Loading...
PW Solar Power Purchase Agreement; Amendment 3 (missing signature)WAIVER, CONSENT AND AMENDMENT NO. 3 TO SOLAR POWER PURCHASE AGREEMENT DATED MARCH 20, 2018 THIS WAIVER, CONSENT AND AMND ENT NO. 3 to the Solar Power Purchase Agreement is entered into this day of , 2020, by and between SolEd Solar Holdings V, LLC, a California limi ed liability compAy ("Seller") and the City of San Rafael, California ("Purchaser") and together with seller, each "Party" and together, the "Parties". RECITALS A. Purchaser and Seller have entered into a Solar Power Purchase Agreement for installation of a solar energy facility at the San Rafael City Hall, dated March 20, 2018, which was subsequently amended by Amendment No. 1 on April 2, 2019 and Amendment No. 2 on September 20, 2019 ("Original Agreement); B. The Parties wish to amend the Original Agreement and memorialize certain amendments, consents and waivers as authorized by the Original Agreement; C. Such amendments, consents and waivers have been mutually agreed to for the benefit of both Parties; NOW, THEREFORE, in consideration of the mutual promises contained herein and other valuable considerations, the receipt and sufficiency of which are hereby acknowledged: 1. The Parties agree to amend the Original Agreement to strike Exhibit 1, Section 7 and replace it with: a. "Anticipated Commercial Operation Date: August 31 It, 2020; 2. Purchaser certifies it accepted the Design Plans, as required in Exhibit 4 Section 7(c)(i) of the Original Agreement; 3. Purchaser consents to Seller's use of RBI as excavator and Universal Excavation for trenching of conduit, the only additional subcontractors used for the construction of the System not identified in Exhibit 4, Attachment B of the Original Agreement, and Purchaser hereby waives any requirement to prior written consent for the use of these or any other subcontractors used in construction of the System; 4. Purchaser either waives compliance with the requirements of Exhibit 4, Section 7(I) or confirms that Seller has used commercially reasonable efforts to comply with such section. 5. Purchaser consents to a Change of Control of the Seller from SolEd Benefit Corp. to Exergy Energy LLC and from Exergy Energy LLC to Solaris Investment Group, LLC, and waives any requirement to obtain prior written approval of these and any other changes of control as required by Exhibit 4, Section 19(a) of the Original Agreement 6. Purchaser consents to a Change of Control of the Seller from SolEd Benefit Corp. to Exergy Energy LLC and from Exergy Energy LLC to Solaris Investment Group, LLC, and waives any requirement to obtain prior written approval of these changes of control as required by Exhibit 4, Section 19(a) of the Original 7. Purchaser consents to a future Change of Control of the Seller from Solaris Investment Group, LLC to CVI Renewables Holdings I, LLC in accordance with Exhibit 4, Section 19(a) of the Original Agreement; 8. Purchaser attests to the fact that it has fully complied with CEQA as it relates to the System and either granted or waived the right to issue a Notice to Proceed as required by Exhibit 4, Section 6(b)(iv) of the Original Agreement; and 9. Purchaser waives the satisfaction of each of Purchaser's Conditions Precedent in Exhibit 4, Section 6(b) of the Original Agreement prior to the applicable Condition Satisfaction Date, including but not limited to the occurrence of the Commercial Operation Date on or before the Anticipated Commercial Operation Date and any related termination rights arising as a result thereof. SIGNATURE PAGE FOR WAIVER, CONSENT AND AMENDMENT NO. 3 TO SOLAR POWER PURCHASE AGREEMENT DATED MARCH 20, 2018 By and Between SolEd Solar Holdings V, LLC, a California Limited Liability Company ("Seller") and the City of San Rafael, California ("Purchaser") By: PURCHASER: City of San Rafael, California l Signature: Printed Nam ,Jim Schutz Title: City Manager Date: -7-2,/Cl — 2-o Z b APPROVED AS TO FORM: Lisa A. Goldfien, Asst. City ttorney By: SELLER: SolEd Solar Holdings V, LLC Signature: Printed Name: Alex Blackmer Title: Manager Date: ESTOPPEL CERTIFICATE (Power Purchase APreement) This Offtaker Estoppel Certificate (this "Certificate") is delivered as of July 22020 (the "Effective Date") by the City of San Rafael ("Offtaker"). WHEREAS, Offtaker is a party to that certain Power Purchase Agreement, dated as of March 20, 2018 and amended by PPA Amendment #1 dated April 2, 2019, PPA Amendment #2 dated September 20, 2019 and PPA Amendment #3 dated July , 2020 (as amended, "PPA") by and between Offtaker and SolEd Solar Holdings V, LLC ("Seller"). Capitalized terms not defined herein shall have the meanings given to such terms in the PPA; WHEREAS, pursuant to the PPA, Seller agreed to construct certain solar panel systems ("Systems") on premises owned by Offtaker, and Offtaker agrees to purchase the energy produced by the solar panel systems and licenses the premises on which the systems are to be constructed to Seller (the "Premises"); WHEREAS, as part of selling the direct owner of Seller selling the membership interests in the Seller, which owns the Systems, Seller wishes to confirm certain facts related to the PPA; WHEREAS, Section 22(1) of the PPA provides that either Party to the PPA, without charge at any time after receipt of a written request by the other party shall deliver a written estoppel certificate within five (5) business days certifying to certain matters specified therein, Seller hereby in accordance with the PPA so requests that Offtaker certify as of the Effective Date to Seller and its successors and assigns, who in material reliance on the certifications contained herein is assuming the Seller's interest and obligations in and to the PPA, as follows: 1. Exhibit A sets forth a true and complete copy of all documents constituting the PPA, including the PPA and any amendments or modifications of the same. The PPA is unmodified and in full force and effect, as set forth in Exhibit A. The PPA represents the entire agreement between Offtaker and Seller. As of the Effective Date: a there are no defaults existing under the PPA on the part of Seller or Offtaker, and, to Offtaker's knowledge, no events have occurred that, with the passage of time or the giving of notice, or both, would constitute a default by Seller or Offtaker under the PPA; b. there is no current basis for Offtaker to cancel or terminate the PPA and Offtaker hereby waives any such bases that may have given rise to such a cancellation or termination right in the past; C. there are no defenses or offsets in favor of Offtaker against enforcement of any of the terms, covenants and conditions of the PPA; d. Seller has observed and performed all of the terms, covenants and conditions on Seller's part to be observed and performed; and e. Offtaker has observed and performed all of the terms, covenants and conditions on Offtaker's part to be observed and performed. 3. To Offtaker's actual knowledge, there are no actions, whether voluntary or otherwise, pending against Offtaker under the bankruptcy laws of the United States or any state thereof. 4. Offtaker has read this Certificate and acknowledges and understands the certifications and representations made herein. The undersigned signatory represents and warrants that he or she is duly authorized to execute this Certificate on behalf of Offtaker. 5. The System Size (for all purposes under the PPA) is 246.21 kW -DC. 6. All Milestones in Section 7(c) of the PPA were timely satisfied or waived. 7. The System complies with all Design and Engineering Requirements set forth in Exhibit 6-1 of the PPA. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, Offtaker has executed this Estoppel Certificate as of the Effective Date. OFFTAKER: City of San Rafael A California municipality By: N' --- 9��/ Name: im chutz Its: Ci anager APPROVED AS TO FORM: Lisa A. Goldfien, Asst. MY Attorney Memorandum of License RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: SolEd Solar Holdings V, LLC c/o Solaris Energy LLC, 430 N College Ave, Suite 440, Fort Collins, CO 80524: (Space Above for Recorder's Use Only) MEMORANDUM OF LICENSE This MEMORANDUM OF LICENSE (the "Memorandum") is dated March 19, 2018, by and between the City of San Rafael, California, a municipality within the County of Marin in the State ofCalifornia ("Licensor"), and SolEd Solar Holdings V, LLC, a California limited liability company ("Licensee"). I. Name and Principal Address of Licensor. The name of Licensor is set forth above, and Licensor's address is 1400 Fifth Avenue, San Rafael, CA 94901. 2. Name and Principal Address of Licensee. The name of Licensee is set forth above, and Licensee's address is SolEd Solar Holdings V, LLC, c/o Solaris Energy LLC, 430 N College Ave, Suite 440, Fort Collins, CO 80524 3. License. Licensor and Licensee have entered into that certain Solar Power Purchase Agreement, dated March 23, 2018 and Amended on April 2, 2019 and on September 20, 2019 (the "PPA"). Licensor owns certain real property, and the buildings and improvements thereon, known as City Hall at 1400 5u, Avenue, San Rafael 94901, in Marin County, California, as more specifically described on Exhibit A attached hereto and incorporated herein by reference (the "Property"). Pursuant to the PPA, Licensor granted the License in and right of access to certain areas of the Property electrical room and roof (the "Licensed Area"). 4. Term. The term of the PPA commenced on the Commercial Operation Date and lasts until the twentieth (20"' anniversary thereof, unless earlier terminated in accordance with the terms of the PPA, subject to two (2), five (5) year optional additional terms. The License expires one hundred eighty (180) days after the expiration of the PPA. S. Additional Rights. The License includes the following additional rights: Licensee may utilize a mutually agreed upon portion of the Property for construction related activities, until the final completion date under the Construction Agreement. 6. Access. Licensee, and Licensee's agents, guests, subtenants and designees shall have access to the Licensed Area at all times during the term of the License. 7. Notices. Notices shall be given to the Licensor and Licensee in accordance with the terms of the PPA. 8. Construction of Terms/Conflict. All defined terms used but not otherwise defined herein shall have the meaning or definition set forth in the PPA. In the event that the terms, conditions and provisions of this Memorandum conflict with the terms, conditions and provisions of the PPA, the terms, conditions and provisions of the PPA shall control. 38 9. Successors and Assiens. This Memorandum and the rights granted herein shall run with the land, and shall be binding upon and inure to the benefit of the parties, their respective successors and assigns, but the provisions of this paragraph shall not be construed to allow any assignment or transfer of the rights and obligations otherwise prohibited or conditioned in the PPA. 10. Authority. Each party represents to the other that it has the necessary authority to enter into the PPA and this Memorandum. 11. Counterparts. This Memorandum may be executed in one or more counterparts, each of which, when taken together, shall constitute one and the same document. Final PPA Approved March 19. 2018 [Signature page follows immediately] 39 IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the date first written above. Final PPA Approved March 19, 2018 LICENSOR: San Rafael, California, a Municipality in the State of California By: Name: Ji )Utz Title: City Manager LICENSEE: SolEd Solar Holdings V, LLC, a California limited liability company By: Name: Alex Blackmer Title: Managing Member [Notary pages follow immediately] 40 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Marin On 7ul -D before me, Brenna Kathleen Nurmi, Notary Public (insert name and title of the officer) personally appeared ✓ who proved to me on the basis of satisfactory evidence to be the p rson whose name i l"' scr' ed to the within instrument and acknowled ed to me tha h /srp�t� executed the same in hi h r/tho(authorized capacity(, and that b is r/thsignature(s�'on the instrument the person(; or the entity upon behalf of which the personXacted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature • A6t4ioM BRENNA KATHLEEN NURMI '• Notary Public • California mann County Commission N 2297544 (Seal) My Comm. Expires Jul Ia, 2023 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or ,validity of that document. State of California County of Subscribed and sworn to (or affirmed) before me on this day of , 20_, by proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me. (Seal) State of Colorado County of Larimer Signature. On before me, (insert name andtitle of the officer) personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Colorado that the foregoing paragraph istrue and correct. WITNESS my hand and official seal. Signature (Seal) Final PPA Approved March 19, 2018 41 EXHIBIT A The Land referred to herein below is situated in the City of San Rafael, County of Marin, State of California, and is described as follows: PARCEL ONE: BEGINNING AT A POINT ON THE NORTHERLY LINE OF FIFTH AVENUE (FORMERLY FIFTH STREET), DISTANT THEREON 149.3 FEET, EASTERLY FROM THE POINT OF INTERSECTION OF SAID NORTHERLY LINE OF FIFTH AVENUE WITH THE EASTERLY LINE OF "E" STREET; THENCE RUNNING EASTERLY ALONG SAID NORTHERLY LINE OF FIFTH AVENUE 177.7 FEET, MORE OR LESS, TO THE EASTERLY LINE OF LOT 15, BLOCK 22, AS SHOWN UPON THAT CERTAIN MAP ENTITLED "PLAT OF THE TOWNSITE OF THE TOWN OF SAN RAFAEL", FILED OCTOBER 14, 1873 IN MARIN COUNTY RECORDS; THENCE RUNNING NORTHERLY AND ALONG SAID EASTERLY LINE OF SAID LOT 15, 188.3 FEET MORE OR LESS, TO THE SOUTHERLY LINE OF SIXTH STREET AT A POINT DISTANT THEREON 322 FEET, EASTERLY FROM THE EASTERLY LINE OF "E" STREET; THENCE WESTERLY AND ALONG SAID SOUTHERLY LINE OF SIXTH STREET, 175.2 FEET AND TO A POINT DISTANT 146.8 FEET FROM THE EASTERLY LINE OF SAID "E" STREET; SAID POINT BEING ALSO THE NORTHEASTERLY CORNER OF LOT OF LAND CONVEYED BY FELIXINA T. SMITH TO ROBERT WATT BY DEED DATED SEPTEMBER 1, 1887 AND RECORDED IN BOOK 5 OF DEEDS AT PAGE 511, MARIN COUNTY RECORDS; THENCE SOUTHERLY AND ALONG THE EASTERLY LINE OF THE LOT OF LAND SO CONVEYED TO SAID WATT, 188.8 FEET, MORE OR LESS, TO THE NORTHERLY LINE OF FIFTH AVENUE AT THE POINT OF BEGINNING. BEING A PORTION OF LOT 15, BLOCK 22, AS SHOWN ON THE MAP ENTITLED, "PLAT OF THE TOWNSITE OF THE TOWN OF SAN RAFAEL", MADE BY H. AUSTIN, C. E., FILED OCTOBER 14, 1873, MARIN COUNTY RECORDS. PARCEL TWO: BEGINNING AT A POINT IN THE NORTHERLY LINE OF FIFTH AVENUE, DISTANT MEASURED WESTERLY THEREON FROM THE NORTHWEST CORNER OF FIFTH AVENUE AND "C" STREET 220 FEET; THENCE FROM SAID DESCRIBED POINT OF BEGINNING AND PARALLELING "C" STREET NORTH 60 45' EAST 184.28 FEET TO THE LINE COMMON TO THE LANDS OF FISH AND BOYD; THENCE ALONG SAID LINE, NORTH 86° WEST 125.68 FEET TO THE NORTHWEST CORNER OF THE LANDS OF FISH; THENCE ALONG THE WESTERLY LINE OF SAID LINE OF SAID LANDS, SOUTH 50 28' WEST 178.73 FEET TO THE NORTHERLY LINE OF FIFTH AVENUE; THENCE EASTERLY ALONG SAID NORTHERLY LINE OF FIFTH AVENUE TO THE POINT OF BEGINNING. BEING A PORTION OF BLOCK 22 OF THE TOWNSITE OF SAN RAFAEL, MARIN COUNTY, CALIFORNIA. PARCEL THREE: BEGINNING AT A POINT ON THE NORTHERLY LINE OF FIFTH AVENUE AT THE MOST SOUTHWESTERLY CORNER OF THE PARCEL OF LAND CONVEYED TO D. W. MARTENS BY DEEDS RECORDED JANUARY 15, 1923 IN BOOK 13 OF OFFICIAL RECORDS AT PAGES 124 AND 125, MARIN COUNTY RECORDS; THENCE RUNNING ALONG THE WESTERLY LINE OF THE PARCEL OF LAND CONVEYED TO MARTENS, THE FOLLOWING COURSES AND DISTANCES: NORTH 60 45' EAST 148.08 FEET, NORTH 830 15WEST 30 FEET, NORTH 6° 45' EAST 40 FEET TO THE LINE COMMON TO THE LANDS OF FISH AND BOYD; THENCE ALONG SAID LINE, NORTH 86° WEST 70 FEET TO THE NORTHEASTERLY CORNER OF THE LAND CONVEYED TO L. L. STANLEY AND ROSALINE JOSEPHINE STANLEY, BY DEED RECORDED MARCH 5, 1924 IN BOOK 41 OF OFFICIAL RECORDS AT PAGE 329, MARIN COUNTY RECORDS; THENCE SOUTH 60 45' WEST 184.28 FEET ALONG THE EASTERLY BOUNDARY LINE LAND CONVEYED TO SAID STANLEY TO A POINT IN THE NORTHERLY LINE OFFIFTH AVENUE; THENCE SOUTH 830 15' EAST ALONG THE NORTHERLY LINE OF FIFTH AVENUE 100 FEET TO THE POINT OF BEGINNING. BEING PART OF BLOCK 22 OF THE TOWNSITE OF SAN RAFAEL, MARIN COUNTY, CALIFORNIA. PARCEL FOUR: BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF FIFTH STREET WITH THE EASTERLY LINE OF "C" STREET; THENCE ALONG THE WESTERLY LINE OF "C" STREET, NORTH 6° 45' EAST 191.00 FEET TO AN INTERSECTION WITH THE LINE COMMON TO THE LANDS OF FISH AND BOYD; THENCE FOLLOWING SAID LINE NORTH 840 WEST 122.00 FEET AND NORTH 860 WEST 28.00 FEET; THENCE LEAVING SAID COMMON LINE, SOUTH 6° 45' WEST AND PARALLEL TO C STREET, 40 FEET, THENCE SOUTH 830 15' EAST AND PARALLEL TO THE NORTHERLY LINE OF FIFTH AVENUE 30.00 FEET; THENCE SOUTH 60 45' WEST 148.08 FEET TO THE NORTHERLY LINE OF FIFTH AVENUE; THENCE SOUTH 830 15' EAST 120.00 FEET TO THE POINT OF BEGINNING. PARCEL FIVE: BEGINNING AT THE SOUTHWEST CORNER OF THE INTERSECTION OF MISSION AND "C" STREETS; THENCE RUNNING SOUTHERLY 9.0 FEET TO A STAKE ON THE WESTERLY LINE OF "C" STREET; THENCE WESTERLY A DISTANCE OF 122.2 FEET TO AN ANGLE STAKE; SAID ANGLE STAKE BEING 6.3 FEET SOUTHERLY OF THE SOUTHERLY LINE OF MISSION STREET; THENCE WESTERLY 224.7 FEET TO A POINT BEING DESCRIBED AS A NAIL ON FENCE; THENCE NORTHERLY 8.2 FEET TO A POINT ON THE SOUTH LINE OF MISSION; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF MISSION STREET TO THE POINT OF BEGINNING. For conveyancing purposes only: APN 011-203-12 �1 i 2 /TrwITH CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: Shawn Graf Extension: 5347 Contractor Name: Solaris Energy Contractor's Contact: Nick Francis Contact's Email: nick.francis@solarisenergy.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor 7/21/2020 7/21/2020 b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org ❑X 2 City Attorney a. Review, revise, and comment on draft agreement Click here to and return to Project Manager enter a date. ❑ b. Confirm insurance requirements, create Job on Click here to PINS, send PINS insurance notice to contractor enter a date. ❑ 3 Department Director Approval of final agreement form to send to Click or tap ❑ contractor to enter a Forward three (3) originals of final agreement to date. 4 Project Manager Click here to ❑ contractor for their signature enter a date. 5 Project Manager When necessary, contractor -signed agreement ❑ N/A agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to PRINT Project Manager Date of City Council approval enter a date CONTINUE ROUTING PROCESS WITH HARD COPY 6 Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed agreement 8 City Attorney Review and approve insurance in PINS, and bonds / (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager