Attachment_C_-_Example_Land_Lease.pdf

RES-

A Land Lease Agreement for Solar Array between Dane County (“County”) and _____ hereafter referred to individually as “Party” and collectively as “Parties”

Dane County (“County”) and ________________________________ have entered into a 7 Land Lease Agreement for Solar Array. This Agreement is expected to generate _____per 8 year for a total of ________. 9

NOW, THEREFORE, BE IT RESOLVED that a Land Lease Agreement for Solar Array be 11 awarded between Dane County Waste and Renewables and ____________ 12

BE IT FURTHER RESOLVED County desires to reduce its reliance on fossil fuels used to 15 generate the electricity consumed by County and partner with ____to achieve 100% 16 renewable electricity status for county operations; and 17

BE IT FURTHER RESOLVED _______ and County desire to enter into a lease of County 19 owned land and secure rights to facilitate the construction and operation of a 20 photovoltaic array (the “PV System,” as defined below) to generate solar electricity; and 21

BE IT FURTHER RESOLVED County and ____ desire to further cooperate in obtaining all 23 necessary governmental approvals, permits, and certifications to permit the construction 24 and operation of the PV System and to authorize the agreements necessary to 25 accomplish the conveyance of renewable energy credits generated by the PV system to 26 County under the terms and conditions set forth in this Lease, and any related 27 concomitant agreements; and 28

BE IT FURTHER RESOLVED that Subsequent to full execution by the representatives of 30 both Parties, this Lease shall become effective as of the date this Lease is fully 31 executed by the Parties. (“Effective Date”). The “Commencement Date” of the Lease 32 shall be the date on which the PV System is commercially operational, as defined as the 33 date by when electric generation begins. If the Commencement Date does not occur by 34 December 31, 2026, the Lease shall be void and of no further effect; and 35

BE IT FURTHER RESOLVED that The initial term of this Lease shall commence on the 37 Effective Date and expire as of 11:59 p.m. on the date that is 20 years after the 38 Commencement Date (“Initial Term”). If not in default hereunder, ____ shall have three 39 options to extend the Lease for additional terms of five years, exercisable by giving 40 written notice of extension to County not less than120 days prior to the expiration of the 41 Initial Term and, if an extension option is exercised, not less than 120 days prior to the 42 expiration of that extended Lease term; and 43

BE IT FINALLY RESOLVED that the County Executive and the County Clerk be authorized and 45 directed to sign the Agreement; and 46

BE IT FINALLY RESOLVED that the Department of Waste and Renewables be directed to 48 ensure complete performance of the Agreement. 49

EXAMPLE

DANE COUNTY, WISCONSIN

AND

LAND LEASE FOR SOLAR ARRAY

14162

Execution Version

This Land Lease for Solar Array (the " Lease”) is made and entered into by and between Dane County, Wisconsin ("County”), a quasi-municipal corporation, and __________ __________ a business entity formed under the laws of the State of Wisconsin. County and ____ are hereafter referred to individually as a “Party” and collectively as the “Parties”.

W I T N E S S E T H:

WHEREAS County desires to reduce its reliance on fossil fuels used to generate the electricity consumed by County and partner with ____ to achieve 100% renewable electricity status for county operations; and

WHEREAS ____ and County desire to enter into a lease of County owned land and secure rights to facilitate the construction and operation of a photovoltaic array (the “PV System,” as defined below) to generate solar electricity; and

WHEREAS, County and ____ desire to further cooperate in obtaining all necessary governmental approvals, permits, and certifications to permit the construction and operation of the PV System and to authorize the agreements necessary to accomplish the conveyance of renewable energy credits generated by the PV system to County under the terms and conditions set forth in this Lease, and any related concomitant agreements;

NOW, THEREFORE, County and ____ agree as follows.

AGREEMENT

1. EFFECTIVE DATE AND COMMENCEMENT DATE

Subsequent to full execution by the representatives of both Parties, this Lease shall become effective as of the date this Lease is fully executed by the Parties. (“Effective Date”). The “Commencement Date” of the Lease shall be the date on which the PV System is commercially operational, as defined as the date by when electric generation begins. If the Commencement Date does not occur by December 31, 2026, the Lease shall be void and of no further effect.

2. LEASE TERM AND EXTENSION OPTION

The initial term of this Lease shall commence on the Effective Date and expire as of 11:59 p.m. on the date that is 20 years after the Commencement Date (“Initial Term”).

If not in default hereunder, ____ shall have three options to extend the Lease for additional terms of five years, exercisable by giving written notice of extension to County not less than 120 days prior to the expiration of the Initial Term and, if an extension option is exercised, not less than 120 days prior to the expiration of that extended Lease term.

3. DESCRIPTION AND USES OF THE PREMISES

The Premises, as depicted and legally described in attached Exhibit A, consists of approximately 50 acres of land in the Town of Verona, Wisconsin recognized and utilized as the closed Dane County Verona Landfill (“Landfill”) in Dane County, Wisconsin. County hereby leases the Premises exclusively to _____ for the purpose of, planning, designing, constructing, installing, re- installing, operating, repairing, re-locating and maintaining a solar photovoltaic electric power generating system, including, without limitation, solar photovoltaic panels, solar resource measurement equipment, support structures, foundations, pads, footings, fencing, electrical inverters and transformers, meters, switches, breakers, fixtures, equipment storage, electric wiring, distribution and transmission lines, access roads, interconnection facilities and related structures and facilities and equipment that has the capacity of generating no less than ___ MW AC (Nameplate Capacity), based upon the land and structures shown in Exhibit A. ___ shall take all efforts to optimize the Premises so that capacity is approximately ___ MW AC based on preliminary conceptual design layout and assumptions (collectively the “PV System”) on the Premises under the terms and conditions set forth in this Lease.

Without limiting the foregoing, County expressly agrees that ___, and its employees, authorized agents and contractors on ____ behalf, may exercise the following rights:

A. Access Rights. The right of vehicular and pedestrian ingress and egress to and from the PV System over the Premises.

B. Utilities Rights. The right to construct, install, re-install, operate, relocate and maintain electric wiring, distribution and transmission lines, and communications lines across the Premises. ___ shall provide the County an as-built survey, showing the County the location of such improvements upon completion of construction.

C. Construction Rights. Temporary construction rights to install the utility facilities in Section 3.B extending 10 feet on either side of the utility facilities in Section 3.B.

D. Solar Insolation Rights. The exclusive right to capture unimpeded solar insolation throughout the Premises. County shall not install on the Premises nor allow any person or entity under its control (other than ___) to install any obstruction that may impair solar insolation to the PV

System. ___ may remove from the Premises any trees and vegetation which may in ____ sole judgment, impede or interfere with solar insolation to the PV System, provided that prior written notice is given to County.

Notwithstanding the foregoing, County shall retain the right to construct or place on, in or under the Premises structures or improvements required by state or federal law or regulation, or by agency rule, order, advisory or directive associated with the operation or development of the Landfill.

County shall also have the right to construct and expand its Landfill on neighboring properties.

E. Inspection Rights. ____ shall have the right to undertake activities upon the Premises that ____ determines are necessary, helpful, appropriate or convenient in connection with, incidental to, for the benefit of, or to accomplish the installation, re-installation, relocation, repair, operation, and maintenance of the PV System, including conducting surveys and geological, environmental, biological, cultural and other tests and studies, in each case by the use of such means and technologies as ___ may choose, whether or not currently known, and with the right of entry on the Property for such purposes. Such activities shall not interfere in any manner with the operation of the Landfill.

___ accepts the Premises in the condition existing as of the Effective Date of this Lease, and agrees to use the Premises only for the purpose set forth herein. ___ stipulates that any inspection, environmental assessment, survey or any other examination or study concerning the Premises or use thereof that is material to ___ decision to enter into this Lease has been performed prior to ___ execution of the Lease. The PV System shall be the sole property of ___, and County shall have no ownership or other interest therein.

4. POLLINATOR FRIENDLY VEGETATION

___ shall plant and maintain in the unimproved areas and to the extent possible the areas under and between the solar panels on the Premises native perennial vegetation designed to attract pollinators. Such planting and maintenance shall be in accordance with solar industry best practices for developing pollinator habitat, including allowing reasonable access to the PV System and using vegetation that will not grow to levels that cause shading of the PV System. As used herein, “pollinator” shall include bees, butterflies and other insects that pollinate flowering plants.

5. EASEMENTS

Separate to this Lease, Parties agree to negotiate easements to grant, convey and warrant to ___ additional easements upon, over, across, and under the Premises, and any other property owned by the County that is adjacent to the Premises that may be necessary to construct and operate the PV System.

6. DESIGN AND PLACEMENT OF PV SYSTEM

The “Notice of Submission Date” means the date that ___ shall notify County of its intent to submit an application to the Wisconsin Public Service Commission for a Certificate of Authority under Wis. Stat. §196.49(1)(am) for the construction of the PV System on the Premises or any other submission for regulatory approval. At least sixty (60) days prior to the Notice of Submission Date, ___ shall provide County with a site development plan for the Premises that depicts the location of the PV System. Within fifteen (15) days after County has been provided with the site development plan, County may provide ___ with comments regarding the proposed locations of the PV System. ___ shall revise the site development plan to address any reasonable concerns expressed by County. ___ shall then provide County with a copy of the revised site development plan. Within fifteen (15) days after County has been provided with a copy of the revised site development plan, County may provide ___ with any additional comments regarding the proposed locations of the PV System. ___ shall then address any concerns regarding the placement of the PV System. Under no circumstances shall the application for a Certificate of Authority or any other regulatory approval be submitted without County’s express written permission to do so, which shall not be unreasonably withheld.

7. RENT AND RENEWABLE ENERGY CREDITS

A. RENT

1) The feasibility period of the use described in Section 3 shall commence on the Effective Date and end on the Commencement Date (“Feasibility Period”).

During the Feasibility Period, ___ shall pay to County rent (“Initial Rent”) on an annual basis in the amount of thirty-five and 00/100 Dollars ($35.00), per acre until Commencement Date or termination of this agreement, whichever occurs first. As of the Effective Date, the Initial Rent shall be ($4830.00) per year. For the first year of the Feasibility Period, the Initial Rent shall be due and payable within thirty (30) days of the Effective Date of this Lease and shall be prorated for any partial year. Thereafter, during the Feasibility Period, the Initial Rent shall be due and payable on the anniversary date of the Effective Date of this Lease. Payment of rent shall be by check made payable to Dane County, such that it is received on or before the due date. Payments not received when due hereunder shall accrue interest from the due date until paid in full at the rate of one percent per month, payable on a pro rata per diem basis.

B. RENEWABLE ENERGY CREDITS

1) The operations period of the use described in Section 3 shall commence on the Commencement Date (“Operations Period”) and end when the Term of the Lease expires or is terminated.

Upon the commencement of the Operations Period, the Initial Rent shall be prorated for any partial year.

2) As used herein, “Renewable Energy Credits” (“RECs”) means (a) any renewable energy credits or certificates, emission reduction credits, emission allowances, green tags, tradable renewable credits or Green-e products related to renewable energy production; and (b) any other characteristics of electric power generation of the PV System that have intrinsic value, separate and apart from the energy output, arising from the perceived environmental benefits of the PV System, as such characteristics may be recognized, administered, owned, held, pledged, bought, sold, traded, disposed of or otherwise regarded under Law.

Renewable Energy Credits shall not mean any tax or investment credits from the PV System. Any distribution or allocation of these credits shall be done outside of this Agreement. Nothing in the Agreement shall commit ___ to assigning or transferring tax or investment credits to the County.

3) As used herein, “M-RETS” means the Midwest Renewable Energy Tracking System, a generation information and generation attribute tracking system, its successor or any other system mutually agreed to by the Parties that records renewable energy generation meeting certain requirements of the tracking system and issues tradable instruments associated with that generation.

4) Prior to the Operation Period, County shall establish an M-RETS account and shall register the PV System in County’s M-RETS account such that all RECs generated by the PV System can be assigned directly to County. ___ will assist County with PV System registration in M-RETS, as needed. All fees associated with establishing and maintaining the M-RETS account and the issuance or the retirement of the associated RECs shall be paid directly by County. During the Operations Period, ___ agrees that any RECs generated by the PV System shall be assigned directly to County. Legal title including all rights, title, and interest in, and all benefits associated with the RECs shall immediately pass from ___ to County upon the registration of the PV System in County’s M-RETS account. This assignment shall be in lieu of cash payments for rent during the Operations Period.

5) In order to effectuate the direct assignment of RECs to County, ___ will take all necessary steps to assist County with register of the PV System under the County’s M-RETS account so that RECs are deposited in such account when they are generated. This includes assistance with required M-RETS documentation, including a M-RETS Schedule A Form, system design information, interconnection agreement, power purchase agreement, contract and engineering reports, as needed.

6) County will take commercially reasonable efforts to submit a Green-e Energy Tracking Attestation Form to CRS so that the facility has an Approved Tracking Attestation on File with CRS, or to have the facility CRS Listed. ___ may assist County with submission of Attestation Form, if requested.

7) If at any time, M-RETS or any other entity inquires, investigates or audits (“Audit”) the RECs generated by the PV System, ___ shall use commercially reasonable efforts to assist County during the Audit and shall cooperate with County until the completion of the Audit.

8) The minimum annual renewable energy credits will be calculated based on 90% of the PV System’s estimated annual energy production. The annual energy production will be based on the PV’s System’s 100% design, a capacity factor target of 20%, and degradation rates based upon equipment warranties that will all be finalized before the Commencement Date. Exhibit B provides the calculation of the annual energy production and expected RECs, for illustration purposes only. ___ shall use commercially reasonable efforts to obtain a 20% capacity factor. If ___ is unable to receive commercial bids that support a 20% capacity factor, it shall notify County that it needs to adjust the capacity factor. ___ and County agree to collaborate on determining the adjusted capacity factor.

Upon finalization, ___ shall send County written notification of the expected annual quantity of RECs generated by the PV System for each year of the Initial Term. ___ agrees to send such notification to County no later than thirty (30) days before the Commencement Date and shall be incorporated into the Lease as Exhibit C. The Minimum Guarantee will be first satisfied by the RECs generated by the PV system.

i. Starting on the first anniversary of the commencement of the Operation Period, shortfalls in the Minimum Guarantee shall be calculated on an annual basis. Any shortfall of the Minimum Guarantee will be made up by ___ assigning RECs from other renewable generation to County (“Shortfall RECs”). Any Shortfall RECs assigned to County must be of equal number to the RECs equal to the shortfall and of similar type of RECs generated by the PV System. Accordingly, ___ agrees that all Shortfall RECs shall be Green-e eligible or Certified and created within the past 12 months from Wisconsin solar or wind projects (Local RECs) unless not economically viable or available.

ii. If Local RECs are not economically viable or available, ___ must present County with the following: (a) information demonstrating that the cost of Local RECs is 50% above the 6 month average sales price for such RECs in the MISO market or (b) information that the Local Recs are not available.

iii. Upon ___ demonstration that Local RECs are neither economically viable nor available, County agrees that ___ may provide County with Green-e eligible or certified RECs that were created within the past 12 months in the Midcontinent Independent System Operator (MISO) footprint in lieu of Local RECs.

iv. Assignments of Shortfall RECs shall occur within 90 days of the end of the Calendar Year. For any operating year that is not a complete calendar year, the shortfall shall be adjusted pro rata for the number of days of operation.

9) The Parties shall execute all such documents and instruments, and permit all such auditing, monitoring and verification as may be required, in order to effect or document the assignment of the RECs to County.

10) The parties acknowledge that this Lease is being entered into based on current laws and regulations with respect to the production, sale and use of RECs. If any statutes, rules, regulations, permits or authorizations are enacted, amended, granted or revoked which have the effect of changing the assignment procedure set forth in this Lease so that the implementation of this Lease becomes impossible or impracticable, or otherwise revokes or eliminates the tracking of RECs in M-RETS, the Parties hereto agree to negotiate in good faith to amend this Lease to conform with such new statutes, regulations, or rules in order to maintain the original intent of the Parties under this Lease.

8. FEASIBILITY PERIOD OBLIGATIONS

A. ___ may, at its own cost, undertake any studies, tests, monitoring, sampling, investigations, surveys, examinations, assessments, environmental reviews, geotechnical analyses, or evaluations of the Premises in order to determine the cost, requirements, conditions, feasibility and suitability of the Premises for ___ intended use (“Feasibility Analyses”). County shall cooperate with ___ in connection with the Feasibility Analyses. With the exception set forth in Section 8.C., any and all data and information collected by or on behalf of ___ in connection with the Feasibility Analyses is and shall remain the sole property of ___. County shall make available to ___ for inspection copies of all reports, agreements, studies, surveys, plans and other records of Owner as such information may relate to the Premises or ___ intended use to construct and operate a PV System.

B. ___ may undertake the Feasibility Analyses during the Feasibility Period. Access to the Premises for Feasibility Analyses shall be on existing roads or across the land with a minimum of disturbance. ___ shall provide County with at least 5 business days advance notice of ground-disturbing activities to be undertaken by or on behalf of ___ upon the Premises in connection with the Feasibility Analyses, which may include excavations, drilling, sampling, the establishment of temporary testing or monitoring facilities or equipment, and such other activities normally and reasonably required for the Feasibility Analyses that may cause a physical disturbance of the surface or subsurface of the Property. Upon completion of the Feasibility Analyses, ___ shall restore any damaged or disturbed portions of the Premises to substantially the same condition as existed immediately prior to such damage or disturbance.

___ shall not, however, commence construction of the PV System on the Property prior to the Notice of Construction Date

C.___ shall, at no cost, provide to County any and all data and information from the Feasibility Analyses for informational purposes so that the presence of subsurface deposits of clay on the Premises can be determined but ___ will not be responsible for County’s reliance upon the Feasibility Analyses.

D.During periods of construction or other ground-disturbing activities, ___ shall comply with all erosion control and stormwater control statutes, regulations, ordinances and practices applicable in Dane County.

E.___ agrees to follow all federal, state and local laws and regulations applicable to the demolition and disposal of any structures on the Premises.

F. If Hazardous Substances, as defined in Section 12.B., are uncovered during the Feasibility Period, County shall have the right to terminate this Lease if it determines, in its sole discretion, that the cost of remediation is greater than the financial consideration it expects to receive under this Lease.

G.___ agrees to be responsible for securing any necessary permits, regulatory approvals, CUPs, or other zoning approvals (collectively “Approvals”) that are necessary in order to construct and operate the Premises as a PV System. After the Effective Date of this Lease and prior to the Commencement Date, ___ shall use reasonable efforts to secure Approvals. County shall cooperate with ___ as appropriate in securing these Approvals. If ___ is unable to secure necessary Approvals or the Approvals are limited in such a way that either party determines, in each of their sole discretion, that the PV System is infeasible, either party shall have the right to terminate this Lease within 30 days of providing written notice to the other party.

H. ___ shall make a one-time lump-sum payment to County for crop damage on a per-acre basis (prorated for fractional portions) (the “Crop Damage Payment”) for any portion of the Premises that is damaged as a result of any activity it undertakes during the Feasibility Period. The Crop Damage Payment shall be an amount that is equal to the amount that is the greater of (a) the actual, documented out-of-pocket costs theretofore incurred by County or County’s tenant in planting, irrigating and fertilizing such crops within such portion of the Property that is taken out of commercial crop production by ___; or (b) the average yield per acre per year of the Premises for the crop during the prior three (3) years, multiplied by the most recent price per unit for the crop published by the USDA National Agricultural Statistics Service, multiplied by the number of acres within such portion of the Premises that is taken out of commercial crop production by ___. County shall provide ___ with all documents and information that are reasonably necessary in order to calculate the Crop Damage Payment. The Crop Damage Payment shall be due and payable within thirty (30) days after the Parties reach agreement on the amount thereof. Notwithstanding the foregoing, the Crop Damage Payment is subject to County’s duty to reasonably mitigate monetary damages (including, but not limited to, an obligation not to enter into any agreements or take any other actions that would have the effect of unreasonably increasing the amount of the Crop Damage Payment).

9. EXCAVATION OF CLAY

County, its employees, agents, contractors and subcontractors shall have the right to extract and remove clay from the Premises during the Feasibility Period. Upon receiving the data and information from the Feasibility Study, County shall have thirty

(30) days to determine whether clay soils are present on the Premises, and to notify ___ of its intent to excavate such clay soils. If County determines that it shall exercise its right to remove the clay deposits, it may bring equipment, vehicles and personnel onto the Premises; excavate soil and extract clay from deposits situated on the Premises; and remove such extracted clay from the Premises. All costs of extraction and removal of clay from the Premises under the terms of this Lease shall be the sole expense of the County. All clay removed from the Premises by the County under the terms of this Lease shall be and remain the property of the County. County shall use all reasonable efforts to extract and stockpile clay as soon as practicable. County shall restore any damaged or disturbed portions of the Premises to substantially the same condition as existed immediately prior to such damage or disturbance. County shall grade the site using the remaining soils on the site per a grading plan that is approved by ___. Notwithstanding any other provision in this Lease, County’s right to extract and remove clay shall not delay ___ development and construction schedule. Upon County’s decision to exercise its right to excavate clay soils, ___ shall notify County when such excavation must be completed in order to avoid any delays in the construction of the ___ system.

10. UTILITIES FOR LANDFILL OPERATIONS

County shall retain the right to install and maintain in, on or under the Premises, sewer, water, gas, electric and telephone lines, navigation aids, or other installations and equipment, including cable, wire and fiber, necessary or beneficial to Landfill operations. To the maximum practicable extent the exercise of rights under this Section 10 shall be accomplished without interference with ___ use of the Premises.

11. HOLDOVER AND CONDITION OF PREMISES UPON LEASE TERMINATION

Within one year of expiration or earlier termination of this Lease (the “Removal Period”), ___ shall remove from the Premises the PV System, and all improvements, equipment and other items or materials constructed, installed or placed by ___ or with ___ permission in, on or under the Premises (provided that underground improvements shall be removed to a depth of three feet below grade); and the Premises shall be surrendered to County in condition substantially similar to that existing on the Effective Date. In the event ___ fails to surrender the Premises as required herein, ___ shall indemnify and hold County harmless for such holdover, and shall pay all costs, damages, expenses and fees, including legal expenses and fees, incurred by County as a result of continued occupancy of the Premises by ___ or its property after the expiration of the Removal Period, as it may be extended hereunder. If ___ fails to surrender the Premises in the condition herein required by expiration of the Removal Period, as it may be extended hereunder, ___ shall pay rent during such holdover period at a rate that reflects the fair market value per acre of the Premises on the date the Lease terminated and, at County’s option, all property remaining on the Premises may be deemed abandoned by ___ and subject to removal by County at ___ expense. Acceptance by County of rent after expiration or earlier termination of this Lease shall not result in a renewal or extension of the Lease or the creation of another lease.

12. INSURANCE AND INDEMNIFICATION

A GENERAL INDEMNIFICATION

___ is and shall be deemed to be an independent contractor exclusively responsible for its own acts or omissions. To the maximum extent permitted by law, each Party (“Indemnifying Party”) shall indemnify, hold harmless and defend the other Party and such other Party’s agents, representatives, appointees and employees (“Indemnified Party”) from and against all claims for losses, costs, attorney fees, expenses and damages arising out of, resulting from or relating to any loss of or damage to any property or business or any injury to or death of any person, to the extent that such loss, damage, injury, or death arises, whether directly or indirectly, wholly or in part, from (i) any action or omission of the Indemnifying Party, Indemnifying Party’s employees, agents, contractors, suppliers or invitees while on the Premises; or (ii) the exercise of the rights granted herein by Indemnifying Party, Indemnifying Party's employees, agents, contractors, suppliers or invitees. The Indemnifying Party’s obligation of indemnification, as set forth herein, shall not apply to damages or liability resulting from the acts or omissions of the Indemnified Party, Indemnified Party’s employees, agents, contractors, suppliers or invitees. The obligations of County and ___ under this paragraph shall survive the expiration or earlier termination of this Lease.

Nothing in this section is intended or shall be construed as a waiver of the limitations of Section 893.80, Wisconsin Statutes.

B. ENVIRONMENTAL PROTECTION

___ shall ensure that ___ and ___ employees, agents, contractors, suppliers or invitees comply with all present and hereafter enacted or amended Environmental Laws affecting ___ activities on the Premises. As used in this Lease, "Environmental Laws" means all laws, rules, regulations, regulatory agency guidance provisions and policies, ordinances, applicable court decisions, directives, policies (whether enacted by any local, state or federal governmental authority) now in effect or hereafter enacted or issued that deal with the regulation or protection of the environment (including but not limited to, air, water, soil and subsurface elements), or with the generation, handling, storage, disposal or use of any substance, chemical or waste on or affecting the Premises identified as hazardous, toxic or dangerous that could be detrimental to health, public welfare, or the environment (collectively, “Hazardous Substances”). ___ shall indemnify, defend and hold County harmless from and against any and all liability, loss, damage, expense, penalties and costs (including legal fees and all costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work) arising from or related to any proceeding, claim or action for injury, liability, breach of warranty or representation, or damage to persons or property and any and all proceedings, claims or actions brought or asserted by any Party or governmental authority of any kind, arising in connection with (i) release of Hazardous Substances by ___, its employees, agents, contractors, suppliers or invitees causing contamination of, or adverse effects on the environment (whether known, alleged, potential, or threatened), or (ii) violation of any Environmental Law as a result of any activity or operation of ___, its employees, agents, contractors, suppliers or invitees conducted on the Premises or under authority of this Lease. ___ obligations and liabilities under this subsection shall continue so long as County may bear any liability or responsibility under Environmental Laws for any activities conducted by ___, ___ employees, agents, contractors, suppliers or invitees on the

Premises or under authority of this Lease. County's right to indemnification hereunder shall not be in limitation or exclusion of any other rights and remedies provided by law. ___ shall promptly notify County of any action or condition that is contrary to any provision of this section.

County represents and warrants to ___ that County has no knowledge of any Hazardous Substances on or affecting the Premises. Notwithstanding any provision contained in this Lease to the contrary, County will have sole responsibility for complying with any applicable statutory or regulatory requirements relating to the remediation and cleanup of any Hazardous Substance discovered on the Premises, unless such Hazardous Substance was brought on to Premises or released by ___, its employees, agents, contractors, suppliers or invitees.

C. INSURANCE REQUIREMENTS

___, , shall, by the Effective Date of this Lease, obtain Commercial General Liability Insurance, including pollution, with coverage of $3,000,000, per claim and $3,000,000 in the aggregate. The insurance required hereunder shall be primary and non-contributory. All policies shall name County as an additional insured for the negligence of ___ arising out of this lease agreement. ___ shall, prior to commencing activities at the Premises, provide County with a certificate or certificates of insurance evidencing the insurance coverage required under this Lease. ___ insurer shall send to County written notice of cancellation or any material change in said policy at least 10 days in advance of the effective date thereof.

Further, if insurance is underwritten on a claims-made basis, the retroactive date shall be prior to or coincide with the Effective Date of this Lease and the certificate of insurance provided therefore shall state that coverage is claims-made and indicate the retroactive date. ___ shall maintain all insurance coverage required hereunder for the duration of this Lease and for one year following the expiration or earlier termination hereof. ___ shall have the right to self-insure to the above-stated limits. Nothing in this section is intended or shall be construed as a waiver of the limitations of Section 893.80, Wisconsin Statutes.

D. SUBCONTRACTORS

In the event of any subcontract of work performed on the Premises, ___, unless agreed waived by County (which agreement shall not be unreasonably withheld), shall furnish evidence to County that each subcontractor providing more than $25,000 of work upon the Premises has in force and effect insurance policies providing the coverage required hereunder.

13. TAXES AND CHARGES

___ shall pay as they become due any and all taxes, fees, assessments or charges of any type levied by any governmental entity based upon, related to, or resulting from any of ___ improvements, conditions, property, use, activities or ___ operations of any kind on the Premises. ___ shall have the right at its own cost and expense to contest the amount or validity of any tax, fee, assessment or charge and to bring or defend any actions involving the amount or validity thereof in its own name or, if necessary and approved by County, in the name of County, provided that, if unsuccessful ___ shall pay and discharge any such tax, fee, assessment or charge so contested, together with any penalties, fines, interest, costs and expenses, including attorney fees, that may result from any such action by ___, and provided that, pending resolution of any proceeding contesting a tax, fee, assessment or charge, ___ shall take any actions necessary, including conditional payment of the amount in dispute, to prevent the attachment or accrual of any lien or penalty.

14. COMPLIANCE WITH RULES, REGULATIONS AND LAWS; PERMITS

AND APPROVALS

___ and all persons operating under the rights granted under this Lease shall observe and comply with all federal, state, and local laws and regulations, and all rules, orders or directives promulgated or issued by any governmental body, department or agency having jurisdiction over the Premises and activities thereon, as such laws, regulations, rules, orders and directives are now in effect or as hereafter amended, approved or adopted. County shall cooperate in good faith with ___ to obtain and maintain any permits or authorizations needed for the PV System.

15. DISCRIMINATION PROHIBITED

___, for itself, its representatives, successors and assigns, does hereby covenant and agree that (a) no person on the basis of age, race, ethnicity, religion, color, gender, disability, marital status, sexual orientation, national origin, cultural differences, ancestry, physical appearance, arrest record, conviction record, political beliefs, military participation, or membership in the national guard, state defense force or any other reserve component of the military forces of the United States shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the Premises or any improvement thereon; (b) that in the construction of any improvements on, over, or under the Premises and the furnishing of services thereon, no person shall be subjected to discrimination on the basis of age, race, ethnicity, religion, color, gender, disability, marital status, sexual orientation, national origin, cultural differences, ancestry, physical appearance, arrest record, conviction record, political beliefs, military participation, or membership in the national guard, state defense force or any other reserve component of the military forces of the United States; (c) that ___ shall provide access to the Premises for the physically disabled as required by all applicable federal, state and local laws and regulations.

16. LANDFILL PROTECTION CLAUSE

County reserves and retains at all times for the benefit of County and the public the right to pursue all operations of the Landfill, including the right to expand the Landfill in the surrounding properties of the Premises. County shall also have the right to construct and expand another landfill on surrounding properties. ___ shall not use or permit the use of the Premises in any manner that that adversely impacts the expansion or operation of the Landfill or the creation of a new landfill on surrounding properties. Further, ___ shall not have any claim against County due to any future impacts to the PV system from birds or dust caused by landfill operations.

17. ASSIGNMENT

While not in default under this Lease and upon advance written notice to County, ___ may assign rights held hereunder to an affiliate of ___ or, upon the consolidation, merger, or reorganization of ___, with another entity involved in or organized pursuant to such consolidation, merger, or reorganization. Any assignment that is not within the scope of the preceding sentence shall require the prior written consent of County, which shall not be unreasonably withheld.

18. DUTY TO MAINTAIN APPEARANCE AND CONDITION OF IMPROVEMENTS

Throughout the entire term of this Lease, ___ shall maintain the PV System and all other improvements and equipment on the Premises in good order, repair, condition and appearance, and shall cause all necessary repairs, renewals, replacements, refurbishment, painting, and cleaning to be promptly performed such that all said improvements and equipment remain in as good repair and appearance as on the date the improvements and equipment were first erected or otherwise placed on the Premises, as is reasonably determined by County.

19. DEFAULT BY ___ AND COUNTY'S REMEDIES

A. ___ IS IN MATERIAL BREACH OF THIS LEASE UPON

THE OCCURRENCE OF ANY OF THE FOLLOWING:

(1) ___ default in complying with or performing any covenant or obligation under this Lease, and the failure of ___ to remedy such default for a period of 30 days after receipt of written demand from County to remedy the same. Said demand is not effective unless it specifically describes the default that is the subject of the demand. Notwithstanding the foregoing, if a default, other than the obligation to timely pay rent or transfer RECs, will take longer than 30 days to cure, ___ shall be entitled to an extension of the time period to cure for the length of time necessary to complete the cure, so long as ___ has commenced and is diligently pursuing the cure to completion;

(2) ___ failure to either commence or maintain the PV system operable at a minimum of 50% of Nameplate Capacity for 12 consecutive months.

(3) The commencement by or against ___, as a debtor, of a proceeding involving bankruptcy, rearrangement, reorganization, receivership, or custodianship under federal, state or foreign law, and such proceeding is not dismissed with prejudice within 60 days of such filing;

(4) ___ makes a general assignment for the benefit of creditors or applies for, consents to, or acquiesces in the appointment of a trustee, receiver, or other custodian for ___ or the property of ___ or any part thereof, or in the absence of such application, consent, or acquiescence, a trustee, receiver or other custodian is appointed for ___ or the property of ___ or any part thereof, and such appointment is not discharged within 60 days;

(5) The commencement of an action against ___ to foreclose any lien or mortgage or other rights of ___ in or to the Premises; or

(6) The abandonment by ___ of the Premises, except in connection with its surrender thereof to an approved assignee.

B. COUNTY'S REMEDIES UPON MATERIAL BREACH BY

LEESEE

Upon material breach of the Lease by ___, County may give ___ written notice of its intention to terminate this Lease, which termination shall be effective on the date set forth in the notice. Upon termination under this section, all rights conveyed to ___ under this Lease shall cease. Any termination under this section must be expressly noticed as set forth herein, and neither notice to pay rent or to deliver up possession of the Premises given pursuant to law, nor any proceeding instituted by County, nor the failure by ___ for any period of time to pay any of the rent herein reserved, shall of itself operate to terminate this Lease.

C. COUNTY”S REMEDIES UPON ___ REQUEST FOR

ADJUSTMENT TO CAPACITY FACTOR.

If, after collaboration on proposed adjustment to capacity factor between the parties in Section 7.B.8), County is not satisfied with the adjusted capacity factor, County may give ___ written notice of its intention to terminate this Lease, which termination shall be effective on 30 (thirty) days after the date of the notice. Upon termination under this section, all rights conveyed to ___ under this Lease shall cease. Any termination under this section must be expressly noticed as set forth herein, and neither notice to pay rent or to deliver up possession of the Premises given pursuant to law, nor any proceeding instituted by County, nor the failure by ___ for any period of time to pay any of the rent herein reserved, shall of itself operate to terminate this Lease.

20. DEFAULT BY COUNTY AND ___ REMEDIES

A COUNTY IS IN MATERIAL BREACH OF THIS LEASE UPON

THE OCCURRENCE OF ANY OF THE FOLLOWING:

(1) ___ is for a period of 30 consecutive days unable to use the Premises because of any law, rule, regulation, or act or failure to act on the part of the County, provided the condition causing the inability to use the Premises is not due to a failure by ___ to comply with any provision of this Lease, or otherwise due to any act or omission of ___, ___ employees, agents, contractors, suppliers or invitees; or

(2) County’s default in complying with or performing any covenant or obligation under this Lease, and the failure of County to remedy such default for a period of 30 days after receipt of written demand from ___ to remedy the same. Said demand is not effective unless it specifically describes the default that is the subject of the demand. Notwithstanding the foregoing, if a default will take longer than 30 days to cure, County shall be entitled to an extension of the time period to cure for the length of time necessary to complete the cure, so long as County has commenced and is diligently pursuing the cure to completion.

B. ___ REMEDIES UPON MATERIAL BREACH BY COUNTY

Upon material breach by County as set forth above, ___ may give County written notice of its intention to terminate this Lease, which termination shall be effective on the date set forth in the notice.

Provided, however, that the notice of intent to terminate shall be of no force or effect if County shall have remedied the breach specified in the notice prior to County's actual receipt of said notice. ___ may alternatively, at its sole option, elect to continue the Lease. If ___ does not elect to continue the Lease, ___ shall have the option to remove the PV System from the Premises, or abandon in place all or a portion of the PV System.

21. REMEDIES CUMULATIVE, NO IMPLIED WAIVER

All rights and remedies of County and ___ contained in this Lease, or based in law or equity shall be construed to be cumulative, and no such right or remedy shall be exclusive of any other unless so stated herein. No waiver of any default or breach of this Lease shall be implied from any acceptance by County of any rent or other payments due hereunder or any omission by County to take any action on account of such default or breach if such default or breach persists or is repeated, and no express waiver shall be effective in a manner other than as expressly specified in said waiver.

The consent or approval by County to or of any act by ___ requiring County's consent or approval shall not be deemed to waive or render unnecessary County's consent or approval to or of any subsequent similar acts by ___. No waiver by ___ of County's default or breach of any of its obligations hereunder shall be construed to be or act as a waiver by ___ of any subsequent default or breach by County.

22. OWNERSHIP OF RENEWABLE ENERGY CREDITS

Within 30 days of creation, ___ shall assign any Renewable Energy Credits to County whereupon they shall become the exclusive property of County.

23. ENTRY UPON PREMISES

County may enter upon the Premises at any reasonable time with reasonable prior notice, for any purpose necessary, incidental to or connected with the exercise of its governmental functions, or to inspect the Premises for compliance with all applicable laws, rules, regulations and covenants hereunder or to prevent waste, loss or destruction. During any such entry, the County shall be accompanied by ___ and the County shall be fully responsible for any damage to or interference with the operation of the PV System caused by the County or any person accompanying the County during the access.

24. SUCCESSORS AND ASSIGNS BOUND

All the terms, covenants and conditions of this Lease shall extend to and bind the successors and assigns of the Parties.

25. SEVERABILITY

If any term or condition of this Lease shall be deemed to be invalid or unenforceable, all other terms and conditions shall remain in full force and effect.

26. LAWS, VENUE, AMENDMENT, ENTIRE AGREEMENT

This Lease shall be interpreted and enforced under the laws and jurisdiction of the State of Wisconsin with venue of any dispute in Dane County Circuit Court. This Lease shall not be construed more strictly as to either Party on the basis of which Party is more responsible for its preparation. All terms and conditions agreed upon by the undersigned Parties with respect to the subject matter of this Lease are contained herein, and each Party specifically acknowledges by its execution of this Lease that it has not relied on any verbal promise, representation or warranty made by the other Party, its employees or agents with respect to this Lease or any of the matters and rights addressed herein.

27. NOTICES

Except as provided below with respect to emergencies, notice to either Party shall be sufficiently served if it is in writing and is delivered by electronic mail and also either physically delivered or delivered by certified mail, to the Party at its address as set forth below, or to such other address as may be provided by the Party in writing from time to time.

County:

Dane County Attn: John Welch Department of Waste and Renewables 7102 U.S. Hwy 12 & 18, Madison, WI 53718

With copy to:

Carlos Pabellon, Office of the Corporation Counsel 210 Martin Luther King, Jr. Blvd, Room 419 Madison, WI 53703

Madison, Wisconsin 53718

With copy to:

___ shall provide to County, in writing, the name, address and telephone number(s) of a representative authorized to act on behalf of ___ with respect to performance under this Lease that County can contact 24 hours per day, seven days a week, in the event of exigent circumstances involving the lease.

28. TIME IS OF THE ESSENCETime is of the essence in performance under this Lease.

29. FORCE MAJEURE

Force Majeure shall mean occurrences caused by or resulting from severe weather conditions, war, insurrection, riot, civil commotion, fire or other casualty, strikes, lockouts, inability to obtain labor or materials, or other causes beyond a Party's reasonable control. Neither Party shall have any liability whatsoever to the other Party on account of any event of Force Majeure.