HomeMy WebLinkAbout2023-141 Agreement -ASC #1, LLC Ashland Electric Services Building Area Rooftop
Lease Agreement
This BUILDING AREA Rooftop Lease Agreement (also referred to herein as"Lease")is made and entered
into this 26 day of September 2023, by and between the City of Ashland, a municipal corporation
of the State of Oregon, by and through the Ashland Public Works Department, (hereinafter collectively
referred to as "City"), and ASC#1, LLC, an Oregon limited liability company_(hereinafter referred to as
"Lessee").
RECITALS �.
1. City is the owner of real property located in Jackson County, Oregon and more specifically
described in Exhibit A(the"City Property").City owns and operates an electric utility services building and
related facilities on the City Property as described in Exhibit A-1(the"City Improvements").,
2. Lessee is engaged in the business of developing,constructing, owning and operating solar energy
conversion facilities for the production of electricity.
3. Lessee wishes to lease a portion of the City Property to install and operate a solar photovoltaic
energy conversion facility on the roof of the City Improvements,together with a related solar easement,
and City is willing to grant Lessee a leasehold interest in accordance with the terms of this Lease.
AGREEMENT
1) TERM/EFFECTIVENESS: The term of this Lease shall commence upon approval and execution by both
City and Lessee and shall, exclusive to Lessee, be renewable in 25-year increments on December 31
of the relative year of renewal, and to terminate on December 31, 2073, unless terminated early as
provided for herein. Notice of intent to renew should occur within 60 days prior to the expiration of '
the then present term. Lessee is permitted to operate within the Lease Area 365 days per`year.
2) PAYMENT OF RENT AND REIMBURSABLE EXPENSES:
i) Lessee shall pay City an amount annually as Rent for the period of time between the date
of this Lease and the Commencement Date as set forth in Exhibit D.The"Commencement
Date"shall be the first day of the first full month after the Facility commences commercial
production of electricity on the Lease Area.The Commencement Date shall occur prior to
December 31, 2024. If the Commencement Date does not occur by that date, except as
such period may be extended by Force Majeure or agreement of the Parties,either Lessee
or City shall have the option to terminate the Lease, in which case neither Lessee nor City
shall have any further obligations under this Lease and Lessee shall have no further
obligation to pay Rent to City.All Rent obligations arising under this Lease shall be prorated
for any partial year.
ii) The twelve (12) month periods beginning with the Commencement Date and each
anniversary of the Commencement Date shall each be a Lease Year. At the beginning of
each Lease Year, Lessee shall pa,y to City the annual rental payment in advance for the
Lease Year in the amount set forth in Exhibit D (together with payments due prior to the
Commencement Date, "Rent").
iii) Lessee will reimburse City for all actual utility and service costs the City provides to the
1 I Page Lease-Ashland Electric Services Building Area Rooftop
Facility, including electric power, water, telecommunication and cleaning services as
applicable.
iv) Lessee shall pay all real and personal property and other taxes and assessments levied
against the Facility when due including any equipment or property owned by Lessee within
the Access Premises or Transmission Premises.If the City Property or Premises experiences
any increase in the amount of real property taxes assessed against it,as a result of the
installation of the Facility on the Premises, including any reclassification of the City
Property or Premises or otherwise, Lessee shall pay to the taxing authority or reimburse
City an amount equal to the increase caused by the Facility no later than ten(10)days prior
to the date each year on which the applicable real estate taxes are due to be paid by City,
provided that not less than ten (10) days prior to such due date City provides Lessee with
copies of the applicable current and past statements of real estate taxes payable for the
City Property or Premises and any related information demonstrating the increase was
caused by the Facility and the amount of the increase. Either Party may contest the validity
or amount of any levied taxes,assessments or other charges for which each is responsible
under this Lease as long as such contest is pursued in good faith and with due diligence
and the Party contesting the tax,assessment or charge has paid the obligation in question
or established adequate reserves to pay the obligation in the event of an adverse
determination. -
3) SCOPE OF LEASE: Lessee is granted a lease to install and operate a solar photovoltaic energy
conversion facility (Facility") on the roof of the City Improvements, together with a related solar
easement,within the described area portrayed in Exhibit A("Premises").
a) As part of this Lease, City grants Lessee the use on and through that portion of the City Property
described in Exhibit B (the "Transmission Premises")for the purpose of installing, operating and
maintaining electric distribution lines and communication lines between the Facility and electrical
facilities at the Interconnection Point.
b) Lessee shall interconnect the Facility directly with Ashland Electric; the estimated location is
described in Exhibit C, but the final location will be determined by Ashland Electric (the
"Interconnection Point"). At Lessee's expense, Lessee may install equipment at the
Interconnection Point which will facilitate the future addition of energy storage facilities. As
between City and Lessee, Lessee shall be responsible for all costs of designing, procuring,
installing, maintaining and operating any equipment or facilities necessary to interconnect the
Facility at the Interconnection Point,and to permit receipt of electricity from Ashland Electric and
the transmission and delivery of the electricity produced by the Facility to Ashland Electric. Lessee
shall design,install,operate and maintain all interconnection facilities and equipment,meters and
other electrical equipment so as to prevent any material adverse effect on City, the City
Improvements or City's operations and activities on the City Property.
c) This Lease is not assignable by Lessee but will run with the land and bind any successor to City as
owner of the City Property and City Improvements.
d) This Lease shall be deemed in gross and exclusive to Lessee other than the right the City retains
to use of the City Property and City Improvements according to the terms set forth herein.
e) This Lease does not otherwise waive, modify or grant compliance with federal,state,or local laws
applicable to the Lessee or its business.
f) City retains all rights to use and maintain the Premises and Transmission Premises for the
purposes for which it holds the property without unreasonably interfering with the operation of
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the facility or the rights granted to Lessee.
g) City shall not plant trees,excavate,install improvements,or otherwise undertake activities within
the Transmission Premises which will materially interfere with Lessee's electric or communication
facilities.
4) Solar Easement.
a) City hereby grants Lessee an exclusive easement in gross to use all sunlight which naturally arrives
at the Premises, including an exclusive easement prohibiting any obstruction to the free arrival of
sunlight to the Premises throughout the entire area of the City Property described on Exhibit B
(the "Easement Premises"), which shall consist horizontally three hundred and sixty degrees
(3602)from any point where any photovoltaic generating facility is or may be located at any time
from time to time (each such location referred to as a "Solar Site") and for a distance from each
Solar Site to the boundaries of the Easement Premises, together vertically through all space
located above a plane which is 12 feet above the surface of the Easement Premises,that is, one
hundred eighty degrees (1802) or such greater number or numbers of degrees as may be
. necessary to extend from each point on and along a line drawn along the plane from each point
along the exterior boundary of the Easement Premises through each Solar Site to each point and
on and along such line to the opposite exterior boundary of the Easement Premises. Trees,
structures and improvements located on the Easement Premises as of the date of this Lease shall
be allowed to remain and Licensee may not require their removal.City may not place or plant any
trees, structures or improvements on the Easement Premises after the date of this Lease which
may, in Lessee's reasonable judgment, impede, diminish or interfere with the receipt of sunlight -
at any Solar Site, unless City has received approval from Lessee for installation of any such trees,
structures or improvements. In the event City places or plants trees,structures or improvements
on the Easement Premises which violate the provisions of this Section 4(a), Lessee may notify City
and require removal of the applicable tree,structure or improvement,or modification thereof to
comply with this Section 4(a), within thirty (30) days.The easement granted by this Section 4(a)
is intended to conform with the requirements of Ore. Rev.Stat.Section 105.895(2018).
b) City further grants to Lessee an easement in gross and license for the Facility to create, cause,
increase, accentuate, or otherwise contribute to the occurrence of light, shadows, shadow and
light flickering, glare and reflection, on and across the Premises and City Property. City
acknowledges that the Facility may impact the view and appearance of the City Improvements
from other portions of the City Property, adjacent and nearby property and public roadways and
may cause glare and other visual effects. City covenants and agrees that City and any agent,
employee, club member, or other person claiming through City, will not object or institute any
claim or litigation objecting to the installation or operation of the Facility on such grounds whether
based on a theory of nuisance or any other bases.
5) USE OF PREMISES AND OPERATION LIMITS:
a) General Uses and Limits.Lessee will operate the Facility independently of the established uses of
the Ashland Electric Services Building.
i) Throughout the Term Lessee shall, at its sole cost and expense, maintain Lessee's Facility
in good condition and repair, ordinary wear and tear excepted.Any portion of the Facility
constructed, installed or placed on the Premises or Transmission Premises by Lessee
pursuant to this Lease may be replaced, repaired or refurbished by Lessee at any time.
ii) Lessee shall be responsible for the costs to repair or replace any roof membrane or other
roof components damaged or adversely affected by installation or maintenance of the
Facility.
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•
iii) Lessee will cause its contractors,vendors and agents,and/or their invitees to:
(1) Avoid damage to, or conflict or interference with,the Ashland Electric Services Building,
including operations during permitted access and normal business functions.
(2) Be subject to all the requirements applicable to Lessee under this Lease and Lessee shall
not be relieved of its obligations under this Lease and shall remain liable for.the actions
and omissions of its contractors,vendors and agents.
(3) Lessee reserves the right to relocate or reconfigure the Facility upon the Premises during
the term of this Lease, subject to City's prior approval if relocation or reconfiguration
, materially and adversely affects the City Improvements or their use by City or continuing
compliance of the Facility with all requirements of this Lease.
b) Improvements.This Lease does not authorize or permit physical improvements or alterations to
City property or installation of structures or fixtures within the Premises other than the Facility
without the express written authorization of the City,which will not be unreasonably withheld.
i) City shall provide Lessee with copies of the plans and specifications in its possession for
the roof and related structural components of the City Improvements necessary for Lessee
to design its Facility. City does not provide any warranty or representation about the
accuracy of such information or suitability for Lessee's purposes. Lessee may access the
City Improvements and City Property prior to construction of the Facility to conduct non-
invasive assessments of the City Property and City Improvements.
ii) Lessee will promptly remove and/or correct any structure,fixture,or condition in violation
of applicable law upon the reasonable request by City.
iii) The Facility and related equipment constructed, installed or placed on the Premises and
within the Transmission Premises by Lessee pursuant to this Lease shall be the sole
property of Lessee and irrespective of whether any of the Facility is deemed to be a fixture
or otherwise part of the City Property or City Improvements, and City acknowledges that
the Facility is and shall remain personal property of Lessee irrespective of the manner of
its attachment or connection to the City Improvements or City Property and the Parties
acknowledge that the Facility is severable from the City Property and City Improvements
without damage or other adverse effect to the City Property or City Improvements.
c) Compliance with Law. Lessee must comply with all federal, state and local laws, rules, and
regulations applicable to Lessee or the Facility.
i) Lessee is responsible to determine and ensure that any modification or improvement of
the Facility that affects the City Property or City Improvements shall be procured and
completed in compliance with federal,state and local laws including, if applicable,federal
Davis-Bacon Act and ORS Chapter 279C.
ii) Lessee is responsible for obtaining a business license in accordance with AMC Chapter
6.04, if applicable.
iii) Any permit, license or other authorization granted by the City shall not in any way be
interpreted as a waiver, modification,grant,or affirmation of any other City,state,county
or federal agency permits or authorizations,or permission to violate any City,state,county
or federal law or regulation.
d) Liens. Lessee shall keep the Premises and City Property free and clear of all liens and claims of
liens for labor, materials, services, supplies and equipment performed on or furnished to Lessee
or the Facility on the Premises,Access Premises, or Transmission Premises, or in connection with
Lessee's use of the Premises,Access Premises,or Transmission Premises. Lessee may contest any
such lien but shall post a bond or utilize other available means to remove any lien that is,created
during the contested proceeding. Lessee agrees to otherwise remove any lien or encumbrance
for which it is responsible pursuant to this paragraph within one hundred twenty (120) days of
4 I Page Lease-Ashland Electric Services Building Area Rooftop
the creation of any such lien or encumbrance.
e) Ordinances. City reserves the right to seek penalties for Lessee's violations of law, including "
enforcement of its own Ashland Municipal Code.
f) Modifications to City Improvements
i) During the term, City shall have the right to improve and modify the City Improvements
in any manner that does not affect the configuration, location or operation of the Facility
or the Interconnection Point without the consent of Lessee.
ii) During the first fifteen (15) Lease Years, if City wishes to improve or modify the City
Improvements (excluding normal and necessary roof repair and replacement, which are
subject to the provisions of subparagraph-(iii)) in a manner that may materially affect the
configuration, location or operation of the Facility or the Interconnection Point, City and
Lessee agree to negotiate the manner of the modifications or improvements to reduce
the adverse effect on the Facility or Lessee and any necessary amendments to this Lease
to reflect the changes. If the modification or improvement of City Improvements requires
Lessee to move or reconfigure the. Facility or to materially interrupt or curtail the
operation of the Facility, Lessee's consent to the modification or improvement shall be
required unless City agrees to reimburse Lessee for the costs incurred by Lessee to move,
reconfigure or reduce operation of the Facility. After the fifteenth Lease Year, if City
wishes to improve or modify the City Improvements (other than normal and necessary
roof repair or replacement) in a manner that may cause Lessee to move or reconfigure
the Facility or materially reduce operation of the Facility, City may undertake such
modifications or improvements and the Parties shall negotiate the manner in which the
City will do so in order to minimize the adverse effect on the Facility and Lessee and any
amendments to this Lease necessary to reflect the changes.
iii) In the event that any portion of the roof of the City Improvements on which the Facility
is located requires repair or replacement during the Term and the repair or replacement
will require the movement or disconnection of any portion of the Facility,City and Lessee
agree to cooperate to minimize the dislocation or disconnection of the affected portion
of the Facility and the duration of any such relocation or disconnection and to use
commercially reasonable efforts to schedule such work for periods when solar energy
production is lowest, provided such accommodation does not unduly delay or increase
the cost of such work, or cause continuing damage to the Lessor Improvements. Rent
shall be abated for the period,and to the extent of,any such relocation or disconnection.
Lessee shall be responsible for removing and reinstalling any portion of the Facility
necessary to effect the roof repairs,and City shall be responsible-for the costs of removal
and reinstallation of the Facility.
iv) City does not currently intend to remove, demolish or replace the City Improvements. In
the event the City wishes to remove, demolish or replace the City Improvements during
the Term, Lessee shall remove the Facility and City shall reimburse Lessee for the cost of
removing the Facility plus one-half the estimated lost revenue which Lessee would have
received during the balance of the Term.
6) FIRE AND LIFE SAFETY. Lessee shall comply with any and all fire and life safety guidelines,
recommendations and requirements issued by the City of Ashland Fire Marshal,including, but not limited
to:
a. Maintain all required fire and emergency access areas;
b. Ensure that permitted equipment does not encroach upon or obstruct public walkways
or open space areas while maintaining access for emergency vehicles as approved by the
5 I Page Lease-Ashland Electric Services Building Area Rooftop
City of Ashland Fire Marshal;
c. Maintain a clear, unobstructed space around any fire hydrant as required for fire safety;
d. Have available and maintain such fire extinguishers as determined by the Fire Marshal;
e. Smoking is not permitted on the Premises under any circumstances, and Lessee must so
advise its contractors,vendors and agents; and
f. No use of any bottled gas, electrical devices, or hazardous materials or hazardous
substances without prior approval by the Public Works Director or applicable permitting
agency. For, purposes of this Lease "Hazardous Substance" or "Hazardous Material"
means any hazardous, toxic, infectious, or radioactive substance, waste, or material as
defined or listed by any local,"state or federal environmental law.
7) INSURANCE: Lessee must, at its sole cost and obligation, procure and maintain insurance as provided
in Exhibit E and at relevant times requiring change in amounts, shall meet or exceed the Tort Claim limits
(ORS 30.260-300) in full force and effect throughout the term ofthis Lease. Lessee must provide the City
with copies of insurance certificates reflecting its coverage and shall name the City of Ashland as an
additional insured.
8) INDEMNITY AND HOLD HARMLESS:Lessee will defend,indemnify and hold City,its officers,employees
and agents harmless from any and all losses,claims,actions,costs,expenses,judgments,or other damages
resulting from injury to any person (including injury resulting in death,) or damage (including loss or
destruction)to property as a result of negligence or intentional acts or omissions by Lessee. Lessee waives
the right of subrogation regarding the insurance policy asdescribed in the Insurance Section in this Lease.
Lessee will not be held responsible for damages caused by negligence or intentional acts or omissions of
City. The obligation to indemnify is expressly understood to survive termination of this Lease for any
reason, and includes reasonable attorneys' fees, including attorneys' fees on appeal, and investigation
costs and all other reasonable costs, expenses and liabilities incurred by City or its attorney from the first
notice that any claim or demand is to be made or may be made.
9)TERMINATION:
a) Mutual Consent; Lessee. This Agreement may be terminated at any time by the mutual consent of
both parties. Lessee may terminate this Lease at any time upon notice to City if lessee determines that
installation or continued operation of the Facility is not physically or economically feasible.
b) For Cause. City may terminate this Agreement, in whole or in part, effective upon delivery of written
notice to Lessee,or at such later date as may be established by City under any of the following conditions:
i) If the City Improvements are removed, demolished or replaced as described above;
ii) If federal or state(but not City) regulations or guidelines are modified, changed,or
interpreted in such a way that the City is legally prohibited from performing its obligations under
this Lease or Lessee is legally prohibited from operating the Facility on the Premises;or
c) For Default or.Breach.
i) Either City or Lessee may terminate this Lease in the event of an uncured breach of the Lease
by the other. Prior to such termination the party seeking termination shall give to the other party
written notice of the breach and its intent to terminate. If the party committing the breach has
not entirely cured the breach within thirty(30)days of the date of the notice,or within such other
period as the party giving the notice may authorize in writing,then the Lease may be terminated
at any time thereafter by a written notice of termination by the party giving notice. If a cure of
6 j Page Lease-Ashland Electric Services Building Area Rooftop
the breach involves a repair or other modification to the Facility which will require more than
thirty days to complete,the breach shall be considered cured provided that Lessee initiates the
required repair or modification within thirty days and diligently pursues completion as soon as
practicable,as demonstrated to City.
ii)The rights and remedies of the parties provided in this subsection (c)are not exclusive and are
in addition to any other rights and remedies provided by law or under this Lease.
d) Obligation/Liability of Parties. Termination or modification of this Lease as provided above shall be
without prejudice to any obligations or liabilities of either party already accrued prior to such
termination or modification or which expressly survive termination.
e) At the end of the Term, including any termination of the Lease, Lessee shall remove the Facility within
six(6)months from the date the Term expires or the Lease terminates, repair any damage that may
be caused by such removal and restore any portion of the Transmission Premises located on the
ground to a condition comparable to its condition prior to installation of the Facility. If Lessee fails
to remove any portion of the Facility within the required time period, that portion of the Facility
shall be considered abandoned by Lessee and City may remove that portion of the Facility from the
Premises and Transmission Premises and dispose of it in its sole discretion without notice or liability
to Lessee. In the event Lessee fails to remove any of the Facility as required or restore the
Transmission Premises, and City removes any portion of the Facility or restores the Transmission
Premises at City's expense, Lessee shall reimburse City for all reasonable costs of removing that
portion of the Facility or restoring the Transmission Premises as required by the Lease, plus the cost
of any repair to the City Improvements or City Property resulting from such removal,within thirty
days after receipt of an invoice from City.
10) Disclaimer of Title to Environmental Attributes. City agrees that all Environmental Attributes, as
defined in Exhibit F, remain the property of Lessee irrespective of whether City consumes or uses any of
the electricity generated by the Facility,and City has no title or right to any such Environmental Attributes
related to, arising from or associated with the Facility or any electrical capacity or energy created by the
Facility. As between the Parties, any grant, rebate, incentive payment, bill credit,tax credit or any other
cash or tax benefit arising from or associated with the installation or ownership of the Facility or the
production of energy and capacity by the Facility,shall inure to the exclusive benefit of Lessee, including,
but not limited to, any production tax credit or investment tax credit pursuant to 26 U.S.C. Sections 45
and 48 or similar state tax law provisions. City shall, at no cost or expense to City, cooperate with Lessee
in any applications for such benefits or credits to the extent City's participation is necessary for eligibility,
and if any such program or benefit requires the City to be the recipient,City agrees to assign or reimburse
any such amounts received to Lessee.
11) DISPUTE RESOLUTION AND ATTORNEY FEES: The preferred method of resolving disputes between
the parties under this Lease shall be first by mediation. Mediation shall be conducted by a mediator
chosen by'mutual agreement of the parties; if there is no agreement,the mediator shall be appointed by
an elected Municipal Court Judge or Judge pro tern located within Jackson County. Except for costs
associated with building a case,for attorney fees,and for expert witnesses,any mutually incurred cost of
mediation services shall be shared equally between the two parties.
12) MISCELLANEOUS PROVISIONS.
a. Notice. Any notice affecting the rights of the parties under this Lease shall be delivered in writing
either in person or to the following parties by first class mail:
7 I Page Lease-Ashland Electric Services Building Area Rooftop
City: Public Works Director
20 East Main Street
Ashland, Oregon 97520
(Telephone 541-XXXXXXXXXXXXX
Copy to: City Manager,Joe Lessard
City of Ashland
20 East Main Street
Ashland, Oregon 97520
(Telephone: 541-552-2100; Fax:541-488-5311)
Lessee:ASC#1, LLC
Attn: Pete Jorgensen
Address: 1033 Clay Street,Ashland OR 97520
Phone Number:
b. Governing Law.This Lease,and all matters relating to this Lease,shall be governed by the laws of the
State of Oregon in force at the time any need for interpretation of this Lease or any decision or holding
concerning this Lease arises.The parties to this Lease do not intend to confer on any third party any
rights under this Lease.
c. Severability. If any provision of this Lease is held by a court of competent jurisdiction to be either,
invalid, void, or unenforceable, the remaining provisions of this Lease shall remain in full force and
effect.
d. Merger. THIS LEASE CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO AND
SUPERSEDES ANY AND ALL PRIOR EXPRESS AND/OR IMPLIED STATEMENTS, NEGOTIATIONS AND/OR
AGREEMENTS BETWEEN THE PARTIES, EITHER ORAL OR WRITTEN, AND MAY NOT BE AMENDED,
CHANGED OR MODIFIED IN ANY WAY, EXCEPT BY WRITTEN AGREEMENT SIGNED BY ALL PARTIES
HERETO.
DATED this day of September,2023.
Lessee: City of Ashland,Oregon ASC#1, LLC
c�G�2r�LfL Cee.CL
Printed Name: Sabrina Cotta, Deputy City Manager
Date: Date:9/26/2023
Approved as to form: Douglas M McGeary,Acting City Attorney
EXHIBIT A Com`
I°" 4
DESCRIPTION OF CITY PROPERTY, PREMISES,
ACCESS PREMISES,AND TRANSMISSION PREMISES
1. City Property
8 I Page Lease-Ashland Electric Services Building Area Rooftop
A tract in Jackson County, Oregon described as the North 350 feet of the West 300 feet, Tax Map
3910E10, Lot 900, according to recorded plats. The City Improvements include the existing electric
utility services building and related facilities.
The address of the City Improvements is 90 North Mountain Avenue,Ashland,OR 97520.
2. Premises -
All area on and over the roofs on the existing City Improvements on the City Property described above
as depicted in the diagram attached as Exhibit A-1.
3. Access Premises '
Driveways to and in the City Property from Mountain Avenue and the parking lot to the south of the
City Improvements and all paved and unpaved or improved areas of the City Property necessary to
access the City Improvements and Premises, including access to the roofs of the City Improvements
from the exterior by ladder or crane at locations to be mutually agreed by the Parties, and from the
interior through stairwells and doors designated by City. Any damage to City Property as a result of
such access shall be restored and repaired at Lessee's expense.
1. Transmission Premises
A. That portion of the City Improvements from the roof over, along and upon the exterior
wall or through interior soffits and chases to a point inside the locker room as shown on Exhibit C-1 in
which electrical conduit will be located, and which will iriciude a strip five feet wide with the conduit, as
installed,as the centerline; and
B. A strip of land 25 feet wide between the Facility inverters and related equipment located
immediately south and east of the City Improvements and the existing Ashland Electric transformer
located on the sidewalk on the south side of the building,the centerline of which will be the transmission
line to be installed by Lessee or Ashland Electric, all as shown in Exhibit C-1. If the Parties agree to have
the Facility interconnect at a new transformer being installed by the City,the centerline shall be revised
so that the termination point shall be at the point at which the transmission line between the Facility and
the interconnection with the transformer terminates at the transformer.
9 I Page Lease-Ashland Electric Services Building Area Rooftop
EXHIBIT A-1
DIAGRAM OF PREMISES
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10 I Page Lease-Ashland Electric Services Building Area Rooftop
EXHIBIT B
DESCRIPTION OF EASEMENT PREMISES
1. Easement Premises
A tract in Jackson County, Oregon described as follows:
That part of Tax Map 3910E, Lot 900 immediately south of the Premises and 100 feet east of the
Premises.
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1 -
EXHIBIT C
INTERCONNECTION POINT
Interconnection will be at an existing Ashland Electric-208 three phase 300kVa transformer
located on the south side of the City Improvements as depicted in Exhibit C-1.The Parties may agree to
interconnect at a new transformer being installed by the City, in which case this Lease shall be amended
to reflect the new location. j
12 I Page Lease-Ashland Electric Services Building Area Rooftop
EXHIBIT C-1
TRANSMISSION PREMISES AND INTERCONNECTION
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11 Iik ii7'It13 I Page Lease Ashland Electric Services Building Area Rooftop
EXHIBIT D
RENT
Initial Rent: Rent shall equal $50 per year for the period prior to the Commencement Date.
Base Rent: The base rent for the Premises shall be $550 per year.
CPI-U Adjustment: Commencing on the second anniversary of the Commencement Date, and
every two years thereafter,the base rent shall be adjusted by the lesser of(i) changes in the
Consumer Price Index for All Urban Consumers (CPI-U) for Portland, Oregon,published by the
U.S. Bureau of Labor Statistics for the prior two year period and(ii) four(4)percent. The CPI-U
adjustment shall be calculated as follows:
New Rent Amount=Base Rent x (CPI-U in Current Year/CPI-U in Base Year)
The "CPI-U in Current Year" shall refer to the most recent CPI-U published before the
adjustment date, and the "CPI-U in Base Year" shall refer to the CPI-U as of the Commencement
Date.
Adjustment Notice: The City shall provide written notice to the Lessee at least 60 days before the
adjustment date, specifying the new rent amount and providing supporting documentation for the
CPI-U calculation. Failure to provide notice on time does not relieve the Lessee from paying the
amount calculated as provided herein.
Minimum Adjustment: In no event shall the adjusted rent be less than the Base Rent.
Calculation Disputes: If the Lessee disputes the CPI-U calculation or the resulting adjusted rent
amount,the City and Lessee shall make good faith efforts to resolve the dispute. If no resolution
is reached, either party may seek a professional opinion from an independent third-party
economist or statistician. The cost of such opinion shall be borne equally by both parties.
Payment: The adjusted rent shall become effective on the adjustment date specified in the notice
provided by the City. The Lessee shall pay the adjusted rent from that date onward.
Additional Terms: All other terms and conditions of the Lease remain in full force and effect.
14 I Page Lease-Ashland Electric Services Building Area Rooftop
EXHIBIT E
Insurance Requirements
The Lessee, at its sole cost and expense, commencing on the effective date of this Lease,shall procure
and maintain insurance described below in full force and effect throughout the term of this Lease. It is
agreed that any insurance maintained by City shall apply in excess of,and not contribute with, insurance
provided by Lessee. Lessee's insurance shall be primary and non-contributory and have a cross-liability
clause. During the term of this contract, Lessee shall maintain in full force, all the insurance coverage
noted below with the City named as additional insured:
1. Comprehensive General Liability insurance,with a general aggregate limit of not less than
$2,000,000 and$2,000,000 per occurrence. Each policy shall contain a blanket contractual
liability endorsement to cover the Lessee's indemnification and other obligations under this
Lease as well as owners'and contractors' protective insurance, products and completed
operations coverage,fire damage, personal and advertising injury coverage. It shall also include,
if appropriate for the contract, coverage for Facility operations, explosion and collapse hazard,
underground hazard, products, completed operations, contractual insurance, and independent
contractors.
2. -Comprehensive Automobile Liability insurance,with a general aggregate limit of not less than
$1 million and$1 million per occurrence, including coverage for owned, hired or non-owned
vehicles.
3 Notice of cancellation or change. There shall be no cancellation, material change, reduction of
limits or intent not to renew the insurance coverage(s)without 30 days written notice fromlthe
Lessee or its insurer(s)to the City.
4. Certificates of insurance. As evidence of the insurance coverages required by this contract,the
Lessee shall furnish acceptable insurance certificates to City within thirty days after the effective
date of this Lease and upon renewal of any applicable policies thereafter. For general liability
insurance and automobile liability insurance the certificate will provide that the City, Public
Works Division,and its officers, employees and agents are Additional Insureds. The certificate
will include the 30-day cancellation clause and will include the deductible or retention level.
Insurer companies or entities are subject to City acceptance. If requested, complete copies of
insurance policies shall be provided to the City. Lessee shall be financially responsible for all
pertinent deductibles,self-insured retentions,and/or self-insurance. Certificates of Insurance
shall be forwarded to the Public Works Division at the address in the notice provision..
l
5. City Property Insurance. The Parties may agree to have the City include the Facility under
coverage of City's property insurance if permissible under Applicable Laws, in which case Lessee
shall reimburse City for any incremental increase in the City's premiums associated with such
coverage for the Facility.
6. Workers Compensation insurance in compliance with Oregon Statutes, [ORS 656.017]which
requires subject employers to provide Oregon workers'compensation coverage for all their
subject workers. (Required of persons with one or more employees, unless exempt under ORS
15 I Page Lease-Ashland Electric Services Building Area Rooftop
656.027).) Only if Lessee does not employ workers subject to ORS Chapter 656, Lessee shall sign
the following affidavit:
EXEMPTION AFFIDAVIT
Lessee declares,under penalty of perjury and false swearing,that Lessee does not currently
employ,and will not employ any individuals for work under this contract during the term this
Lease is in force.
Lessee Signature
Date
16 j Page Lease-Ashland Electric Services Building Area Rooftop
EXHIBIT F
DEFINED TERMS
The terms defined below,when capitalized and used in the Lease,shall have the meanings given to
them in this Exhibit F.
1. Applicable Laws: All applicable laws,statutes,treaties, codes, ordinances, regulations,orders,
licenses, permits,and rules of any governmental authority, now in effect or enacted in the future,as
amended,and as interpreted and applied, and all applicable judicial, administrative, arbitration and
regulatory decrees,judgments, injunctions,writs,orders, and awards.
2. Emergency: Any condition or situationthat in the judgment of City or Lessee (i)endangers or
might endanger life or property,or(ii)adversely affects City's ability to maintain a safe environment at
the City Improvements, including the Premises.
3. Environmental Attributes: All attributes of an environmental or other nature that are created or
otherwise arise from the Facility,generation of electricity using sunlight as a source of energy,either in
its own right or in contrast to the generation of electricity using nuclear or fossil fuels or resources,
including, but not limited to,tags, certificates or similar products or rights associated with solar energy
as a"green"or"renewable" energy resource, including any and all environmental air quality credits,
emissions reductions, allowances, offsets or other benefits related to the use of solar energy at the City
Property in a manner which reduces, displaces or offsets emissions resulting from fuel combustion
pursuant to any existing or future international,federal, regional,state or local legislation, regulation or
agreement or voluntary agreement, and the aggregate amount of credits,offsets or other benefits
related to any environmental or renewable energy credit trading program, information system or
tracking system associated with the energy generated from the Facility, and any credits,allowances,
offsets,or emission or pollution reductions for substances such as mercury, nitrogen oxide,sulfur
dioxide,carbon dioxide,carbon monoxide, particulate matter,or other contaminants or air,water or soil
under federal,state, regional or local law or any international regulatory or voluntary program, including
the United Nations Framework Convention on Climate Change and related Kyoto Protocol and similar or
successor programs, agreements, laws and regulations. "Environmental Attributes" does not include
investment tax credits,or any similar tax credits, or cash grants, production incentives or similar tax or'
cash benefits,whether or not such tax credits or cash benefits arise from or are related to the Facility's
use or generation of solar energy.
4. Environmental Law: Any federal,state and local laws, including statutes, regulations, rulings,
orders, administrative interpretations and other governmental restrictions and requirements, relating to
the production, handing, release, discharge,treatment or disposal of air pollutants,water pollutants,
process waste water, Hazardous Substances,toxic substances or otherwise relating to the natural
environment or natural resources, each as amended from time to time, including, but not limited to (i)
the Clean Air Act, as amended,42 U.S.C. §7401 et seq.; (ii)the Federal Water Pollution Control Act,as
amended,33 U.S.C. § 1251 et seq.; (iii)the Resource Conservation and Recovery Act of 1976,as
amended,42 U.S.C. § 6901 et.seq.; (iv)the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980,as amended,42 U.S.C. § 9601 et seq.; (v)the Toxic Substances Control Act,as
amended, 15 U.S.C. §2601 et seq.; (vi) Occupational Safety and Health Act of 1970; (vii)the Emergency
Planning and Community Right-to-Know Act,42 U.S.C. § 11001 et seq.;and (viii) any other similar
applicable federal,state or local law.
17 I Page Lease-Ashland Electric Services Building Area Rooftop
5. Hazardous Substance: (A)Any substance which is listed,defined, designated or classified under
any Environmental Law as a (i) hazardous material,substance, constituent or waste, (ii)toxic material,
substance, constituent or waste, (iii) radioactive material,substance, constituent or waste, (iv)
dangerous material,substance,constituent or waste, (v) pollutant, (vi) contaminant, or(vii)special
waste; (B) any material,substance, constituent or waste regulated under any Environmental Laws; or
(C) petroleum, petroleum products, radioactive materials, polychlorinated biphenyl, pesticides,
asbestos, or asbestos-containing materials.
6. Ashland Electric: Ashland Municipal Electric Utility and its successors and assignees.
7. Prudent Electric Industry Practice: Those methods and that equipment,as changed from time to
time,that are commonly used and accepted in electrical engineering and operations to operate
electrical equipment lawfully and with safety, dependability and efficiency, including, but not limited to,
the requirements of the National Electric Safety Code,the National Electrical Code,Ashland Electric, and
any Applicable Laws.
•
18 I Page Lease-Ashland Electric Services Building Area Rooftop
City: Public Works Director
20 East Main Street
Ashland,Oregon 97520
(Telephone 541-XXXXXXXXXXXXX
Copy to:City Manager,Joe Lessard
City of Ashland
20 East Main Street
Ashland,Oregon 97520
(Telephone: 541-552-2100; Fax:541-488-5311)
Lessee:ASC#1,LLC
Attn:Pete Jorgensen
Address:1033 Clay Street,Ashland OR 97520
Phone Number:541-227-9316
b. Governing Law.This Lease,and all matters relating to this Lease,shall be governed by the laws of the
State of Oregon in force at the time any need for interpretation of this Lease or any decision or holding
concerning this Lease arises.The parties to this Lease do not intend to confer on any third party any
rights under this Lease.
c. Severability. If any provision of this Lease is held by a court of competent jurisdiction to be either,
invalid,void, or unenforceable,the remaining provisions of this Lease shall remain in full force and
effect.
d. Merger. THIS LEASE CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO AND
SUPERSEDES ANY AND ALL PRIOR EXPRESS AND/OR IMPLIED STATEMENTS,NEGOTIATIONS AND/OR
AGREEMENTS BETWEEN THE PARTIES, EITHER ORAL OR WRITTEN, AND MAY NOT BE AMENDED,
CHANGED OR MODIFIED IN ANY WAY, EXCEPT BY WRITTEN AGREEMENT SIGNED BY ALL PARTIES
HERETO.
DATED this 26 day of September,2023.
Les ee: , City of Ashland,Oregon ASC#1,LLC
3+-L �A
Printe N. e: Ne LLC Manager Sabrina Cotta,Deputy City Manager
Date: 9-27-2023 Date:9/26/2023
Approved as to form: Douglas M M.cGeary,Acting City Attorney
EXHIBIT A
25416')
DESCRIPTION OF CITY PROPERTY.PREMISES.
ACCESS PREMISES,AND TRANSMISSION PREMISES
1. City Property
8 1 Page Lease-Ashland Electric Services Building Area Rooftop
(
656.027).) Only if Lessee does not employ workers subject to ORS Chapter 656,Lessee shall sign
the following affidavit:
EXEMPTION AFFIDAVIT
Lessee declares,under penalty of perjury and false swearing,that Lessee does not currently
employ,and will not employ any individuals for work under this contract during the term this
Lease is in force.
�1 /yam •
A,
7 ' �r/'J r Q`U�� 1 Vi . Lessee Signature
Date
•
•
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16 Page Lease-Ashland Electric Services Building Area Rooftop,
7