City_of_Chanhassen-COMMUNITY_SOLAR_GARDEN_SUBSCRIPTION_AGREEMENT_2023-04-19_(1).docx
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COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT
GENERAL TERMS AND CONDITIONS
This Community Solar Garden Subscription Agreement (“Agreement”) is entered into as of the ___ day of
______, 2023 (the “Effective Date”) by and among Nokomis Energy LLC, a Minnesota limited liability
company (“Nokomis”) and City of Chanhassen, a (“Subscriber"). Nokomis and Subscriber may be referred
to individually as a “Party” and collectively as “the Parties.”
RECITALS
WHEREAS, Nokomis is a developer and operator of solar (photovoltaic) electric generation
facilities qualified as “Community Solar Gardens” (“CSG”) pursuant to Minn. Stat. 216B. 1641 (“CSG
Program”) and has entered or will enter into a Standard Contract for Solar*Rewards Community (“CSG
Contract,” attached as Exhibit A) with Northern States Power Company, a subsidiary of Xcel Energy, Inc.
("XCEL”);
WHEREAS, Nokomis will deliver the energy produced by the CSG(s) to XCEL, which will
provide bill credits (“Bill Credits”) for those XCEL customers who are subscribers of Nokomis;
WHEREAS, Subscriber desires to become a CSG subscriber by making monthly payments in
exchange for a percentage allocation of the energy produced by the CSG(s) and the corresponding Bill
Credits on Subscriber’s XCEL bill;
THEREFORE, in consideration of the foregoing recitals, the mutual promises, representations,
warranties, covenants, conditions contained herein, and the Garden Terms and Conditions and Exhibits
attached hereto, the Parties agree as follows:
1. Exclusive Allocation.
Subscriber grants to Nokomis the exclusive right to subscribe its XCEL electricity load as defined below
to a Nokomis CSG (“Exclusive Allocation”).
Xcel Account No: Premise No: Xcel Account Address Load Allocation *
(not to exceed 750,000
kWh in aggregate)
10754175 304492159 1720 Lake Lucy Ln, Chanhassen MN
55331
120%
12365212 304634642 2100 Lake Harrison Rd, Chanhassen
MN 55317
120%
6689354 304012098 201 W 79th St, Chanhassen MN
55317
120% less previously
subscribed 156,088.3
kWh
6260763 302191265 7001 Hazeltine Blvd, Chanhassen
MN 55317
120%
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4th
May
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6260763 303309778 7151 Galpin Blvd, Chanhassen MN
55317
120% less previously
subscribed 112,787.2
kWh
5636006 304183725 7901 Park Pl, Chanhassen MN 55317 120%
4346591 302655896 7610 S Shore Dr, Chanhassen MN
55317
120%
6260763 303080741 7220 Galpin Blvd, Chanhassen MN
55317
120%
6260763 304129006 55 Lake Dr E, Chanhassen MN
55317
120% less previously
subscribed 123,790.83
kWh
5636006 303166877 7610 Laredo Dr, Chanhassen MN
55317
120%
* Load allocation must be in accordance with Xcel Terms & Conditions as stated on sheet 9-65 of
Minnesota Electric Rate Book MPUC No. 2:
https://www.xcelenergy.com/staticfiles/xe/PDF/Regulatory/Me_Section_9.pdf
Subscriber agrees not to subscribe, assign, allocate or otherwise provide the Exclusive Allocation to
another CSG, developer or other distributed generation resource serving the Subscriber Site, without
Nokomis’ prior written consent, which it may withhold in its sole discretion, for two (2) years from the
Effective Date of this Agreement.
2. Community Solar Garden Terms and Conditions.
Nokomis will make a good faith effort to subscribe the entire Exclusive Allocation to one or more
Nokomis CSG(s) (each a “Facility”), as set forth in the Garden Terms and Conditions attached hereto.
For each such successful allocation to a Facility, the parties shall execute a copy of the Garden Terms and
Conditions. All subscriptions will provide a rate of one cent(s) per kWh ($0.01/kWh) for each Bill Credit
generated. Exhibit B to the Garden Terms and Conditions will contain a specific rate schedule for
Subscriber’s Allocation at each Facility.
The Garden Terms and Conditions for each Facility (attached hereto) contain the Facility’s generating
capability (“Facility Capacity”), the location of each Subscriber premise whose load is subscribed to that
Facility (“Subscriber Site”), the percentage of Facility Capacity assigned to Subscriber (“Subscriber’s
Allocation”), and Subscriber’s Allocation represented in kWDC (“Allocation Amount”).
These general terms and conditions are explicitly incorporated into each Garden Terms and Conditions
and together form one Community Solar Garden Subscription Agreement.
3. Term.
This Agreement commences on the Effective Date, and unless earlier terminated pursuant to the provisions
herein, shall terminate on the 25th anniversary of the Commercial Operation Date (as defined below) (the
“Term”). The Term shall not be extended by virtue of any period of disconnection or event of Force Majeure
experienced by the Facility.
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4. Operation of the Facility.
a. Nokomis shall promptly notify Subscriber of the Date of Commercial Operation
of each Facility as established pursuant to the CSG Contract (“Commercial Operation Date”).
b. Nokomis shall operate the Facility during the Term so as to deliver all energy
generated by the Facility to XCEL in accordance with the CSG Contract and applicable XCEL tariffs.
Nokomis shall maintain the Facility in good working order at all times during the Term, and shall operate
the Facility in a manner reasonably intended to maximize the amount of Bill Credits allocable to Subscriber,
consistent with good custom and practice for operation of electricity generating facilities.
c. Nokomis will provide written notice to Subscriber when it becomes aware the
Facility is out of service for longer than two (2) consecutive weeks, which notice shall include an estimate
of how long the outage will last and the estimated loss of electricity production.
d. All installations, upgrades and repairs will be under direct supervision of a
qualified professional and that maintenance will be performed according to industry standards, including
the recommendations of the manufacturers of solar panels and other operational components. A copy of
the solar panel module warranty for the solar panel modules installed or to be installed at Facility is attached
as Exhibit F to the Garden Terms and Conditions. Nokomis’ long-term maintenance plan is attached as
Exhibit G to the Garden Terms and Conditions.
5. Subscriber Eligibility
In order to purchase Subscriber’s Allocation under this Agreement and receive the corresponding Bill
Credits, Subscriber must meet the following criteria:
a. Subscriber must be an XCEL Customer and Account Holder;
b. The Subscriber Site must be located within the county or an adjacent county as the
Facility;
c. Subscriber’s Allocation may not exceed forty percent (40%) of the Facility
Capacity;
d. The Allocation Amount, combined with other distributed generation resources
serving the Subscriber Site, cannot exceed one hundred and twenty percent (120%) of the Subscribers
average annual energy usage for the twenty-four (24) months prior to the Effective Date;
e. The Allocation Amount must be at least two hundred (200) watts; and
f. Subscriber must be deemed credit worthy by Nokomis at the Effective Date, in
Nokomis’ sole and absolute discretion.
6. Subscriber’s Allocation; Sale and Purchase of Bill Credits
a. Nokomis agrees to sell to Subscriber and Subscriber agrees to purchase from
Nokomis, Subscriber’s Allocation and the right to receive corresponding Bill Credits for the Term.
b. Subscriber agrees not to install or procure any other distributed generation serving
Subscriber’s premise during the Term that would cause Subscriber to no longer be eligible to purchase the
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exclusive allocation.
c. If the actual capacity of the Facility at the Commercial Operation Date (“Actual
Capacity”) is different than the Facility Capacity set out above, the Allocation Amount shall be
automatically amended upon notice to Subscriber to reflect the lesser of (1) the product of Subscriber’s
Allocation multiplied by the Actual Capacity, or (2) the maximum Allocation Amount for which the
Subscriber is eligible under the CSG Program.
d. The Bill Credits on Subscriber’s monthly XCEL bill will equal the product of (i)
Subscriber’s Allocation, (ii) the number of kilowatt hours of electrical energy the Facility generated in the
previous month, and (iii) the Value of Solar Tariff Rate applicable to the Facility, as approved by the
Minnesota Public Utilities Commission and calculated by XCEL (“Bill Credit Rate”). The Bill Credit Rate
is estimated in the Schedule of Expected Deliveries of Bill Credits attached as Exhibit B to the Garden
Terms and Conditions.
e. Subscriber shall not be entitled to the benefits or derivatives of Renewable Energy
Credits (“RECs”), rebates, unsubscribed electrical energy, tax credits, or other tax or environmental benefits
associated with owned or operating the Facility.
f. For Subscriber’s Allocation and the right to receive corresponding Bill Credits,
Subscriber agrees to pay Nokomis an amount (the “Monthly Subscription Payment”) equal to the product
of (i) Subscriber’s Allocation, (ii) the number of kilowatt hours of electrical energy the Facility generates
in the previous month, and (iii) the “Subscription Rate” (Exhibit B to the Garden Terms and Conditions
provides a schedule of the Subscription Rate over the course of the Term).
g. The amount of electrical energy produced by the Facility is not guaranteed by
Nokomis and underperformance shall not constitute a breach or default under this agreement. In any month
where the Facility generates fewer kilowatt hours of electrical energy than the Facility Capacity, thereby
reducing the Allocation Amount, the underperformance will be represented in a proportional reduction of
the Monthly Subscription Payment. The proportional reduction of the Monthly Subscription Payment shall
be Subscriber’s sole remedy under this Agreement.
h. Commencing on the first day of the first calendar month following the Commercial
Operation Date, Nokomis shall invoice Subscriber for the Monthly Subscription Payment. Subscriber
agrees to make its Monthly Subscription Payments through an “automatic transfer of funds” prior to the
invoice due date. Any amounts not paid prior to the invoice due date will accrue interest at a rate of eight
percent (8%) or the maximum rate allowed by law, whichever is greater, per annum from the invoice due
date until Nokomis receives payment.
i. Nokomis reserves the right to stagger the billing cycle of the Monthly Subscription
Payment to match XCEL’s billing cycle for the Bill Credits associated with that Monthly Subscription
Payment. For example, Nokomis may delay the Monthly Subscription Payment so that it falls in the same
month as the Bill Credits purchased with that Monthly Subscription Payment appear on the Subscriber’s
XCEL bill. In the event the billing cycle is staggered, Subscriber acknowledges that there may be
reconciliation payments due to Nokomis at the end of the Term or if this Agreement is otherwise terminated
during the Term.
j. If, as a result of an XCEL billing adjustment for any billing period, the quantity of
energy allocated to Subscriber by Nokomis is changed, Subscriber and Nokomis agree to reconcile the
change in good faith. Subscriber acknowledges that Nokomis does not guarantee the amount of electrical
energy the Facility will produce, the amount of electrical energy produced in a given month corresponding
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to Subscriber’s Allocation, or the monetary value of the Bill Credits.
7. Subscriber Data; Records and Audits
a. Subscriber authorizes Nokomis to provide XCEL with Subscriber’s Allocation,
Allocation Amount, Subscriber’s name, Subscriber’s XCEL Premise Number and Account Number(s),
Subscriber’s bank account information used for “automatic transfer of funds” information, and service
address(es) (collectively “Subscriber Data”).
b. Subscriber authorizes Nokomis or its designee to obtain its credit report now and
in the future, answer questions others may ask regarding Subscriber’s credit and share Subscriber’s credit
information with Nokomis’ financing partners. Subscriber hereby certifies that all information Subscriber
provides to Nokomis in connection with checking Subscriber’s credit will be true and understands that this
information must be updated upon request if Subscriber’s financial condition changes.
c. Upon request by Subscriber, Nokomis shall provide (i) evidence of the accuracy
of its metering equipment for the Facility and/or (ii) such other information and records requested by
Subscriber to enable Subscriber to verify the accuracy of the Bill Credits awarded by XCEL and any other
calculation and/or measurements described in this Agreement.
d. Starting within twelve (12) months of the Commercial Operation Date, Nokomis
shall provide to Subscriber signed and notarized public annual reports containing at a minimum: the energy
produced by the Community Solar Garden; financial statements including a balance sheet, income
statement, and sources and uses of funds statement; and, identification of the management and operatorship
of the Community Solar Garden Operator.
8. Publicity and Intellectual Property.
a. Subscriber hereby grants to Nokomis a limited, non-exclusive, royalty-free license
to use Subscriber’s trademarks, logos and trade name (“Subscriber IP”) to promote Nokomis and this
subscriber agreement. In addition, Nokomis may from time to time, at its sole option, identify Subscriber
as a Nokomis solar garden subscriber in or on Nokomis’ website, sales and marketing materials, press
releases, or any other marketing communications. Nokomis shall not use Subscriber IP without the prior
written consent of Subscriber.
b. Nokomis hereby grants to Subscriber a limited, non-exclusive, royalty-free license
to use Nokomis’ trademarks, logos and trade name (“Nokomis IP”) in order to promote Subscriber and this
subscriber agreement. In addition, Subscriber may from time to time, at its sole option, identify Nokomis
as a Solar Garden or Clean Energy Partner in or on marketing materials, press releases, or any o ther
marketing communications. Subscriber shall not use Nokomis IP without the prior written consent of
Nokomis.
c. Other than the licenses set forth in this Section, this Agreement does not give either
party any license or ownership rights in the other party’s trade name, trademarks, confidential information,
software, or other intellectual property rights.
9. Taxes.
a. Subscriber shall be solely liable for sales, use, or similar taxes imposed by a
governmental entity having jurisdiction over Subscriber and the Facility, where such taxes are attributable
to the sale of Bill Credits allocated to the Subscriber.
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b. Subscriber shall have no interest in and have no entitlement to claim any REC,
investment tax credit or other tax benefits related to ownership of the Facility.
10. Representations, Warranties and Covenants
a. Each Party represents and warrants to the other Party:
i. The Party is duly organized, validly existing, and in good standing in the
jurisdiction of its organization and is qualified to do business in the State of
Minnesota;
ii. The Party has full legal capacity to enter into and perform this
Agreement;
iii. The execution of the Agreement has been duly authorized, and each person
executing the Agreement on behalf of the Party has full authority to do so and to fully bind the
Party; and
iv. To the best of its knowledge, there is no litigation, action, proceeding or
investigation pending before any court or other Governmental Authority by, against, affecting, or
involving its ability to carry out the transactions contemplated herein.
v. This Agreement constitutes a legally valid and binding obligation
enforceable against such Party in accordance with its terms; and
vi. Each party is in good financial condition, there are no bankruptcy
proceedings against it, no filings against it for involuntary bankruptcy, and it has no knowledge of
any material legal and/or financial claims, issues, or proceedings against it that would have an
adverse material effect on its financial condition.
b. Nokomis represents, warrants, and covenants to Subscriber:
i. Nokomis has, or in the ordinary course will obtain, all licenses, permits
and any other required documents to construct and operate the Facility;
ii. Nokomis shall perform its obligations under the CSG Contract and
otherwise comply with all provisions of the CSG Program and other applicable tariffs.
iii. Nokomis has, or will obtain the necessary funds to construct, operate and
maintain the Facility.
iv. Except as may be required by law or regulation, or with Subscriber’s
consent, Nokomis will not publicly disclose Subscriber’s Data, energy usage data, or Bill Credits.
c. Subscriber represents, warrants, and covenants to Nokomis:
i. Except to the extent permitted by Exclusive Allocation., Subscriber agrees
not to install or procure any other distributed generation resource(s) serving Subscriber’s premise
during the term of this Agreement that would cause Subscriber to no longer be eligible to purchase
Subscriber’s Allocation from the Facility.
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ii. Within thirty (30) days of request by Nokomis, which request shall be
made not sooner than the date of commencement of construction of the Facility, Subscriber shall
complete, execute, and deliver to Nokomis the Subscriber Agency Agreement in the form attached
hereto as Exhibit C to the Garden Terms and Conditions. Upon execution, all of the information
and statements of Subscriber provided therein shall be accurate.
iii. Subscriber understands and agrees it will have no interest in or entitlement
to (a) benefits or derivatives of “Unsubscribed Energy” or “RECs” associated with the Facility as
each is defined in the CSG Contract; or (b) incentives under XCEL’s Solar Rewards program
associated with the Facility.
iv. Subscriber acknowledges and agrees that Nokomis does not guarantee
production and that Subscriber has no defenses, set-offs, bases for withholding payments,
counterclaims, or failure of performance claims against Nokomis based upon underperformance
except for the proportional reduction of the Monthly Subscription Payment as provided in
Section 6. g. of this Agreement.
v. Subscriber understands and agrees that this Agreement does not afford
Subscriber any stock, share, or ownership interest in Nokomis or the Facility, its assets, income, or
profits nor is it a guarantee, warrant, or right to purchase the foregoing. Subscriber acknowledges
that neither this Agreement, Facility Capacity, Bill Credits, nor Subscriber’s Allocation, have been
registered under any securities laws or regulations and Subscriber agrees not to assign, transfer, sell
or otherwise dispose of the Subscriber’s Allocation and Bill Credits in such a manner that will
violate any securities laws or regulations.
vi. Subscriber acknowledges and agrees it will promptly notify Nokomis of
any changes in Subscriber’s Data.
11. Default.
a. Events of Default. The following shall each constitute an Event of Default
by a Party:
i. Subscriber fails to make any material payment due under this Agreement
within thirty (30) days after delivery of notice from Nokomis that such payment is overdue.
ii. Subscriber materially fails to perform or comply with any material
representation, warranty, obligation or covenant set forth in this Agreement and such failure
continues for a period of thirty (30) days after delivery of notice thereof from Nokomis.
iii. Subscriber assigns, transfers, encumbers, or sells this Agreement or any
part of Subscriber’s Allocation or Bill Credits in violation of this Agreement.
iv. Subscriber makes an assignment for the benefit of creditors, admits in
writing its insolvency, or is subject to a petition for dissolution or reorganization, voluntary or
involuntary, under the U.S. Bankruptcy Code.
v. Nokomis substantially abandons a Facility and such default continues for
a period of thirty (30) days after delivery of notice from Subscriber , provided that if such default
may not reasonably be cured within thirty (30) days, such cure period may be extended for a
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reasonable period of time not to exceed an additional sixty (60) days.
vi. Nokomis is deemed to have committed fraud or gross negligence in the
performance of its obligations under the Agreement.
vii. Nokomis materially fails to perform or comply with any material
representation, warranty, obligation or covenant set forth in this Agreement and such
failure continues for a period of thirty (30) days after delivery of notice thereof from
Subscriber.
b. Production of fewer kilowatt hours of electrical energy than the Facility Capacity
shall not constitute an Event of Default under this Agreement. The proportional reduction of the Monthly
Subscription Payment shall be Subscriber’s sole remedy for underperformance under this Agreement.
c. Force Majeure
If by reason of Force Majeure, either Party is unable to carry out, either in whole or in part, any of its
obligations herein, such Party shall not be deemed to be in default during the continuation of such inability,
provided that within a reasonable time after the occurrence of the Force Majeure event, that Party gives
Subscriber notice describing the particulars of the occurrence and the anticipated period of delay and uses
reasonable efforts to remedy the cause(s) preventing it from carrying out its obligations. "Force Majeure”
as used in this Agreement shall mean an event or circumstances beyond the reasonable control of either
Party not resulting from either Party’s negligence, including, but not limited to fire, acts of God, earthquake,
flood or other casualty or accident; break down or failure of XCEL’s electric distribution system; serial
equipment defect; strikes or labor disputes; war, civil strife or other viole nce; and any law, order,
proclamation, regulation, ordinance, action, demand or requirement of any government agency or utility.
12. Early Termination.
a. Upon the occurrence of an Event of Default, the non-defaulting party may
terminate the Agreement ninety (90) days after providing notice of termination to the defaulting party,
unless the default is cured within that ninety (90) day period.
b. If at any time Subscriber or any premise of Subscriber ceases to be an XCEL
customer, Subscriber may terminate this Agreement (or only as applicable to that premise) upon the
following terms and conditions:
i. Subscriber provides one hundred eighty (180) days advanced notice to
Nokomis;
ii. Subscriber pays Nokomis all amounts due and owed to Nokomis after
reconciliation of the Monthly Subscription Payment; and either:
Subscriber agrees to work with Nokomis to identify a Replacement
Subscriber eligible to purchase Subscriber’s Allocation from the Facility,
which has the same or better credit as Subscriber, and actually executes a
Subscription Agreement to become a Subscriber of the Facility, or
Subscriber pays Nokomis a Transfer Fee of $500 and a subscriber
acquisition fee of $0.003/kWh based on the amount of the Allocation
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Amount that has not been replaced or transferred at time of termination.
Subscriber agrees to use all reasonable efforts to assist Nokomis with the t ransfer to a new Subscriber,
including but not limited to executing an assignment of Subscriber’s Allocation to Nokomis or a new
Subscriber, and any other documentation associated with the termination.
Nokomis shall use all reasonable efforts to have Replacement Subscriber become a Subscriber of the
Facility, but under no circumstances shall Nokomis be liable to Subscriber if no Subscription Agreement is
executed between Nokomis and Replacement Subscriber. Subscriber agrees that the Termination Fee is a
fair estimate of Nokomis’ administrative expenses associated with the termination and such fee may not be
reduced by Nokomis or Subscriber’s mitigation. If Subscriber terminates this Agreement, Nokomis shall
have no further liability to Subscriber and shall not be required to refund or otherwise compensate
Subscriber pursuant to this Agreement.
c. If at any time Subscriber ceases to be eligible to purchase Subscriber’s Allocation
from the Facility, this Agreement may be subject to termination by Nokomis.
d. This Agreement may be terminated upon the death of Subscriber, if Subscriber is
a natural person and the sole XCEL account holder associated with the Bill Credits.
e. In the event of Subscriber’s breach, repudiation, or termination of this Agreement
constituting an Event of Default or violation of Section 12(b) or (d) herein, Nokomis shall be entitled to
recover from Subscriber (subject to Nokomis’ duty to mitigate damages): (i) the unpaid Monthly
Subscription Payments due at the time of such breach, repudiation, or termination; and (ii) Nokomis’
damages resulting from Subscriber’s breach, repudiation, or termination, including estimated Monthly
Subscription Payments over the remaining Term less compensation received by XCEL, if any, attributable
to Subscriber’s Allocation. Any post-termination Monthly Subscription Payments that may qualify as
damages under this section will be calculated based on the Schedule of Expected Deliveries of Bill Credits
(Exhibit B) and the Bill Credit Rate applicable to each year of the remaining Term. The parties agree that
the damages payable under this section do not constitute a penalty but are a reasonable estimate of Nokomis’
actual damages from Subscriber’s breach, repudiation, or termination of this Agreement.
13. Assignment; Transfer.
a. Nokomis Assignment
Nokomis may assign or transfer all or any portion of this Agreement to any affiliate, any financial
institution, or any entity that has agreed in writing to recognize and not disturb Subscriber’s rights under
this Agreement, including upon foreclosure or conveyance in lieu thereof. Nokomis may also assign or
transfer all or any portion of this Agreement to another CSG Facility owned by Nokomis, an affiliate, or
another owner/operator, so long as the CSG Facility is located in the same or adjacent county to Subscriber
Site. Upon such assignment or transfer Nokomis shall provide updated disclosure information, as required
by this Agreement or the CSG Program. Nokomis may assign or transfer this Agreement without
providing Subscriber with prior notice and without obtaining Subscriber’s prior consent. Upon any such
transfer or assignment, Nokomis will notify Subscriber and Nokomis shall be released from all future
obligations under this Agreement.
b. Subscriber Transfer
Subscriber may transfer this Agreement to any person or entity only upon the following terms an d
conditions:
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i. Subscriber provides ninety (90) days advanced written notice to Nokomis;
ii. The person or entity Replacement Subscriber is eligible to purchase
Subscriber’s Allocation from the Facility, has the same or better credit as Subscriber, and actually
executes a Subscription Agreement to become a Subscriber of the Facility;
iii. Subscriber pays Nokomis all amounts due and owed to Nokomis after
reconciliation of the Monthly Subscription Payment;
iv. Subscriber pays Nokomis a Transfer Fee of five hundred dollars ($500);
and
v. Subscriber obtains prior approval from Nokomis, which Nokomis may
provide or withhold in its absolute discretion.
Nokomis shall use all reasonable efforts to have Replacement Subscriber become a Subscriber of the
Facility, but under no circumstances shall Nokomis be liable to Subscriber if no Subscription Agreement is
executed between Nokomis and Replacement Subscriber. Subscriber agrees that the Transfer Fee is a fair
estimate of Nokomis’ administrative expenses associated with the termination and such fee may not be
reduced by Nokomis or Subscriber’s mitigation. If Subscriber transfers this Agreement, Nokomis shall
have no further liability to Subscriber and shall not be required to refund or otherwise compensate
Subscriber pursuant to this Agreement.
c. Subscriber Address Change
Subscriber may change the Subscriber Site without any prior approval from Nokomis so long as Subscriber
provides ninety (90) days prior notice to Nokomis, pays a Five Hundred Dollar ($500.00) Transfer Fee
and Subscriber continues to be eligible to purchase Subscriber’s Allocation from the Facility. If Subscriber
ceases to be eligible to purchase Subscriber’s Allocation from the Facility, but remains an XCEL customer,
Nokomis has the right but not the obligation to transfer Subscriber to a different Nokomis CSG Facility.
If Subscriber cannot fulfill all of Subscriber’s Allocation, Subscriber is subject to the terms of Early
Termination as defined in this Agreement for the portion of Subscriber’s Allocation that cannot be
fulfilled.
14. Dispute Resolution.
a. In the event of any controversy, dispute or claim arising out of or relating to this
Agreement, the complaining Party shall provide written notice to the other Party, and the Parties shall
attempt in good faith to resolve the dispute amicably.
b. Either Party may initiate litigation if any controversy or claim arising out of or
relating to this contract, or the breach thereof, that cannot be resolved within thirty (30) days after written
notice of the dispute to the other Party. Such litigation shall be held in the district court of Carver County,
Minnesota.
c. Continuation of Performance. During the pendency of any dispute hereunder, the
Parties shall continue to perform their respective obligations under this Agreement.
15. Limitation of Liability.
a. No Special Damages
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NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT OR PUNITIVE
DAMAGES OF ANY CHARACTER, RESULTING FROM, ARISING OUT OF, IN CONNECTION
WITH OR IN ANY WAY INCIDENT TO ANY ACT OR OMISSION OF A PARTY RELATED TO THE
PROVISIONS OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR
SUCH DAMAGES ARE BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT
LIABILITY OR ANY OTHER THEORY AT LAW OR EQUITY, OTHER THAN ANY
CONSEQUENTIAL DAMAGES FOR EACH EITHER PARTY INDEMNIFIES THE OTHER
PURSUANT TO SECTION 18.
b. No Warranty
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NOKOMIS MAKES NO
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE
FACILITY OR ITS OBLIGATIONS HEREUNDER. NOKOMIS DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, NOKOMIS DOES NOT WARRANT OR
GUARANTEE THE AMOUNT OF ELECTRICITY, FACILITY CAPACITY, SUBSCRIBER
ALLOCATION, ALLOCATION AMOUNT, KILOWATT ALLOCATION, OR BILL CREDITS. THE
AMOUNTS SET FORTH ON EXHIBIT B ARE FOR ILLUSTRATION PURPOSES ONLY, AND
SUBSCRIBER ACKNOWLEDGES THE BILL CREDITS MAY BE GREATER OR LESS THAN THE
ESTIMATES PROVIDED.
16. Lender And Tax Equity Investor Accommodations.
a. Subscriber acknowledges that Nokomis may finance the construction,
development, and installation of the Facility through one or more financial partners or financial institutions,
or their assigns (collectively hereafter “Lender/Investor”) and that Nokomis may sell or assign the Facility
and/or may secure Nokomis’ obligations thereunder by, among other encumbrances, a pledge or collateral
assignment of this Agreement and a first priority security interest in the Facility.
b. Subscriber acknowledges and agrees that Lender/Investor approval and consent
may be required for the following:
i. Any modification in the operation or maintenance of the Facility;
ii. Any modification to the information disclosures;
iii. Any modification to the CSG Contract;
iv. Any additional Subscriber representations, warranties, and covenants; or
v. Any amendment to this Agreement, including but not limited to any
calculation of the Monthly Subscription Payments, Subscriber Eligibility Criteria, and Subscriber’s
ability to terminate this Agreement.
c. Subscriber acknowledges and agrees that under no circumstances shall:
i. Lender/Investor be liable to Subscriber for any act or omission of
Nokomis;
ii. Lender/Investor be subject to any defenses or offsets that Subscriber may
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have against Nokomis under this Agreement; or
iii. Lender/Investor be liable with respect to any breach of any representation
or warranty made by Nokomis to Subscriber under this Agreement.
17. Lender’s and Tax Equity Investor’s Default Rights.
If Nokomis defaults under Nokomis’s financing documents with its Lender or Investor, Lender or Investor
shall be entitled to exercise any of Nokomis’s rights and obligations under this Agreement. Subscriber
acknowledges and agrees that Lender’s security interest in the Facility may be a first priority security
interest in the Facility. Lender/Investor may also be entitled to exercise all rights and remedies of secured
or preferred parties generally with respect to this Agreement and the Facility, including, but not limited to
the following:
a. Lender/Investor may have the right, but not the obligation, to pay all sums due
from Nokomis, perform any other act required of Nokomis, and to cure any default by Nokomis in which
case this Agreement will continue in full force and effect.
b. Lender/Investor may have the option to sell its interest in the Facility. If
Lender/Investor exercises that remedy, it shall not constitute a default under this Agreement, and such sale
shall not require Subscriber’s prior consent.
c. Upon the reasonable request of Lender/Investor and upon Lender/Investor
providing Subscriber with all required disclosure information, Subscriber agrees to enter into a new
Agreement with Lender/Investor or their assigns under substantially the same terms as this Agreement
within ninety (90) days of the termination of this Agreement.
d. Upon the reasonable request of Nokomis or Lender/Investor, Subscriber agrees to
execute and deliver to Nokomis or Lender/Investor any document, instrument, or statement in such form as
Nokomis or Lender/Investor may require by which Subscriber acknowledges and confirms that the legal
and beneficial ownership of the Facility remains in Nokomis or its affiliate or as is otherwise reasonably
requested by Lender/Investor in order to create, perfect, continue, or terminate the security or equitable
interest in the Facility in favor of Lender/Investor.
18. Mutual Indemnification.
Nokomis will defend, hold harmless, and indemnify Subscriber, its officers, directors, employees, and
agents from any claims, liabilities, or expenses (including reasonable attorney’s fees) arising from or
relating to the Nokomis’s breaches of or willful or negligent acts or omissions in connection with this
Agreement. Subject to the Subscriber’s limits of liability provided under Minn. Stat. ch. 466, or any other
applicable federal or state law, Subscriber will defend, hold harmless, and indemnify Nokomis, its officers,
directors, employees, and agents from any claims, liabilities, or expenses (including reasonable attorney’s
fees) arising from or relating to Subscriber’s breaches of or willful or negligent acts or omissions in
connection with this Agreement. The provision of this section shall survive the terminati on of the
Agreement with respect to any claim, action, or proceeding that relates to acts or omissions during the
term of this Agreement.
19. Miscellaneous.
a. XCEL Disputes
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Nokomis shall be solely responsible for resolving any dispute with XCEL regarding the production of
electricity by the Facility. Subscriber shall be solely responsible for resolving any dispute with XCEL
regarding the calculation of the Bill Credit Rate.
b. Notices
i. Any notice provided pursuant to this Agreement shall be in writing. All
notices, demands, or requests shall be deemed given when emailed, or mailed, postage prepaid,
registered or certified mail, return receipt requested.
ii. Subscriber shall promptly notify Nokomis of any changes in Subscriber
Data.
iii. All notices and communications to Nokomis shall be sent to the following
address:
Attn: Subscription Management
Nokomis Energy
2836 Lyndale Avenue, Suite 132
Minneapolis, MN 55408
subscription@nokomisenergy.com
c. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Minnesota without reference to any choice of law
principles.
d. Insurance. With respect to the services provided pursuant to this Agreement,
Nokomis shall at all times during the term of this Agreement and beyond such term when so required have
and keep in force insurance with limits of liability as required under the CSG Program. Operations period
insurance coverage is anticipated to include workman’s compensation insurance, automobile liability,
environmental liability insurance and general liability insurance with industry standard liability limits and
deductibles. Specific insurance information can be provided upon request.
e. Compliance with Law. In performing its obligations under this Agreement, each
Party will comply with all statutes, orders, by-laws, regulations, or other laws of any governmental agency.
Nokomis shall obtain and maintain any and all permits, licenses, bonds, certificates and other similar
approvals required in connection with this Agreement.
f. Entire Agreement. This Agreement, and all documents referenced herein, contain
the entire agreement between Parties with respect to the subject matter hereof, and supersede all other
understandings or agreements, both written and oral, between the Parties relating to the subject matter
hereof.
g. Amendments; Binding Effect. This Agreement may not be amended or altered
unless in writing and signed by each Party, successor or assignee. This Agreement inures to the benefit of
and is binding upon the Parties and their respective successors and assigns.
h. Section Headings. Section headings are for reference purposes only and are not
intended to create substantive rights or obligations.
i. Severability. In the event that any provision of this Agreement is determined to be
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invalid by a court or arbitrator of competent jurisdiction, such determination shall in no way affect the
validity or enforceability of any other provision herein.
j. Waiver. No failure of either party to give notice of, or seek a remedy for, any
violation of this Agreement, or to insist on strict performance hereunder shall reduce, impair, or affect such
party’s right to later seek such remedy, or insist on such performance with respect to the same or any other
violation or failure, regardless of such party’s knowledge or lack of knowledge thereof.
k. No Joint Venture. Nothing in this Agreement will be constructed to place the
parties in the relationship of partners, joint-ventures, principal and agent, or any other legal or equitable
relationship in which any one of the parties may (except as specifically provided in this Agreement) be
liable for the acts or omissions of the other party and no party has the authority to bind or obligate the other
party in any matter whatsoever. Nokomis and Subscriber acknowledge and agree that each party is engaged
in a separate and independent business and neither shall state, represent, or imply any interest in or control
over the business of the other.
l. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same agreement.
m. Further Assurances. Each Party shall execute, acknowledge and deliver such
documents and assurances, reasonably requested by the other Party for the purpose of effecting or
confirming any of the transactions contemplated by this Agreement.
n. No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of
the Parties hereto. Except as expressly set forth in this Agreement, nothing in this Agreement shall be
construed to create any duty to or standard of care with reference to, or any liability to, or any benefit for,
any person not a party to this Agreement.
o. Confidentiality and Data Privacy. Nokomis will not disclose any Subscriber Data
to any third party without the express written consent of Subscriber, except disclosures to XCEL, as required
pursuant to the CSG Program, or unless required by law. All Subscriber Data will be kept by Nokomis
pursuant to Nokomis’ Privacy Policy a copy of which is attached as Exhibit D to the Garden Terms and
Conditions. Nokomis reserves the right to update and revise its Privacy Policy, as it deems necessary,
without Subscriber’s prior consent. The parties acknowledge and agree this Agreement is governed by the
Minnesota Government Data Practices Act (Minn. Stat. Ch. 13). Under no circumstances shall Subscriber
be required to act or not act in a manner that it reasonably believes, after consultation with counsel may be
in violation of such act.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
CITY OF CHANHASSEN
By:
Name:
Title:
NOKOMIS ENERGY LLC
By:
Name:
Title:
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Director
Joseph Stofega
5/3/2023
Elise Ryan
5/4/2023
Mayor
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COMMUNITY SOLAR GARDEN SUBSCRIPTION AGREEMENT
[GARDEN NAME] TERMS AND CONDITIONS
This Agreement (“Garden Terms and Conditions”) is entered into by and between Subscriber
and [Garden Name]. The Garden Terms and Conditions form one Community Solar Garden
Subscription Agreement with the General Terms and Conditions, and explicitly incorporate all
terms and conditions set forth therein. The Garden Terms and Conditions provide the terms of
the Agreement unique to each Community Solar Garden facility and the Subscriber first named
above.
Facility Location (County): ___________________________
Premises Owned or Controlled By: [GARDEN NAME] (“Garden”)
Xcel SRC Garden #: ___________________________
Facility Capacity: 1,000 kWAC / ______ kWDC
Subscriber Premise: ___________________________
Subscriber Xcel Account No.: ___________________________
Subscriber Premise No.: ___________________________
Subscriber’s Allocation: ________________% of Garden
Allocation Amount: __________ kWH = ____kWDC
Solar Panel (Brand, Power) To be inserted prior to
construction (must meet all
applicable codes & standards)
EXHIBITS:
A. Contract Between XCEL and [GARDEN NAME]
B. Schedule of Expected Deliveries of Bill Credits
C. XCEL Subscriber Agency Agreement
D. Nokomis Privacy Policy
E. Conceptual Garden Layout
F. Solar Panel Warranty
G. Long Term Garden Operations & Maintenance Plan
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
[SUBSCRIBER NAME]
By:
Name:
Title:
[GARDEN NAME]
By:
Name:
Title:
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GARDEN TERMS AND CONDITIONS
EXHIBIT A
CSG Contract Between XCEL and [GARDEN NAME]
(To be provided prior to Garden’s Commercial Operation Date)
CLICK HERE TO LINK TO STANDARD CONTRACT ON XCEL’S WEBSITE
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GARDEN TERMS AND CONDITIONS
EXHIBIT B
Schedule of Expected Deliveries of Bill Credits
[Insert Spreadsheet]
1For the purposes of the table Term year 1 begins on the Commercial Operation Date.
2Xcel Bill Credit Value is based on the project receiving Xcel’s 2020 Value of Solar Tariff rate.
3Energy values are estimates of (i) the kWhs of Delivered Energy expected to be generated
annually by the System and ( ii) the portion of the Delivered Energy gene rated annually that is to
be allocated to Subscriber pursuant to Subscriber’ s Allocated Percentage, which amount is derived
by multiplying the estimated Delivered Energy by the Subscriber’s Allocated Percentage in each
year. If necessary, the table will be updated upon final design of the System; provided, however,
any such updated values are also estimates.
4Operators used PVSYST to develop the above production projections.
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GARDEN TERMS AND CONDITIONS
EXHIBIT C
XCEL Subscriber Agency Agreement
CLICK HERE TO LINK TO STANDARD CONTRACT ON XCEL’S WEBSITE
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GARDEN TERMS AND CONDITIONS
EXHIBIT D
Nokomis Privacy Policy
Nokomis is committed to preserving your privacy and data. This Privacy Policy explains the types of data and information Nokomis collects and
how it is protected and used. By using our website or otherwise providing us your information, you consent to this Privacy P olicy. Nokomis may
amend this Privacy Policy from time to time. Your continued use of our website will be deemed to be consent to any amendments. If you have
any questions regarding this Privacy Policy you may contact us using the information below.
WHAT INFORMATION DO WE COLLECT?
We collect information from you when you register on our site, fill out a form, sign up to receive our communications, voluntarily provide us with
contact information, or subscribe to a solar garden. We also collect information that is sent to us automatically by your we b browser. This
information typically includes your IP address, the identity of your Internet service provider, the name and version of your operating system, the
name and version of your browser, the date and time of your visit, and the pages you visit. Please c heck your browser if you want to learn what
information your browser sends or how to change your settings.
Our website uses cookies to automatically help provide better services. They allow us to recognize your browser and capture and remember certain
information. They are also used to help us understand your preferences based on previous or current site activity, which enables us to provide you
with improved services. We also use cookies to help us compile aggregate data about site traffic and site interaction so that we can offer better site
experiences and tools to our subscribers in the future. You can choose to have your computer warn you each time a cookie is b eing sent, or you can
choose to turn off all cookies. You do this through your browser settings.
HOW DO WE USE YOUR INFORMATION?
Any of the information we collect from you may be used to personalize your experience, to improve our website, to improve customer service, to
process transactions, to track visitors of our website, and to facilitate your subscription to a solar garden. We may also use the contact information
you have provided us to respond to your requests, or otherwise communicate with you about our services, information pertainin g to your
subscription, occasional company news, updates, related product or service information, etc.
DO WE DISCLOSE ANY INFORMATION TO THIRD PARTIES?
We do not sell, trade, or otherwise transfer to outside parties your personally identifiable information. This does not include trusted third parties
who assist us in operating our website, conducting our business, or servicing you, so long as those parties agreed to keep this information
confidential. We may also release your information when we believe release is appropriate to comply wi th the law, enforce our site policies, or
protect ours or others rights, property, or safety. Your personal information will not be provided to other parties for marketing, advertising, or other
uses. However, non-personally identifiable visitor information may be provided to other parties for marketing, advertising, or other uses.
HOW DO WE PROTECT YOUR INFORMATION?
We maintain reasonable administrative, physical, and technological measures to protect the confidentiality and security of your personal
information. We employ industry-standard Secure Socket Layer (SSL) technology in an effort to protect data transmissions. However, due to the
inherent open nature of the Internet we cannot guarantee that communications between you and any Web Site or Service, or information stored on
any Web Site or our servers, will be free from unauthorized access by third parties such as hackers.
CONSENT TO COMMUNICATIONS
By providing your contact information to us, you consent to receive email messages, phone calls, and mail (sometimes promotional in nature) from
Nokomis and our affiliates and community partners at the contact information you provide. You do not need to consent to these communications
in order to subscribe to one of our community solar gardens.
If at anytime you would like to unsubscribe from receiving future emails, we include detailed unsubscribe instructions at the bottom of each
email. We may still contact you about your transactions with us, such as your community solar subscription.
EXTERNAL LINKS
Our website, www.nokomis.partners, as well as any website under our control, includes links to external websites. These links do not fall under
the www.nokomis.partners domain, and Nokomis is not responsible for the privacy practices or the content of external websites. Your use of any
linked website is solely at your own risk.
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CONTACT US
If you have any questions about this Privacy Policy, please contact us by email at: connect@nokomis.partners or by mail at: 2639 Nicollet
Avenue, Suite 200, Minneapolis, MN 55408.
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GARDEN TERMS AND CONDITIONS
EXHIBIT E
Conceptual Layout
[Insert]
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GARDEN TERMS AND CONDITIONS
EXHIBIT F
Solar Panel Warranty
(To be provided prior to commencing construction)
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GARDEN TERMS AND CONDITIONS
EXHIBIT G
Long Term Maintenance Plan
(To be provided by Operator prior to Commercial Operation Date)
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