assignee acquires
title to or control of Lessee’s assets and cures all defaults existing as of the date of such change in
title or control within the time allowed by Section 9.1.3, then this Lease shall continue in full force
and effect.
10.2 Notice of Defaults and Events of Default. Provided Lessor has received notice by
Lessee of the names and contact information of any Financing Party, Lessor agrees to deliver to
each Financing Party a copy of all notices that Lessor delivers to Lessee pursuant to this Lease.
11. NOTICES.
11.1 Notices. Any notice required, permitted, or contemplated hereunder shall be in
writing and addressed to the Party to be notified at the address set forth below or at such other
address or addresses as a Party may designate for itself from time to time by notice hereunder.
Such notices may be sent by personal delivery or recognized overnight courier, and shall be
deemed effective upon receipt.
To Lessee: New Energy Equity LLC
2530 Riva Road, Suite 200
Annapolis, MD 21401
Attention: General Counsel
jwrathall@newenergyequity.com
Phone: 443-267-5012
To Lessor: City of Muskegon
933 Terrace Steet
Muskegon, MI 49440
Attention: Frank Peterson, City Manager
Phone: 231-724-6724
With a copy to: Chart House Energy LLC
1310 11th St.
Muskegon, MI 49441
Attention: Rob Rafson
Phone: 231-224-6153
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12. GOVERNING LAW; DISPUTES.
12.1 Choice of Law. This Lease shall be construed in accordance with the laws of the
State of Michigan, without regard to its conflict of laws principles.
12.2 Disputes.
12.2.1 Management Negotiations. The Parties shall use all reasonable efforts to
settle disputes through negotiation between authorized members of each Party’s senior
management. Either Party may, by written notice to the other Party, request a meeting to initiate
negotiations to be held within fifteen (15) Business Days of the other Party’s receipt of such
request, at a mutually agreed time and place. If the matter is not resolved within thirty (30)
Business Days of their first meeting, either Party may pursue arbitration in accordance with Section
12.2.2.
12.2.2 Arbitration. Any controversy or dispute not amicably resolved by the
Parties or through management negotiations shall be settled by binding arbitration. Either Party
may initiate arbitration by giving written notice to the other Party. The notice shall state the nature
of the claim or dispute, the amount involved, if any, and the remedy sought. The dispute shall be
submitted to an independent arbitrator mutually selected by the Parties. If the dispute has a value
in excess of $100,000.00, then at the election of either Party, there shall be a panel of three (3)
arbitrators. If the Parties do not mutually agree on the arbitrator(s), the Parties shall then utilize
the American Arbitration Association (or another entity mutually acceptable to the Parties) to
provide the required independent arbitrator(s). The decision of the appointed independent
arbitrator(s) shall be final and binding on the Parties. In rendering a decision, the arbitrator(s) shall
comply with the Construction Industry Arbitration Rules of the American Arbitration Association
then in effect. Notwithstanding that the Construction Industry Arbitration Rules may provide
otherwise, the prevailing Party in any such arbitration shall be entitled to recover its arbitration
cots, inclusive of counsel, expert, arbitrators’ and administrative fees, from the losing Party, as
determined by the arbitrator(s). Any such arbitration shall be conducted in New York, NY.
13. INDEMNIFICATION.
13.1 Lessee’s General Indemnity. Lessee shall indemnify, defend, and hold harmless
Lessor (including Lessor’s permitted successors and assigns) and Lessor’s subsidiaries, directors,
officers, members, , employees and agents (collectively, “Lessor Indemnified Parties”) from and
against any and all third-party claims, losses, costs, damages, and expenses, including reasonable
attorneys’ fees, incurred by Lessor Indemnified Parties arising from or relating to (i) Lessee’s
breach of this Lease, (ii) the gross negligence or willful misconduct of Lessee or Lessee’s invitees
or (iii) Lessee’s failure to timely surrender the Premises to Lessor at the end of the Term or upon
a final termination pursuant to Section 8.2, subject to the applicable provisions of this Lease adn
the PPA. Lessee’s indemnification obligations under this Section 13.1 shall not extend to any claim
to the extent such claim is due to the gross negligence or willful misconduct of any Lessor
Indemnified Party.
13.2 Lessee’s Environmental Indemnity. Lessee shall indemnify, defend and hold
harmless the Lessor Indemnified Parties against, any claims, costs, damages, fees, or penalties
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arising from a violation by Lessee or Lessee’s agents or contractors of any federal, State, or local
law, ordinance, order, or regulation relating to the generation, manufacture, production, use,
storage, release or threatened release, discharge, disposal, transportation, or presence of any
Hazardous Material on or under the Premises.
13.3 Lessor’s General Indemnity. To the limited extent permissible under State of
Michigan law, Lessor shall indemnify, defend, and hold harmless Lessee (including Lessee’s
permitted successors and assigns) and Lessee’s subsidiaries, directors, officers, members,
employees and agents (collectively, “Lessee Indemnified Parties”) from and against any and all
third-party claims, losses, costs, damages, and expenses, including lost income to System Owner
under the PPA, and reasonable attorneys’ fees, incurred by Lessee Indemnified Parties arising from
or relating to (i) Lessor’s breach of this Lease, (ii) the gross negligence or willful misconduct of
Lessor or Lessor’s invitees, or (iii) the failure of building or roof to support, in whole or in part,
the System as installed, including changes in roof surface incline. Lessor’s indemnification
obligations under this Section 13.3 shall not extend to any claim to the extent such claim is due to
the gross negligence or willful misconduct of any Lessee Indemnified Party. Nothing herein shall
be construed as a waiver of the defense of Governmental Immunity or a waiver of statutory or
constitutional limitations on governmental indemnity.
13.4 Lessee’s Environmental Indemnity. To the limited extent permissible under State
of Michigan Law, Lessor shall indemnify, defend and hold harmless the Lessee Indemnified
Parties for, from, and against, any claims, costs, damages, fees, or penalties, including lost income
and Environmental Attribute damages, arising from the presence of any Hazardous Materials on
or under the Premises, except to the extent that such presence is attributable to a violation by
Lessee or Lessee’s agents or contractors of any federal, State, or local law, ordinance, order, or
regulation relating to the generation, manufacture, production, use, storage, release or threatened
release, discharge, disposal, transportation, or presence of any Hazardous Material on or under the
Premises. Nothing herein shall be construed as a waiver of the defense of Governmental Immunity
or a waiver of statutory or constitutional limitations on governmental indemnity.
14. INSURANCE.
14.1 Insurance Required. Each Party shall maintain in full force and effect throughout
the Term, with insurers of recognized responsibility authorized to do business in the State in which
the System will be located, assigned an A.M. Best rating of no less than A IX, insurance coverage
in the amounts and types set forth on Exhibit D. Each policy of insurance maintained by Lessor
shall (a) name Lessee as loss payee (to the extent covering risk of loss or damage to the Premises
or the System) and as an additional named insured as its interests may appear (to the extent
covering any other risk); and (b) contain endorsements providing that such policy shall not be
cancelled or amended with respect to the named insured and its designees without thirty (30) days’
prior written notice to Lessee. Each Party shall, within ten (10) days of written request therefor,
furnish current certificates of insurance to the other Party evidencing the insurance required
hereunder.
14.2 Waiver of Subrogation. Each policy of insurance required hereunder shall provide
for a waiver of subrogation rights against the other Party, and of any right of the insurers to any
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Execution Version
set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of
that policy.
14.3 No Waiver of Obligations. The provisions of this Lease shall not be construed in a
manner so as to relieve any insurer of its obligations to pay any insurance proceeds in accordance
with the terms and conditions of valid and collectable insurance policies. The liabilities of the
Parties to one another shall not be limited by insurance.
15. MISCELLANEOUS.
15.1 Assignments. Neither Party shall have the right to assign any of its rights, duties,
or obligations under this Lease without the prior written consent of the other Party, which consent
may not be unreasonably withheld or delayed. The foregoing notwithstanding, Lessee may assign
any of its rights, duties, or obligations under this Lease, without the consent of Lessor, (i) to any
of its affiliates, (ii) to any third party in connection with a financing transaction, or (iii) to any
purchaser of the System.
15.2 Force Majeure. To the extent either Party is prevented by an event of Force
Majeure (as defined in the PPA) from performing its obligations under this Agreement, such
Party shall be excused from the performance of its obligations under this Agreement, provided
that:
a) The Party claiming Force Majeure shall use commercially reasonable efforts to
eliminate or avoid the Force Majeure and resume performing its obligations; provided, however,
that neither Party is required to settle any strikes, lockouts or similar disputes except on terms
acceptable to such Party, in its sole discretion;
b) The non-claiming Party shall not be required to perform or resume performance
of its obligations to the claiming Party corresponding to the obligations of the claiming Party
excused by Force Majeure;
c) The suspension of performance is of no greater scope and of no longer duration
than is required;
d) the non-performing Party proceeds with reasonable diligence to remedy its
inability to perform and provides weekly progress reports to the other Party describing actions
taken to end the Force Majeure;
e) when the non-performing Party is able to resume performance of its obligations
under this Agreement that Party shall give the other Party written notice to that effect;
f) any milestone or date for performance under this Agreement affected by such
Force Majeure shall be deemed to be extended on a day-for-day basis for the duration of the
Force Majeure event or condition, and
g) Notwithstanding the foregoing, no Party may claim relief by reason of Force
Majeure from a simple requirement to pay money due hereunder.
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Execution Version
15.3 Entire Agreement. This Lease represent the full and complete agreement between
the Parties hereto with respect to the subject matter contained herein and supersedes all prior
written or oral agreements between the Parties with respect to the subject matter hereof.
15.4 Amendments. This Lease may only be amended, modified, or supplemented by an
instrument in writing executed by duly authorized representatives of Lessee and Lessor.
15.5 No Partnership or Joint Venture. Lessee and Lessee’s agents, in the performance
of this Lease, shall act in an independent capacity and not as officers or employees or agents of
Lessor. This Lease shall not impart any rights enforceable by any third party (other than a
permitted successor or assignee bound to this Lease).
15.6 Headings; Exhibits. The headings in this Lease are solely for convenience and ease
of reference and shall have no effect in interpreting the meaning of any provision of this Lease.
Any Exhibits referenced within and attached to this Lease, including any attachments to the
Exhibits, shall be a part of this Lease and are incorporate by reference herein.
15.7 Remedies Cumulative; Attorneys’ Fees. No remedy herein conferred upon or
reserved to any Party shall exclude any other remedy herein or by law provided, but each shall be
cumulative and in addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. If any action, arbitration, judicial reference, or other proceeding is
instituted between the Parties in connection with this Lease, the losing Party shall pay to the
prevailing Party a reasonable sum for attorneys’ and experts’ fees and costs incurred in bringing
or defending such action or proceeding (at trial and on appeal) and/or enforcing any judgment
granted therein.
15.8 Waiver. The waiver by either Party of any breach of any term, condition, or
provision herein contained shall not be deemed to be a waiver of such term, condition, or provision,
or any subsequent breach of the same, or any other term, condition, or provision contained herein.
Any such waiver must be in a writing executed by the Party making such waiver.
15.9 Severability. If any part, term, or provisions of this Lease is determined by an
arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such
determination shall not affect or impair the validity, legality, or enforceability of any other part,
term, or provision of this Lease and shall not render this Lease unenforceable as a whole.
Instead, the part of the Lease found to be invalid, unenforceable, or illegal shall be amended,
modified, or interpreted to the extent possible to most closely achieve the intent of the Parties
and in the manner closest to the stricken provision.
15.10 Counterparts and Facsimile Signatures. This Lease may be executed in
counterparts, which shall together constitute one and the same agreement. Facsimile or portable
document format (“.PDF”) signatures shall have the same effect as original signatures, and each
Party consents to the admission in evidence of a facsimile or photocopy of this Lease in any court
or arbitration proceedings between the Parties.
15.11 No Partnership or Sale. Nothing contained in this Lease shall be deemed or
construed by the Parties or by any third person to create the relationship of principal and agent,
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Execution Version
partnership, joint venture, buyer and seller of real property, or any other association between
Lessor and Lessee, other than the relationship of lessor and lessee.
15.12 Memorandum of Lease. Lessor and Lessee agree to execute and record a
memorandum of this Lease. Lessor shall execute, with notarization, and deliver to Lessee together
with the its initial delivery of the signed Lease a recordable Memorandum of Lease in a form
reasonably acceptable to the Parties (“Memorandum of Lease”), which shall include the Exhibit A
description of the Premises and which Lessee shall then record in the Official Records of the
County in which the Premises are located. Lessee shall be responsible for the cost of recordation.
15.13 Estoppel Certificate. From time to time, upon written request by Lessee, Lessor
shall provide within seven (7) days thereafter an estoppel certificate attesting, to the knowledge of
Lessor, of Lessee’s compliance with the terms of this Lease, or detailing any known issues of
noncompliance.
[SIGNATURE PAGE FOLLOWS]
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Execution Version
IN WITNESS WHEREOF, the Parties have caused this Rooftop System Site Lease
Agreement to be duly executed and delivered as of the Effective Date.
LESSEE LESSOR
New Energy Equity LLC City of Muskegon, Michigan
By: ___________________________ By: ___________________________
Name: Name:
Title: Title:
EXHIBIT A
PREMISES; PROJECT SITE; PROJECT AREA
Site Address: 470 W. Western, Muskegon, MI 49440
Exhibit A
EXHIBIT B
ENCUMBRANCES ON LESSOR’S TITLE
Per the City of Muskegon, there are no encumbrances on this property. (Placeholder, waiting on response from the
City)
Exhibit B
EXHIBIT C
SYSTEM DESCRIPTION
MERCY HEALTH ARENA
General Information
Project Address 470 W. Western, Muskegon, MI 49440
Utility Territory Consumers Energy
System Size DC 449.28 kW
System Size AC 400 kW
DC System Voltage 480 V
AC System Voltage 480 V Three Phase V
Project Equipment
Data Acquisition System SolarEdge
Module
Manufacturer Hanwha
Module Size 390W
# Modules 1,152
Inverter
Manufacturer SolarEdge
Inverter Size 100kW
# Inverters 4
Racking
Description Ballasted roof mount
Manufacturer Aerocompact
Inter Row Spacing 2ft
Tilt 10
Azimuth 180
Exhibit C
37306805.1/063684.00052
EXHIBIT D
INSURANCE REQUIREMENTS
(a) Lessee shall obtain and maintain the following insurance policies:
(i) Comprehensive general liability insurance against liability for injury to or death of
any Person or damage to property in connection with the use, operation or condition of the System
of not less than one million dollars ($1,000,000) combined single limit per occurrence and annual
aggregate. Lessor shall be named as an additional insured under this liability insurance, provided
however that Lessee shall in no event be obligated to repair or replace Lessor’s buildings or
Premises;
(ii) Lessee may satisfy the insurance requirements contained in this Lease though any
combination of primary and/or excess coverage; and
(iii) Lessee may elect to self-insure any or all of the insurance requirements contained
in this Lease.
(b) Lessor shall obtain and maintain the following insurance policies:
(i) Comprehensive general liability insurance against liability for injury to or death of
any Person or damage to property in connection with the use, operation or condition of the
Premises of not less than one million dollars ($1,000,000) combined single limit per occurrence
and annual aggregate. Lessee shall be named as an additional insured under this liability insurance;
(ii) All-risk property insurance with coverage equal to the replacement value of the
Premises. Lessee shall be named as an additional insured under this policy;
(iii) Lessor may satisfy the insurance requirements contained in this Lease though any
combination of primary and/or excess coverage; and
(iv) Lessor may elect to self-insure any or all of the insurance requirements contained
in this Lease.
Exhibit D
EXHIBIT E
EASEMENT DIAGRAM
Exhibit D
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8th, 2021 Title: Mercy Health Arena Power Purchase
Agreement
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is seeking authorization to enter into a Power Purchase Agreement with New Energy Equity to
install a solar array on the roof of the Mercy Health Arena.
Detailed Summary:
This topic was previously discussed at the July 2020 work session meeting, and again at a meeting in
April 27th to recommend a property tax exemption for the site.
Staff has worked with Charthouse Energy and New Energy Equity, along with separate expert legal
counsel from Miller, Canfield, Paddock and Stone to prepare the necessary documents to facilitate the
installation and operation of a solar array on the roof of the Mercy Health Arena. This installation as
designed should recognize substantial energy savings over the life of the system.
This document outlines the policies and rates the City will pay to purchase the generated solar power.
There is no up-front cost to the city related to the installation of the solar array.
Amount Requested: $0 Amount Budgeted: $0
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion:
Approve the Power Purchase Agreement and authorize the City Manager to sign.
Check if the following Departments need to approve the item first:
Police Dept.
Fire Dept.
IT Dept.
For City Clerk Use Only:
Commission Action:
Execution Version
Power Purchase Agreement
New Energy Equity LLC
And
City of Muskegon
2530 Riva Road, Suite 200
Annapolis, MD 21401
Main: 443-267-5012
POWER PURCHASE AGREEMENT
This POWER PURCHASE AGREEMENT (this “Agreement”) is made and entered into
as of May 28, 2021 (the “Effective Date”) by and between New Energy Equity LLC, a Delaware
limited liability company (“Seller” or “System Owner”), and the City of Muskegon, Michigan
(“Purchaser” or “Host”). Each of Seller and Purchaser are sometimes referred to as a “Party” and
collectively as the “Parties.”
RECITALS
WHEREAS, Seller intends to build, own and operate a photovoltaic solar electrical
generation system on the Premises that is described in detail in Exhibit B (the “System,” as further
defined in Exhibit A of this Agreement); and
WHEREAS, the Premises are owned by the Host; and
WHEREAS, Host and Seller are parties to that certain Rooftop System Site Lease
Agreement dated of even date herewith (the “Site Lease”), pursuant to which Host has leased to
Seller the Premises (as defined in the Site Lease) and granted to Seller certain easements over,
across, through, under, about and on the Premises for the installation, maintenance, and operation
of the System;
WHEREAS, Seller desires to generate, sell and deliver to Purchaser, and Purchaser desires
to purchase and receive from Seller, all electricity that may be generated by the System for the
Term of this Agreement (as defined in Article 2, below) and otherwise on the terms and subject to
the conditions set forth herein; and
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 DEFINITIONS AND RULES OF INTERPRETATION. Unless otherwise
required by the context in which any term appears: (a) capitalized terms used in this Agreement
shall have the meanings specified in this Exhibit A; (b) the singular shall include the plural and
vice versa; (c) references to "articles", "sections", "schedules", "annexes", "appendices' or
"exhibits", if any, shall be to Articles, Sections, Schedules, Annexes, Appendices or Exhibits
hereof; (d) all references to a particular entity shall include a reference to such entity's successors
and permitted assigns; (e) the words "herein," "hereof' and "hereunder" shall refer to this
Agreement as a whole and not to any particular Article or subparagraph hereof; (f) all accounting
terms not specifically defined herein shall be construed in accordance with generally accepted
accounting principles in the United States of America, consistently applied; (g) the words
"include," "includes" and "including" mean include, includes and including "without limitation;"
(h) references to this Agreement shall include a reference to all appendices, annexes, schedules
and exhibits hereto as the same may be amended, modified, supplemented or replaced from time
to time; and (i) the masculine shall include the feminine and neuter and vice versa.
2. INITIAL TERM; ADDITIONAL TERMS; TERMINATION; END OF TERM
2.1 Contract Term. The Contract Term of this Agreement shall commence on the
Effective Date and, unless sooner terminated in accordance with the terms hereof, shall continue
until a date that is twenty-five (25) years from the first day of the month following the month in
which the Commercial Operation Date of the System occurs (the “Expiration Date”).
2.2 Additional Terms. Not less than sixty (60) days before the Expiration Date of the
then current Contract Term or Additional Term, the Parties may agree to extend the Agreement
for up to two (2) additional terms of five (5) years each (each, an "Additional Term"). The “Term”
of this Agreement shall be the Contract Term under Section 2.1 plus any Additional Terms. If the
Parties agree to extend the Contract Term for an Additional Term, this Agreement shall continue
in full force and effect pursuant to the terms and conditions set forth herein, except that the Energy
Rate to be applicable during such Additional Term will be set at a rate that is no higher than fifteen
percent (15%) lower than the all-inclusive average rate paid by Purchaser for electricity and
delivery of electricity from both (if applicable) the Utility and any retail suppliers supplying
electricity to Purchaser averaged over the prior 12 month period (the "Utility Rate") calculated as
of the date that the Additional Term commences. The Energy Rate shall be reset on each annual
anniversary of such Additional Term’s Effective Date thereafter, based on the then-current all-
inclusive rate paid by Purchaser for electricity and delivery of electricity.
2.3 Early Termination. Either Party shall have the right, but not the obligation, to
terminate this Agreement (in whole or in part) prior to the Expiration Date only upon the
occurrence of:
(a) an unstayed order of a court or administrative agency having the effect of
subjecting the sales of Energy Output to federal or state regulation of prices
and/or service and which imposes substantive non-ministerial regulatory
requirements on the Party seeking termination which will have a material
adverse effect on such Party’s rights, obligations, or benefits under this
Agreement;
(b) the final termination of the Lease by its terms and conditions for any reason
prior to the conclusion of the Term; or
(c) In the event that the Notice to Proceed Date has not occurred within one
year of the Effective Date, either Party may terminate this Agreement upon
thirty (30) days’ written notice to the other party delivered at any time prior
to the actual Notice to Proceed Date; provided, however, that the foregoing
date shall be extended on a day-for-day basis for any Force Majeure
occurring after the Effective Date and prior to the Notice to Proceed Date.
2.4 End of Term. In the event Purchaser declines to exercise its Purchase Option
provided in Article 7 of this Agreement, in connection with the final Purchase Option during the
Contract Term, then, at least thirty (30) days before the expiration of the Contract Term, the Parties
2 Proprietary and Confidential
shall, if desired, use commercially reasonable efforts to negotiate and document an extension of
the Contract Term agreeable to each Party in their sole discretion.
2.5 Obligations upon Termination, Early Termination or Expiration. If Purchaser does
not exercise its option to purchase the Systems pursuant to Article 7 or terminates the Agreement
pursuant to Article 2.3, upon the expiration or termination of this Agreement, Seller shall remove
the System from the Site at Seller's expense within one hundred eighty (180) days of that expiration
or termination. In such event, Seller shall remove the Systems and restore the Sites in accordance
with Good Industry Practices.
2.6 System Removal. At the conclusion of the Contract Term, if the Purchaser does not
exercise its right to purchase the System, or in the event the Parties fail to reach agreement
regarding an extension of the Agreement, then Seller shall, within one hundred eighty (180) days
after the date of expiration of the Contract Term, remove the System from the Premises, provided
that Seller shall not be required to remove electrical wiring or infrastructure, or any portion of the
System below grade level. Other than as specifically provided otherwise herein or in the Site Lease,
the removal of the System shall be at the cost of Seller.
3. PURCHASE AND SALE OF ENERGY.
3.1 Sale of Energy. Beginning on the Commercial Operation Date for the System, and
subject to the terms and conditions of this Agreement, Seller shall sell to Purchaser and Purchaser
shall purchase from Seller all of the Energy, as and when the same is produced, at the Energy Price
in effect at the time of delivery as identified in Exhibit D. Subject to any provision of this
Agreement, Seller shall deliver the Energy to the Delivery Point, and Purchaser shall accept the
Energy so delivered for the full Contract Term.
(a) If, for any reason, Purchaser’s electric requirements are less than the
System’s Energy Output, Purchaser shall accept and pay for all Energy
produced by System pursuant to the terms of this Agreement. To the extent
permitted by law, Purchaser may deliver any excess Energy to the Utility in
accordance with the Net Metering Rules or Net Metering Agreement
entered with the Utility. Seller shall provide reasonable assistance to
Purchaser in arranging and coordinating such deliveries or exchanges;
provided, that Seller shall not be responsible for any third-party costs.
(b) To the extent that Purchaser’s electricity requirements exceed the System’s
Energy Output, Purchaser shall purchase such excess electricity from
Utility. Purchaser acknowledges that this Agreement is in no way intended
to replace Purchaser’s Utility electrical service. Such service shall remain
Purchaser’s primary source of electricity and, subject to Reliability
requirements of Section 4.9, no minimum level of Energy production is
guaranteed by Seller hereunder. Purchaser shall be responsible for all tariffs,
applicable taxes, penalties, ratcheted demand or similar charges assessed by
Utility for transmission and distribution service and other services
necessary to meet its full energy requirements.
3 Proprietary and Confidential
(c) The estimated production of the System is set forth in Exhibit C (“Estimated
Production”). Purchaser shall be entitled to utilize the entire Energy Output
of the System; provided, however, that subject to the System Reliability
requirements of Section 4.9, Seller shall not be required to deliver a
minimum amount, or any other specific quantity, of Energy from the
System. Anything herein to the contrary notwithstanding, there is no
guarantee that Purchaser will realize any energy cost savings as result of
this Agreement or the purchase of Energy from the System.
(d) Following the Commercial Operation Date, in the event the System fails to
generate any Energy for one hundred twenty (120) consecutive days for
reasons other than Force Majeure, system upgrades pursuant to Section 4.7,
Purchaser’s breach of this Agreement or Host’s breach of the Site Lease or
this Agreement (an “Unexcused Outage”) then, beginning on the 120th day
and for each subsequent consecutive day of an Unexcused Outage, Seller
will pay the Purchaser on a monthly basis in arrears the positive difference,
if any, between the Energy Rate Purchaser would have paid for Energy
Output for the System and the Utility Rate of the quantities of Energy
Output that Purchaser obtains to replace the estimated energy output that
would have been achieved. Utility generated electricity realized over the
prior six months until the end of such Unexcused Outage. Subject to
Sections 2.4 and 2.5, this Section shall be Purchaser’s sole and exclusive
remedy for any Unexcused Outage. In the Event the System fails to
generate Energy for three hundred sixty (360) consecutive days, then either
Party may terminate this Agreement upon thirty (30) days’ written notice to
the other Party delivered at any time prior to the date on which the System
resumes generating Energy, with no further obligation relating to any
Unexcused Outage. Termination under this Section shall not constitute
Early Termination or Breach on behalf of the Purchaser.
(e) THE PARTIES AGREE THAT IT WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE UNDER THE PRESENTLY
KNOWN AND ANTICIPATED FACTS AND CIRCUMSTANCES TO
ASCERTAIN AND FIX THE AMOUNT OF ACTUAL DAMAGES
THAT WOULD BE SUFFERED DUE TO UNEXCUSED OUTAGES,
INCLUDING THOSE LASTING MORE THAN 180 DAYS.
THEREFORE, THE PARTIES ACKNOWLEDGE THAT THE
AMOUNTS DESCRIBED IN SECTION 3.1(d) ARE A FAIR AND
REASONABLE DETERMINATION OF THE AMOUNT OF DAMAGES
WHICH WOULD BE SUFFERED BY PURCHASER FOR UNEXCUSED
OUTAGES, AND THAT SUCH AMOUNTS DO NOT CONSTITUTE A
PENALTY.
3.2 Environmental Attributes and Incentives.
(a) Environmental Attributes. Seller shall have all right, title, and interest in
and to all Environmental Attributes related to the System. At Seller’s
4 Proprietary and Confidential
expense, Purchaser agrees to cooperate with Seller in any applications for
Environmental Attributes related to the System.
(b) Environmental Incentives. Seller shall have all right, title, and interest in
and to all Environmental Incentives attributed to the System. Any
Environmental Incentive attributed to the System that is initially credited or
paid to Purchaser shall be assigned by Purchaser to Seller without delay. At
Seller’s expense, Purchaser agrees to cooperate with Seller in any
applications for Environmental Incentives related to the System.
(c) Purchaser Assistance with Environmental Attributes and Incentives.
Purchaser shall promptly assist and cooperate with Seller in acquiring and
maintaining in effect all necessary permits and approvals for the System
from Governmental Authorities relating to Environmental Attributes and
Incentives. If informed by Seller, Purchaser shall comply with all laws,
regulations and rules relating to acquiring and maintaining Environmental
Attributes and Environmental Incentives. Purchaser shall deliver to Seller
copies of any documentation related thereto that is required by law to be in
the name or physical control of Purchaser. Seller shall reimburse Purchaser
for its reasonable and necessary third-party costs incurred in relation to
Purchaser’s assistance with such matters.
(d) Impairment of Environmental Attributes and Incentives. Purchaser shall
not take any action or suffer any omission that could reasonably be expected
to have the effect of reducing or impairing the value to Seller of the
Environmental Attributes and Environmental Incentives. Acknowledging
that Purchaser is not an expert in Environmental Attributes and Incentives,
Purchaser shall use commercially reasonable efforts to seek counsel and
advice from an expert, and consult with Seller, prior to engaging in any
matter that could reasonably be perceived as affecting the Systems, and to
promptly notify Seller of any event, action or omission that could have the
effect of reducing or impairing the value of the Environmental Attributes
and Environmental Incentives. Upon the occurrence of any such event,
action or omission, Purchaser shall consult with Seller as necessary to
prevent reduction or impairment of the value of Environmental Attributes
and Environmental Incentives.
3.3 Estimated Purchaser Savings. Purchaser acknowledges that the Calculation of
Estimated Benefits attached hereto as Exhibit F is solely an estimate of the ongoing costs and
benefits that Purchaser may anticipate. Purchaser specifically acknowledges that the Calculation
is an estimate based upon several variables that may change, resulting in a change in the amount
and nature of the benefits. Purchaser agrees and acknowledges that (a) Seller has made no
representations, warranties, or covenants with respect to any cost savings or benefits that Purchaser
may obtain in connection with this Agreement and (b) Purchaser may in fact either save money or
incur greater costs than otherwise would have occurred in the absence of entering into this
Agreement.
5 Proprietary and Confidential
4. THE SYSTEM.
4.1 Installation, Operation, and Maintenance of the System. Seller shall be responsible
for the installation, operation, and maintenance of the System in a manner consistent with the Site
Lease. If the supply of Energy from the System is interrupted as a result of malfunction or other
shutdown, Seller shall use commercially reasonable efforts to remedy such interruption. Both
Parties shall comply with all applicable laws and regulations relating to the operation of the System
and the generation and sale of Energy, including obtaining and maintaining in effect all relevant
approvals and permits.
4.2 Interconnection with Utility.
(a) The System will be interconnected by the Utility with the electrical grid.
(b) RESERVED
(c) Seller shall have sole responsibility for resolving any disputes with Utility
regarding the amount of energy production from the System, and shall also
have sole discretion over any such resolution.
(d) Purchaser shall be solely responsible for resolving any disputes with Utility
regarding the rate applied to Energy production and the amount paid by
Utility to Purchaser, as defined and governed by the applicable tariff. Any
conflict between the terms of this Agreement and the Tariff shall be
resolved in favor of the tariff.
(e) Seller agrees and acknowledges that this Agreement represents the
agreement between the Parties with respect to the interconnection of the
Systems to the Purchaser's Electrical System, and for Energy to flow from
the System to the applicable Point of Delivery. Seller shall, at no cost to
Purchaser, apply for and pay all application fees associated with the
interconnection of the System to Purchaser's Electrical System at the Site.
Seller shall also be responsible to procure and pay for all equipment
necessary to interconnect the System to Purchaser's Electrical System.
(f) Purchaser agrees and acknowledges that Purchaser shall be responsible to
pay for costs related to the interconnection between Purchaser and the
Utility’s Electrical System, including (a) any upgrades to Purchaser's
Premises or the Utility's distribution system that are necessary for
interconnection and (b) the costs of any studies that may be required by the
Utility with respect to such upgrades.
4.3 Maintenance of Health and Safety. Seller shall take all reasonable safety
precautions with respect to the operation, maintenance, repair, and replacement of the System and
shall comply with all applicable health and safety laws, rules, regulations, and permit requirements.
If Seller becomes aware of any circumstances relating to the Premises or the System that creates
an imminent risk of damage or injury to any Person or any Person’s property (and, should
Purchaser become aware of such circumstances, Purchaser shall promptly notify Seller with
6 Proprietary and Confidential
respect thereto), Seller shall take prompt action to prevent such damage or injury and shall
promptly notify Purchaser. Such action may include disconnecting and removing all or a portion
of the System, or suspending the supply of Energy to Purchaser.
4.4 Assistance with Permits and Licenses. Upon Seller’s request, Purchaser shall assist
and cooperate with Seller, to acquire and maintain approvals, permits, and authorizations or to
facilitate Seller’s compliance with all applicable laws and regulations related to the construction,
installation, operation, maintenance, and repair of the System, including providing any building
owner or occupant authorizations, signing and processing any applications for permits, local utility
grid interconnection applications and utility easements, and rebate applications as are required by
law to be signed by Purchaser. Purchaser shall also deliver to Seller copies of any necessary
approvals, permits, rebates, or other financial incentives that are required by law in the name or
physical control of Purchaser. Seller shall reimburse Purchaser for reasonable and necessary third-
party costs incurred by Purchaser in relation to Purchaser’s assistance with such matters.
4.5 Commercial Operation Date. Seller shall use commercially reasonable efforts to
cause the installation of the System to be completed and to achieve a Commercial Operation Date
on or before October 31, 2021 (the "Target COD"), and shall ensure that the System is completed
and a Commercial Operation Date is achieved on or before March 31, 2022 (the "Outside COD").
In the event that the Systems has not achieved Commercial Operation Dates on or before the
Outside COD, other than as result of Force Majeure or Purchaser’s breach of the Site Lease or this
Agreement, the Seller will pay the Purchaser on a monthly basis in arrears the positive difference,
if any, between the Energy Rate Purchaser would have paid for Energy Output for the System and
the Utility Rate of the quantities of Energy Output that Purchaser obtains to replace the estimated
energy output that would have been achieved measured on a daily basis from the Outside COD
date until the Commercial Operation Date for the subject System. The Parties may agree to amend
this Agreement to revise the Outside COD (the "Revised Outside COD"). In the event that the
System has not achieved the Commercial Operation Date on or before the Revised Outside COD,
the Parties may, in their discretion, negotiate to amend this Agreement to further revise the Outside
COD, along with any other provisions of this Agreement affected by the failure to achieve the
Commercial Operation Date on or before the Revised Outside COD. Seller shall deliver notice to
Purchaser (5) days prior to the occurrence of the Commercial Operation Date.
(a) Conditions to Commercial Operation. Seller will notify Purchaser in writing
when the System has achieved Commercial Operation. This notification
shall provide documented evidence of the satisfaction or occurrence of all
of the conditions set forth in this Section 4.5 (the “Conditions") and shall
include a declaration by Seller to that effect. In the event of a dispute
regarding the Commercial Operation Date, such dispute will be resolved
subject to Section 16.2. The Conditions are:
(i) The System is capable of delivering Energy Output to the Point of
Delivery;
(ii) Seller has provided a list of the System’s major equipment, showing
the make, model and nameplate capacity of such equipment, and has
certified the nameplate capacity of the System;
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(iii) The System has, if applicable, demonstrated the reliability of its
communications systems; and
(iv) Seller has certified that all permits, consents, licenses, approvals,
and authorizations required to be obtained by Seller from any
Governmental Authority or Utility to operate the System in
compliance with applicable law and this Agreement have been
obtained and are in full force and effect and that Seller is in
compliance with the terms and conditions of this Agreement in all
material respects.
4.6 Notice of Damage. Purchaser shall promptly notify Seller of any physical
conditions or other circumstances of which Purchaser becomes aware that indicate there has been
or might be damage to or loss of the use of the System or that could reasonably be expected to
adversely affect the System. Failure to provide notice under this Section 4.6 shall not be a material
breach of this Agreement.
4.7 System Upgrades. At any time, following notice to Purchaser, Seller may upgrade
the System; provided that the upgraded System complies with this Agreement and applicable laws
and, provided further, that if any System upgrade would increase the annual Estimated Production
by more than ten percent (10%) percent, then Seller shall obtain Purchaser’s prior written consent
before performing the System upgrade. In order to perform any System upgrades, Seller may
disconnect the System and interrupt Energy deliveries, provided that Seller shall complete such
upgrades and re-connect the System within 180 days of commencing the upgrades.
4.8 Purchaser’s Taxes. Purchaser is responsible for paying all taxes, if any, arising from
Purchaser’s purchase of the Energy as well as all real and personal taxes assessed against either
the Premises or the System. Seller shall provide reasonable assistance to Purchaser in the
negotiation of payment in-lieu of tax agreements with the relevant taxing authorities.
4.9 System Reliability. Beginning on the Commercial Operation Date, and continuing
through the end of the Term, the System’s Energy Output capacity shall be not less than eighty-
five percent (85%) of the Estimated Production identified in Exhibit B (the "Guaranteed Minimum
Generating Capacity"), as measured over any three (3) consecutive Commercial Operation Years
(the "Energy Measurement Period"), for any reason other than (i) Purchaser's breach of its
obligations under this Agreement or the Lease, (ii) a System upgrade or Downgrade that has been
agreed to in writing, or (iii) a Force Majeure event. In the event the Energy Output delivered to
Purchaser over any Energy Measurement Period is less than the Guaranteed Minimum Generating
Capacity for such period, then Seller shall, within forty-five (45) days following the end of such
Energy Measurement Period, pay to Purchaser an amount equal to the product of (A) the difference
between the Guaranteed Minimum Generating Capacity and the actual Energy Output delivered,
and (B) the difference, if any, between Purchaser's average Utility Rate over such Energy
Measurement Period minus the applicable Contract Price for such period.
5. PAYMENT
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5.1 Consideration for Energy Delivered. As consideration for the delivery of Energy
by Seller, Purchaser shall pay for Energy delivered hereunder at the applicable Energy Price.
5.2 Invoicing. Seller shall be responsible for reading the Electric Metering Devices at
the end of each calendar month. Seller shall invoice Purchaser for Energy on a monthly basis.
Seller shall deliver each invoice within thirty (30) Business Days after the end of each monthly
billing period. Each invoice shall set out the amount of Energy delivered in kWh during such
billing period, the then-applicable Energy Price, and the total amount then due to Seller, including
any taxes assessed on the sale of Energy to Purchaser, offsets for amounts due from Seller to
Purchaser pursuant to Section 3.1, and credits due to Purchaser under Section 6.5(e). The amount
due shall be prorated for any partial month during the Contract Term. Such invoice shall include
sufficient detail so that Purchaser can reasonably confirm the accuracy of the invoice including,
among other details, beginning and ending meter readings. Purchaser shall pay the amount due to
Seller on a net thirty (30) basis after receipt of each invoice. Payments not made within 30 days of
receipt of Seller’s invoice shall be subject to interest at the Interest Rate until paid.
5.3 Disputed Amounts. A Party may in good faith dispute the accuracy of any invoice
(or any adjustment to any invoice) under this Agreement at any time within thirty (30) days
following the receipt of the invoice (or invoice adjustment). In the event of such a dispute, such
Party shall nonetheless pay the full amount of the applicable invoice or invoice adjustment on the
applicable payment due date, except as expressly provided otherwise elsewhere in this Agreement,
and to give written notice of the objection to the other Party. Any required refund following
resolution of such dispute shall be made within five (5) Business Days after final resolution thereof,
together with interest accrued at the Interest Rate from the original payment due date to the date
refunded.
5.4 Books and Records. To facilitate payment and verification, each Party shall
maintain all books and records necessary for billing and payments, including copies of all invoices
under this Agreement, for a period of at least two (2) years, and Seller shall grant Purchaser
reasonable access to those books, records, and data at the principal place of business of Seller or
by providing electronic copies. Purchaser may examine such books and records relating to
transactions under, and administration of, this Agreement, at any time during the period the records
are required to be maintained, upon request with reasonable notice and during normal business
hours, however not more than once per year.
5.5 Change in Law. The Parties acknowledge and agree that the Energy Price is based
on assumptions related to the availability to the Seller of the Environmental Incentives. In the
event of the elimination or alteration of one of more Environmental Incentives or any other change
in law that results in a material adverse economic impact on Seller in respect to this Agreement,
the Parties shall work in good faith to amend this Agreement within thirty (30) Business Days after
such elimination or alteration as may be reasonably necessary to restore the allocation of economic
benefits and burdens contemplated hereunder by the Parties. If the Parties fail to enter into such
an amendment by the end of such thirty (30) Business Day period, Seller may terminate this
Agreement without penalty, and Seller shall remove the System from the Premises within one
hundred eighty (180) days of such termination.
6. DELIVERY; CURTAILMENT; INSOLATION; METERING.
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6.1 Delivery. The System Point of Delivery shall be at the point of connection, as
depicted on Exhibit B. Seller shall deliver Energy Output hereunder in the form of three-phase
sixty-cycle alternating current at or exceeding the quality standards of the Utility. Seller shall bear
the risk of electric losses up until the Point of Delivery and shall be responsible for costs required
to deliver the Energy Output to the Point of Delivery, but shall not be bear any risk of loss after
the Energy Output has been delivered to the Point of Delivery.
6.2 Purchaser's Failure to Accent Delivery. On and after the Commercial Operation
Date, if, there exists no breach or default by Seller under this Agreement and Purchaser fails to
accept all or any amount of the Energy Output for the applicable System for any reason other than
an event of Force Majeure, such event shall constitute a Purchaser Curtailment and be treated in
accordance with Section 6.3, below.
6.3 System Casualty. Following any event resulting in material damage or destruction
to, or loss of the System, Seller shall have the option, in its sole discretion, to repair or replace the
System or to terminate this Agreement. Seller shall notify Purchaser in writing of its election
within thirty (30) days after the date of the damage to the System. Seller shall under all
circumstances be entitled to all insurance proceeds with respect to the System. If Seller elects to
repair or replace the System, Seller shall undertake such repair or replacement as quickly as
practicable. If Seller elects to terminate this Agreement, the termination shall be effective
immediately upon delivery of the notice under this Section 6.3.
6.4 Curtailment.
(a) Each Party shall have the right to request curtailment of Energy Output
upon sufficient prior written notice, and Energy Output shall be curtailed
pursuant to such request. The Parties agree that each Party will be allotted
one (1) two (2) four (4) hour curtailment per Commercial Operation Year
for any reason (the "Curtailment Allotment'). The Parties agree that if the
number or duration exceed the Curtailment Allotment during periods when
one Party invokes such curtailment option (i) the requesting Party shall be
liable for Liquidated Damages in the manner set forth below; and (ii) Seller
shall have no right to remarket the Energy Output that is curtailed. Subject
to the provisions set forth in the Lease with respect to a relocation of a
System, the remedy provided in this Section 6.3 shall be the sole and
exclusive remedy of Seller for any such voluntary curtailment requested
by Purchaser. Seller will have no obligation to reimburse Purchaser if the
Curtailment Allotment is not used and the Parties agree there will be no
carry forward from one year to the next.
(b) If Seller exceeds its Curtailment Allotment, it shall pay the Purchaser on a
monthly basis in arrears the positive difference, if any, between the Energy
Rate Purchaser would have paid for Energy Output for the System and the
Utility Rate of the quantities of Energy Output that Purchaser obtains to
replace the estimated energy output that would have been achieved.
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(c) If Purchaser exceeds its Curtailment Allotment, it shall pay the Seller on a
monthly basis in arrears an amount equal to the average Energy Output of
the prior three months, prorated for the duration of the exceeded
Curtailment Allotment.
6.5 Electric Metering Devices.
(a) Metering of Delivery. Seller shall measure the amount of Energy supplied
to Purchaser at the Delivery Point using a commercially available, revenue-
grade metering system. Such meter shall be installed and maintained at
Seller’s cost. Purchaser shall cooperate with Seller to enable Seller to have
reasonable access to the meter as needed to inspect, repair, and maintain
such meter. At Seller’s option, the meter may have standard industry
telemetry and/or automated meter reading capabilities to allow Seller to
read the meter remotely. If Seller elects to install telemetry allowing for
remote reading, Purchaser shall allow for the installation of necessary
communication lines and shall reasonably cooperate in providing access for
such installation. The meter shall be kept under seal, such seal to be broken
only when the meter is to be tested, adjusted, modified, or relocated. In the
event that either Party breaks a seal, such Party shall notify the other Party
as soon as practicable.
(b) Back-Up Metering. Either Purchaser or Seller may, subject to the approval
of the other Party, such approval not to be unreasonably withheld, elect to
install and maintain, at the installing Party’s own expense, backup metering
devices ("Back-Up Metering") in addition to the Electric Metering Devices,
which installation and maintenance shall be performed in a manner
acceptable to Purchaser. The installing Party, at its own expense, shall
inspect and test Back-Up Metering upon installation and at least annually
thereafter. The installing Party shall provide the other Party with reasonable
advance notice of, and permit a representative of such Party to witness and
verify, such inspections and tests, provided, however, that such Party shall
not unreasonably interfere with or disrupt the activities of the installing
Party and shall comply with all applicable safety standards. Upon request,
the installing Party shall perform additional inspections or tests of Back-Up
Metering and shall permit a qualified representative of the other Party to
inspect or witness the testing of Back-Up Metering, provided, however, that
such other Party shall not unreasonably interfere with or disrupt the
activities of the installing Party and shall comply with all applicable safety
standards. The actual expense of any such requested additional inspection
or testing shall be borne by the Party requesting the test, unless, upon such
inspection or testing, Back-Up Metering is found to register inaccurately by
more than the allowable limits established in this Article, in which event the
expense of the requested additional inspection or testing shall be borne by
the installing Party. If requested in writing, the installing Party shall provide
copies of any inspection or testing reports to the requesting Party.
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(c) Net Metering. Seller shall deliver all Energy Output generated by the
System to Purchaser at the applicable Delivery Point. Purchaser shall be
responsible for delivery of any Energy Output generated by the System that
is not consumed by Purchaser at the Site pursuant to the then applicable
Utility net metering requirements. Seller shall provide reasonable assistance
to Purchaser in applying for and establishing the Utility net metering
agreements that may be necessary. Purchaser shall reimburse Seller for its
reasonable and necessary third-party costs incurred in relation to Seller’s
assistance with such matters.
(d) Meter Verification. On each of the fifth, tenth, fifteenth and twentieth
anniversaries of the Commercial Operation Date, or earlier at Seller’s
discretion, Seller shall test the meter and provide copies of any related test
results to Purchaser. The tests shall be conducted by a qualified independent
third party. Seller shall notify Purchaser seven (7) days in advance of each
such test, and shall permit Purchaser to be present during such tests. If a
meter is inaccurate, Seller shall promptly cause the meter to be repaired or
replaced. If a meter is accurate or inaccurate by two percent (2%) or less,
then Purchaser shall pay the costs of the meter testing. If a meter is
inaccurate by more than two percent (2%), then Seller shall pay for the costs
of the meter testing. If a meter is inaccurate by more than two percent (2%)
and the duration of such inaccuracy is known, then prior invoices shall be
adjusted accordingly and any amounts owed to Purchaser shall be credited
against future invoices for Energy deliveries. If a meter is inaccurate by
more than two percent (2%) and it is not known when the meter inaccuracy
commenced, then prior invoices shall be adjusted for the amount of the
inaccuracy on the basis that the inaccuracy persisted during the twelve-
month period preceding the test and any amounts owed to Purchaser shall
be credited against future invoices for Energy deliveries.
7. OPTION TO PURCHASE SYSTEM.
7.1 Grant of Purchase Option. Seller hereby grants to Purchaser the right and option to
purchase all of the Seller’s right, title, and interest in and to the System on the terms set forth herein
(“Purchase Option”). Purchaser may exercise the Purchase Option on either the sixth (6th), tenth
(10th), fifteenth (15th) or twentieth (20th) anniversary of the Commercial Operation Date, or
simultaneously with the termination of this Agreement (collectively, the “Purchase Option
Dates”), provided that no Purchaser Event of Default, or any event which with the passage of time
will become a Purchaser Event of Default, has then occurred and is ongoing.
7.2 Determination of Purchase Price. Purchaser may, on or at any time within thirty
(30) days before each Purchase Option Date, request a determination of the purchase price under
the Purchase Option (the “Purchase Price”). The Purchase Price shall be the fair market value of
the System, as determined by an independent appraiser retained by the Parties (the “Independent
Appraiser”). The Independent Appraiser shall be an individual who is a member of a national
accounting, engineering or energy consulting firm qualified by education, experience, and training
to determine the value of solar generating facilities of the size and age and with the operational
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characteristics of the System, and who specifically has prior experience valuing solar energy
generating facilities. The Independent Appraiser shall be reasonably acceptable to both Seller and
Purchaser. Except as may be otherwise agreed by the Parties, the Independent Appraiser shall not
be (or within three (3) years before his or her appointment have been) a director, officer, or an
employee of, or directly or indirectly retained as consultant or adviser to, either of the Parties or
their respective Affiliates. The fair market value assessment of the System shall consider, among
other things, the income and savings associated with the System for the remaining portion of the
Contract Term, the terminal value of the assets and the System’s past and projected performance.
The Independent Appraiser shall make a determination of the Purchase Price within thirty (30)
days of appointment (the “Price Determination”). Upon making the Price Determination, the
Independent Appraiser shall provide a written notice thereof to both Seller and Purchaser, along
with all supporting documentation detailing the method of calculation of the Purchase Price.
Except in the event of fraud or manifest error, the Price Determination shall be a final and binding
determination of the fair market value. If Purchaser wishes to exercise the Purchase Option
following the Price Determination, it shall deliver an exercise notice to Seller within ten (10) days
of receipt of the Price Determination (the “Exercise Period”). Any such exercise notice shall be
irrevocable once delivered. If Purchaser does not exercise the Purchase Option during the Exercise
Period, then the Price Determination shall be null and void, and Purchaser may not request a new
determination of the Purchase Price until the next Purchase Option Date. Each Price
Determination by an Independent Appraiser shall be at Purchaser’s expense.
7.3 Terms and Date of System Purchase. Unless agreed to in writing, the Parties shall
consummate the sale of the System to Purchaser no later than forty-five (45) days following
Purchaser’s exercise of the Purchase Option. On the effective date of such sale (the “Transfer
Date”) (a) Seller shall surrender and transfer to Purchaser all of Seller’s right, title, and interest in
and to the System and shall retain all liabilities, Environmental Attributes, Environmental
Incentives, and profits arising from or relating to the System that arose prior to the Transfer Date;
(b) Purchaser shall pay the Purchase Price to Seller in readily available funds, and shall assume all
liabilities arising from or relating to the System as of and after the Transfer Date; (c) Purchaser
shall pay all amounts due under this Agreement for Energy delivered hereunder; and (d) both the
Seller and the Purchaser shall (i) execute and deliver a bill of sale and assignment of contract
rights, together with such other conveyance and transaction documents as are reasonably required
to fully transfer and vest title to the System in Purchaser, and (ii) deliver ancillary documents,
including releases, resolutions, certificates, third-party consents and approvals, and such similar
documents as may be reasonably necessary to complete and conclude the sale of the System to
Purchaser. The purchase and sale of the System shall be on an “as-is, where-is” basis, and Seller
shall not be required to make any warranties or representations with regard to the System, but
Seller shall, to the extent reasonably possible, transfer or assign to Purchaser all manufacturer and
third-party warranties with respect to the System or any part thereof. Purchaser shall pay all
transaction and closing costs associated with exercise of the Purchase Option.
8. TITLE AND RISK OF LOSS.
8.1 Title. Seller shall at all times retain title to and be the legal and beneficial owner
of the System, and the System shall remain the personal property of Seller and shall not attach to
or be deemed a part or fixture of the Premises. Seller may file one or more precautionary financing
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statements in jurisdictions it deems appropriate with respect to the System in order to protect its
rights in the System.
8.2 Risk of Loss. Seller shall bear the risk of loss for the System, except to the extent
caused by the breach by Purchaser of its obligations under this Agreement, the Site Lease or the
gross negligence or intentional misconduct of Purchaser or its invitees.
9. FORCE MAJEURE.
9.1 Force Majeure. To the extent either Party is prevented by an event of Force Majeure
from performing its obligations under this Agreement, such Party shall be excused from the
performance of its obligations under this Agreement, provided that:
(a) The Party claiming Force Majeure shall use commercially reasonable
efforts to eliminate or avoid the Force Majeure and resume performing its
obligations; provided, however, that neither Party is required to settle any
strikes, lockouts or similar disputes except on terms acceptable to such
Party, in its sole discretion;
(b) The non-claiming Party shall not be required to perform or resume
performance of its obligations to the claiming Party corresponding to the
obligations of the claiming Party excused by Force Majeure;
(c) The suspension of performance is of no greater scope and of no longer
duration than is required;
(d) the non-performing Party proceeds with reasonable diligence to remedy its
inability to perform and provides weekly progress reports to the other Party
describing actions taken to end the Force Majeure;
(e) when the non-performing Party is able to resume performance of its
obligations under this Agreement that Party shall give the other Party
written notice to that effect;
(f) any milestone or date for performance under this Agreement affected by
such Force Majeure shall be deemed to be extended on a day-for-day basis
for the duration of the Force Majeure event or condition, and
(g) Notwithstanding the foregoing, no Party may claim relief by reason of Force
Majeure from a simple requirement to pay money due hereunder.
9.2 Notice. In the event of any delay or nonperformance resulting from an event of
Force Majeure, the Party suffering the event of Force Majeure shall, as soon as practicable, notify
the other Party in writing of the nature, cause, date of commencement thereof and the anticipated
extent of any delay or interruption in performance; provided, however, that a Party’s failure to give
timely notice shall not affect such Party’s ability to assert Force Majeure unless and to the extent
that the delay in giving notice prejudices the other Party.
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9.3 Limitations on Effect of Force Majeure. In no event will any delay or failure of
performance caused by any conditions or events of Force Majeure extend this Agreement beyond
its stated Term. ln the event that any delay or failure of performance caused by conditions or events
of Force Majeure continues for an uninterrupted period of three hundred sixty-five (365) days from
its occurrence or inception, as noticed pursuant to Section 9.2, the Party not claiming Force
Majeure may, at any time following the end of such three hundred sixty-five (365) day period,
terminate this Agreement to the extent of the Force Majeure upon written notice to the affected
Party, without further obligation by either Party except as to costs and balances incurred prior to
the effective date of such termination. In the event of a Force Majeure event that extends beyond
such three hundred sixty-five (365) day period, the Parties may mutually agree to extend the period
beyond three hundred sixty-five (365) days.
10. RIGHTS AND OBLIGATIONS OF PURCHASER.
10.1 Purchaser Access. To the extent authorized by this Agreement and any applicable
Lease, Seller shall provide Purchaser with reasonable access to the System at all reasonable times
with reasonable prior written notice, only for purposes of maintaining any equipment which is
owned or otherwise the responsibility of Purchaser under this Agreement; provided, however, that
Purchaser shall comply with Seller's written safety guidelines and risk management procedures,
copies of which shall be provided to Purchaser by Seller upon request.
10.2 Site Lease. As of the Effective Date hereof, Purchaser and Seller have entered into
an Site Lease for access to, on, over, under and across each of the Sites for the purposes of: (a)
installing, constructing, operating, owning, maintaining, accessing, removing and replacing the
System; (b) performing all of Seller's obligations and enforcing all of Seller's rights set forth in
this Agreement; and (c) installing, using and maintaining electric lines and equipment, including
inverters and meters, necessary to interconnect the System to Purchaser's Electrical System at the
Site and/or to the Utility's electric distribution system or that otherwise may from time to time be
useful or necessary in connection with the construction, installation, operation, maintenance or
repair of the System. Seller shall notify Purchaser prior to entering a Site as may be required in
accordance with the terms of the Lease. During the Term, Purchaser shall not interfere with Seller's
rights under the Lease and shall take all commercially reasonable steps to prevent any third parties
from interfering with such rights. Purchaser agrees that Seller, upon request to Purchaser, may
record a memorandum of Lease in the land records respecting the Lease in form and substance
reasonably acceptable to the Parties.
11. ADDITIONAL COVENANTS.
11.1 Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or
suffer to exist any mortgage, pledge, lien (including mechanics’, labor or materialman’s lien),
charge, security interest, encumbrance or claim on or with respect to the System or any portion
thereof. If Purchaser breaches it obligations under this Section 11.1, it shall promptly notify Seller
in writing, shall promptly cause any lien to be discharged and released of record without cost to
Seller, and shall, to the limited extent permissible under State of Michigan Law, indemnify Seller
against all claims, losses, costs, damages, and expenses, including reasonable attorneys’ fees,
incurred in discharging and releasing such lien.
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11.2 Additional Purchaser Financial Information. If requested by Seller, Purchaser shall
deliver within one hundred-eighty (180) days following the end of each fiscal year, a copy of
Purchaser’s annual report containing audited consolidated financial statements with footnotes for
such fiscal year. In all cases such financial statements shall be for the most recent accounting
period and prepared in accordance with generally accepted accounting principles consistently
applied; provided, however, that if any such financial statements are not available on a timely basis
due to a delay in preparation or certification, such delay shall not by itself constitute a Purchaser
Event of Default so long as Purchaser diligently pursues the preparation, certification and delivery
of the statements.
11.3 Performance Assurance; Downgrade Event. If at any time Seller, in its sole
judgment, determines that Purchaser’s or Purchaser’s Performance Assurance provider’s
creditworthiness or performance under this Agreement has or will become unsatisfactory, or if
Purchaser or Purchaser’s Performance Assurance provider experiences a Downgrade Event, then
Seller may by written notice require Purchaser to provide Performance Assurance within fifteen
(15) Business Days. Purchaser shall obtain and maintain such Performance Assurance, unless
otherwise agreed upon by Seller in writing.
11.4 Conditions Precedent. The Seller’s obligations hereunder shall be subject to and
conditional upon each of the following conditions being met to the Seller’s satisfaction:
(a) NTP as defined in the EPC Agreement shall have been issued.
(b) Receipt of all necessary permits and approvals for construction and
operation of the System, determination being at the sole discretion of the Seller.
(c) Completion of contract negotiations with Utility on the interconnection
design and approval.
12. REPRESENTATIONS AND WARRANTIES.
12.1 Representations and Warranties of Purchaser. Purchaser represents and warrants
to Seller that:
(a) Purchaser has the requisite legal capacity to enter into this Agreement and
fulfill its obligations hereunder, that the execution and delivery by it of this
Agreement and the performance by it of its obligations hereunder have been
duly authorized by all requisite action of all applicable governing
authorities, and that, subject to compliance with and obtaining all required
governmental approvals under any applicable regulatory laws or regulations
governing the sale or delivery of Energy, the entering into of this Agreement
and the fulfillment of its obligations hereunder does not contravene any law,
statute or contractual obligation of Purchaser;
(b) This Agreement constitutes Purchaser’s legal, valid and binding obligation
enforceable against it in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, and
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other similar laws now or hereafter in effect relating to creditors’ rights
generally;
(c) No suit, action or arbitration, or legal administrative or other proceeding is
pending or has been threatened against the Purchaser that would have a
material adverse effect on the validity or enforceability of this Agreement
or the ability of Purchaser to fulfill its commitments hereunder, or that could
result in any material adverse change in the business or financial condition
of Purchaser;
(d) No governmental approval (other than any governmental approvals which
have been previously obtained) is required in connection with the due
authorization, execution and delivery of this Agreement by Purchaser or the
performance by Purchaser of its obligations hereunder which Purchaser will
be unable to obtain in due course; and
(e) The audited financial statements of Purchaser for the most recent three
calendar years, together with any unaudited interim financial statements of
Purchaser, (i) have each been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
respective periods covered thereby, except as otherwise expressly noted
therein; and (ii) present fairly and accurately the financial condition of
Purchaser as of the dates thereof and results of its operations for the periods
covered thereby. Purchaser further represents and warrants to Seller that
since the date of the most recent of the above-referenced financial
statements, there has been no material adverse change in Purchaser’s
financial condition, business, operations or prospects.
12.2 Representations and Warranties of Seller. Seller represents and warrants to
Purchaser that:
(a) Seller has the requisite corporate, partnership or limited liability company
capacity to enter into this Agreement and fulfill its obligations hereunder,
that the execution and delivery by it of this Agreement and the performance
by it of its obligations hereunder have been duly authorized by all requisite
action of its stockholders, partners or members, and by its board of directors
or other governing body, and that, subject to compliance with and obtaining
all required governmental approvals under any applicable regulatory laws
or regulations governing the sale or delivery of Energy, the entering into of
this Agreement and the fulfillment of its obligations hereunder does not
contravene any law, statute or contractual obligation of Seller;
(b) this Agreement constitutes Seller’s legal, valid and binding obligation
enforceable against it 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;
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(c) No suit, action or arbitration, or legal administrative or other proceeding is
pending or has been threatened against the Seller that would have a material
adverse effect on the validity or enforceability of this Agreement or the
ability of Seller to fulfill its commitments hereunder, or that could result in
any material adverse change in the business or financial condition of Seller;
and
(d) Neither the System nor any of Seller’s services provided to Purchaser
pursuant to this Agreement infringe on any third party’s intellectual
property or other proprietary rights.
13. DEFAULTS/REMEDIES.
13.1 Seller Event of Default. Each of the following events shall constitute a “Seller
Event of Default”:
(a) Seller fails to pay to Purchaser any amount when due under this Agreement
and such failure remains uncured for ten (10) Business Days following
notice of such failure to Seller; or
(b) Seller materially breaches any other term of this Agreement, and (i) if such
breach is capable of being cured within thirty (30) days after Purchaser’s
notice to Seller of such breach and Seller has failed to cure the breach within
such thirty (30) day period, or (ii) if Seller has diligently commenced work
to cure such breach but that breach is not capable of cure within such thirty
(30) day period, Seller has requested a further one hundred fifty (150) day
period (such aggregate period not to exceed one hundred eighty (180) days
from the date of Purchaser’s notice) to cure the breach, but Seller has failed
to cure the breach.
(c) Seller making a general assignment of its assets that is not in accordance
with the terms of this Agreement (Excepting any general assignment for the
benefit of creditors that is explicitly permitted by this Agreement);
(d) Seller’s dissolution, liquidation or filing of a voluntary petition in
bankruptcy or insolvency or for reorganization or arrangement under the
bankruptcy laws of the United States or under any insolvency act of any
state, or after the filing of a case in bankruptcy or any proceeding under any
other insolvency law against the Seller, the Seller’s failure to obtain a
dismissal of such filing within sixty (60) calendar days after the date of such
filing;
(e) Any express representation or warranty of Seller set forth in Section 12.2 of
this Agreement was false or misleading in any material respect when made,
unless the fact, circumstance or condition that is the subject of such
representation or warranty is made true within thirty (30) calendar days after
the Purchaser has given the Seller written notice thereof; provided,
however, that if the fact, circumstance or condition that is the subject of
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such representation or warranty cannot be corrected within thirty (30)
calendar days; or if such fact circumstance or condition being otherwise
than as first represented does not materially adversely affect the Purchaser,
then Seller shall have additional time, but in any event not longer than
ninety (90) days, to cure the default if it commences in good faith within
such thirty (30) calendar day cure period to correct the fact, circumstance
or condition that is the subject of such representation or warranty and it
diligently and continuously proceeds with all due diligence to correct the
fact, circumstance or condition that is the subject of such representation or
warranty; or
(f) A failure to maintain insurance required under this Agreement, which is not
corrected within thirty (30) days;
13.2 Purchaser’s Remedies. If a Seller Event of Default has occurred and is continuing,
Purchaser may terminate this Agreement by written notice to Seller following the expiration of the
applicable cure period, and may exercise any other remedy it may have at law or equity, including,
in the event such Seller Event of Default occurs and is continuing after the sixth (6th) anniversary
of the Commercial Operation Date, exercising the Purchase Option.
13.3 Purchaser Event of Default. Each of the following events shall constitute a
“Purchaser Event of Default”:
(a) Purchaser fails to pay to Seller any amount when due under this Agreement
and such breach remains uncured for ten (10) Business Days following
notice of such breach to Purchaser;
(b) (i) Purchaser commences a voluntary case under any bankruptcy law or
under analogous laws relating to municipal entity insolvency; (ii) Purchaser
fails to controvert in a timely and appropriate manner, or acquiesces in
writing to, any petition filed against Purchaser in an involuntary case under
any bankruptcy law; (iii) any involuntary bankruptcy proceeding
commenced against Purchaser remains undismissed or undischarged for a
period of sixty (60) days; or Purchaser becomes structurally insolvent such
that it becomes generally unable to meet its financial obligations as and
when they fall due;
(c) Purchaser breaches any of its obligations under the Site Lease;
(d) Purchaser breaches any of its obligations under Section 3.2;
(e) Purchaser fails to secure the release of any lien imposed on the System in
violation of Section 11.1 more than 15 days following notice thereof; or
(f) Purchaser breaches any other material term of this Agreement and such
breach remains uncured for thirty (30) days following notice of such breach
to Purchaser, or such longer cure period as may be agreed to by the Parties.
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13.4 Seller’s Remedies. If a Purchaser Event of Default has occurred and is continuing,
Seller may terminate this Agreement by written notice to Purchaser following the expiration of the
applicable cure period. Seller may also exercise any other remedy it may have at law or equity,
including recovering from Purchaser all resulting damages, inclusive of lost tax benefits and other
incentives as well as any lost revenues from Purchaser (collectively, the “PPA Damages”).
Notwithstanding any provision in this Agreement to the contrary, if no notice of dispute has been
issued within ninety (90 days) in the case of a billing dispute or thirty-six (36) months in all other
cases after the Seller learns of the Dispute (the "Claims Period"), the Dispute and all claims related
thereto shall be deemed waived and the Seller shall thereafter be barred from proceeding thereon.
For purposes of this Section, "the Seller learns of the Dispute" when, as to any particular Dispute,
it has actual knowledge of the occurrence giving rise to the Dispute and a reasonable belief that
the Purchaser is at least partially responsible for any damages arising from that occurrence. Any
claim reasonably arising out of a claim for which notice of a dispute was timely provided shall not
be deemed to be waived if "the Seller learns of the Dispute," or a previously undiscovered but
related liability, at a later date unless the Seller fails to raise the claim within the then reestablished
Claims Period.
13.5 Waiver of Consequential Damages. EXCEPT AS SPECIFICALLY PROVIDED
HEREIN, THE PARTIES AGREE THAT TO THE FULLEST EXTENT ALLOWED BY LAW,
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE, WHETHER IN
CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER
BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, EXEMPLARY
OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSS OR
INTERRUPTION OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE
SYSTEM OR THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE PPA DAMAGES SHALL NOT BE CONSIDERED CONSEQUENTIAL
DAMAGES AND SHALL NOT BE SUBJECT TO THE LIMITATIONS SET FORTH IN THIS
SECTION.
13.6 Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, SELLER’S
MAXIMUM LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT,
WARRANTY, INDEMNITY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE)
SHALL IN NO EVENT EXCEED THE AMOUNT OF THE AGGREGATE PAYMENTS
MADE AND, AS APPLICABLE, PROJECTED TO BE MADE (TAKING INTO ACCOUNT
ANY EXPECTED TERMINATION) BY PURCHASER UNDER THIS AGREEMENT.
14. FINANCING ACCOMMODATIONS.
14.1 Purchaser Acknowledgment. Purchaser acknowledges that Seller may finance the
System and that Seller’s obligations may be secured by, among other collateral, a pledge or
collateral assignment of this Agreement and a security interest in the System. In order to facilitate
any such financing, with respect to which Seller has notified Purchaser in writing of the identity
of such person’s offering to provide such financing (each, a “Financing Party”), Purchaser agrees
as follows:
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14.2 Consent to Collateral Assignment. Seller shall have the right to assign this
Agreement as collateral for financing or refinancing of the System, and Purchaser hereby consents
to the collateral assignment by Seller to any Financing Party of Seller’s right, title, and interest in
and to this Agreement.
14.3 Financing Party’s Rights Following Default. Notwithstanding any contrary term
of this Agreement:
(a) Financing Party, as collateral assignee, shall be entitled to exercise, in the
place and stead of Seller, any and all rights and remedies of Seller under
this Agreement in accordance with the terms of this Agreement. Financing
Party shall also be entitled to exercise all rights and remedies of secured
parties generally with respect to this Agreement and the System.
(b) Financing Party shall have the right, but not the obligation, to pay all sums
due under this Agreement and to perform any other act, duty, or obligation
required of Seller hereunder or cause to be cured any default or event of
default of Seller in the time and manner provided by the terms of this
Agreement. Nothing herein requires Financing Party to cure any default of
Seller (unless Financing Party has succeeded to Seller’s interests) to
perform any act, duty, or obligation of Seller, but Purchaser hereby gives
Financing Party the option to do so.
(c) Upon the exercise of remedies under its security interest in the System,
including any sale thereof by Financing Party, whether by judicial
proceeding or under any power of sale, or any conveyance from Seller to
Financing Party, Financing Party shall give notice to Purchaser of the
transferee or assignee of this Agreement. Any such exercise of remedies
shall not constitute a Seller Event of Default.
(d) Upon any rejection or other termination of this Agreement pursuant to any
process undertaken with respect to Seller under the United States
Bankruptcy Code, at the request of Financing Party made within ninety
(90) days of such termination or rejection, Purchaser shall enter into a new
power purchase agreement with Financing Party or its assignee on
substantially the same terms as this Agreement.
14.4 Financing Party Cure Rights. Purchaser shall not exercise any right to terminate or
suspend this Agreement unless Purchaser has given prior written notice to each Financing Party
of which Purchaser has notice. Purchaser’s notice of an intent to terminate or suspend must specify
the condition giving rise to such right. Financing Party shall have the longer of thirty (30) days
and the cure period allowed for a default of that type under this Agreement to cure the condition;
provided that if the condition cannot be cured within such time but can be cured within the
extended period, Financing Party may have up to an additional ninety (90) days to cure if Financing
Party commences to cure the condition within the thirty (30) day period and diligently pursues the
cure thereafter. Purchaser’s and Seller’s obligations under this Agreement shall otherwise remain
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in effect, and Purchaser and Seller shall be required to fully perform all of their respective
obligations under this Agreement during any cure period.
14.5 Continuation Following Cure. If Financing Party or its assignee acquires title to or
control of Seller’s assets and cures all defaults existing as of the date of such change in title or
control within the time allowed by Section 14.4, then this Agreement shall continue in full force
and effect.
14.6 Notice of Defaults and Events of Default. Purchaser agrees to deliver to each
Financing Party a copy of all notices that Purchaser delivers to Seller pursuant to this Agreement.
15. NOTICES. Any notice required, permitted, or contemplated hereunder shall be in writing
and addressed to the Party to be notified at the address set forth below or at such other address or
addresses as a Party may designate for itself from time to time by notice hereunder. Such notices
may be sent by personal delivery or recognized overnight courier and shall be deemed effective
upon receipt.
To Seller: To Purchaser:
New Energy Equity, LLC City of Muskegon
2530 Riva Road, Suite 200 933 Terrace Street
Annapolis, Maryland 21401 Muskegon, MI 49440
Attention: Matthew Hankey, President and CEO Attention: Frank Peterson, City Manager
Phone: 443-267-5012 Phone: 231-724-6724
Email: mhankey@newenergyequity.com Email: Frank.Peterson@shorelinecity.com
16. GOVERNING LAW; DISPUTES.
16.1 Choice of Law. This Agreement shall be construed in accordance with the laws of
the State of Michigan, without regard to the conflicts of law principles thereof.
16.2 Disputes.
(a) Management Negotiations. In the event of any dispute arising under this
Agreement (a "Dispute"), within seven (7) days following the delivered date
of a written request by either Party (a "Dispute Notice"), (i) each Party shall
appoint a representative (individually, a "Party Representative", together,
the "Parties' Representatives"), and (ii) the Parties' Representatives shall
confer and then meet in person at the primary administrative offices of the
Purchaser within fourteen (14) days of delivery of the Dispute Notice if the
dispute is not settled prior to that time. The Parties' Representatives shall
meet to negotiate and attempt in good faith to resolve the Dispute quickly,
informally and inexpensively with the specific goal of reconciling
differences and allowing the Parties to continue in this Agreement for the
mutual benefit of both Parties. In the event the Parties' Representatives
cannot resolve the Dispute within fourteen (14) days after delivery of the
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Dispute Notice, within fourteen (14) days following any request by either
Party at any time thereafter, each Party Representative (I) shall
independently prepare a written summary of the Dispute describing the
issues and claims, (II) shall exchange its summary with the summary of the
Dispute prepared by the other Party Representative, and (III) shall submit a
copy of both summaries to a senior officer of the Party Representative with
authority to irrevocably bind the Party to a resolution of the Dispute, subject
to approval by Purchaser's Board of Education. The senior officers for both
Parties shall negotiate in good faith to resolve the Dispute, subject to any
required internal approval of any such resolution by the Parties' respective
senior management or Board of Education. If the Parties have acted in good
faith and not resolved the Dispute within ninety (90) days after delivery of
the Dispute Notice, either Parry may seek legal and equitable remedies.
During the pendency of the Parties' attempt to resolve the dispute described
in a Dispute Notice, any applicable limitations period, whether by contract
or statute, shall be tolled. Seller will not be liable for any damages, including
liquidated damages that accrue from the time the Parties reach an agreement
to the date of Board of Education action. Nothing in this Agreement shall
prevent either Party from pursuing judicial proceedings if (a) good faith
efforts to resolve a dispute under these procedures have been unsuccessful,
or (b) interim resort to a court of competent jurisdiction is necessary to
prevent serious and irreparable injury to a Party or to others.
(b) Jurisdiction and Venue. Should management negotiations fail to resolve any
dispute, any Party may initiate dispute resolution proceedings in any state
or federal court in the State of Michigan. Each Party agrees to submit to the
personal and subject matter jurisdiction of any such court and to waive any
challenge it may have to the laying of venue in such location by reason of
inconvenient forum or otherwise.
17. INDEMNIFICATION.
17.1 Seller’s Indemnity to Purchaser. Seller shall indemnify, defend, and hold harmless
Purchaser (including Purchaser’s permitted successors and assigns) and Purchaser’s directors,
officers, affiliates, employees, and agents (collectively, “Purchaser Indemnified Parties”) from and
against any and all third-party claims, losses, costs, damages, and expenses, including reasonable
attorneys’ fees, incurred by Purchaser Indemnified Parties arising from or relating to (i) Seller’s
breach of this Agreement, or (ii) Seller’s gross negligence or willful misconduct. Seller’s
indemnification obligations under this Section 17.1 shall be subject to the limitations of Section
17.5, below.
17.2 Purchaser’s Indemnity to Seller. To the limited extent permissible under Michigan
law, Purchaser shall indemnify, defend, and hold harmless Seller (including Seller’s permitted
successors and assigns) and directors, officers, affiliates, members, shareholders, employees and
agents (collectively, “Seller Indemnified Parties”) from and against any and all third-party claims,
losses, costs, damages, and expenses, including reasonable attorneys’ fees, incurred by Seller
Indemnified Parties arising from or relating to (i) Purchaser’s breach of this Agreement, or
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(ii) Purchaser’s gross negligence or willful misconduct. Purchaser’s indemnification obligations
under this Section 17.2 shall be subject to the limitations of Section 17.5, below. Nothing herein
shall be construed as a waiver of the defense of Governmental Immunity or a waiver of statutory
or constitutional limitations on governmental indemnity.
17.3 Notice of Claims. Any Party seeking indemnification hereunder (the "Indemnified
Party") shall deliver to the other Party (the "Indemnifying Party") a written notice describing the
facts underlying its indemnification claim and the amount of such claim (each such notice a "Claim
Notice"). Such Claim Notice shall be delivered promptly to the indemnifying Party that an action
at law or a suit in equity has commenced; provided, however, that failure to deliver the Claim
Notice shall not relieve the Indemnifying Party of its obligations under this Article 18, except to
the extent that such Indemnifying Party has been prejudiced by such failure.
17.4 Defense of Action. If requested by the Indemnified Party, the Indemnifying Party
shall assume on behalf of the Indemnified Party, and conduct with due diligence and in good faith,
the defense of such Indemnified Party with counsel reasonably satisfactory to the Indemnified
Party; provided, however, that if the Indemnifying Party is a defendant in any such action and the
Indemnified Party reasonably believes that there may be legal defenses available to it that are
inconsistent with those available to the Indemnifying Party, the Indemnified Party shall have the
right to select separate counsel to participate in its defense of such action at the Indemnifying
Party's expense. If any claim, action, proceeding or investigation arises as to which the indemnity
provided for in this Article 17 applies, and the Indemnifying Party fails to assume the defense of
such claim, action, proceeding or investigation after having been requested to do so by the
Indemnified Party, then the Indemnified Party may, at the Indemnifying Party's expense, contest
or, with the prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld, settle such claim, action, proceeding or investigation. All costs and
expenses incurred by the Indemnified Party in connection with any such contest or settlement shall
be paid upon demand by the Indemnifying Party.
17.5 Percentage Share of Negligence. It is the intent of the Parties hereto that where
fault, acts or omissions are determined to be contributory, principles of comparative negligence
will be followed and each Party shall bear the proportionate cost of any loss, damage, expense and
liability attributable to that Party's negligence, acts or omissions.
18. INSURANCE.
18.1 Insurance Required. Each Party shall maintain in full force and effect throughout
the Contract Term, with insurers of recognized responsibility authorized to do business in the State
in which the System will be located, assigned an A.M. Best rating of no less than A IX, insurance
coverage in the amounts and types set forth on Exhibit E. Each Party shall, within ten (10) days
of written request therefor, furnish current certificates of insurance to the other Party evidencing
the insurance required hereunder.
18.2 Waiver of Subrogation. Each policy of insurance required hereunder shall provide
for a waiver of subrogation rights against the other Party, and of any right of the insurers to any
set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of
that policy.
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18.3 No Waiver of Obligations. The provisions of this Agreement shall not be construed
in a manner so as to relieve any insurer of its obligations to pay any insurance proceeds in
accordance with the terms and conditions of valid and collectable insurance policies. The
liabilities of the Parties to one another shall not be limited by insurance.
18.4 Certificates of Insurance. Each Party shall provide the other Party with certificates
of insurance evidencing coverage within ten (10) days of the effective date of this Agreement and
at any time thereafter with thirty (30) days’ notice.
19. MISCELLANEOUS.
19.1 Confidential Information. To the extent permitted by law, if either Party provides
confidential information, including business plans, strategies, financial information, proprietary,
patented, licensed, copyrighted or trademarked information, and/or technical information
regarding the design, operation and maintenance of the System or of Purchaser's business
("Confidential Information") to the other or, if in the course of performing under this Agreement
or negotiating this Agreement a Party learns Confidential Information regarding the facilities or
plans of the other, the receiving Party shall (a) protect the Confidential Information from disclosure
to third parties with the same degree of care accorded its own confidential and proprietary
information, and (b) refrain from using such Confidential information, except in the negotiation
and performance of this Agreement. Notwithstanding the above, a Party may provide such
Confidential Information to its, officers, directors, members, managers, employees, agents,
contactors and consultants (collectively, "Representatives"), and Affiliates, lenders, and potential
assignees of this Agreement (provided and on condition that such potential assignees be bound by
a written agreement or legal obligation restricting use and disclosure of Confidential Information),
in each case whose access is reasonably necessary to the negotiation and/or performance of this
Agreement. Each such recipient of Confidential Information shall be informed by the Party
disclosing Confidential information of its confidential nature and shall be directed to treat such
information confidentially and shall agree to abide by these provisions. ln any event each Party
shall be liable (with respect to the other Party) for any breach of this provision by any entity to
whom that Party improperly discloses Confidential Information. The terms of this Agreement (but
not its execution or existence) shall be considered Confidential Information for purposes of this
Section 20.1 except as set forth in Section 20.2. All Confidential information shall remain the
properly of the disclosing Party and shall be returned to the disclosing Party or destroyed after the
receiving Party's need for it has expired or upon the request of the disclosing Party.
19.2 Permitted Disclosure. Notwithstanding any other provision in this Agreement,
neither Party shall not be required to hold confidential any information that (a) becomes publicly
available other than through the receiving Party, (b) is required to be disclosed to a Governmental
Authority under applicable law or pursuant to a validly issued subpoena (but a receiving Party
subject to any such requirement shall promptly notify the disclosing Party of such requirement to
the extent permitted by applicable law), (c) is independently developed by the receiving Party, (d)
becomes available to the receiving Party without restriction from a third party under no obligation
of confidentiality, or (e) is required to be disclosed to comply with applicable law, subpoena or
court order. If disclosure of information is required by a Governmental Authority, the disclosing
Parry shall, to the extent permitted by applicable law, notify the other Party of such required
disclosure promptly upon becoming aware of such required disclosure. Seller acknowledges that
25 Proprietary and Confidential
Purchaser, as a public entity is subject to the Freedom of Information Act. As such, Purchaser's
compliance with the Freedom of Information Act shall not be construed as a breach of any kind of
this Agreement. If Seller does, or believes it is obligated to, disclose information to comply with
the Freedom of information Act, Seller shall have the right to challenge or dispute the disclosure
in a court of competent jurisdiction at no cost to Purchaser. Further, nothing contained herein shall
be construed as the Purchaser intent or willingness to violate the Freedom of Information Act.
19.3 Taxes
(a) Tax Structure or Treatment. Notwithstanding anything to the contrary set
forth herein or in any other agreement to which the Parties are parties or by
which they are bound, the obligations of confidentiality contained herein
and therein, as they relate to the transaction, shall not apply to the U.S.
federal tax structure or U.S. federal tax treatment of the transaction, and
each Party (and any employee, representative, or agent of any Party hereto)
may disclose to any and all persons, without limitation of any kind, the U.S.
federal tax structure and U.S. federal tax treatment of the transaction. The
preceding sentence is intended to cause the transaction not to be treated as
having been offered under conditions of confidentiality of this Agreement
(or any successor provision) of the Treasury Regulations promulgated under
Section 601I of the Code and shall be construed in a manner consistent with
such purpose. In addition, each Party acknowledges that it has no
proprietary or exclusive rights to the tax structure of the transaction or any
tax matter or tax idea related to the transaction.
(b) Seller Responsibility. If, for any reason not addressed in this Agreement,
Seller does not receive Tax Credits for any period, Purchaser's payments
under this Agreement shall not be affected, and the risk of not obtaining the
Tax Credits shall be borne solely by Seller.
(c) Purchaser Responsibility. To the extent required by law, any tax applicable
to Purchaser for the sale of electricity, attributes, or capacity charges shall
be the responsibility of the Purchaser.
19.4 Assignment and Subcontracting.
(a) Assignment. Neither Party shall have the right to assign any of its rights,
duties, or obligations under this Agreement without the prior written consent of the other Party,
which consent may not be unreasonably withheld or delayed. The foregoing notwithstanding,
Seller may assign any of its rights, duties, or obligations under this Agreement, without the
consent of Purchaser, (i) to any of its Affiliates, (ii) to any Financing Party on a collateral basis
or (iii) to any qualified purchaser of the System. A person shall be deemed a “qualified purchaser”
for such purposes if it can be shown to have credit at least as strong as Seller and experience with
solar energy projects at least as deep as Seller. Any assignment of this Agreement, excepting
assignment to any Financing Party on a collateral basis, shall include:
26 Proprietary and Confidential
(i) An explicit assumption of all existing and future obligations of the
Transferor to be performed under this Agreement;
(ii) An explicit assumption of all existing and future obligations of the
Transferor to be performed under the Site Lease, and
(b) Subcontracting. Seller may subcontract its duties or obligations under this
Agreement without the prior written consent of Purchaser, provided, that no such subcontract
shall relieve Seller of any of its duties or obligations hereunder and Seller ensures that the
subcontractors has adequate relevant experience and maintains the same insurances Seller is
required to carry herein or is covered by the Seller's insurance policies. Purchaser may reject or
remove any subcontractor based on such subcontractors conduct at the facility.
19.5 Entire Agreement. This Agreement and the Site Lease represent the full and
complete agreement between the Parties hereto with respect to the subject matter contained herein
and supersedes all prior written or oral agreements between the Parties with respect to the subject
matter hereof.
19.6 Amendments. This Agreement may only be amended, modified, or supplemented
by an instrument in writing executed by duly authorized representatives of Seller and Purchaser.
19.7 Binding Effect. This Agreement, as it may be amended from time to time, shall be
binding upon and inure to the benefit of the Parties hereto and their respective successors-in-
interest, legal representatives, and assigns permitted hereunder.
19.8 No Partnership or Joint Venture. Seller and Seller’s agents, in the performance of
this Agreement, shall act in an independent capacity and not as officers or employees or agents of
Purchaser. This Agreement shall not impart any rights enforceable by any third party (other than
a permitted successor or assignee bound to this Agreement).
19.9 Disclaimer of Third-Party Beneficiary Rights. In executing this Agreement,
Purchaser does not, nor should it be construed to, extend its credit or financial support for the
benefit of any third parties lending money to or having other transactions with Seller. Nothing in
this Agreement shall be construed to create any duty to, or standard of care with reference to, or
any liability to, any person not a party to this Agreement. Except with respect to Financing Party
rights per this Agreement, no provision of this Agreement is intended to, nor shall it in any way,
inure to the benefit of any other Person not a Party hereto, so as to constitute such Person as a third
party beneficiary under this Agreement.
19.10 Equal Employment Opportunity Compliance Certification. Seller acknowledges
that as a government contractor Purchaser may be subject to various federal laws, executive orders,
and regulations regarding equal employment opportunity and affirmative action. These laws may
also be applicable to Seller as to a subcontractor to Purchaser. All applicable equal opportunity
and affirmative action clauses shall be deemed to be incorporated herein as required by federal
laws, executive orders, and regulations, including but not limited to 41 C.F.R. $60-l.a(a)(l-7),60-
250.4 and 60-74L.4, if applicable.
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19.11 Nondiscrimination. Seller shall not discriminate against an employee or applicant
for employment for employment with respect to hire, tenure, terms, conditions, or privileges of
employment, or a matter directly or indirectly related to employment, because of race, color, creed,
religion, national origin, sex, disability, age, height weight, veteran status, marital status, or any
other reason prohibited by law. A breach of this covenant shall be considered a material breach of
contract. This provision is required in accordance with MCL 37.2209.
19.12 Iran Economic Sanctions Act. Pursuant to Michigan Public Act No. 517 of 2012
(the "Iran Economic Sanctions Act") Seller certifies and warrants that it is not an "Iran linked
business" within the meaning of the Iran Economic Sanctions Act and will not become an "Iran
linked business" at any time during the course of performing the work or services under the
contract. Seller further acknowledges and understands that it is required as a matter of law to
execute and notarize a separate certification to the same. Submitting a false certification will
submit Seller to a civil penalty of not more than $250,000.00 or two (2) times the amount of the
contract for which the false certification was made, whichever is greater, the cost of the Purchaser's
investigation, and reasonable attorney fees, in addition to the fine. Moreover, any person
submitting a false certification shall be ineligible to perform work or services for Purchaser for
three (3) years from the date it is determined that the person submitted the false certification.
19.13 Headings; Exhibits. The headings in this Agreement are solely for convenience
and ease of reference and shall have no effect in interpreting the meaning of any provision of this
Agreement. Any Exhibits referenced within and attached to this Agreement, including any
attachments to the Exhibits, shall be a part of this Agreement and are incorporate by reference
herein.
19.14 Remedies Cumulative; Attorneys’ Fees. No remedy herein conferred upon or
reserved to any Party shall exclude any other remedy herein or by law provided, but each shall be
cumulative and in addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. If any action, arbitration, judicial reference, or other proceeding is
instituted between the Parties in connection with this Agreement, the losing Party shall pay to the
prevailing Party a reasonable sum for reasonable attorneys’ and experts’ fees and costs incurred in
bringing or defending such action or proceeding (at trial and on appeal) and/or enforcing any
judgment granted therein.
19.15 Waiver. The waiver by either Party of any breach of any term, condition, or
provision herein contained shall not be deemed to be a waiver of such term, condition, or provision,
or any subsequent breach of the same, or any other term, condition, or provision contained herein.
Any such waiver must be in a writing executed by the Party making such waiver.
19.16 Severability. If any part, term, or provisions of this Agreement is determined by an
arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such
determination shall not affect or impair the validity, legality, or enforceability of any other part,
term, or provision of this Agreement and shall not render this Agreement unenforceable as a whole.
Instead, the part of the Agreement found to be invalid, unenforceable, or illegal shall be amended,
modified, or interpreted to the extent possible to most closely achieve the intent of the Parties and
in the manner closest to the stricken provision.
28 Proprietary and Confidential
19.17 Survival of Obligations. Cancellation, expiration, or earlier termination of this
Agreement shall not relieve the Parties of obligations that by their nature should survive such
cancellation, expiration, or termination, prior to the term of the applicable Statute of Limitations,
including without limitation warranties, remedies, or indemnities which obligation shall survive
for the period of the applicable statute(s) of limitation.
19.18 No Public Utility. Nothing contained in this Agreement shall be construed as an
intent by Seller to dedicate the System to public use or subject itself to regulation as a “public
utility” (as such term may be defined under any applicable law).
19.19 Service Contract. The Parties acknowledge and agree that, for accounting and tax
purposes, this Agreement is not and shall not be construed as a capital lease and, pursuant to
Section 7701(e)(3) of the Internal Revenue Code, this Agreement is and shall be deemed to be a
service contract for the sale to Purchaser of energy produced at an alternative energy facility.
19.20 Forward Contract. The Parties acknowledge and agree that the transaction
contemplated under this Agreement constitutes a “forward contract” within the meaning of the
United States Bankruptcy Code, and the Parties further acknowledge and agree that each Party is
a “forward contract merchant” within the meaning of the United States Bankruptcy Code.
19.21 Publicity. The Parties agree that each may, from time to time, issue press releases
regarding the System, provided, however that neither Party shall issue a press release regarding
the System without the prior consent of the other Party, which consent shall not be unreasonably
withheld or delayed. The Parties shall cooperate with each other in connection with the issuance
of such press releases. Purchaser shall not make claims of using solar energy at the Premises.
Purchaser may publicize that it is serving as a host for the System and display photographs of the
System in its advertising and promotional materials, provided that such materials shall identify
Seller as the owner and developer of the System and shall be consistent with Section 2.3.
19.22 Counterparts and Facsimile Signatures. This Agreement may be executed in
counterparts, which shall together constitute one and the same agreement. Facsimile or portable
document format (“.PDF”) signatures shall have the same effect as original signatures, and each
Party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any
court or arbitration proceedings between the Parties.
19.23 Further Assurances.
(a) Additional Documents. Upon the receipt of a written request from the other
Party, each Party shall execute such additional documents, instruments, and
assurances and take such additional actions as are reasonably necessary and
desirable to carry out the terms and intent hereof. Neither Party shall
unreasonably withhold, condition, or delay its compliance with any
reasonable request made pursuant to this section.
(b) Certificates. From time to time, Purchaser shall provide within five
(5) Business Days after receipt of a written request from Seller an estoppel
certificate attesting, to the knowledge of Purchaser, to Seller’s compliance
with the terms of this Agreement or detailing any known issues of
29 Proprietary and Confidential
noncompliance, and making such other representations, warranties, and
accommodations reasonably requested by the recipient of the estoppel
certificate.
(c) Opinion. Upon the receipt of a written request from Seller, Purchaser shall
deliver an opinion of counsel, in form and substance satisfactory to Seller,
confirming the enforceability of this Agreement against Purchaser.
[SIGNATURE PAGES FOLLOW]
30 Proprietary and Confidential
IN WITNESS WHEREOF, the Parties have caused this Power Purchase Agreement to
be duly executed and delivered as of the Effective Date.
SELLER PURCHASER
New Energy Equity LLC City of Muskegon
By: ___________________________ By: ___________________________
Name: Matthew Hankey Name: Frank Peterson
Title: President Title: City Manager
EXHIBIT A
DEFINITIONS
“Affiliate” means, with respect to any person or entity, any other person or entity
controlling, controlled by or under common control with such first person or entity. For purposes
of this definition and this Agreement, the term “control” (and correlative terms) means the right
and power, directly or indirectly through one or more intermediaries, to direct or cause the
direction of substantially all of the management and policies of a person or entity through
ownership of voting securities or by contract, including, but not limited to, the right to fifty percent
(50%) or more of the capital or profits of a partnership or, alternatively, ownership of fifty percent
(50%) or more of the voting stock of a corporation.
“Agreement” has the meaning set forth in the Preamble.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank
holiday.
“Commercial Operation Date” means the date when the System is “placed in service” for
purposes of Section 48 of the Internal Revenue Code.
“Confidential Information” has the meaning set forth in Section 19.1.
“Contract Term” has the meaning set forth in Section 2.1.
“Contract Year” means the twelve (12) month period commencing on the Commercial
Operation Date, and each consecutive twelve (12) month period thereafter during the Contract
Term.
“Delivery Point” means the point of interconnection between the System and the Premises’
internal electrical system.
“Downgrade Event” means Purchaser at any time (a) if rated by one of the following rating
agencies, is rated less than (i) Baa3 by Moody’s Investors Service, Inc. (or its successor), or (ii)
BBB- by Standard and Poor’s Rating Services, a division of McGraw-Hill (or its successor), or
(iii) “investment grade” by any other nationally recognized rating agency, or (b) fails to maintain
Performance Assurance.
“Effective Date” has the meaning set forth in the Preamble.
“Energy” means electrical energy that is generated by the System, expressed in kWh.
"Energy Output" means the Energy generated by, or attributable to, a System and
measured at the applicable Point of Delivery, as alternating current in whole kilowatt-hours
(kWr). For the avoidance of doubt the Energy Output does not include RECs, Other Credits or
Tax Credits.
Exhibit A - 1
“Energy Price” means, for any Contract Year, the applicable amount set forth on Exhibit D.
“Environmental Attributes” means any and all environmental benefits, air quality credits,
emissions reductions, offsets, and allowances, howsoever entitled, attributable to energy
generation by a renewable fuel source and its displacement of energy generation by conventional,
nonrenewable, and/or carbon-based fuel sources. Environmental Attributes include, but are not
limited to, (1) any benefit accruing from the renewable nature of the generation’s motive source;
(2) any avoided emissions of pollutants to the air, soil, or water (such as sulfur oxides (SO x ),
nitrogen oxides (NO x ), carbon monoxide (CO), and other pollutants other than those that are
regulated pursuant to state or federal law); (3) any avoided emissions of carbon dioxide (CO 2 ),
methane (CH 4 ), and other greenhouse gases that have been determined by the United Nations
Intergovernmental Panel on Climate Change to contribute to the actual or potential threat of
altering the Earth’s climate by trapping heat in the atmosphere; (4) any property rights that may
exist with respect to the foregoing attributes howsoever entitled; (5) any green tags, renewable
energy credits or similar credits, including RECs created pursuant to applicable law (“RECs”); and
(6) any reporting rights to these avoided emissions, including, but not limited to, green tag or REC
reporting rights. Environmental Attributes do not include (i) any energy, capacity, reliability, or
other power attributes, (ii) Environmental Incentives, or (iii) emission reduction credits
encumbered or used for compliance with local, state, or federal operating and/or air quality permits.
“Environmental Incentives” means any and all financial incentives, from whatever source,
related to the construction, ownership, or operation of the System. Environmental Incentives
include, but are not limited to, (i) federal, state, or local tax credits; (ii) any other financial
incentives in the form of credits, reductions, or allowances that are applicable to a local, state, or
federal income taxation obligation; and (iii) other grants, rebates, or subsidies, including utility
incentive programs. Environmental Incentives do not include Environmental Attributes.
“Estimated Production” has the meaning set forth in Section 2.1.3.
“Exercise Period” has the meaning set forth in Section 5.2.
“Financing Party” has the meaning set forth in Section 14.1.
“Force Majeure” means any act or event that delays or prevents a Party from timely
performing obligations under this Agreement or from complying with conditions required under
this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided
by, and is beyond the reasonable control of and without the fault or negligence of, the Party relying
thereon as justification for such delay, nonperformance, or noncompliance, which includes,
without limitation, an act of God or the elements, site conditions, extreme or severe weather
conditions, explosion, fire, epidemic, landslide, mudslide, sabotage, terrorism, lightning,
earthquake, flood, volcanic eruption or similar cataclysmic event, an act of public enemy, war,
blockade, civil insurrection, riot, civil disturbance, or strike or other labor difficulty caused or
suffered by a Party or any third party beyond the reasonable control of such Party. However,
financial cost alone or as the principal factor shall not constitute grounds for a claim of Force
Majeure, nor does the regular exercise of regulatory discretion by a Governmental Authority or
the Utility.
Exhibit A - 2
“Governmental Authorities” means any national, state, regional, municipal or local
government, any political subdivision thereof, or any governmental, quasi-governmental,
regulatory, judicial or administrative agency, authority, commission, board or similar entity having
jurisdiction over the System or its operations, the Premises or otherwise over any Party.
“Host” has the meaning set forth in the Preamble.
“Independent Appraiser” has the meaning set forth in Section 7.2.
“Interest Rate” means an annual rate equal to the lesser of (a) twelve (12) percent and (b)
the highest interest rate permitted by applicable law.
“kWh” means kilowatt-hours.
“Letter of Credit” means one or more irrevocable, transferable standby letters of credit
issued by either a U.S. commercial bank or a foreign bank with a U.S. branch, with such bank
having a credit rating of at least “A-” from S&P or “A3” from Moody’s, in a form acceptable to
Seller.
“Net Metering Credits” means the credits applied to Purchaser’s bill by the Utility, if any,
in respect of Energy produced by the System and allocated to Purchaser under this Agreement.
“Net Metering Rules” means the rules established pursuant to Michigan law and regulation
as well as applicable utility rules.
“Notice to Proceed Date” means the date on which physical work of a significant nature
relating to the installation of the System on the Premises commences.
“Party” and “Parties” have the meanings set forth in the Preamble.
“Performance Assurance” means collateral in an amount as reasonably determined by
Seller and in a form (e.g., cash, Letter(s) of Credit, guaranty, or other security or credit assurance)
reasonably acceptable to Seller.
“Person” means any individual, corporation (including, without limitation, any non-stock
or non-profit corporation), limited liability company, partnership, joint venture, association, joint-
stock company, trust, unincorporated organization, or governmental body.
"Point of Delivery” means, at any given Site, the physical points at which electrical
interconnection are made between the System and the Purchaser's Electrical Systems.
“PPA Damages” has the meaning set forth in Section 13.4.
“Premises” means the leased real property under the Site Lease, located at: Mercy Health
Arena – 470 W. Western, Muskegon, MI 49440
“Price Determination” has the meaning set forth in Section 7.2.
Exhibit A - 3
“Prudent Operating Practice” means the practices, methods, and standards of professional
care, skill, and diligence engaged in or approved by a significant portion of the electric power
industry for solar energy facilities of similar size, type, and design as the System that, in the
exercise of reasonable judgment, in light of the facts known at the time, would have been expected
to accomplish results consistent with applicable law, reliability, safety, environmental protection,
applicable codes, and standards of economy and expedition.
“Purchase Option” has the meaning set forth in Section 7.1.
“Purchase Price” has the meaning set forth in Section 7.2.
“Purchase Option Dates” has the meaning set forth in Section 7.1.
“Purchaser” has the meaning set forth in the Preamble.
“Purchaser Event of Default” has the meaning set forth in Section 13.3.
“Purchaser Indemnified Parties” has the meaning set forth in Section 17.1.
“Seller” has the meaning set forth in the Preamble.
“Seller Event of Default” has the meaning set forth in Section 13.1.
“Seller Indemnified Parties” has the meaning set forth in Section 17.2.
“Site Lease” has the meaning set forth in the Recitals.
“System” means the solar energy generating system described in Exhibit B.
“Transfer Date” has the meaning set forth in Section 8.3.
“Utility” means Consumers Energy.
Exhibit A - 4
EXHIBIT B
DESCRIPTION OF THE SYSTEM
Description of Site:
The real property known as Mercy Health Arena located at 470 W. Western, Muskegon, MI 49440.
Description of System:
Equipment Name
Manufacturer/ Model # Specifications Description
And Location
Modules:1,152/Hanwha
Q Cells 390W
Mercy Health Arena
• Ballasted Roof mount system
470 W. Western 449.28kW DC
Inverters: 4/ SE 100kW
Muskegon, MI 49440
Racking: Aerocompact
Exhibit B - 1
EXHIBIT C
ESTIMATE SYSTEM PRODUCTION
*Note: these values are estimates only and actual production may vary. Seller does not guarantee any
level of actual production.
SYSTEM PERFORMANCE
Year Solar (kWh)
1 529,830
2 527,287
3 524,756
4 522,237
5 519,730
6 517,236
7 514,753
8 512,282
9 509,823
10 507,376
11 504,941
12 502,517
13 500,105
14 497,704
15 495,315
16 492,938
17 490,572
18 488,217
19 485,874
20 483,541
21 481,220
22 478,910
23 476,612
24 474,324
25 472,047
Exhibit C - 1
EXHIBIT D
ENERGY PRICE
Commencing on the Commercial Operation Date of the System, the price for the Energy
Output produced and delivered by the System in the first year following the applicable
Commercial Operation Date shall not exceed $0.1220/kWh and such amount shall increase
each subsequent year as follows:
Contract Year Energy Price ($/kWh)
1 0.1220
2 0.1244
3 0.1269
4 0.1295
5 0.1321
6 0.1347
7 0.1374
8 0.1401
9 0.1429
10 0.1458
11 0.1487
12 0.1517
13 0.1547
14 0.1578
15 0.1610
16 0.1642
17 0.1675
18 0.1708
19 0.1742
20 0.1777
21 0.1813
22 0.1849
23 0.1886
24 0.1924
25 0.1962
Exhibit D - 1
EXHIBIT E
INSURANCE REQUIREMENTS
(a) Seller shall, at its sole cost and expense obtain and maintain for the duration of this
Agreement, the following insurance policies:
(i) Workers’ compensation insurance, with limits of liability at least equal to the
statutory requirements therefor;
(ii) Employer’s liability insurance of not less than one million dollars ($1,000,000);
(iii) Commercial general liability insurance against liability for injury to or death of any
Person, contractual liability, or damage to property in connection with the construction, use,
operation or condition of the System of not less than $2,000,000 combined single limit per
occurrence. Purchaser shall be named as an additional insured under this liability insurance;,
provided however that Seller shall in no event be obligated to repair or replace Purchaser’s
buildings or Premises;
(iv) Automobile liability insurance that complies with the requirements of the
Michigan No fault law with residual liability limit of at least $2,000,000 combined single limit for
bodily injury and properly damage. There shall be coverage for owned, hired, and non-owned
vehicles.
(v) "Completed value" Builder's risk insurance with a limit of at least 100% of the
total aggregate value for the System's construction.
(vi) Excess or umbrella liability insurance with a limit of at least $2,000,000.
(vii) Customary property insurance in the amount of the full replacement value of the
equipment constituting the System and any other improvements installed on the Site by Seller.
(viii) Seller may satisfy the insurance requirements contained in this Agreement though
any combination of primary and/or excess coverage; and
(ix) Seller may elect to self-insure any or all of the insurance requirements contained in
this Agreement, with the approval of Purchaser. In such event, Seller shall submit to Purchaser a
Certificate of Self-Insurance, including evidence of financial responsibility.
Seller shall name "the City of Muskegon", its employees, Board Members, and officers as
additional insureds on all liability coverage other than workers compensation. The coverage
granted to the Purchaser as an additional insured shall apply on a primary basis. The Purchaser's
coverage shall be excess. Deductibles and retentions shall be clearly stated on any certificate of
insurance and shall be the responsibility of the respective party. Unless otherwise provided herein,
all insurance coverage is to be on an occurrence basis rather than claims made basis.
Exhibit E - 1
Upon request of Purchaser, Seller shall furnish a current certificate or certificates of insurance for
the insurance then in place evidencing the existence of the required coverage and stating that
Purchaser will be notified in writing thirty (30) days prior to cancellation, material change or non-
renewal of such insurance.
Seller shall cause the insurance policies obtained by it to provide that the insurance company
waives all right of recovery by way of subrogation against Purchaser in connection with any
damage covered by any policy. To the extent permitted by law, neither Party shall be liable to the
other for any damage exceeding applicable policy limits that are caused by fire or any of the risks
insured against under the property insurance policy required by this Agreement or that would have
been covered by the property insurance policy required to be carried under this Agreement.
Seller hereby releases Purchaser, its trustees, officers, agents, representatives, officers, employees
and contractors, from any claims for damage to any person or to the Premises and other
improvements located on the Premises, to the fixtures, personal property, Seller's improvements,
and alterations of Seller in or on the Premises and the improvements located on the Premises that
are caused by or result from risks insured against under any insurance policies carried by Seller
under this Agreement, or that would have been covered by any insurance policy required to be
carried under this Agreement.
(b) Purchaser shall obtain and maintain the following insurance policies:
(i) Workers’ compensation insurance, with limits of liability at least equal to the
statutory requirements therefor;
(ii) Employer’s liability insurance of not less than one million dollars ($1,000,000);
(iii) Commercial general liability insurance or its equivalent against liability for injury
to or death of any Person or damage to property in connection with the use, operation or condition
of the Premises of not less than two million dollars ($2,000,000) combined single limit per
occurrence and annual aggregate. Seller shall be named as an additional insured under this liability
insurance; provided, however, that Purchaser shall in no event by obligated to repair or replace
Seller’s equipment, buildings, or Premises;
(iv) Purchaser may satisfy the insurance requirements contained in this Agreement
though any combination of primary and/or excess coverage; and
(v) Purchaser may elect to self-insure any or all of the insurance requirements
contained in this Agreement.
Exhibit E - 1
Muskegon Combined Arena-Annex
449.3 kW Solar project
Investment
Total Project $ 899,067
Customer Contribution $ - Building integrated cost into solar system
Savings
Annual total Electric bill (without solar)
Cost of electricity offset by solar
Power Purchase from solar
Annual saving from solar
2020 $ 59,727 $ 0.1163 $ 0.1220 /kWh
3.2% 2.0% Annual Index
2021 $ 61,638 $ 64,639 $ -
2022 $ 63,305 $ 65,616 $ -
2023 $ 65,017 $ 66,607 $ -
2024 $ 66,776 $ 67,613 $ -
2025 $ 68,582 $ 68,634 $ -
2026 $ 70,437 $ 69,671 $ 766
2027 $ 72,342 $ 70,723 $ 1,619
2028 $ 74,299 $ 71,791 $ 2,507
2029 $ 76,308 $ 72,875 $ 3,433
2030 $ 78,372 $ 73,976 $ 4,396
2031 $ 80,492 $ 75,093 $ 5,398
2032 $ 82,669 $ 76,228 $ 6,441
2033 $ 84,904 $ 77,379 $ 7,525
2034 $ 87,201 $ 78,548 $ 8,653
2035 $ 89,559 $ 79,734 $ 9,825
2036 $ 91,982 $ 80,938 $ 11,043
2037 $ 94,469 $ 82,161 $ 12,308
2038 $ 97,024 $ 83,402 $ 13,623
2039 $ 99,649 $ 84,662 $ 14,987
2040 $ 102,344 $ 85,940 $ 16,403
2041 $ 105,112 $ 87,238 $ 17,873
2042 $ 107,955 $ 88,556 $ 19,399
2043 $ 110,874 $ 89,894 $ 20,981
2044 $ 113,873 $ 91,251 $ 22,622
2045 $ 116,953 $ 92,630 $ 24,323
$ 224,127 25 year savings
Chart House insures no annual energy loss.
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: June 8, 2021 Title: Request for Proposal Approvals
Submitted By: Oneata Bailey Department: Community and Neighborhood
Services
Brief Summary: There is a request of proposal from sub-recipients to provide funds to Youth
Empowerment Project (YEP) for work and educational experiences throughout the year.
(Applications attached)
Detailed Summary:
Bethany Housing Ministries dba Community enCompass: YEP Program -$ 20,000.00
Amount Requested: $ 20,000.00 Amount Budgeted: $ 20,000.00
Fund(s) or Account(s): CDBG Fund(s) or Account(s): 2019
Recommended Motion:
To approve the Agreements with Bethany Housing Ministries dba Community enCompass.
Check if the following Departments need to approve the item first:
Police Dept.
Fire Dept.
IT Dept.
For City Clerk Use Only:
Commission Action:
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