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HomeMy WebLinkAboutLEG 02-15From: Subject: Paul Bigioni Director, Corporate Services & City Solicitor Report to Council Report Number: LEG 02-15 . Date: January 19, 2015 Solar Photovoltaic (PV) Installation under the Provincial FIT 2.0 Program Solar Array Roof Lease Agreement File: L-41 00-005-14 Recommendation: 1. That Report LEG 02-15 of the Director, Corporate Services & City Solicitor be received; 2. That the Solar Array Roof Lease Agreement between the City of Pickering and Veridian Connections Inc., Solera Sustainable Energies Company Limited and Queen Street Solar Co-operative Corporation be approved; 3. That the Mayor and City Clerk be authorized to execute the Solar Array Roof Lease Agreement as set out in Attachment 1 to this Report, subject to minor revisions agreeable to the Director, Corporate Services & City Solicitor; 4. That Council authorize the appropriate City official to undertake the necessary actions required to implement the above recommendations; and 5. Further, that a copy of this Report be forwarded to Veridian Connections Inc., Solera Sustainable Energies Company Limited, and Queen Street Solar Co- operative Corporation. Executive Summary: Further to Council Resolution 153/12 (Attachment 2 to this Report), staff have finalized the terms of the Solar Array Roof Lease Agreement that will ensure that the City's ongoing maintenance, operation and repair of the Claremont Community Centre is not diminished in any way by the installation of the solar panels. Financial Implications: There is no cost to the City for the installation or maintenance of the solar photovoltaic ("PV") system. Under the Solar Array Roof Lease Agreement, the City will receive $6,000 per year over the 20-year term of the lease for a total of $120,000. The revenues generated by this project are fixed by the FIT 2.0 program rules. 47 48 Report LEG 02-15 Subject: Solar Array Roof Lease Agreement 1. Background January 19, 2015 Page 2 On December 10, 2012, Council received Report OS 05-12 regarding the establishment of a solar PV system on the roof of the Claremont Community Centre. Council supported the proposal from Veridian Connections Inc. ("Veridian"), Sclera Sustainable Energies Company Limited ("Sclera"), and Queen Street Solar Co-operative Corporation ("Queen Street Solar") to establish a solar PV system and directed that the revenues from the lease be used to fund future energy conservation, generation and. efficiency initiatives on property owned or leased by the City. The final lease agreement was required to be brought back to Council for approval. Approval has been given for the solar PV installation pursuant to the Province's Feed-in-Tariff ("FIT") Program. 2. Discussion Further to Council Resolution #153/12 (Attachment 2 to this Report), City staff have negotiated a long term roof lease agreement between the City as Landlord and Veridian, Sclera, and Queen Street Solar as Tenant. The lease ensures that the City's ongoing maintenance, operation and repair of the Claremont Community Centre is not compromised by the installation of the solar PV system. Specifically, the lease includes the following key provisions: • allows for an extension of the lease if the roof of the Claremont Community Centre needs to be replaced before the end of the 20 year lease term • at the end of the lease, the City has the option of owning the equipment or requiring the Tenant to remove the equipment from the building at the Tenant's expense • allows the City one cost free removal and replacement of the entire roof during the 20-year lease term • allows the City to undertake localized emergency roof repairs and maintenance during the lease term • requires the Tenant to install all required electrical equipment for the building, and to provide any required permits and certificates for completion and maintenance at its cost. 3. Conclusion It is recommended that Council receive this report and approve the Solar Array Roof Lease Agreement between the City, Veridian, Sclera, and Queen Street Solar substantially in the form of Attachment 1 to this Report. CORP0227-07/01 revised Report LEG 02-15 Subject: Solar Array Roof Lease Agreement Attachments: 1. Solar Array Roof Lease Agreement 2. Council Resolution 153/12 Prepared By: ~mrfiiJYiL~~ Grant McGregor Manager, Sustainability & Economic Development GM/PB:ks Recommended for the consideration of Pickering City Cou1cil Tony Prevedel, P.Eng. Chief Administrative Officer CORP0227-07/01 revised January 19, 2015 Page 3 rate Services & City Solicitor 49 50 ATTACHMENT# I TO REPORT# /_EC"l 002-(S j .of. (3 0 SOLAR ARRAY ROOF LEASE AGREEMENT THIS AGREEMENT made as of the __ day of ______ 20 14, BETWEEN: The Corporation ofthe City of Pickering, (hereinafter .called.the "Landlord") -and- Veridian Connections Inc., Solera Sustainable Energies Company Limited, and Queen Street Solar Co-operative Corporation (hereinafter called the "Tenant") IN CONSIDERATION OF the covenants, terms, conditions and agreements contained herein, the Landlord and Tenant covenant and agree as follows:· 1.01 In this Lease: ARTICLE 1 DEFINITIONS (a) "Access Right" means a non-exclusive right over those portions of the Lands and the Building(s) thereon necessary to enable the Tenant to gain access to the Leased Premises, which shall include those portions as · designated by the Landlord from time to time, available for common access and egress for occupants of the Building(s) such as driveways, walkways, and any exits and entrances. Access for the Tenant shall be upon prior reasonable notice to the Landlord at times acceptable to the Landlord acting reasonably. (b) "Article", "Section", "Schedule" and "Paragraph" means and refers to the specified article, section, schedule or paragraph of this Lease. · (c) "Building(s)" means the structure situated on the Lands described in Section (i) below. (d) "Cables" means the wires and cables including, without limitation, electrical cables which may be installed by the Tenant in, over or under those portions -2- of the Building and the adjacent lands owned by the Landlord. including, without limitation, through existing Building conduits, as may be necessary, the location of which shall be subject.to the approval of the tandlord (such ·approval not to be unreasonably withheld),. to connect the Equipment, as may be necessary for the uses set out in Section 4 below. (e) "Commencement Date" means the date described in Section 2.01. (f) "Leased Premises" means that portion of the Lands shown on the Plan, and the "Sketch" attached hereto as Schedule "A". (g) "Equipment" means the solar array, mounting substructure, inverter, meter and all receiving and transmitting equipment to convert sun light energy into electricity and to connect such electricity into a electricity distribution grid. (h) "FIT Program" means the Feed in Tariff Program, as may be an1ended, established by the Ontario Power Authority . . (i) "Lands" means the real property located in the City of Pickering, Province of Ontario, known as the property on 4941 Brock Rd., Pickering ON and including the Building(s) located thereon and surrounding lands owned by the Landlord and all other fixtures and improvements located therein. G) "Lease" means this. lease and all instruments supplemental hereto or m amendment or confirmation hereof. (k) "Operational Date" means the date of commencement of electricity generation by the Tenant's Equipment at the Lands for the purposes of sale pursuant to the FIT Program. (1) "Plan" means the plan attached as Schedule "A". (m) "Rent" means the annual rent payable by the Tenant to the Landlord as provided in Section 3. . (n) · "Term" means the period oftime describedin Section 2.01. (o) "Uses" means the exclusive use of the Leased Premises, where the Tenant's Equipment is located, subject to the terms and conditions contained in this Lease. 2.01 Demise and Term ARTICLE2 DEMISE The Landlord hereby leases to the Tenant the Leased Premises for the Term of twerity (20) years (the "Term") commencing on the frrst day of commercial operation of the solar array (the "Commencement .Date") and ending on the Commencement Date plus twenty (20) years (the "Termination Date"). 51 52 -3- At the Termination Date, the Tenant will agree to transfer ownership of the Equipment to the Landlord for the sum of One Dollar ($1.00) ), or Tenant will remove the Equipment froni the Building at its sole expense, and the Landlord agrees that for a period of up to four (4) months after expiry oi earlier termination of the Lease that the Tenant's Access. Right will be maintained as reasonably required by the Tenant in order to effect such removal. Upon reinoval of the Equipment, the Tenant shall restore the Roof area and others areas that it used to the condition in which they existed prior to the installation of such equipment, save and except for normal wear and tear, and the Tenant shall be responsible for repairing any damage caused to the Roof; the Building or the Lands by such removal. 3.01 Rent ARTICLE3 RENT The Tenant shall pay to the Landlord Rent as follows: (a) On the Operational Date, and on each anniversary of the Commencement Date the sum of Six Thousand Dollars ($6,000) plus the applicable HST taxes thereon shall be payed. USE OF LEASED PREMISES 3.02 The Landlord grants permission to the Tenant and the Tenant shall have the right, all at the Tenant's expense subject to Section 4.04: (a) To install, operate, maintain, repair, remove and replace the Equipment upon or within the Leased Premises in a good and workmanlike manner; (b) To connect the Equipment to the utility company electrical power source at point of common coupling within the Leased Premises; (c) Except as prevented by emergencies or reasons beyond the Landlord's control, and upon providing at least 24 hours notice to the Landlord, to have access to the Leased Premises 24 hours a day 7 days a week and such other . rights as are necessary for the installation, operation, maintenance, removal and replacement of the Equipment; and, (d) To use the Leased Premises including the Equipment for the purpose of generating electricity from solar energy. ARTICLE4 TENANT'S COVENANTS 4.01 The Tenant covenants and agrees with the Landlord that throughout the Term, the Tenant shall: (a) (b) (c) -4- Pay Rent in accordance with the Lease; Be responsible for all' costs relating to the Equipment including the cost of buying, installing and operating the Equipment; · Hold insurance in the name of the Landlord as additional insured in the event that the Tenant, or one of its agents, damages the Leased Premises during the installation or maintenance of the Equipment;· (d) Provide maintenance as needed to maintain optimal generating efficiency of the Equipment; and, (e) Provide 24 hours notice to the Landlord prior to exercising its Access Right save and except at least in the event of emergencies involving the Equipment. 4.02 Construction (a) (b) (c) (d} All construction and maintenance of ¢.e Equipment will be carried out by the Tenant at its own expense and in compliance with all Building(s) code, laws and by-laws of all governmental authorities having jurisdiction. Upon termination of this Lease, the Tenant shall remove all of the Equipment at its own expense and return the Leased Premises and the Building(s) where applicable to its condition before the commencement of this Lease save and except for reasonable wear and · tear. Any materials, including Cables, which may lie beneath the surface of the Leased Premises or the surface of the Lands will not have to be removed by the Tenant, unless the same are required to be removed pursuant to applicable laws, and the Tenant shall repair any damage to the Leased Premises and/or the Building(s) caused by the removal of the Equipment .or any part thereof, at the sole cost of the Tenant. Tenant is to install all of the required electrical equipment for the project, and provide any required permits and certificates for completion and maintenance of such, at their cost. Inverters are to be located on the north side of the gym exterior wall, and to be secured by means of a metal post and chain link enclosure with pad lock gate. The enclosure shall meet all safety clearances and regulations, and the City is to be provided with access key (min. 3). Conduit and Equipment locations to be approved by the City priqr to installation. 4.03 Indemnity Save for the gross negligence of the Landlord and those persons authorized by ·the Landlord to be on the Leased Premises, the Tenant shall indemnify and save harmless the Landlord against all losses, costs, charges, expenses, actions, suits, claims or damages arising out of or as a result of: · 53 54 -5- (a) any breach, violation, or non-performance of the terms, covenants and obligations on the part of the Tenant set out in this Lease; (b) any damage to the Building( s ); and (c) any injury to or death of any person resulting 'from the use of the Leased Premises or any act or omission committed by the Tenant, its servants, agents, employees or contractors or those for whom it is fu law responsible. 4.04 Restrictions On Use , (a) The Leased Premises andthe Equipment shall be used by the Tenant only for the purpose of the Uses. · (b) In the construction, operation~ installation, maintenance, removal and ·replacement of the Equipment and the Uses of the Leased Premises, and in using the Access Right, the Tenant shall: (i) cause no material inconvenience to the Landlord and any other tenant of the Landlord or occupant of the Building(s) or any part th~reof; (ii) complete all of its work as expeditiously as reasonably possible; (iii) use competent and, where required by law, licensed workmen and perform all work in a good and workmanlike manner using new or first class or re- conditioned Equipment and materials; (iv) not commence any work or install the Equipment unless all necessary permits have been obtained. Evidence of the said approvals satisfactory to the Landlord, acting reasonably, will be delivered to the Landlord upon written request; and, (v) carry out the installation, maintenance, operations, removal and replacement of the Equipment, at its sole expense. 4.05 Loss or Damage None of the Landlord, nor those for whom it is in law responsible, shall be liable for any death o:r injury arising from or out of any occurrence in, upon, at or relating to the Leased Premises or the Equipment or damage to property of the Tenant or of others located on the Leased Premises or the Equipment, nor shall they be responsible for any loss or damage to any property of the Tenant or others from any cause whatsoever, except if such death, injliry, loss or damage results from the gross negligence of the Landlord or those for whom .it is in law responsible. All property of the Tenant kept or stored on the Leased Premises or the Equipment shall be so kept or stored at the risk of the Tenant only and the Tenant hereby releases the Landlord and shall indemnify the Landlord and save it harmless from any claims arising out of any damages to the same including, without limitation, any subrogation claims by the Tenant's insurers unless such damage is caused by the gross negligence of the Landlord and those for who it is at law responsible. -6- 4.06 Insurance The Tenant shall, during the Term and any renewal, take out and keep in full force and effect in the names of the Tenant (the Landlord being added as an additional. insured) public liability insurance applicable to all operations of the Tenant and which shall include bodily injury liability and property damage liability. personal injury liability, contractual liability, non-owned automobile liability and Tenant's legal liability with respect to the Tenant's occupation of the Leased Premises and the Equipment used in the Building(s). Such policy shall be written on a comprehensive basis with limits of not less than $5,000,000 per occurrence and shall contain a severability of interest and cross- liability clause, and shall be non-contributing with, and shall apply only as primary and not as excess to any other insurance available to the Landlord. The Tenant agrees that certificates of insurance or, if required by the Landlord, certified copies of such insuranc~ policy will be delivered to the Landlord on request. The said policy shall contain an undertaking by the insurers to notify the Landlord in writing not less than thirty (30) days prior to any reduction in coverage, cancellation or other termination of the said policy. Failure to take out or keep in force such policy shall enable the Landlord as follows: (i) without assuming any obligation in that regard, to effect such insurance, at the sole cost of the Tenant, and all payments.made by the Landlord therefor shall within thirty (30) days become payable by the Tenant, or be recoverable by tile Landlord as Rent (ii) to terminate this lease herein upon 20 days written notice without any payment and/or penalty to be paid to the Tenant. 4.7 ·use of the Equipment The Equipment shall be used in a safe, careful and proper manner so as not to contravene any present or future laws, regulations or orders or the requirements of the Landlord's or Tenant's insurers. If due to the Tenant's use of the Equipment, repairs, improvements or alterations to the Building(s) or any part thereof, are necessary to comply with any of the foregoing, the Tenant shall pay the entire cost thereof. 5.01 Quiet Enjoyment ARTICLES LANDLORD'S COVENANTS Subject to the performance by the Tenant of all of the obligations herein contained, the Tenant shall have quiet enjoyment of the Leased Premis~s. The Landlord or those parties for whom it is in law responsible shall not cause the Equipment to be offline for more than fifteen (15) days, unless such cause is beyond the reasonable control of the Landlord because of weather conditions, strikes, labour and material shortages, Acts of God, fire, ·lightning, laws, regulations, rules and by-laws of any governmental authority having jurisdiction or unless such cause results from the Landlords repairs and/or replacements to the Building and/or Leased Premises. The Landlord shall· have no right to interfere with the Equipment in any manner whatsoever, unless the Landlord is required to do so in order to comply with the laws, regulations, rules and by-laws of any governmental authorities having jurisdiction and/or unless the Landlord is required to initiate and complete repairs and/or replacements to the Building and/or the Leased Premises. 55 56 -7- 5.02 Access (a) In consideration of the Rent and other good and valuable consideration set forth in this Lease, the Landlord hereby grants to the Tenant during the Term and any extensions thereof the non-exclusive use ofthe Access Right. (b) The Access Right shall be for the benefit of and be appurtenant to the leasehold interest created by this Lease and for the use and enjoyment of the Tenant, its assignees, subtenants, licenses and their respective employees, servants, contractors, subcontractors and agents. (c) The Access Right shall be construed as running with and binding ripon the Lands and all parts thereof. · (d) Notwithstanding the foregoing, the Tenant's non-exclusive right to the Access Right granted pursuant to this Section shall be subject to the restrictions contained in Section 4.04. 5.03 Landlord's Co-Operation The Landlord covenants and agrees, at the sole cost to the Tenant, to co-operate with the Tenant in obtaining all necessary. consents of the municipality and other governmental authorities having jurisdiction with respect to the construction, operation, maintenance, repair and replacement of the Equipment and to this end, will, without restricting the , foregoing, execute at Tenant's expense all necessary authorizations to enable the Tenant to obtain building permits, site plan approvals, by-law amendments or minor variances (provided such by-law amendments or minor variances are not adverse to the Landlord's interest acting reasonably) and to obtain the release of any information with respect to the Leased Premises or the Landlord's Lands of which the Leased Premises form a part from any such autl).orities and to enable the Tenant to obtain plans and drawings from the municipality, or any architect or engineer, provided that all of the foregoing shall be at the sole cost of the Tenant. 5.04 Governmental Authority The Tenant agrees to observe and comply with all laws, statutes, regulations, by-laws, codes and requifements of all municipal and governmental authorities having jurisdiction over the Lands, applicable to the installation, use, repair, replacement and removal of the Equipment. 5.05 Owner ofLands The Landlord has the authority to .enter into this Lease and, other than the Landlord, there are no further owners of the Lands. 5.06 Repair or Replacement ofRoof One free removal and replacement during the Term: -8- The Tenant willpay for the costs incurred by the Tenant for the removal and replacement (the "Relocation Costs") of the whole roof Equipment once during the Term to facilitate the Landlord in replacing the roo£ The Landlord shall replace the roof within 28 days of the day following the completion of removal of the Tenant's Equipment, having made the roof ready for reinstallation of the Equipment. The Tenant shall be relieved from payment of any roof rent on a per diem basis, commencing on the day following the completion of removal of the Tenant's Equipment and continuing until the roof work has been completed, allowing fot reinstallation of the Equipment by the Tenant Should the ·Landlord exceed the 28 day period, the Tenant shall be entitled to collect the Production Interruption Fee beginning on the 29th day and continuing until the roof is ready for reinstallation of the Equipment. The Landlord shall exercise its best efforts to avoid undertaking a roof replacement during the months of June, July and August. The Landlord shall not unreasonably replace the roof. If at any time during the Term, the Landlord believes that the roof must be replaced, Landlord shall commence re-roofing only based on the recommendations contained in an independent professional consultant's report. The Landlord shall make the consultant's report available to the Tenant. · · Emergency roof repair: The Tenant acknowledge~ that from tinle to time during the Term, the Landlord may require the Tenant to remove and replace, at its cost, part of the Equipment to facilitate necessary emergency repairs to the roo£ If part of the Equipment is required to be removed and replaced, the Tenant shall be relieved from payment of any roof rent for the affected System Zone(s) on a per diem basis, commencing on the day following the completion of removal of the Tenant's Equipment and continuing until the roof work has been completed, allowing for reinstallation of the Equipment by the Tenant. A System Zone means all solar panels that are connected to a particular inverter, of which there are ten (10) inverters. Example: solar panels are required .to be disconnected and their electrical connections are made to two inverters.. This will result in a 20% reduction in roof rent. Production Interruption Fee: The Production Interruption Fee will be calculated on·a per diem basis utilizing the average of the three prior year's monthly FIT revenue production values. The daily Production Interruption Fee shall not exceed the amount of$300.00. Sample Production Interruption Fee calculation: Example: The Equipment is removed and re-roofing is completed on day 35, exceeding the 28 day period by 7 days. The month of roof replacement is a month having 30 calendar days, and the average of the 3 prior years' same-month FIT revenue· for the Equipment was $1,000. Production Interruption Fee Calculation: $1,000 X 7/30 = $233.33, or $33.33per day. 57 58 -9- 5.06.1 Landlord's Remediation of Roof: In advance ofthe Tenant's installation-'pfthe Equipment, the Landlord agrees to perform all remedial actions to the roof as recommended and described in the report Roof Condition Survey, produced by Peto MacCallum Ltd.; dated November 21, 2014. Such remedial actions may be limited to areas required for access to, or installation of, solar panel equipment . 5.07 Legal Status The Landlord is at least eighteen (18) years of age. The Landlord now has and shall ·continue to have the full right, power and authority to assign and transfer the Leased Premises under the terms of the Lease and to perform all of the other obligations to be performed by the Landlord under this Lease. - 5.08 (a) Sale ofLands In. the event that the Landlord enters into an agreement to sell·the Lands, the Landlord shall notify the Tenant in writing of the proposed sale and the Landlord shall cause the purchaser to assume the Lease with no change in terms or conditions ofthe lease. (b) In the event that the Landlord wishes to de~olish the building at any time during the term of the lease the Landlord may terminate this Lease upon 60 days prior written notice to the Tenant and in which event the Landlord shall pay to the Tenant the penalty fee described in Section 6.03 herein and Tenant shall remove its equipment forthwith at its cost and shall be responsible for all repairs and replacements to the building caused by such removal. 5.09 ·No Grant of Third Party Rights The Landlord shall Jiot take any action or grant any third party any rights in the Leased Premises that may materially interfere with the development, construction or operation of the Equipment on the Lea$ed Premises. Notwithstanding the generality of the aforesaid the Landlord shall not be prevented from mortgaging the lands and building and/or granting collateral security to any lender during the term of the Lease and any renewal thereof .. The Tenant hereby agrees to execute a postponement of this Lease Agreement in favour of any mortgagee or lender of the Landlord upon the written request of the Landlord and the Tenant hereby authorizes the Landlord to execute said postponement on its behalf in the event the Tenant fails or refuses to execute and deliver said postponement to the Landlord '(lpon request. 5.10 Estoppel The Landlord covenants and agrees not to commence any action or proceeding against the Tenant with respect to noise, odours, lighting or any other nuisance created by or in respect of the Equipment and the Landlord is hereby estopped from pursuing such action or proceeding unless the Landlord is required to take such action or proceedings in order -10- to comply with any laws, rules, regulations and by-laws of any governmental authorities · having jurisdiction. ARTICLE6 TERMINATION OF LEASE 6.01 Interference witl:i Energy Conversion If operations of any nature or kind whatsoever materially interferes in any manner with . the conversion of solar energy to electricity by the Equipment or should the construction of or the operation of the Equipment in the opinion of the Tenant acting reasonably be or become commercially impractical or impossible by reason of government decision, law, by-law or regulation, the Tenant may terminate this Lease by giving sixty (60) days written notice to the Landlord. In the event of such termination, any amounts owing and payable under the Lease shall be adjusted on a per diem basis to the date of termination and the Tenant shall, at its sole cost and expense, remove the Equipment from the Leased Premises in good and workmanlike manner and shall. be responsible for all repairs and replacements to the building caused by such removal. 6.02 Damage and Destruction (a) In the event that the Equipment through no fault of the Tenant, shall be destroyed or damaged in such a manner that its performance is substantially impaired, the Tenant may repair or rebuild at the Tenant's expense, or at its option, to be exercised by the delivery of written notice to the Landlord within thirty (30) days of such damage or destruction, surrender this Lease and yield up possession of the Leased Premises to the Landlord. In the event of such termination, any amounts owing and payable under the Lease shall be adjusted on a per diem basis to the date of termination and the Tenant shall remove the Equipment at Tenant's expense in a good and workmanlike manner forthwith and shall be responsible for all repairs and replacements to the Building caused by such removal. (b) In the event of significant damage to the Building, the Landlord shall, in its sole · discretion, decide whether or not to reconstruct the Building. In the event that the Landlord decides not to reconstruct the Building, then this Lease Agreement shall be at an end, the Landlord and the Tenant shall have no further obligations to each other hereunder, and the Landlord shall not be required make any penalty payment pursuant to ?ection 6.03 of this Lease Agreement. 6.03 Early termination Subject to the terms and conditions contained in this Lease herein, in the event that the Landlord terminates the lease early for any reason other than the default of the Tenant described in this Lease Agreement, an early termination compensation in the form of a penalty (schedule "B") will be applicable. The Landlord shall pay this penalty for early termination to the Tenant within 3 0 days of the day of termination. Upon payment of the Penalty to the Tenant, the Tenant shall at the request of the Landlord and at the cost of 59 60 -11- the Tenant, remove all equipment in a good and workmanlike manner forthwith and shall be responsible for all repairs and replacements to the Building caused by such rem~val." 6.04 FIT Program Conditions not met · In the event that any of the pre-construction requirements (a) through (d) below are not met, this agreement_ will become immediately null and void. a) FIT Contract Offer received from. OP A under FIT2.0 program rules and prices as last published by the OPA up to October 30, 2012. b) Acquisition of successful Capacity Impact Assessment from Hydro One c) Acquisition of Notice to Proceed from the OPA d) Satisfactory business arrangement established with Aboriginal or Community Partner e) Veridian Board of Directors approves of all above conditions 7. 0 1 Default . ARTICLE7 . DEFAULT ·rn the event that the Landlord has delivered to the Tenant a notice in writing in accordance with this section, of the Tenant's failure to pay Rent or-the Tenant's non- performance of its covenants contained in this Lease, the Landlord shall have the right to terminate this Lease on the sixtieth (60th) day after such notice is delivered to the Tenant if the Tenant has not duly cured the default described iri the Landlord's notice. Termination by the Landlord for the Tenant's default shall not require the Landlord to pay any penalty to the Tenant and the Landlord shall have the option to retain the equipment or require the Tenant to remove the equipment at Tenant's expense. ARTICLES ASSIGNMENT AND SUBLETTING 8.01 Assignment and Subletting Provided the Tenant is not in default hereunder the Tenant may with the prior written consent of the Landlord assign its rights and obligations under this Lease or sublet or licence all or P8!1 of the Leased Premises to a third party, which consent may not be unreasonably withheld. In the event the Landlord consents to the assignment subletting or licensing of the Lease hereunder, the Assignee or Subtenant or Licensee must execute and deliver to the Landlord an acknowledgement acknowledging and agreeing to be bound by the terms and conditions of this Lease herein; provided that in no event shall the Tenant be released from its obligations under this Lease. -12-. 8.02 Tenant's Financing The Tenant may, with the Landlord's prior written consent, grant a fixed or floating charge by way of a mortgage, charge, or assignment of this Lease to a bank or other fmancial institution, provided that the foregoing shall not permit any registrations against the Lands or Building(s) whether pursuant to the Personal Property Security Act (Ontario) or otherwise, and shall in no way prejudice or affect the priority of the Landlord's rights or the obligations of the Tenant under the terms of this Lease. Upon the request of the Tenant's mortgagee, the Landlord agrees to execute .at Tenant's expense any additional documents reasonably required to evidence the Tenant's mortgagee's rights under the Lease; provided that such documents meet with the approval of the Landlord's solicitors acting reasonably. Notwithstanding the foregoing, the Tenant shall not be permitted to grant arty security interest, charge, mortgage, lien, or other investment in the Equipment which has priority over or violates the terms of any mortgage or charge of the Lands granted by the Landlord. 9.01 Notice ARTICLE9 ADDITIONAL PROVISIONS Any notice, demand, approval, consent, information, agreement, offer, request or other communication (herein referred to as a "Notice") to be given under or in connection with this Agreement shall be in writing and shall be given by personal delivery during regular business hours on any Business Day or by facsimile transmission or other electronic communication which results in a written or printed notice being given, or by email with confirmation of transmission received, addressed or sent as set out below or to such other address or electronic number as may from time to time be the subject of a Notice: . (a) to Tenant, at: MARK TURNEY VERIDIAN CONNECTIONS INC. 55 TAUNTON RD. E. AJAX, ON, LIT 3V3 FAX: 905-837-7861 TEL: 905-427-9870 EMAIL: MTURNEY@VERIDIAN.ON.CA / (b) to Landlord, at: 61 62 -13- PICKERING CIVIC COMPLEX, ONE TilE ESPLANADE PICKERING, ON, LlV 6K7 ATTENTION: CITY CLERK FACSIMILE: 905.420.9685 TELEPHONE: 905.420.4660 EMAIL: DSHIELDS@PICKERING.CA. 9.02 Interpretation Words importing the ·singular number shall include the plural_ and vice versa. Words importing the neuter gender shall include the masculine and feminine genders, and words importing person shall include firms and corporations, and vice versa. 9.03 Entire Agreement This Lease including the Schedules hereto co~stitutes the entire agreement of the parties and supersedes all prior agreements and understandings whether written or oral relative to the subject matter hereof. 9.04 Amendment or Waiver No provision of this Lease shall be deemed amended or waived by a course of conduct unless such amendment or waiver is in writing signed by all parties and stating specifically that it was intended to modify this Lease. 9.05 Successors and Assigns This Lease shall be binding_ upon and enure to the benefit ofthe parties hereto and their respective successors and permitted assigns, heirs and personal representatives. 9.06 Governing Law This Lease shall be governed by the laws of the jurisdiction in which the Leased Premises are situate. 9.07 Construction Liens The Tenant shall indemnify and hold the Landlord harmless from and against any liability, claims, damages due to or arising from any claim made against the Leased Premises, the Building(s) or the Lands for all construction liens related to all work done by or on behalf of the Tenant and all·work which the Tenant is obligated to do and any such liability, claims, damages or expenses incurred by the Landlord shall be paid by the Tenant to the Landlord forthwith on demand; and the Tenant shall cause all registration of claims for construction liens or certificates of action under the Construction Lien Act (Ontario) and relating to any such work done by or on behalf of the Tenant and all work which the Tenant is obligated to do, to be discharged or vacated, as the case may be, -14- within the earlier of fifteen (15) days of such registration and within five (5) business days after notice from the Landlord. 9.08 Ownership ofEquipment - Provided that the Tenant is not in default hereunder the Landlord shall have no interest in or title to any electric energy, system support services, emissions credits, carbon credits, greenhouse gas (ORO) credits, renewable energy certificates or green tags or other similar credits produced or generated from any solar power project operated by or on behalf of the Tenant on the Lands. The .Landlord shall have no interest in or title to any data, evaluations or studies obtained by or on behalf of the Tenant with respect to the Lands. The Equipment shall always be owned by the Tenant or its aSsignees and shall never form a part of the Lands or become owned by the Landlord without the Tenant's specific intention for such transfer of ownership, save and except when the Landlord distrains against the Equipment when the Tenant is in default hereunder. 9.9 Registration ofNotice The Landlord hereby acknowledges and agrees that the Tenant shall· be. permitted to register a notice relating to this Agreement in the appropriate Land Titles Office. 9.10 Subordination This Lease and all rights of the Tenant (subject to its rights of non-disturbance as described below) shall be subject and subordinate to any and all mortgages or similar instruments given by the Landlord of its interest in all or any part of the Building(s) or the Lands. On request, the Tenant shall subordinate this Lease and its rights under this Lease to any and all such mortgages and to all advances made under such mortgages. Provided always, that the mortgagee shall agree to permit the Tenant to continue in quiet possession of the Leased Premises in accordance with the terms of this Lease so long as the Tenant is not in material default under the terms of this Lease, whether or not such mortgage is in good standing. The form of such subordination shall be as reasonably required by the Landlord or any mortgagee. The Tenant shall promptly, on request attorn to any such mortgagee, or to the owners of the Building(s) or the Lands or the purchaser on any foreclosure or sale proceedings taken under any mortgage, and shall recognize such mortgagee, owner or purchaser as the Landlord under this Lease, provided that the mortgagee, owner or purchaser shall permit the Tenant to continue in quiet possession of the Leased Premises in accordance with the terms of this Lease so long ~ the Tenant is not in default under the terms of this Lease. 9.11 Sale By Landlord The Landlord shall have the right to sell the Lands and terminate this Lease subject to Section 5.08 above or otherwise dispose of all or any part of the Building(s) and the Lands or this Lease or any interest of the Landlord in this Lease. To the extent that the purchaser or assignee from the Landlord assumes the obligations of the Landlord under this Lease or in the event the Landlord terminates this lease, the Landlord shall thereupon and without further agreement be released of all liability under this Lease. 63 64 -15- 9.12 Independent Legal Advice The Landlord acknowledges that it has read and understands this Agreement and acknowledges that it has had the opportunity to obtain independent legal advice with respect to the Agreement . · 9.13 Number of Solar Arrays The Tenant shall with the Landlord's prior written approval, which approval shail not be unreasonably withheld, determine the number of solar arrays that may be installed on the Leased Premises at any given time, subject to the Buildllg and Zoning By-laws arid the applicable requirements of any other governmental authorities having jurisdiction. The style and placement of the. solar array(s) will subject to an independent structural engineer's report permitting such style, placement and number of solar panels. 9.14 Independent Parties The Landlord shall have no interest in, or title to, any data, evaluations or studies obtained by, or on behalf of the Tenant, with respect to the Leased Premises. Nothing contained in this Lease shall be. deemed or construed as establishing a partnership or joint venture between the· parties, a principal-agent relationship, or any relationship other than lessor and lessee. 9.15 Currency Unless otherwise·indicated, all dollar amounts referred to in this Lease are in Canadian funds. 9.16 Time ofEssence Time is of the essence of this Lease Agreement. 9.17 Counterparts This Agreement may be executed in several counterparts, and each of which so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and, notwithstanding their date of execution, shall be deemed to be dated as of the date first written above. -16- IN WITNESS WHEREOF the Landlord and the Tenant have duly executed this Agreement the day and ye(J.r first above written. Witness: Landlord: Witness: Landlord: . Witness: Landlord: Witness: Tenant: Witness: Tenant: Witness: Tenant: 65 -17 -. SCHEDULE"A" Sketch of Leased Premises Claremont Community Centre I Fire Station 4 I • -· ~ ,.&th l ll4t.uurt ~. clttanc• Mtwte" rwo poln 11~1 66 -18- Inverter. Location 67 -19- SCHEDULE "B" Penalty Fee The Penalty is calculated based on an amount of not less than the net present value of Tenant's remaining future gross Feed-in Tariff revenue, discounted atthe average of the Bank of Canada's prime interest rate for the three years preceding termination of this Agreement, or the on the day of termination of this Agreement, whichever is greater, · 68 69 -20- SCHEDULE :'C" Rental Schedule Rental revenue Year 1 $6,000 Year2 $6,000 Year3 $6,000 Year4 $6,000 YearS $6,000 Years $6,000 Year? $6,000 YearS $6,000 Year9 $6,000 Year 10 $6,000 Year 11 $6,000 Year 12 $6,000 Year 13 $6,000 Year 14 $6,000 Year 15 $6,000 Year 16 $6,000 Year 17 $6,000 Year18 $6,000 Year 19 $6,000 Year20 $6,000 Total $120,000 . . ATTACHMENT# c:( I ~ Legal and Leg1slat1ve Serv1ces . TO REPORT# "c 6r Clerk's Office I .of. I o;;-(S Directive Memorandum December 14, 2012 To: From: Subject: Tom Melymuk Director, Office of Sustainability Debbie Shields City Clerk Direction as per Minutes of the Meeting of City Council held on December 10, 2012 Director, Office of Sustainability, Report OS 05-12 Solar PV Installation under the Provincial FIT 2.0 Program Proposal for a Roof Lease at the Claremont Community Centre Council Decision Resolution #153/12 1. That Council receive Report OS 05-12 concerning the establishment of a roof-top solar PV system at the Claremont Community Centre; 2. That Council support the proposal set out in Attachment 1, submitted by Veridian Connections Inc. and Solera Sustainable Energies Company Limited, to lease roof space at the Claremont Community Centre, and authorize the appropriate City officials to enter into a roof-lease agreement as set out in the proposal, if the project is granted a contract under the provincial Feed-in-Tariff (FIT) 2.0 program; 3. That Council adopt a project specific resolution as set out in Attachment 2 to this Report, to be used in support of a submission to the Ontario Power Authority for a contract offer for this project under the FIT 2.0 program; 4. That all City revenues generated from this project be used to fund future energy conservation, generation and efficiency initiatives on property owned or leased by the City; and 5. That the lease agreement be brought back to Council for approval. Please take any action deemed necessary. Debbie Shields /lr Copy: Chief Administrative Officer 70