HomeMy WebLinkAbout109 - 09/02/2014 - AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT WITH CLEAN ENERGY COLLECTIVE, LLC FOR THE USE OF ORDINANCE NO. 109, 2014
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT WITH
CLEAN ENERGY COLLECTIVE, LLC FOR THE USE OF CITY PROPERTY FOR A
COMMUNITY SOLAR GARDEN PROJECT WITH AN ASSOCIATED
ACCESS.EASEMENT
WHEREAS, the City is the owner of a certain parcel of real property, known as the
"Pickle Plant" (the "Property"), consisting of 5 acres, located in Larimer County, Colorado
identified as parcel number 97124-00-907; and
WHEREAS, the Property was conveyed to the City in 1995 to meet the objectives of the
City's Poudre River Land Use Framework and to provide a buffer around the Mulberry
wastewater facility; and
WHEREAS, the purchase of the Property was funded with equal contributions from the
City's Conservation Trust Fund account and the Wastewater Enterprise Fund in addition to lease
revenues that were applied to the purchase price; and
WHEREAS, after reviewing responses to an RFP for partners to install and operate a
community solar farm and provide renewable solar energy to the City's Utility Distribution Grid,
the City selected Clean Energy Collective, LLC ("CEC") as the successful photovoltaic system
developer; and
WHEREAS, the City and CEC identified the Property as an appropriate location for the
solar farm based on several factors, including visibility, access, and compromised .soil
composition of the Property that made other forms of development impractical; and
WHEREAS, City staff believes the solar farm is one of few beneficial uses compatible
with soil contamination issues existing on the Property; and
WHEREAS, on May 2, 2014, the City entered into a power purchase agreement with
CEC for up to 25-years, with extensions for an additional 10 years, to design, construct, operate
and maintain a solar farm on the Property; and
WHEREAS, CEC will require use of the Property during construction, during the
maintenance period, and for periodic equipment replacement; and
WHEREAS, CEC has requested a land lease in the form attached hereto as Exhibit `A"
and incorporated herein by this reference (the "Lease") through a subsidiary entity for the
construction, maintenance, and operation of a solar farm; and
WHEREAS, the proposed land area of the Lease consists of 3 acres of the Property (the
"Leased Area"), as described on Exhibit"A", to the Lease; and
WHEREAS, CEC has also requested an associated access easement over a portion of the
1 ,
Property, to provide legal access from the entry road for. the Mulberry wastewater.facility
("Access Easement"), as described on Exhibit"D" to the Lease; and
WHEREAS, the Access Easement will not create an undue impact on the Property or the
Mulberry wastewater facility entrance that is different from or greater- than the use the City
would need in order to otherwise develop the Property; and
WHEREAS, the proposed Lease term will be for a period of twenty five (25) years; and
WHEREAS, as a condition of the Lease, CEC Solar will be required. to restore the
Property upon expiration of the power purchase agreement and lease; and
WHEREAS, use of the Property for a solar farm will not interfere with the buffering of
the Mulberry wastewater facility which was intended when the City applied Wastewater Utility
funds to purchase the Property, nor will the solar farm otherwise impair the services enjoyed by
Wastewater Utility customers, and no additional compensation will be required of the project to
the Wastewater Enterprise Fund; and
WHEREAS, use of the Property for a solar farm limits potential conservation uses for the
site that may have been considered when the City used Conservation Trust Funds to purchase the
Property; however, staff has determined that the majority of the site shall remain open space and
available for conservation uses, and therefore no repayment will be required to the City's
Conservation Trust Fund account as a result of locating the project on the Property; and
WHEREAS, due to the collaborative nature of the solar farm project, the benefits realized
by the City's Utility customers from the local generation of Renewal Energy Credits by the solar
farm, the enhanced screening of the Mulberry wastewater facility the project will provide
without additional cost to Utility ratepayers, and CEC's investment to create a useful
development upon otherwise undevelopable portions of the Property, the staff has recommended
CEC be charged only minimal rent for the use of the Leased Area and easement; and
WHEREAS, Section 23-111 of the City Code provides that City Council is authorized to
sell, convey, or otherwise dispose of any and all interests in real property owned in the name of
the City, provided that Council first finds, by ordinance, that any sale or other disposition will
not materially'impair the viability of any City utility system as a whole of which the property is a
part, will benefit the City's citizens, and will be in the best interest of the City.
NOW, THEREFORE, BE IT. ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That leasing of the Leased Area and an associated access easement on,
over, and across City Property to Clean Energy Collective, LLC, through its subsidiary, CEC
Solar 41038, LLC, as provided herein, will not materially impair the viability of any City utility
system as a whole of which the property is a part, will benefit the City's citizens, and will be in
the best interest of the City.
2
Section 2. That the Mayor is hereby authorized to execute a negotiated lease
agreement for the Leased Area and an associated easement to CEC Solar #1038, LLC and such
documents as may be necessary to convey the Access Easement to the Property, in substantially
the form as attached hereto as Exhibit "A" and on terms and conditions consistent with this
Ordinance, together with such additional terms and conditions as the City Manager, in
consultation with the City Attorney, determines are necessary or appropriate to protect the
interests of the City, including, but not limited to, any necessary changes to the legal descriptions
of the Leased Area or Access Easement, as long as such changes do not materially increase the
size or change the character of the Leased Area or Access Easement.
Introduced, considered favorably on first reading, and ordered published this 19th day of
August, A.D. 2014, and to be presented for final passage on the 2nd day of September, A.D.
2014.
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City Clerk
Passed and adopted on final reading on the 2nd day of September, A.D. 2014.
Mayor
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EXHIBIT B
Land Lease Option Agreement
(Solar Farm)
1311-1'WEEN:
City of Fort Collins, LANDLORD
AND
Cr.0 solar #1038 L1,C, 'l'ENAN'1'
LAND LEASE OPTION AGREEMENT
(SOLAR FARM)
TA 13 LE OF CONTENTS
Yagc-
1. The Option... .................................................................................. ...... ... ................... .. ....... ... .. . .1
2. Premises ......... 1
3. Term ....................................................... 1
4. Rent..................................... 1
5. Improvements of Leased Premises......... ....................-........................... 2
6. Im,ress, Egress .111(i Utilij y :ind Solar Easement ..............................................................................3
7. Maintenance and Secol-ity.,........... 4
8. TiIIC :iHd Quiet PONSCSSi011................................................................... .. . ... ........ 4
9. Title to Site Improvements and Infl-astruclulT..... .............................................. ..... ....... 4
10. Usesand Operations............................................................... ..........................I.......................... 5
If. Subordination,Attornment, and Nondisturbance................ ... ........... .................. - .. - 5
12. Mortgage ot'Leasehold Interests............................................... ...... ......... .. ......... .. .... ................5
13. Governmental Approvals and Compliance......................... .... .. ....................................................6
14. Assignment .... ....................................................................... ......................... .......... .................. 6
15. Notices.................................. 6
16. Insurance........................................................................... 7
17. Operating E'spensc .......................................................... .... . . ...... . .. . .... .. . ..........................7
18. Taxes ...................................................................... ...... ... ................. . . .......... ..... ......................7
19. IMainlenalice.- 7
20. Liabilities to Third Parties; Risk of,Loss................4......... .. .. ....... ... .... . ... . ........... 7
21. Tenant's I)CI-fol-11111 lice and Surrender............................... 8
22. Default and Termination for Default................................ 8
23; Right toTerminme.................................. ...........4.....................................4.......................................8
24. Rights to Site Improvements and Infrastructure Upon Termination............................4...........98
25. Binding on Successors............................. .............................. ......................:................. .................9
26, Access to Premises-.......... .................... ...................... 9
27. Governing Lim..................................................................... ..............................4..........-4-...........9
28. I"Intirc Agreement .............4-1........................
29. Surveyand Testino .... ...........
I.......I.......................... .......4...............I...................... ....... ......................109
30. OH, Gas and Mineral Rights...................................................... .......................... .........................10
31. Hazardous Waste................................................................... 10
32. Mechanic's Licus 10-1-1
33. Headings......................4................. ....................... .. ...................Error! Bookmark not defined.4-22
34. Time ofEssence................................ 4--a
35. Severabilif .................. ........................................ .. ........ ........ .. ............ .. .............. .........124-2
36. Real Estill Broke . ................. 12-1-2
37. Further Assurances.................I..................................I.........................I..........................................12
38. Dispute Resolution............. ...................... ..................... ....... ... ... .. .... ....4.. ...... ... .... ............12
39. Right to Record........................................................... ..... .. -.. . ............. ....... ... . .......................12
40. Interpretation....I...I.......... ......................... ...... .. ... ... . . ....... ...4.... . .... . .. .. . ............ I.-I...... 12
41. Date ol'Agreenlent.... .................................................................................... ........................ ........12
Table of'Contents- i
ii
Exhibit A Legal Description of the Leased Premises.................................................................. 15
Exhibit B Tenants Survey ofthe Leased Premises.................................................................... 16
Exhibit C Certificate of Insurance.............................................................................................. 17
Gxhibil D Landlord Acknowledgment of Collateral Assignment of Lease................................ 13
Table of Contents - ii
I
LAND LFASP, OPTION AGREEINENT
(SOLAR FARM)
This Land Lease Option Agreement (Me "Lease") is made Ihis—clay of _.2014.
by and between City of Porl Collins, having an address WOO LaPorte Ave., Port Collins;CO 80521
("Landlord"), and CLC Solar 91038, L.LC, it Colorado limited liability company, hating an off ice m 3005
Center Green Drive, Suite 205, Boulder, Colorado 80301 (`'fenam-").
1. 'Phc Option. '
(a) For the sum of$100.00(the"Option fee'), to be paid to UnTord by"tenant
upon execution of this Lease and other good and valuable consideration, Landlord hereby grants to
Tenant the exclusive and irrevocable option for six (6) months from the date hereof through and
including 2014 (the`Initial Option Period'), to lease the Leased Premises(as defined
below)on the terms and conditions set forth bclohv(the "Option''). The time during which the Option
may be exercised may be extended for an additional six (6)months (the "Additional Option Period")
upon written notification to Landlord by Tenant accompanied by the payment of an additional $101100
(the"Additional Option Fee"), delivered to Landlord prior to the end of the Initial Option Period.
(b) In the event the Additional Option Fee is not paid and/or written notice is not
delivered by the due dale for the same, then the Option shall terminate and this Lease shall terminate and
Landlord shall be entitled to retain all previously paid soots as lull payment for the Option granted
hereunder. I lowever, if Landlord accepts the Additional Option Pee, Rent and/or written notice atcr the
Am date for Me same, then Tenant's default will be deemed waived and this Lease shall be reinstated.
Upon Tenant's exercise of the Option, the Inilial Term set forth in Section 3 below shall lake enhet.
(c) In the event Landlord fails to perform its obligations under this Lease for any
reason other than Tenant's breach,"tenant may pursue all remedies available at law and in equity.
Landlord hereby acknowledges that Tenant will incur significant expenses in reliance on this Lease.
2. Leased Premises. Upon Tenant's exercise of the Option, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord, by his Lease, an approsintately four(4) acre parcel of
property commpnly known as the "Pickle Plans" she at 500 Riverside Avenue, Fort Collins, CO, located
in Larimer County, Colorado, together with ingress, egress, and utility easements providing access to and
from it public road and the point of utility interconnection, as described in Sections 5 and 6 bolow(Me
"Leased Premises"). A legal description of the Leased Premises is attached hereto and incorporated
herein as Exhibit A. Landlord grants to Tenant the right to survey the Leased Premises at Tenant's cost,
and the survey shall then become Exhibit 13, which shall be attached hereto and made a part hereof. In
the evem of any discrepancy between the description of the property contained herein and the survey, the
survey shall control.
3. Term. The initial term of this Lease shall be for it period of tventy-five (23)years,
commencing on the date Tenant exercises the Option (the "Commencement Date"). Landlord grants to
Tenant the right to renew this Lease for up to two (2)additional terms of f ive (5) years cash upon hyritlen
approval of the Landlord, which shall not be unreasonably withheld (the "Extension 'I"erns"). In order to
exercise this renewal option, Tenant shall deliver to Landlord written notice of Tenant's intent to renew
this Lease not less On ninety(N)days prior to Be expiration of the then-eurrenl Icase terns. The initial
term and all renewal terms arc referred to herein as We"writ." Any holding over by Tenant after the
expiration of the Term of this Lease is prohibited without prior written approval of the Port Collins City
Contcil in its discretion.
LAND LEASE OPTION AGREEMENT
2
If the Solar Farm referenced in Scohn 4 below is not constructed and interconnected wish the
public utility network within twenty four(24) months of the date of this Lease, this Lease shall
automatically terminate with no liability amaching to Landlord; provided however that if Landlord causes
delay in Tcnanrs construction or interconnection efforts, this period shall be cxtendcd by a period
equivalent to the length orthe delay.
4. Rent,
(a) Provided Tenant fully constructs a community solar facility which is
interconnected with the public electric utility network on the Leased Premises no later than November
30, 2015: the rent during the Ann shall be S 230 per acre, per year, for an annual payment or$ 10_00. If
Landlord causes delay in Tcnant's construction or interconnection efforts, this period shall be extended
by a period equivalent to the length of the delay.
(b) If the above-described solar facility is not fully constructed within said period or
ceases operation and/or interconnection lix a period of 180 days or more, Temmt shall pay Landlord it
rcntrd fee in the amount of Three Thousand 'rhree Hundred Dollars ($3,300.00) per year or such prorated
portion thereof until such Solar Dann is constructed and interconnected with the public utility network.
Such rent, to the extent owal, shall be clue at the close oflhe eighteen(18) month period following the
execution of this Lease, and annually thereafter.
5. Improvement of Leased Premises.
(a) Cont notl cents. 'renant shall consn uct an approximately 330 kilowatt(expandable
up to 660 kilowatts)solar photovoltaic generation facility(the "Solar Ant?)at its We expense on the
Leased Premises. The Solar Dann shall consist of racking and foundations; inverters and transformers;
necessary electrical interconnections and all improvements and connections required to transfer and
deliver generation offshn including three (3) phase extensions and power holes), a 200 to 400 square-
foot structure to house electrical and maintenance equipment ("I'V lioy"); fencing and gating, enclosing
the Leased Premises; safety signage and solar photo voltaic ("PV") panels (collectively the "Site
Improvements and Infiasiructure'). Landlord has no obligation to make improvements on the Leased
Premises or Landlord's real property to accommodate the Solar Farm.
i
(b) Tempotaiv Construction 6asentent. 'Tenant shall use reasonable efforts to use
only the Leased Premises for ingress and egress, storage, construction and all improvement activities. and
shall not use the Property other than the Leased I'mmiscs fix the improvement activities, except as
Otherwise agreed to by the parties in writing. Should 'renam require additional men for by clown or
storage &Whg the construction of the improvements then Landlord shall grant Tenant a temporary
Construction casement for the use of one acre for a by down or storage area directly adjacent to the
Leased Premises(the"rCE") m no additional cost to Tenant Provided however. Tenant shall not have
the right to place any improvements on the TCQ and shall only have use of the TCE for a single period
not to exceed six months. 'I chant shall ensure that it repairs the surface of the TCG to the extent that its
laydown and storage activities cause damage thereto.
(c) I'reliminary Site Plan, Construction flans. For any new construction mt the
Leased Premises. such emstruclion shall be designed and built in a good and workmanlike manner in
compliance with the building and zoning laws and with all other laws, ordinances, orders, rules,
regulations aml requirements of all federal state or municipal governments and the appropriate
departments, commissions; boards and officers thereof.
Punhcnnore, such alterations_ additions and improvements shall not be
continence(] until any contractor or subcomractor engaged for such purpose delivers to the-renam (with a
copy to the Landlord) a certificate evidencing that proper workmen's compensation insurance is in full
LAND LEASE OPTION ACREI?\I ENT
3
force and effect, covering any persons performing such work, and may not be canceled without at leas)
ten (10)days prior written notice to the Landlord. Furthermore, to the extent that a permit is required I'or
certain portions of the alterations, additions or inaprovenwnts, such portions of the alterations, additions
or improvements shall not be commenced until the Tenant has procured and paid for the municipal and
other governmental permits and authorizations required for such portion of the work from the various
municipal departments and governmental subdivisions hadngjurisdiction over the matter.
(d) flan Submission. Tenant shall submit its plans for construction to the City of
Port Collins Planning Commission and construct the Solar Garden in accordance with the stated
requirements thereof.
(c) Landlord Access and Groundwater Monitoring. Landlord shall have access to
the Leased Premises during the Term hereof for the purpose of accessing the Landlord's groundwater
monitoring wells existing within the Leased Premises. Landlord acknowledges that there are two
monitoring wells within the Leased Premises, and that each monitoring well is marked by a well cap
visible at ground level. 'Tenant agrees to not construct any portion of the Solar Garden within f ivc(5)
feet orally such well cap. Should Landlord determine Out, any addhiolinkmonitnring cvell(s) needs to be
added to the Leased Premises diving the Tenn, Tenant agrees to cooperate in identifying a suitable
location for such well(s). Notwithstanding the foregoing,Tenant shall not be required to relocate any
portion of its Solar Farm, not shall Tenant be required to alter its construction plans in order to
accommodate tiny new monitoring well(s). Landlord understands the risks associated with accessing the
Leased Ifenuses, once the Solar Dann is operational and :agrees to ensure that Landlord's monitoring
activities are conducted in a safe manner. Landlord further agrees that Landlord's monitoring activities
shall not unreasonably interfere with Tenant's use or quiet possession of the Leased Premises and shall
not cause any damage to the Solar Farm. Landlord will be responsible for any costs associated with its
monhoring acllvltks.
(1) Siege. Tenant shall have the right ado sole cast to place one or more signs
advertising the Solar Farm provided that, prior to putting up any such signage, Temmt has oNsthal all
required sign permits from the local governing authority and maintains such signage in compliance will
all City sign and land use regulations.
(g) Pencine. Tenant shall maintain a fence around the Solar Farm for the duration of
the lose Term and any extensions thereto. Such fence shall be in compliance with land use planning
requircnenis.
(h) Improvement Construction Costs. Landlord shall be responsible to Tenant for
any costs incuned as a result of any constnrction delay due to Landlord's testing for and/or remediaiion
of 1-hazardous Materials, as defined in Section 30. Except as set forth in Section 30(e), Tenant shall be
responsible for all other construction costs for its improvement ofthe Leased Premises, including those
at due to any unforeseen condition.
G. Ingress. Egress, IlMhv and Solar 1'sasement. As pars of the Leased Premises,
Landlord hereby grants to Tenant an casement for ingress and egress to the Leased Premises, for access
to and from Leased Premises from a public road,and over property of Landlord within and adjacent to
the Leased Itemises for construction and maintenance of the Site Improvements and Inf rammcuu'e on the
Leased Premises, for the installation, construction, use and maintenance of underground and
aboveground telephone, telegraph, and power lines and electric utilities in connection with Tenam's use
of the Leased Premises, and upon and above the property of Landlord for the unrestricted right to receive
and utili-rc solar energy al the Solar Faint (the"Easement`). Any and all landscaping installed or added
by Tenant to such Easement shall comply with the approved development plans for the site. The term of
this Easement shell commence upon the Commencement Date of this Lease and shall continue until the '
LAND LEASE OPTION AGREEM Nr .
]
last to occur of(i)expiration and/or termination of the Lease Term, or(ii) rcmoval by Tenant of all of its
property from the Leased Premises after expiration of the Lease"Perm. Additional details concerning the
location and configuration of the Easement shall be set fords in the survey referenced in Section 2 , and
shall be included in Exhibit 13 (ret'erowed in Section 2)and in any recorded Memorandum of this Lease.
7. Maintenance antiSecurih%
(a) Maintenance. The Solar Pane shall be maintained by'Tenant at its otvn expense.
Tenant shall maintain, protect zinc] preserve the Sohir Dann in a safe, neat and attractive condition and in
good and serviceable repair. "Tenant shall be responsible for ongoing vegetation and weed management
on the Leased Premises. 'tenant is responsible for any repairs, maintenance,and replacement of the
fencing material delineating the Leased Premises. Any repairs, maintenance, and replacement of fencing
material beyond the Leasccl Premises shall be the responsibility oftho Landlord.
(b) Snow Removal. Landlord does not provide snow removal service on the access
road serving the Leased Prcntises, cast of the intersection of Riverside Avenue and iNlWhcuy Stwcq as
more specifically described on Exhibit A. Snow removal on the Leased Prcntises, if needed, shall be the
responsibility ofTenant as necessitated by Tenant's operation ofthe Soh r I ann. Any snow removal
activities will minimize any Magi to the existing ground surface of the site. Tenant will promptly
repair any damage caused by its snow removal activities. 'renant will only use the existing or new access
roads via the access casement for vehicle access to the site.
(c) Security. Security for the Solar Pawn shall be the responsibility of'I'enant.
Nothing in this Lease shall be construed to impose security obligations upon Landlord. Landlord shall
not be liable for any loss or damages suffered by Tenant or third party solar panel owners due to Tenants
and such third parties use and occupancy of and activities on the Leased Premises.
8. Title and Quiet Possession. Landlord represents and covenants that Landlord owns the
Leased Premises and property subject to the Easement in the simple, free and clear of all liens,
encumbrances, and restrictions of every kind and nature, except for those that currently appear in the
recorded chain of title and are reported as exceptions on the commitment for title insurance that Tenant
nmy obtain. .
(a) Landlord represents and warrants to Tenant that Landlord has the full right to
make this Lease and that Tenant shall have quiet and peaceful possession of the Leasccl Premises and the
Easennent throughout the Lease Term.
(b) Should Landlord reasonably ivquire access to the Leased Premises during the
Lease Terns, Landlord shall no6y Tenant of the need for such access, and the parties shall work out a
mutually convenient arangement for Landlord to access such site, accompanied by Tenant personnel.
(c) Should there be an emergency or other condition posing a risk of imminent harm
to life or property, Landlord shall ini nediatedy notify Tenant of such condition and may in such one
access the Leased Premises to reasonable' mitigate such risk. Landlord acknowledges all(] agrees that in
the event Landlord accesses the Leased Prcntises in respect town), such condition, Landlord shall use
evey reasonable effort to not damage the Solar Dann in any may.
9. Title to Site Ingtroventents and Infrastructure.
(a) ' Site Improvements and Infrastructure. Title to the Site huprovcmems and
Infrastruct ue remains with "Tenant at all times during the Term.
LAND LEASE,011HON AGREEMENT
5
(b) Repair of Landlord's Property. In the event that 'renant, 'fenanl's agents,
employees, contractors or invitees causes any damage to Landlord's real property, including Without
hinitalion any above-ground or underground utilities or other improvements, in the course orally activity
undertaken by Tenant under this Lease, Tenant shall facilitate the repair of such damage to rettu'n Such
property of Landlord to substantially the same condition as it existed prior to such damage, al Tenant's
sole expense.
10. Uses and Operations.
(a) Unauthorized Uses and Operations. The"Tenant's uses under this Lease include
file construction and operation of the Solar Farm, and activities related thereto. Nothing in this Lease
shall be deemed to give Tenant the right to engage in any activities which are not related to the foregoing
use, except as otherwise allowed under the provisions of(his Lease. Nor shall anything in this Lease be
deemed to give Tenant the right to engage in any activities which are not permitted by the Fort Collins
Land Use Coda
(b) If during the term of this Lease, following completion of'construclion, Tenant's
Property is occupied and used by Tenant for it purpose other than a Solar Farm,this Lease will
automatically terminate, and Tenant will restore the Leased Premises as required by this Lease. This
provision shall not apply to a temporary vacancy of the Leased Premises.
it. Subordination,Attornment, and Nondisturbance. Tenant agrees that, if requested by
Landlord, this Lease shall be subject and subordinate to any mortgages rn'deeds of trust now or hereafter
placed upon file Leased Premises and to all modifications thereto, and 10 all present and future advances
made With respect to any such mortgage or(Iced of trust: provided that Tenant's possession of the Leased
Premises and use of the Easement shall not be disturbed so long as Tenant shall continue to perf'ornn its
duties and obligations under this Lease and Tenant's obligation to perform such duties and obligations
Shall not be in any Way increased or its rights diminished by the provisions of this paragraph. "Tenant
agrccs to adorn to the mortgagee, trustee, or beneficiary under ally such mortgage or deed of trust, and to
the purchaser in a sale pursuant to the foreclosure thereof: provided that such mortgagees, trustees,
beneficiaries and purchasers agree in \\siting that Tenant's possession of the Leased Premises and use of
the Easement shall not be disturbed so long as"tenant shall continue to perform its duties and obligations
under this Lease. Within ten (10) business days of Tenant's notice of its intent to exercise the Option, or
within ten (10) business days of the date of creation of ant' future nlotigages or deeds of trust, Landlord
Shall request Landlord's secured lenders to provide an Attornment and Nondisturbance Agreement in
form reasonably acceptable to Tenant executed and acknowledged by Landlord and the holder of any
mortgage of deed of trust to which this Lease is, or shall become, subordinate.
12. MortL!afle of Leasehold Interests.
(a) Lender Collateral. Tenant shall have the right to pledge, nlmtgagc and/or
collaterally assign its leasehold interest and the Solar Farm as security to lender(s)(hereinafter
"Lenders") for financing purposes Without the further consent of Landlord. Landlord agrees to execute
and deliver to Tetlant within ten (10) days of any Tenant request therefor made from time to lime, a
Landlord Acknowlecigement of Collateral Assignment of'Lcase in the form of Exhibit I) hereto, modified
as required in order to make the representations of the Landlord in such Acknowledgement Irue and
correct as of the date of its execution. Landlord also agrees to promptly execute an estoppel certificate
and any such other documentation, in a form reasonably acceptable to Landlord! as may reasonably be
required by such lender(S) from time to time to cerlifv as Io the status ol'this Lease and to the
performance 'of Truant hereunder as 01'111c date of such certification.
(b) Notices to Lenders. As a precondition to exercising any rights or remedies related to
any default by Tenant under this agreement, Landlord shall give written notice of the defakill to each
LAND LEASE OPHON AGREEMENT
f
Lender that is of record with Landlord, at the same lime it delivers notice of default to Tenant, specifying
the alleged event of default and the required remedy. Each Lender shall have the same amount of tittle to
cure the default under this Lease as is given to Tenant hereunder, and the same right as Tenant to cure
any default or to remove any property of Tenant or Lender located on the Leased Premises. The cure
period for each Lender shall begin to run at the end of the cure period given to Tenant in this agreement,
but in no case shall the cure period for any Lender be less than Thirty(30)days after receipt of default j
notice. Failure of Landlord to give a Lender notice shall not diminish Landlord's rights against Tenant,
but shall preserve all rights of such Lender to cure any default and to remove any properly of Tenant or
the Mortgagee located on the Leased Premises.
(c) Kiehl to Cure Defaults: Substitution. To prevent termination of this Lease, the
Lender shall have the right, but not the obligation,at any time to perl'orttl any act necessary to cure any
del;mlt and to prevent the termination of this Lease or any interest in the Solar Farm. fit the event of an
uncured default by the holder of"Tenant's entire interest in this Lease, or in the event of it termination of
this agreement by agreement by operation of law or otherwise, each Lender that is not in delault of its
obligations, shall have the right to have Landlord either recognize the Lender's interest or grant it new
lease substantially identical to this Leasc. Under any such new lease, the Lender shall be entitled to, and
Landlord shall not disturb the Lender's continued use and egioyntenl thereunder for the remainder of the
Lease'Terns.
13. Governmental Approvals and Conmliance. Tenant shall obtain any necessary
governmental licenses or authorizations required for the construction and use Of tile Site Improvements
and Inl'rastructw c on the Leased Premises and shall comply with federal, state, and local government
laws and regulations applicable thereto. Notwithstanding the foregoing, Tenant shall not be responsible
for any matters arising in connection to Environmental Laws (as defined below) relating to the Leased
Premises, except to the extent Tenant has responsibility therefor under the express terms of Section
30(c) below.
14. AssiL ntent and Snbletliriz. Tenant shall not assign or transfer this kease, or any
interest herein, without the prior written consent of Landlord which shall not be unreasonably withheld,
delayed or conditioned, and consent to an assignment or sublease shall not be deemed to be consent to
any subsequent assignment or sublease. Notwithstanding the foregoing, "Tenant is expressly permitted to
assign its rights and responsibilities under this Lease, without obtaining Landlord's consent and in its
sole discretion,to any entity owned or controlled by Tenant or tinder common ownership or control with
Tenauri.
15. Notices. All notices, demands, requests, consents, approvals, and other insuuntcnts
required or permitted to be given pursuant to this L.case shall be in writing, signed by the notifying party,
or off icer, agent, or attorney of the notifying party, and shall be deemed to have been effective upon
delivery if served personally, including but not limited to delivery by messenger, overnight courier
service or overnight express mail or upon posting it-sent by registered or certified mail, postage prepaid,
return receipt requested, and addressed as follows:
TO Landlord: Cite of Fort Collins
Utilities Department
700 Wood Street
PO Box 580
Port Collins, CO 80522
With a copy: City of Fort Collins
City Attorneys Office
300 LaPorte Avenue
PO Box 580
LAND LEASE OPTION nGREEMf:NT
7
Foil Collins. CO 80522
To Tenun: C177C Solar R 1038, LLC
3005 Center Green Drive, Suite 205
Boulder, CO 80302
With a copy: By email to mark.boyera,casycleanenej-,, .com
The address to which any notice, demand, or other writing may be delivered to any patty as
above provided may be changed by written notice given by such part),as above provided.
16. Insurance. At all times during the Term of this Leasc,"tenant shall maintain in full
force a comprehensive public liability insurance policy covering Tenant's operations, activities, and
liabilities on the Leased Promises, having singly or in combination limits not less than One Million
Dollars($1,000,000) in the aggregate; please see attached"Exhibit C", Insurance Requirements. Such
policy shall mane Landlord as an additional insured under such policy as the Landlord's interests may
appear. Upon Landlord's request, Tenant shall give Landlord it certificate of insurance evidencing that
the insurance required under the Lease is in force.
(a) Any insurance policy purchased by Tenant must be written by an insurance
carrier which has a current rating by Best's Insurance Reports of"A" (excellent)or better and oust be
authorized by law to do business in the State of Colorado.
(b) In the event that Tenant hails to procure, maintain and/or pay for at the times and
for the duration specified herein any insurance required by this Lease. Landlord may(but without
obligation to do so), upon three(3) business clays' prior notice to Tenant, at any time or from time to
time, procure such insurance and pay the premiums therefor. In such event. Tenant shall repay Landlord
all suns so paid by Landlord, together with interest thereon and any costs or expenses incurred by
Landlord in connection therewith, within ten (10)days following Landlord's written demand to Tenant
for such payment.
17. oneratine 1?menses. -renant shall fully and promptly pay for all light, power
telephone service, and other public utilities fiurnished to the Leased Premises and used by Tenant
throughout the Term hereof, and for all other costs and expenses of every kind whatsoever in connection
With the use, operation, and maintenance of the Leased Premises and all activities conducted thereon.
18. Taxes. Landlord shall pay when due all real properly taxes and all other fees and
assessments attributable to the Leased Premises. I-lowever.Tenant shall pay, as additional Rent. any
increase in real property taxes levied against the_Leased Premises that is directly attributable to Tenants
improvements to the Leased Premises. Landlord agrees to furnish proof of such increase to Tenant.
Tenant shall also be solely responsible for all personal property taxes, to the extent due, attributable to
the use of the improvements Tenant places on the Leased Premises.
19. Maintenance by Landlord. Landlord shall maintain its properly adjacent to the Leased
Premises in good condition and state of repair to avoid interference with Tenant's use of the Leased
Premises and the Easement. Landlord shall not construct structures or plant trees adjacent to the Leased
Premises that will impede solar access to Solar Farm.
20. Liabilities to Third Parties: Risk of Lass. Without waiving any delenSe or right of
contribution front any other person or entity, and except as set forth in Section 30, Tenant shall hold
Landlord harmless from any liability(including reimbursement of Landlord's reasonable legal fees and
all costs) for death or bodily injury to third parties, or physical damage to the property of third parties, to
the extent caused by the fault of Tenant or any of Tenant's agents, servants,employees; licensees,
customers. or lenders, in connection herewith. Without waiving any limitation of liability or protections
LAND LEASE OPTION AGREEMENT
s
afforded Landlord under the Colorado Governmental Immunity Act, Colo. Rev. Still. §§ 24-10-101 el
seq., as now or hereafter amended, Landlord is responsible for its own negligence and that of its agents,
employees, and contraclors. It is understood and agreed that all "Tenant shall bear the risk of loss for any
properly kept, installed; stored, or maintained in or upon the leased Premises by Tenant. Landlord shall
not be responsible Ibr any loss or damage to equipment owned by Tenant that might result from
tornadoes; lightning, windstorms, floods, or other Acts of God. The covenants of this paragraph shall
survive and be enforceable and shall continue iti full force and effect for the benefit of the Parties and
their respective subsequent transferees, successors, and assigns, and shall survive the termination of this
Lease, whether by expiration or otherwise.
21. 'Tenant's Performance and Surrender. Tenant shall pay the rent and all other sums
required to be paid by Tenant hereunder in the amounts. at the times, and in the manner herein provided,
and shall keep and pet m fom all ters and conditions hereof on its part to be kept and performed, and at
due cspiralion or sooner termination of this Lease, surrender to Landlord the Leased Premises subject to
the other provisions of this Lease.
22. Default :md Termination for Defaull.
(a) Landlord o-Tenant shall be in default of this Lease if tither party,breaches any
maicrial provision hereof and said breach is not cured by the breaching party within thirty(30) days of
receipt ol'notice ofsaid breach from the non-breaching party,or il'such cure cannot reasonably be had
within said thirty(30)day period, then if cure of such breach is not commenced within thirty (30) days of
receipt of such notice and not thereafter completed using diligent efforts. Upon the breaching party's
failure to cure its breach within such time, as applicable, the non-breaching party shall have the right to
terminate this Lease for defaull, and to pursue such remedies as may be available in law or equity.
23. Riellt to Terminate. Tenant may terminate this Lease, at its option, after giving not less
than thirty (30)days' notice to landlord, il':
(1) Any governmental agencv denies ;t request by"Tenant for or revokes a
permit. license,or approval that is required for Tenant to construct or operate the Site Improvements and
Infrastructure on the Lcascd Premises:
(2) Tenant determines that technical problems. which problems cannot
reasonably be corrected, preclude Tenant from using the Leased Picruiscs for its intended purpose;
(3) Tenant determines that Tenant (toes not have aceeplable and legally
cnforccable means of ingress aml egress to and from the Leased Premises;
(4) Utilities necessary for Tenant's use of the Leased Premises arc not
available to the Leased Premises:or
(5) 'file ,cased Premises are damaged or destroyed to an extent that
prohibits or ntalerially interferes with Tenant's use of the Leased Premises.
In the event of termination by Tenant pursuanl to this provision_ Tenant shall be relieved of all
further liability hereunder except its obligation to remove its improvements as provided herein. Any
rental fees paid prior to said termination date shall be retained by Landlord.
LAND LEhASE OI'rt ON AGIt."idyl eNT
9
24. Riehts to Site Improvements and Inlhastructure Upon Terminalion.
(a) Title: "Tenant. At least 90 days prior to the expiration of the Term(including the
expiration of any cxlension to such Term under Section 3). Tenant shall advise Landlord in writing of
Tenant's intention regarding Tenant's ownership of the Solar Farm upon expiration, based upon one of
the options set forth in this Section24(a):
(1) . Retain Title and Operating Rights. Retain ownership of the Solar Farm
and continuc'to operate the Leased Premises as it community-owned solar farm under a
new lease agreement with Landlord if:
(i) Tenant has advised Landlord of Tenant's desire to continue
Operations in writing a minimum of ninety(90) days prior to the expiration date of the
applicable term, as required in this Section 24(a)(1); and
(i i) Landlord and Tenant have agreed to the new lease provisions in
least thirty(30)clays prior to the expiration date of this Lease. The newly negotiated
lease shall then begin upon the expiration of this Lease.
It is understood and agreed that if Tenant and Landlord are unable to
agree upon the terms of a new lease, then the provisions of Section 24(a)(2), below,
regarding removal shall apply.
(2) Remove. Remove the Solar Farm, including the Site Improventcnis and
hlh'astructme owned by Tcnant and solar panels owned by third parties. Such removal
shall be completed within one hundred twenty(120) days following the expiration of the
Ilill term of this Lease, during which time Tenant shall be subject to all terms and
conditions in this Lease with respect to access and said removal as if still a tenant.
(b) A bail donntenUhoncompIiance with Section 24(4). IfTenant either(i) abandons
the Leased Premises or(ii)does not provide the notice to"Tenant described in Section 24(a) within the
time period for such notice described therein, then Landlord shall notify"Tenant whcther Landlord desires
to enter into an new lease as described in Section (24)(a)(I) or desires Tenant to remove the Solar Farm
as described in Section 24(a)(2), and the parties shall proceed accordingly; provided however that in the
event that Landlord and Tenant have not entered into the new lease described in Section 24(a)(I)al least
ten (10)days prior to the expiration of the Term (including the expiration of any extension to such Tel
under Section 3). then Tenant shall remove the Solar Farm as set forth in Section 24(a)(2). If Tcnant is
obligated under this Section 24 to remove the Solar Farm and fails to do so within the time set forth in
Section 24(a)(2), then "Tenant shall be in default, and Landlord, after notice ofdefault and expiration of
the applicable cure periods set forth in Section 22 hereof, may remove the Solar Farnl at Tenant's cost.
25. Binding on Successors. The covenants and conditions contained herein shall apply to
and hind the heirs. successors, executors, administrators, and assigns ol'the parties hereto.
26. Covernina Law. The parties intend that this Lease and the relationship of the parries
shall be governed by the laws of.the State of Colorado.
27. Entire Agreement. All of the representations and obligations of the parties are
contained herein, and no modification, waiver, or amendment of this Lease or of any of its conditions or
provisions shall be binding upon it party unless in writing signed by that party or it duly authorized agent
of that party empowered by a written authority signed by that party. The waiver by any party of n breach
of ally provision of this Lease shall not operate or be construed as it waiver of any subsequent breach of
that provision by the same party, or of any other provision or condition of the Lease.
LAND LEASE OPTION AGREEMENT
10
28. Survey and Testiae. 'fella[it shall have the right during the IHit it]I Option Period and
any extension to survey, soil test,and make any other investigations necessary to determine if the surface
of the Leased Premises is suitable for construction of the Solar Farm. If"Tenant, within the above-stated
tittle, determines that for any reason the Leased Premises is not suitable_ this Lease, upon written notice
given to Landlord, shall become null and void; provided that at Tenant's sole expense the Leased
Premises shall be promptly restored to its condition prior to such testing and investigations. - I
29. Oil, Gas and Mineral Riehis. Landlord does not grant, lease, let, or demise hereby, bin
expressly excepts and reserves herefrom all rights to oil, gas. and other minerals in, on, or under and that !
might be produced or mined front the Leased Premises; provided, however. that no drilling or other
activity will be undertaken on the surface of the Leased Premises to recover any oil, gas, or minerals
during the Term hereof. This Lease is given and accepted subject to the terms and provisions of any valid
oil, gas, and mineral lease covering the Leased Premises or any part thereof, now of record in the office
of the County Clerk, provided, however, that any future oil, gas, or mineral lease covering the above-
described lands or any part thereof shall be in all respects subordinate and inferior to the rights. `
privileges, powers, options, immunities, and interests granted to Tenant under the terms of this LCIISC.
30. hazardous Materials and Environmental Concerns.
(a) The tens Hazardous Materials shall mican any substance, material, waste, gas, or
particulate matter that is regulated by any local governmental authority, the State of Colorado, or the
United Slates Governnncnt, including, but not limited to, any material or substance which is (i)clef incd as
a "hazardous waste,""hazardous material," `hazardous substance,' "extremely hazardous waste,"or
"restricted hazardous waste" under any provision of state or local law, (ii) petroleum, (iii)asbestos,(iv)
polychlorinated biphenyl,(v)radioactive material, (vi)designated as a "hazardous substance" pursuant to
Section 311 ofthe Clean Water Act, 33 U.S.C. Sections 1251 ct seq. (33 U.S.C. Section 1317), (vii)
defined as it "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery
Act, 42 U.S.C. Sections 6901 ct seq. (42 U.S.C. Section 6903), or(viii) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Invironmental Response, Compensation, and
Liability Act. 42 U.S.C. Sections 9601 et seq. (42 U.S.C. Section 9601). The term Environmental Laws
shall mean all statutes specifically described in the foregoing sentence and all applicable federal, state,
and local environmental health and safety salutes, ordinances, codes, rules, regtdations, orders, and
decrees regulating. relating to, or imposing liability or standards concerning or in connection with
Hazardous Materials
(b) Landlord represents and warrants that, to the best of Landlord's knowledge all(]
with the exception of any information in the May 1995 Report of A Phase I Environmental Site
Assessment Update Performed at 500 Riverside Avenuc. Fort Collins. Colorado, for [)can Foods by
Stewart Environmental Consultants. Inc., (i)the Leased Premises have not been used for the use,
manufacturing, storage, discharge, release, or disposal of Hazardous Materials, (ii) neither the Leased
Premises nor any flat-[ thereof is in breach of any Environmental Laws, (iii) there are no underground
storage tanks located on or under the Leased Premises, and (iv)the Leased Premises arc free of any
Hazardous Materials that would trigger response or remedial action under any Environmental Laws or
any existing common law theory based on nuisance or strict liability.
(c) Tenant agrees to remediate and to be responsible for, and, to the maxinunn
extent allowed by law. to indemnity and hold Landlord harmless from. airy and all debts, liens, claims,
causes of action, administrative orders and notices, failures or'I'enant to follow applicable law, costs
(including, without limitation, response and/or remedial costs), personal injuries, losses. damages.
liabilities. demands, interest, lines, penalties, and expenses, including reasonable attorneys` fees and
expenses, consultants' fees and expenses, court costs, and all Other out-of-pocket expenses, to the extent
any such items wise(file to any new Hazardous Substances being brought onto the Leased Premises and
� 1
II
subsequently released onto the Leased Premises byTenant, or-tenant's employees, contractors, agents,
successors, or assigns.
(d) Landlord agrees to remediate and be responsible for, and, to the maximum extent
allowed by law, subject to all limilations and protections afforded the City of fat Collins muter any
applicable provisions of the Colorado Governmental immunity Act, Colo. Rev. Stat. §§ 24-10-101 e'l
seq., as now or hereafter amended,to indemnify and hold "Tenant harmless Fran, any and all debts, liens,
claims, causes of action, administrative orders and notices, costs(including, without limitation, response
and/or remedial costs), personal injuries, losses, damages, liabilities, demands, interest, fines, penalties,
and expenses, including reasonable attorneys' fees and expenses, consultants' fees and expenses, court
costs; and all other out-of-pocket expenses, h> the extent any such items arise from the presence of any
I lazardous Substances on or about the Leased Premises at any time, except to the extent due to any new
Hazardous Substances being brought onto the Leased Premises and subsequently released onto the
Leased Premises by Tenant, or Tcnant's employees, contractors, agents, successors, or assigns.
(e) IFduring the course of construction of the Solar Farm, Tenant discovers any
substances on the Leased Premises which Tenant believes to be possible Hazardous Substances(other
than chlorides o other substances described in environmental reports described in (b) of this Section 30),
then 'Tenant will stop construction and provide notice of such discovery to Landlord within 72 hours.
Landlord shall reasonably determine whether remediation is required and, if so, shall begin remedialion
of-any such condition promptly, and shall complete such remediation as soon as possible using diligent
efforts. Landlord shall be responsible to Tenant for any construction delay costs incurred by Tenant as a
direct result of the presence, testing and/or remediation of Hazardous Substances on the Leased Premises.
Landlord acknowledges that 'fenant is not an environmental expert and agrees that Tenant shall have no
independent duty to identify, determine, inquire or investigate whether any substance is a Hazardous
Substance and that Tenant shall not be charged with constructive knowledge orally such Hazardous
Substances. Tenant shall provide notice to Landlord at least 24 hours prior to'fenant's commencement
ofexcavation work an the Leased Premises. During any such period of excavation work, Landlord shall
be permitted to have it representative on the Leased Premises to observe the excavation activity.
(Ij -Tile covenants of this Section shall survive and be enforceable and shall cominue
in full force and effect for the benefit of each party and its subsequent transferees, successors, and
assigns and shall survive the Term of this Lease and any renewal periods thereof.
31. Mechanic's Liens. Tenant will not cause or permit any mechanic's or materiaiman's
lien to be placed on the Leased Premises, and Tenant agrees to discharge and to indemnify,defend,and
hold harmless Landlord from any such lien from a pity claiming by, through, or under Tenant.
32. Public Budget Requirements.Tenant acknowledges that Landlord is a municipal
corporation and subject to public finance requirements established by statute and charter, including
without limitation those appropriations required under Section 8 of the City of fort Collins Charter.
Landlord represents and warrants that it has appropriated funds sufficient to comply with the
requirements of said statutes and Section S of the Charter. and that such appropriated funds shall be
deemed to be encumbered f'or the"Perm for Landlord's obligations under this Lease and not subject to
' lapse.
i
33. Ileadinzs. -Pile headings of sections and subsections are fix convenient reference only
and shall not be deemed to limit, construe, affect, modify, or alter the meaning of such sections or
subsections.
34, Time of Essence. Time is of the essence For Landlord's and Tenant's obligations under
this Lease.
LAND LEASE or'rtoN AGREEMENT
12
35. Severability. ]rally section, subsection, term, or provision of this Lease or the
application thereof to any party or circumstance shall, to any extent, be invalid or unenlorceable, the
remainder of said section, subsection, terns,or provision of the Lease, or the application of same to
parties or circumstances other than (]lose to which it was held invalid or unenforceable, shall not be
affected thereby and each remaining section, subsection, term, or provision of this Lease shall be valid or
enforceable to the fullest extent permitted bylaw
a
36. Real Estate Broker. Landlord represents and warrants that Landlord has not signed a
listing agreelllent, dealt with, or otherwise agreed to pay a broker's commission, finder's fee, or other like
compensation to anyone in connection wi(h the lease of the Leased Premises or the transaction
contemplated by this Lease, and Landlord agrees to indemnify and hold "Tenant harmless from and
against any such claims or costs, including attorneys' fees, incurred as it result of the transaction
contemplated by this Lease.
37. Further Assurances. Each of tlic parties agrees to do such further acts and things and to
execute and deliver such additional agreements and insu'unlents as the other may reasonably require to
consummate, evidence, or confirm this Lease or any other agreement contained herein in the manner
contemplated hereby.
38. Dispute Resolution. Any dispute between Landlord and Tenant arising under this Lease
shall in the first instance be addressed by taking the following steps: 1) by informal negotiations between
Landlord and Tenant following an exchange of wriucn notice of and response to said dispute and for a
period of lime not to exceed 45 days unless extended by mutual agreement; and if not resolved by
negotiations, then 2) by arbitration conducted by an impartial, neutral arbitrator consistent with the
guidelines of the American Arbitration Association. Such arbitration proceeding shall be held in Larinler
County, unless otherwise agreed to by the parties in writing.
39. Right to Record. The Tenant shall have the right to prepare, execute and record a
Memorandum of Lease, setting forth the general terms of the Lease and such other information as Tenant
deems necessary. 'Tenant shall provide the Landlord it copy of the recorded Menuxandunl of Lcasc after
recordation by the LariulCr County Clerk and Recorder.
40. Interpretation. Each party,to this Lease and its counsel have and revised this
Lease. 'file normal rulC of construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Lease or orally amendments or exhibits
to this Lease.
41. Date of Agreement. The parties acknowledge that certain obligations of Landlord and
Tenant arc to be performed within certain specified periods of tinge which are determined by reference to
the date of execution of this Lease. The parties therefore agree that wherever the term "date of Cxecution
of this Lease_"or words of similar import are used herein, they shall mean the date upon which this Lease
has been duly executed by Landlord or Tenant, whichever is the later to so execute this Lease. The
parties further agree to specify the date on which they execute this Lease beneath their respective
signatures in the space provided and warrant and represent to the other that such it date is in fact the date
on which each duly executed this Lease.
I
42. Cutmterparts.This Lease(and any of the Exhibits) may be executed in one or more
counterparts each of which shall be deemed an original and all of\vhich shall be deemed one and the
sure Lease. Delivery of an execited counterpart of this Lease by facsimile or PDL iransilllsson \vlll be
dccmed as ct1'ectivc ns delivery of an originally cxccuted counterpart. Each party delivering an cxccuted
counterpart of this Lease by facsimile or PDF transmission will also deliver an originally exectted
counterpart, but the failure of any party to deliver an originally executed counterpart of this Lease will
not affect the validity or effectiveness of this Lease.
LAND LEASE 011'1'10w AGREEMENT
13
(Signatures appear on the following page
LAND LEASE OPTION AGREEMENT
14
IN VV'ITNESS WHEREOF. the parties hereto have executed this Lensc as of the day and year first
above written.
LANDLORD: TENANT:
City of Fort Collins CL,C Solar It1038, LL,C
BY: Lay:
Karen Weitkunat
"title: Mayor Title:
Date: Datc:
i
STATE OF
COUNTY to wit:
The foregoing instrument was acknowledged before ntc in nryjurisdiction aforesaid this
day of 2014, by who is
of a
for and on behalf of the
My Commission HNpires:
Notary Public for
STATE OF
COUNTY OF to wit:
I
"File foregoing insu-untcnt teas acknowledged belbre me in my jurisdiction aforesaid this
day of 2014, by who is
of a
for and on behalf ol'thc
My Commission Expires:
Notary Public for
i
LAND LEASE OPTION AcwreMeNr -
15
EXI11BIT A
LEGAL, DESCRIPTION OE TI1E LEASED PREMISES
I
M GINNING at a point on a line which is parallel With the South side of Section 12, Township 7
North, Range 69 West of the 61h P.M.. which line hears S. 89 degrees 38'1:-and 110 tect
Northerly therefrom, which point is 3762.6 feel 5..89 degrees 38' E. of the West side of said
Section 12, thcncc by course and distance:
Thence N, 49 degrees 39' W. 1181.2 leet, along the NE line of Colorado Southern rieht ol'Nvtly.
Thence N. 41 degrees 15'1-. 30 feet,
Thence S. 79 degrees 35'E. 761.4 feet,
'fltence S. 41 degrees 15*W, 49.5 feet.
Thence S. 43 degrees 20'1:. 195 feet.
Thence S. 23 degrees 25' E. 360.8 fern.
Thence S. 25 degrees 04' E. 140.3 feet.
Thence S. 45 degrees W. 38.5 feet,
Thence N. 89 degrees 38 W. 173.1'lect to the POINT OF BEGINNING:
EXCEPT any which mat, be contained in deed recorded October 24. 19,19 in Book 882 at Page 50
COUNTY OF L.ARIN9ER, STATE OF COLORADO
I
LAND LEASE ol'noN AGRt'EMEINT
Exhibit"B"
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16
EXHIBIT C
TENANT'S SURVEY 01 TfIE LEASED PREMISES
To be revised by Tenant based upon the survey referenced in Section 2 of the Lease.
1
I
i
LAND LEASE OPTION AGRI?I?DIFa\T
Exhibit"0"
Page t of 3
LEGAL DESCRIPTION
A PARCEL OF LAND LOCATED IN THE SOUTHEAST QUARTER OF SECTION 12, TOWNSHIP 7
NORTH, RANGE 69 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF LARIMER,
STATE OF COLORADO, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BASIS OF BEARING OF THIS DESCRIPTION IS ALONG THE SOUTH LINE OF SAID
SOUTHEAST QUARTER, ASSUMED TO BEAR S89'56'41"E A DISTANCE OF 2630.31 FEET
FROM A 2" ALUMINUM CAP L.S. #28656 FOUND AT THE SOUTH QUARTER CORNER OF
SAID SECTION 12 TO A 2" ALUMINUM CAP L.S. #32444 FOUND AT THE SOUTHEAST
CORNER OF SAID SECTION 12;
BEGINNING AT A POINT ON THE NORTHERLY RIGHT—OF—WAY OF COLORADO HIGHWAY 14,
SAID POINT BEARS N86'36'52"E A DISTANCE OF 1249.58 FEET FROM SAID SOUTH
QUARTER CORNER OF SECTION 12;
THENCE ALONG A CURVE TO THE RIGHT, AN ARC LENGTH OF 36.30 FEET, HAVING A
RADIUS OF 4-5.00 FEET, THROUGH A CENTRAL ANGLE OF 46'1 2'48", AND A CHORD
WHICH BEARS N23'06'21 "W A DISTANCE OF 35.32 FEET; THENCE N00'00'03"E A
DISTANCE OF 2.27 FEET TO THE SOUTHERLY LINE OF LANDS DESCRIBED AT RECEPTION
NO. 95082842, FILED IN THE LARIMER COUNTY CLERK AND RECORDER'S OFFICE; THENCE
N89'57'54"E ALONG SAID SOUTHERLY LINE, A DISTANCE OF 20.00 FEET; THENCE
SOO'00'O3"W A DISTANCE OF 2.28 FEET TO A CURVE TO THE LEFT; THENCE ALONG SAID
CURVE TO THE LEFT, AN ARC LENGTH OF 20.16 FEET, HAVING A RADIUS OF 25.00 FEET,
THROUGH A CENTRAL ANGLE OF 46'12'48", AND A CHORD WHICH BEARS S23'06'21 "E A
DISTANCE OF 19.62 FEET; THENCE S46'12'45"E A DISTANCE OF 20.90 FEET TO THE
AFOREMENTIONED NORTHERLY RIGHT—OF—WAY OF COLORADO HIGHWAY 14; THENCE
N89'56'41"W ALONG SAID NORTHERLY RIGHT—OF—WAY, A DISTANCE OF 28.93 FEET TO
THE POINT OF BEGINNING; WHENCE SAID SOUTHEAST CORNER OF SECTION 12 BEARS
S86'50'26"E A DISTANCE OF 1385.02 FEET;
SAID PARCEL CONTAINS 819 SQUARE FEET OF LAND, MORE OR LESS,
I, THE UNDERSIGNED, A REGISTERED LAND SURVEYOR IN THE STATE OF COLORADO, DO
HEREBY STATE THAT THIS EXHIBIT WAS PREPARED BY ME OR UNDER MY SUPERVISION
AND IS TRUE A URATE TO THE BEST OF MY KNOWLEDGE"
R C/
P `
------ `— M — — -- -------- OS/0-/14—
CHRISTOP •P. JULLI S. 31158 DATE
FOR AND �L• ,ECISION SURVEY & MAPPING, INC.
I
�♦) P i
CHRI BY: J.L. 1 ER�� ACC
��q Precision Sulvey 8 Mapping, In(. C . J FILE: R 10978.&g
4� D. 8Y: SHEET: 3 OF 7
f7 LATE: 08/01/14 �EM�
9115 E Rrym be,Sidle 101,Oemei.CO e)t}7 JOB y:
ttl:(,Yb)]51-0)99 Fmr(J45)75J-10N SCALE I" = 50' N10978
- Exhibit"O"
Page 2 of 3
EXHIBIT "B" TABLES
LINE TABLE
LINE # BEARING DISTANCE
L1 N00'00'03"E 2.27
L2 N89'57'54"E 20.00
L3 S00'00'03"W 2.28
L4 S46'12'45"E 20.90
L5 N89'56'41"W 28.93
CURVE TABLE
CURVE # ARC LENGTH RADIUS DELTA ANGLE CH. BEARING CH. LENGTH
C1 36.30 45.00 46*12'48" N23'06'21"W 35.32
C2 20.16 25.00 46*12'48" S23'06'21"E 19.62
i
Precision Survey 8 Mapping J.L., Inc ORN. 9 C J FILE: R10978.dwa
l CHNO. QB/OI/14 SHEET: 2 OF 3 P�MANENT ACC
ESS
9195 E K.M M,Silt 101.na AJ m .CO 80237 DATE: JOR #: R10978 EAS�[��
rd:(30J) -9I99 Fw:(=) 15J-ION SCALE: I - 50 EN'
Exhibit"D"
Page 3 of 3
, I
t
OWNER:
SE1/4 SEC. 12 \ CITY OF FORT COLLINS
T7N, R69W, 6TH P.M.
OWNER:
CITY OF FOR- COLLINS WASTEWATER TREATMENT PLANT NO, 1
RECEPTION NO. 95082842 \ FILED IN THE LARIMER COUNTY
CLERK AND RECORDER'S OFFICE
PERMANENT RECEPTION NO. 88027657
ACCESS EASEMENT
AREA=819 SQ.FT.t
S'LY LINE
REC. ,695082842�
L2 L3
L11
�C2
Cl-- L4 WILY R.O.W.-
/
POINT OF
/ 1249.549.58'(TIE) BEGINNING
S. LINE SE7/4 SEC. 12/BASIS OF HEARING
`-�� �— 589'S5'a I"E 263D.31'\\
`—SI/4 SEC. 12, SE COR. SEC. 12�
T7N, R69W, 6TH P.M. T7N, R69W, 6TH P.M.
FOUND 2" ALUM. CAP COLORADO HIGHWAY 14 FOUND 2- ALUM. CAP
L.S.y 28656 (E. MULBERRY ST.) - L.S. #32444
so o as sa
I inch = 50 R.
1.) ACCORDING TO COLORADO LAW, YOU MUST COMMENCE ANY LEGAL ACTION BASED UPON ANY DEFECT IN THIS SURVEY I
WITHIN THREE YEARS AFTER YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY ANY ACTION BASED UPON ANY
DEFECT IN THIS SURVEY BE COMMENCED MORE THAN TEN YEARS AFTER THE DATE OF THE CERTIFICATION SHOWN HEREON. 1
2.) THE ONLY PURPOSE OF THIS EXHIBIT IS TO SHOW THE LOCATION OF THE EASEMENT(S),
3.) THIS DOCUMENT SHALL BE CONSIDERED NULL AND VOID IF IT DOES NOT BEAR THE ORIGINAL SIGNATURE AND SEAL OF
THE PROFESSIONAL LAND SURVEYOR OR IF ALTERED IN ANY WAY.
Precision SURIey 8 Ma ORN. BY: J.L.
Mapping,if C FILE: R 10978.dwa
CHKD C J. BY: SHEET: 1 OF 3 PERIwlMM ACCaS
08/01/14 ��
54'141SLE K.M m ,S k IOL p t n' DATE:
9011/ JOB #: R10978
fd,(JOJ)Tat-9J99 Fm:IJaJ)J5J-ION SCALE: 1 = 50
17
EA 111131'1, E
CERTIFICATE OF INSURANCE
I
I
1.:\\UI,E,\SE OI''I'10\,\GRI?ISBIIiN'1' �
13
EXHIBIT F
LANDLORD ACKNOWLEDGEMENT OF COLLATraAL ASSIGNMENT OF LEASE
This Landlord Consent to Collateral Assignment of Lcasc Agreement (this "Consent") is granted
' and made by the City or Port Collins ("Landlord") in connection with certain Option Lease dated
20_, (the "Lease") by and between Landlord and [CI:C SPV LLC] as Tenant.
I. Tenant has entered into a Loan Agreement (`'Loan Agreement") with
("Lender") for the extension of credit (the "Loan") in regard to a solar electric generating
facility referred in said loan Agreement as the "Solar Facility" and in said Lease and this
Consent as the "Solar Farm".
2. 'Tenant as borrower under the Loan Agreement, has executed a Collateral Assignment in
favor of Lender whereby 'reliant is giving Lender a pledge, mortgage, and/or collateral
assignment of all of its right. title and interest arising under the Lease as tenant of the
Leased Premises. and providing bender such other rights as set forth in such Collateral
Assignment.
3. Tenant hereby consents to the Collateral Assignment of the Lease given from Tcnant to
Lender. Landlord acknowledges that in this connection; Lender shall be entitled to
perform any obligation under the Lease in lieu of the perforniance of such obligation by
Tenant, but that Lender shall not be obligated to perform any such obligation.
4. Landlord also acknowledges and agrees that the following statements are true and correct:
a. Landlord is the fee owner of the Leased Premises described in the Lease
Agreement, and (1) a true and correct copy of the Lease is attached hereto as Exhibit 1:
(2) the Lease is in full force and effect; (3) Landlord has not modified, amended or
changed the Lease in any material respect; (4) to the best of Landlord's knowledge, the
Lease constitutes the entire agreement between Landlord and Tenant Willi respect to the
Leased Premises; and (5) to the actual knowledge of Landlord, (i) there are no existing
defaults by 'tenant under the Lease; (ii) all amounts due under the Lease from Tenant to
Landlord as of the date of this Consent have been paid; and (iii) there are no leases in
effect to which the Landlord's use ofthe Leased Premises shall be subordinate.
b. Tenant owns the Solar Farm including without limitation all Site Improvements
and Infrastructure (as defined in the Lease) and all related fixtures and personal property.
Landlord does not own any personal property that is located on the Premises, and agrees
that Landlord shall not pursue any liens or claims whatsoever against said Solar Farm,
Site lmprovemcnls, IllfrasVUClnrC, fixtures and personal property.
C. Except those interests appearing in the records of the county rccorder(s) where the !
Solar Farm is siluated, Landlord has not granted any interests in the Leased Premises to
any person or entity other than Tenant; and as long as Tenant is not in default of the
Lease, Landlord will ensure "Tenant`s quiet enjoyment of the Leased Premises in
accudance with the terms and conditions of the Lease.
5. Landlord also acknowledges and consents:
LAND LEASE.OPTION ACREI?AIENT -
19 -
a. To Tenant's execution of a leasehold mortgage or deed of trust encumbering
Tenant's leasehold estate under the Lease and the Solar Pane.
b. To Lender's access to the Leased Premises as necessary to inspect or protect its
Collateral.
C. TO provide upon request of Lender. as a collateral assignee of rights under the
Lease, subsequent signed statements indicating whether or not any defaults exist
wider the Lease; and addressing such other matters concerning the Leased
Premises and the Lease as Lender may reasonable request. I
I
d. To the recording by Tenant or Lender of the Collateral Assignment and this
Consent of Landlord thereto.
6. Landlord acknowledges that all notices to Tenant under the Lease Agreement shall be sent
to:
[CGC Solar B 103R,. I.I-C]
Attn: Mark Boyer, Authorized Representative
3005 Center Green Drive. Suite 205
1301.11der. CO 50301
Telecopier Number: (800)646-0323
Telephone Number: (970)692-2592
with a copy in each case to:
i
[Lender Information]
i
Signatures on Next Page
I
LAND LEASE OPTION ACR B F,i\IENT
20
IN WITNI SS WI-IERI�OF, Landlord subscribes this Landlord Acknoxa ledge men t OlTollateral
Assignment as ol'this clue 01' . 2014
LANDLORD:
City of Fort Collins
By:
Title.
STATE OF
COUNTY to wit:
The Ioregoing instrument was acknowledged before me in myjurisdiction aforesaid this
day o1' 2014, by , who is
of a
for and on behalf of the
Notary Public for
My Commission Ilspires:
LAND LEASE OPTION ACRI-MMENT