HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 06/16/2020 - RESOLUTION 2020-055 AUTHORIZING ACQUISITION OF CERAgenda Item 6
Item # 6 Page 1
AGENDA ITEM SUMMARY June 16, 2020
City Council
STAFF
John Phelan, Energy Services Manager
Cyril Vidergar, Legal
SUBJECT
Resolution 2020-055 Authorizing Acquisition of Certain Assets and Operational Control of the Community
Solar Project Located at the Riverside Avenue and Mulberry Street Intersection.
EXECUTIVE SUMMARY
This item meets the following COVID-19 emergency priority for being on the Council agenda:
• Priority 4 - Items that are substantially complete, have completed significant public process, and are ready
for Council consideration.
The purpose of this item is to authorize Fort Collins Utilities (“Utilities”) acquisition of the assets of the
Riverside Community Solar Project from Clean Energy Collective (“CEC”). Utilities will subsequently perform
all program management and customer support functions, as well as operations and maintenance of the
facility. CEC has been the owner, developer and operator of the Riverside Community Solar array since its
construction in 2014-2015. CEC and Utilities have reached agreement on a transfer of ownership of the assets
of the solar site to consolidate all program functions under Utilities. Current customers who own panels in the
solar array will continue to receive credits on their bill, as they do today, based on the City’s applicable time of
day rates as set forth in the City Code.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
Clean Energy Collective (“CEC”) has been the owner, developer and operator of the Riverside Community
Solar array since its construction in 2014-2015 on a site leased to CEC by the City at the intersection of
Riverside Avenue and Mulberry Street. The Project contains 2,035 solar photovoltaic (PV) modules, at a total
capacity of 621 kW, and Fort Collins Utilities customers “subscribed” to the Project by purchasing solar panel
assets within the larger solar project. The Project was fully subscribed with ~205 participating customers
before construction was complete in the summer of 2015. The land at the corner of Mulberry and Riverside,
considered a gateway to the City, has been partially restored from its previous use by the Dreher Pickle Plant.
It now hosts native plantings as a natural habitat buffer zone along the Poudre River.
In 2019, the Project generated a net of 834 megawatt-hours of electricity. Customers participating in the
Project earned a total of $54,332 in City utility bill credits.
After exploring options to integrate time-of-day (TOD) rates into the Project, following Council’s adoption of
TOD rates in 2018, CEC and Utilities ultimately determined the greatest benefit for electric utility ratepayers
would be to transfer ownership of Project assets to and consolidate all program functions under Utilities. Under
the terms of a draft Asset Purchase Agreement (APA), customers owning panels in the Project will continue to
Agenda Item 6
Item # 6 Page 2
receive credits on their monthly City utility bill based on the City’s applicable time of day rates as set forth in
City Code.
Consolidating Project management under City ownership benefits participating customers by simplifying the
relationship between solar panel owners and Utilities and enabling improved customer service through
centralized and locally responsive support. The existing bill credit process can be automated and simplified by
incorporation into the new Utilities customer information system later this year.
Upon Council adoption of this Resolution, Utilities will schedule a closing with CEC to execute the APA and
confirm termination of prior service agreements CEC had with third parties for program functions. Thereafter,
as early as late June or early July, Utilities will take over program management and customer support,
including operations and maintenance. The ongoing maintenance costs of the Project will continue to be
supported by segregating a portion of customer-owner bill credits in a Project operation and maintenance fund,
as has been true for the last five years. Utilities anticipates that very few, if any, of the existing customers will
stop participating in the program when Utilities takes over management.
Transfer of Project control to the City will require customers sign a new participation agreement with Utilities to
continue in the program. The current draft Continuing Customer Agreement and Program Rules are posted at
www.fcgov.com/community-solar.
Staff also prepared a customer notice, pending adoption of this Resolution, to provide directions on how to
execute a new participation agreement, including the following:
• Customers will have 90 days after the array acquisition to sign the new customer agreement.
• Utilities will notify customers at 30- and 60-day intervals from the original request to sign the new
agreement.
• After 90 days, customers who have not signed the new participation agreement may no longer participate
in the Project and will cease to receive bill credits for any share of the generation that would be attributed
to their account. (They may re-join the program later if they retain panel ownership).
• Customers who own modules in the Project can choose either to execute the new participation agreement
with Utilities or sell their panels to another customer with an active City electric utility account. Utilities will
not purchase panels from customers.
• Customers who continue in the program may donate their bill credits to another customer account without
having to sell their ownership share.
Subscribing customers may become inactive in the program by failing to sign a new participation agreement or
not maintaining an active electric service account. Bill credits that accrue for inactive customer-owners will be
donated to the Payment Assistance Fund. As the Project is fully subscribed, new customers can only join when
an existing customer wants to sell. Utilities will support a wait list and connect interested parties to buy and sell
ownership interest.
CITY FINANCIAL IMPACTS
The price to purchase the Project assets is $1. This nominal charge is because participating customers own
individual solar panels, and CEC’s ownership interest is de minimis. CEC has already taken advantage of any
tax benefits related to Project, and no additional tax benefits are available to the City or subscribing customers.
The Project assets also include the balance of the operations and maintenance fund (O&M) of approximately
$50,000. The O&M fund, with ongoing replenishment from the participating customers, is sufficient and in good
health for ongoing site and system maintenance and anticipated equipment replacement.
This asset acquisition and subsequent program management has no net impact on the Electric Utility
Enterprise Fund.
Agenda Item 6
Item # 6 Page 3
BOARD / COMMISSION RECOMMENDATION
The Energy Board has not met since March, due to the COVID-19 pandemic, and therefore has had limited
opportunity to consider this transaction or make a recommendation to Council.
PUBLIC OUTREACH
Utilities notified customers by email on June 4, 2020, advising them of Council consideration of this Resolution
on June 16 and how to participate in the discussion about City acquisition of the Project. The notice also
alerted customers that the acquisition will require customers to sign a new participation agreement with
Utilities, and their prior participation agreement with CEC will be nullified. Once the acquisition is final,
customers will be notified again by mail and email to execute a new participation agreement.
Customers have 90 days from their notification after the Project acquisition to complete a new customer
agreement and remain participants in the program. Utilities will notify them at 30- and 60-day intervals from the
original request to sign the new agreement.
Updates to the program web page were completed the week of June 1, 2020, including posting drafts of the
continuing customer participation agreement and proposed program rules.
ATTACHMENTS
1. CEC Customer Notification Termination of Agreement (PDF)
2. Customer Notification - Changes in Ownership of Riverside Community Solar Project (PDF)
[Date]
[Customer Name]
[Customer Address]
Dear [Customer Name],
We are writing with an important update regarding your community solar panel ownership in the CEC Solar
#1038, LLC community solar project in Fort Collins. On [INSERT DATE], Clean Energy Collective, LLC (“CEC”)
sold the assets of the solar facility, in which you own an interest in certain solar panels, to Fort Collins
Utilities (the “Utility”). The Utility is now responsible for ongoing management and maintenance of the
solar facility.
As part of this acquisition, your Solar Advantage Sale Agreement with CEC Solar #1038, LLC (“Customer
Agreement”) terminated with the termination of the Utility Purchase Agreement in accordance with
Section 14(a) of your Customer Agreement. The Utility will be reaching out to you to enter into a new
customer agreement directly with the Utility. The Utility will honor the terms under your old Customer
Agreement, for up to ninety (90) days, until you execute the new customer agreement with the Utility.
Under the new customer agreement with the Utility, you will continue to receive bill credits for solar
production attributable to your portion of the solar output.
As of the date of this letter, the Utility will be your point of contact for all aspects of your community solar
panel ownership. If you have questions about this change, please contact the Utility’s customer care team
at [utility phone number] or by email at [Utility email].
Thank you for supporting the generation of clean, renewable energy in Colorado.
Clean Energy Collective, LLC
ATTACHMENT 1
6/3/2020 Changes in Ownership of Riverside Array
https://myemail.constantcontact.com/Changes-in-Ownership-of-Riverside-Array.html?soid=1124726735031&aid=84yrhc9mS1g 1/2
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Upcoming Changes to Ownership of the Riverside
Community Solar Project
Hello,
Thank you for your commitment to clean renewable energy through your participation in
community solar! We have an important update for you regarding the Riverside
Community Solar Project (also known as CEC Solar #1038, LLC).
Fort Collins Utilities is preparing to take ownership of the project’s assets from
Clean Energy Collective (CEC). You will still own your existing solar panels in the
project.
After this transaction is complete, Utilities will assume all responsibilities for operating the
array, providing customer service and support, and managing the Community Solar
Program. You will continue to receive the same credits on your bill as you do today.
On June 16, Fort Collins City Council will consider a resolution to approve the
proposed purchase of the community solar array equipment and assets currently
held by CEC Solar #1038, LLC. You can participate in the City Council meeting by phone
or view the meeting remotely on FCTV beginning at 6 p.m. For details on the agenda and
for participation and viewing options, visit fcgov.com/council.
You will receive additional communications in the future from CEC and Utilities about
transitions in the Community Solar Program. For more details, including updated program
rules and the new Continuing Participation Agreement with Utilities that will replace your
existing Solar Advantage Sale Agreement with CEC Solar #1038, LLC, visit
fcgov.com/community-solar.
Regards,
Leland Keller
ATTACHMENT 2
6/3/2020 Changes in Ownership of Riverside Array
https://myemail.constantcontact.com/Changes-in-Ownership-of-Riverside-Array.html?soid=1124726735031&aid=84yrhc9mS1g 2/2
Community Solar Program
Fort Collins Utilities
lkeller@fcgov.com
303-652-7748 mobile
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RESOLUTION 2020-055
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING ACQUISITION OF CERTAIN ASSETS AND
OPERATIONAL CONTROL OF THE COMMUNITY SOLAR PROJECT
LOCATED AT THE RIVERSIDE AVENUE AND
MULBERRY STREET INTERSECTION
WHEREAS, the City entered into an agreement with Clean Energy Collective (CEC) in
2014 to develop a community solar project through which the City’s Electric Utility could
facilitate “virtual net metering” for customers who are unable to locate photovoltaic solar panels
on their properties; and
WHEREAS, the City and CEC thereafter collaborated on the construction and electric
system interconnection of the Riverside Solar Project (the Project) at the northeast corner of
Riverside Avenue and Mulberry Street on real property lease by CEC from the City; and
WHEREAS, the Project began commercial operation in 2015, at which time City utility
customers purchased from CEC 25-year subscription-ownership interests that included
individual ownership of solar panels and the energy generated for the anticipated 25-year life of
the Project; and
WHEREAS, subscribing customers thereafter began receiving credits directly on their
City utility bills, based on the subscription interest each owned in the Project and a formula
relying on electric service rates annually adopted by Council; and
WHEREAS, in October 2018, pursuant to Ordinance No. 155, 2017, the City transitioned
applicable electric utility service rates from a “tiered-based” structure to a “time-of-day-based”
structure (TOD), and began applying TOD credits to community solar projects in January 2019;
and
WHEREAS, after implementing TOD credit rates, the City and CEC encountered unanticipated
complications in applying TOD rates to Project customer bill credit formulae; and
WHEREAS, the City and CEC explored options for integrating TOD credit rates into
Project processes and determined in 2020 the integration could best be achieved with maximum
benefit to customers by consolidating all program management and customer support functions
under City Utility Services; and
WHEREAS, Utility Services staff and CEC thereafter prepared an Asset Purchase
Agreement (APA) and developed a list of assets and operational arrangements required for
Utilities Services to take over ownership of certain assets and operation of the Project; and
WHEREAS, under the proposed APA, subscribing customers owning panels in the
Project will continue to receive credits on their bill, as they currently do, based on applicable
TOD rates set forth in City Code Chapter 26, and Project operations will be simplified through
local management of both operation and billing/credit functions by the Electric Utility; and
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WHEREAS, among the assets and interests to be transferred by CEC to the City is an
Operation & Maintenance fund (O/M Fund) established for the purpose of maintaining the
Project, capital for which is sustained through installments from the bill credits otherwise issued
to subscribing customers; and
WHEREAS, the O/M Fund balance is currently $50,000, annual revenue deposits into
the O/M Fund are approximately $10,000, and annual Project O/M expenditures are
approximately $10,000; and
WHEREAS, staff recommends Council approve and authorize the City Manager to
execute the Asset Purchase Agreement (APA) attached hereto as Exhibit “A,” incorporated by
this reference, to complete the transfer of Project operation from CEC to the City; and
WHEREAS, the City Council desires to approve the APA between the City and CEC to
transfer ownership of certain assets in and control of the Riverside Community Solar Project to
the City to enable the Electric Utility’s continued operation of the Project directly for the benefit
of its ratepayers.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the City Manager is hereby authorized to sign, on behalf of the City,
the APA in substantially the form attached hereto as Exhibit “A”, with such additional or
modified terms and conditions as the City Manager, in consultation with the City Attorney
determines to be necessary and appropriate to protect the interests of the City or effectuate the
purposes of this Resolution.
Section 3. That the City Manager or his delegee is hereby further authorized to sign,
on behalf of the City, all closing and other documents necessary to complete the transaction
contemplated by the APA.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
16th day of June, A.D. 2020.
Mayor
ATTEST:
City Clerk
Execution Copy
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this “Agreement”), dated as of June [__], 2020 (the “Effective Date”), is
by and between CLEAN ENERGY COLLECTIVE, LLC, and CEC Solar #1038, LLC, a Colorado limited
liability company (“Seller”) and THE CITY OF FORT COLLINS, a Colorado municipal corporation,
through Fort Collins Utilities, (“Buyer”) for the purchase and sale of certain assets as described herein.
Buyer and Seller are referred to herein as a “Party” or the “Parties”, individually or collectively, as
appropriate.
AGREEMENT
WHEREAS, Clean Energy Collective, LLC, is a Colorado limited liability company and the sole
owner of CEC Solar #1038, LLC, a Colorado limited liability company.
WHEREAS, Seller has developed, constructed and operated a solar array facility (the “Project”)
located at the site owned by the Buyer and described in Exhibit A.
WHEREAS, since 2015, Seller has marketed and sold subscriptions in the Project to Fort Collins
electric utility customers (“Customers”), operated the Project on behalf of such Customers, and brokered
the exchange of pro-rata Customer interests in the solar power generated by the Project for Customer utility
bill credits issued by Buyer.
WHEREAS, Seller owns a 100% interest in the Project Assets (as defined below).
WHEREAS, Seller desires to sell the Project Assets to Buyer, and Buyer desires to purchase such
Project Assets.
WHEREAS, Buyer agrees to extend Seller’s current Customer utility bill credit model for 90 days
after the Effective Date to facilitate Customers’ transition to Continuing Customer Agreements or transfer
of interests in the Project.
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. Purchase and Sale. On the terms and subject to the conditions set forth in this Agreement,
at the Closing, (a) Seller agrees to sell, transfer, convey, assign and deliver all of its right, title and interest
in and to the assets set forth in Exhibit B free and clear of all liens, mortgages, and other encumbrances
other than Permitted Liens (the “Project Assets”), and (b) Buyer agrees to purchase and accept from Seller
all such right, title and interest in and to the Project Assets.
EXHIBIT A
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2. Excluded Assets and Liabilities. Other than the Project Assets, the Parties expressly
understand and agree that Buyer is not purchasing or acquiring, and Seller is not selling or assigning, any
other assets or properties of Seller, and all such other assets and properties shall be excluded from the
Project Assets (collectively, the “Excluded Assets”).
3. Buyer Responsibilities. Buyer shall be responsible for and agrees to pay, perform and
discharge when due any and all amounts which may become due in connection with Buyer’s ownership
and Buyer’s and Buyer’s Representatives’ operation of the Project Assets on or after the Closing, including,
but not limited to, operation and maintenance of the Project, any necessary repairs that need to be made to
the Project and all duties to the customers of the Project under the Continuing Customer Agreements (as
defined below). For purposes of this Agreement, “Buyer’s Representatives” shall mean Buyer’s affiliates,
contractors, subcontractors, agents and employees.
4. Waiver and Release. Except as otherwise expressly provided in this Section 4, the Parties
each agree to solely bear any and all risk of claims by Customers or any other third party arising from events
occurring during the period of their respective ownership of the Project Assets, and hereby release and
agree to hold harmless the other Party from all claims by Customers or any other third party arising from
events occurring during such periods (the “Released Liabilities”). The Parties agree that each will forever
waive any right to make any claim or seek any recourse against the other Party in regard to the Released
Liabilities regardless of whether or not such claim arises from the same or different or additional claims or
facts; provided however that this Section 4 shall be subject to Section 12 and not be construed to waive or
release any claim Buyer may have against Seller for the breach of this Agreement or any obligation
associated with the Project and/or Project Assets arising prior to the Closing Date.
5. Purchase Price. The aggregate purchase price for the Project Assets shall be One Dollar
($1.00) (the “Purchase Price”). Buyer shall pay the Purchase Price by wire transfer to Seller of
immediately available funds in accordance with the wire transfer instructions provided from Seller to Buyer.
6. Closing Date. The closing of the transactions contemplated herein (the “Closing”) will
take place on the Effective Date (the “Closing Date”).
7. Transaction Costs. Except as otherwise expressly provided for herein (including Section
15 hereof), each Party shall bear its own costs incurred in connection with the negotiation and
consummation of this Agreement, including, but not limited to any appraisal, engineering, accounting,
financial advisory, brokerage or legal fees and expenses.
8. Closing Deliverables of Seller. On or before the Closing, Seller shall deliver or cause to
be delivered to Buyer the following documents and shall take or cause to be taken the following actions:
(a) Seller shall deliver to Buyer a counterpart signature to each Termination
Agreement as defined below to which Seller, any affiliate of Seller or any third party is a party, duly
executed by Seller, such affiliate or such third party, as applicable; and
(b) Each customer for the Project shall have consented to the novation of its customer
contract with Seller, and Seller shall deliver to Buyer any other consents, approvals and filings needed, to
execute, deliver and perform Seller’s obligations under this Agreement.
For purposes of this Agreement, “Termination Agreement” means a termination agreement to be effective
as of the Closing Date in the forms attached hereto as Exhibit C with respect to (i) each Operation &
Maintenance (O&M) Agreement; (ii) each Engineering, Procurement and Construction (EPC) Agreement;
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(iii) the Sales Commission Agreement by and between CEC Solar #1038, LLC and Clean Energy
Collective, LLC (“CEC”), dated April 30, 2014; (iv) the Development Agreement by and between the City
of Fort Collins and Seller, dated March 20, 2015; (v) the Community Solar Generator Interconnection
Agreement by and between Buyer and Seller, dated May 20, 2015; (vi) the Application Services Agreement
by and between Also Energy, Inc. and Energy Equipment Limited, dated January 19, 2016; (vii) the
Renewable Generator Power Purchase Agreement dated April 10, 2014, as amended; and (viii) the Land
Lease Option Agreement (Solar Farm) by and between Seller and the City of Fort Collins, dated October
6, 2014, as amended.
9. Closing Deliverables of Buyer. On or before the Closing, Buyer shall deliver or cause to
be delivered to Seller the following documents and shall take or cause to be taken the following actions:
(a) Buyer shall deliver to Seller a counterpart signature to any Termination Agreement
to which Buyer or the City of Fort Collins is a party, duly executed by Buyer or the City of Fort Collins, as
applicable;
(b) Buyer shall deliver to Seller any consents, approvals and filings needed, including
but not limited to approval by the Fort Collins City Council, to execute, deliver and perform Buyer’s
obligations under this Agreement;
(c) Buyer shall pay or cause to be paid the Purchase Price as provided in Section 5;
and
(d) Buyer shall produce proof that Buyer has sent each customer Continuing Customer
Agreements in substantially the model form attached hereto as Exhibit D to be effective 90 days after the
Closing Date (collectively, the “Continuing Customer Agreements”).
10. Seller’s General Covenants, Representations and Warranties. As of the Closing Date,
Seller hereby represents and warrants to Buyer, as follows:
(a) it is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization;
(b) it has the legal authority to enter into this Agreement and to perform its obligations
hereunder;
(c) that this Agreement is enforceable and binding against Seller in accordance with
its terms and conditions, except as such enforceability may be limited or denied by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the
enforcement of debtors’ obligations generally, and (ii) general principles of equity, regardless of whether
enforcement is pursuant to a proceeding in equity or at law;
(d) this Agreement and the performance of its obligations hereunder neither violate
any applicable law nor conflict with nor cause a breach under its organizational documents or any other
agreements to which it is a party;
(e) Seller has satisfied all reporting and/or payment obligations related to any tax
credits associated with the Project such that no lien will attach to the Project Assets or claim against
Buyer may be made with regard to such tax credits;
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(f) Seller has good and valid title to all of the tangible Project Assets free and clear of
any liens or other encumbrances, except for: (i) liens for Taxes not yet due and payable for which Seller
shall provide a prorated final settlement subject to adjustment at the Closing, if applicable; and (ii) other
imperfections of title or encumbrances, if any, that would not have a material adverse effect on the Buyer’s
ownership interest in or right to continued use of the Project Assets (collectively, items (i) and (ii) above
are referred to as “Permitted Liens”); and
(g) Seller has filed all income Tax Returns and all material non-income Tax Returns
that are required to be filed on or before the Closing Date applicable to the Project Assets (giving regard to
valid extensions) in a timely, complete and accurate manner. For purposes of this Agreement, “Tax
Return” means any returns, declarations, reports, claims for refund, information returns (including where
permitted or required, any consolidated, combined or unitary returns) or other documents (including any
related or supporting schedules, statements or information and any amendments thereof) filed or required
to be filed in connection with the determination, assessment or collection of any Taxes or in connection
with the administration of any statutes, laws, rules, regulations, orders or awards of any governmental
authority relating to any Taxes.
11. Buyer’s Covenants, Representations and Warranties. As of the Closing Date, Buyer hereby
represents and warrants to Seller as follows:
(a) it is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization;
(b) it has the legal authority to enter into this Agreement and perform its obligations
hereunder;
(c) that it has heretofore delivered to Seller, as attached hereto, the model Continuing
Customer Agreement to be used between Buyer and Customers of the Project;
(d) For 90 days, beginning on the Effective Date (the “Transition Window”), Buyer
will continue the Customer bill credit model used by Seller up to that date. During the Transition Window,
Buyer will assist Customers enter into Continuing Customer Agreement to be effective at the end of the
Transition Window and/or identify other interested utility users with whom Customers may negotiate the
purchase-sale of Customers’ interests in the Project;
(e) After the Transition Window, all Customers participating in the Project will be
required to disclaim all rights under any customer contract with Seller and to enter into a Continuing
Customer Agreement with Buyer
(f) this Agreement is enforceable and binding against Buyer in accordance with its
terms and conditions, except as such enforceability may be limited or denied by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of
debtors’ obligations generally, and (ii) general principles of equity, regardless of whether enforcement is
pursuant to a proceeding in equity or at law; and
(g) this Agreement and the performance of its obligations hereunder neither violate
any applicable law nor conflict with nor cause a breach under its organizational documents or any other
agreements to which it is a party.
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12. Limitation of Liability.
(a) For purposes of this Agreement, “Damages” means such damages as shall be
payable in connection with this Agreement, under law or at equity.
(b) WITHOUT DISCLAIMING ANY EXPRESS WARRANTIES SET FORTH IN
THIS AGREEMENT, SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND ANY AND ALL IMPLIED WARRANTIES ARE
DISCLAIMED. SELLER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE
FUTURE PERFORMANCE OF THE PROJECT, ANY FUTURE PRODUCTIONS LEVELS OF
ELECTRIC GENERATION OF THE PROJECT OR REVENUES THEREFROM, INCLUDING
REVENUE IN CONNECTION WITH THE SALE OF NET METERING CREDITS, UTILIZATION OF
TAX BENEFITS OR ENVIRONMENTAL ATTRIBUTES. THE PARTIES HEREBY ACKNOWLEDGE
AND AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW, THE DISCLAIMERS
CONTAINED IN THIS AGREEMENT ARE “CONSPICUOUS” FOR THE PURPOSES OF SUCH
APPLICABLE LAW. THE PARTIES AGREE THAT THE EXPRESS REMEDIES AND MEASURES
OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES
HEREOF. THE LIABILITY OF ANY PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO
THE SOLE AND EXCLUSIVE REMEDY OF DIRECT ACTUAL DAMAGES ONLY, AND ALL LOSS
OF BUSINESS, LOSS OF TAX CREDITS OR OTHER TAX BENEFITS, LOSS OR DELAY OF
FUNDING, INTEREST CHARGES, COST OF CAPITAL, CLAIMS OF CUSTOMERS, BUSINESS
INTERRPUTION, LOST PROFITS, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND OTHER
DAMAGES IN LAW OR EQUITY ARE WAIVED, WHETHER BY STATUTE, IN TORT OR UNDER
CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE, REGARDLESS OF
WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING
THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE,
NOTWITHSTANDNG THE CONTRARY, IF THE DAMAGES ATTRIBUTABLE TO ANY BREACH
OF THIS AGREEMENT BY SELLER SHALL EXCEED THE PURCHASE PRICE TO SELLER
HEREUNDER, THEN SELLER’S LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL
BE LIMITED TO THE DIRECT ACTUAL DAMAGES AND ALLOCATED ACCORDING TO THE
RESPONSIBILITIES SET FORTH IN SECTION 4, AND SUCH DIRECT ACTUAL DAMAGES (AS
SO LIMITED) SHALL BE THE SOLE AND EXCLUSIVE REMEDY IN RESPECT TO ANY BREACH
BY SELLER OF THIS AGREEMENT AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR
IN EQUITY ARE WAIVED.
(c) BUYER ACKNOWLEDGES AND CONFIRMS THAT IT IS NOT RELYING
UPON ANY REPRESENTATION, WARRANTY, GUARANTY, PROMISE, STATEMENT OR
INDUCEMENT, ORAL OR WRITTEN, EXPRESSED OR IMPLIED, WHICH MAY HAVE BEEN
MADE BY SELLER OR OTHERS ACTING OR PURPORTING TO ACT ON BEHALF OF SELLER
WITH RESPECT TO THE PAST, PRESENT OR FUTURE CONDITION OF THE PROJECT ASSETS,
THEIR ACTUAL OR PROJECTED INCOME, EXPENSES, OPERATION, VALUE, USES,
MAINTENANCE, OR ANY OTHER ASPECT OF THIS TRANSACTION OR THE PROJECT ASSETS,
EXCEPT THE ABSENCE OF ASSOCIATED LIENS AND OTHER ENCUMBRANCES OF ANY
FORM OTHER THAN PERMITTED LIENS, AND BUYER AGREES TO ACCEPT TITLE TO THE
PROJECT ASSETS IN THEIR PRESENT CONDITION, “AS-IS”, WITHOUT WARRANTY, EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED FOR HEREIN.
13. Assignment. No Party may assign this Agreement without the prior written consent of the
other Party.
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14. Reserved.
15. Transfer Taxes. All transfer, sales, use, registration, documentary, stamp, value added and
other such Taxes and fees (including any penalties and interest) incurred in connection with the title transfer
described in this Agreement and the other transaction documents, if any, shall be borne and paid by Buyer
when due. Buyer shall, at its own expense, timely file any returns, declarations, reports, information returns
and statements and other documents relating to Taxes (including amended returns and claims for refund),
and Seller shall cooperate with respect thereto as reasonably necessary.
For purposes of this Agreement, “Taxes” means all federal, state, local, foreign and other income,
gross receipts, sales, use, production, ad valorem, transfer, documentary, franchise, registration, profits,
license, withholding, payroll, employment, unemployment, excise, severance, stamp, occupation,
premium, property (real or personal), customs, duties or other taxes, fees, assessments or charges of any
kind arising after or by virtue of the transaction of the Closing, together with any interest, additions or
penalties with respect thereto. “Taxes” does not include any of the preceding financial obligations
accruing or otherwise arising prior to the date of the Closing and/or due and payable by Seller associated
with Seller’s ownership, operation of, or generation of income from the Project and/or Project Assets
prior to the date of the Closing,
16. Notices. All notices required or given pursuant to this Agreement must be in writing and
must be personally delivered or mailed by United States certified mail, return receipt requested, with
postage prepaid, or sent by a reputable overnight air courier service (such as Federal Express, UPS or DHL).
If mailed, a notice will be deemed to be received on the second business day following the date of mailing.
Notices must be sent to the receiving Party at the address set forth below (or such other address as a Party
may hereafter designate in writing to the other Party):
To Buyer:
City of Fort Collins
300 Laporte Avenue
PO Box 580
Fort Collins, CO 80522
Attn: John Phelan
Email: jphelan@fcgov.com
With copies (which shall not constitute notice) to:
Lisa Rosintoski, Deputy Director of Utilities Service
Email: lrosintiski@fcgov.com
and
Judy Schmidt, Senior City Attorney
jschmidt@fcgov.com
To Seller:
CEC Solar #1038, LLC
c/o Clean Energy Collective, LLC
363 Centennial Pkwy, Suite 300
Louisville, CO 80027
7
Attn: Tom Sweeney. CEO
Email: tom.sweeney@cleanenergyco.com
With a copy (which shall not constitute notice) to:
Katherine Worden, Chief Legal Officer
Email: katherine.worden@cleanenergyco.com
17. Entire Agreement; Merger. The terms of this Agreement supersede and cancel all prior and
contemporaneous oral or written agreements and understandings of Buyer and Seller in respect of the
Project and transactions contemplated herein. Notwithstanding the contrary, the Parties acknowledge and
agree that the Mutual Non-Disclosure Agreement, dated as of January 8, 2014, between Buyer and CEC
(the “NDA”) shall remain in effect in accordance with its terms and conditions, and that it shall apply both
to the subject matter of this Agreement, and to all matters other than the subject matter of this Agreement.
However, Buyer’s disclosure of this Agreement to Customers, or in the defense of any claim asserted by
Customers shall not be considered a breach of the NDA.
18. Modifications and Waivers. No such waiver, and no modification, amendment, discharge
or change of this Agreement will be valid unless the same is in writing and signed by the Party against
whom the enforcement of such modification, waiver, amendment, discharge or change is sought. This
Agreement may not be amended except by written agreement executed by all Parties.
19. Successors and Assigns. All rights and obligations arising out of this Agreement will inure
to the benefit of and be binding upon the respective successors and permitted assigns of the Parties hereto.
20. Governing Law. This Agreement and all matters arising hereunder or in connection
herewith shall be governed by, interpreted under, construed and enforced in accordance with the laws of
the State of Colorado, without regard to the conflicts of law principles thereof. Venue for any action arising
in connection with this Agreement shall be in Larimer County, Colorado District Court.
21. Remedies. Except as limited by this Agreement, all rights, powers, and remedies of the
parties hereunder are cumulative and concurrent and shall be in addition to and not exclusive of any
appropriate legal or equitable remedy provided by law or contract.
22. Interpretation. This Agreement shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting an instrument or causing any
instrument to be drafted. The headings in this Agreement are for reference only and shall not affect the
interpretation of this Agreement.
23. Severability. If any provision of this Agreement is finally adjudicated to be invalid, illegal
or unenforceable, in whole or in part, it will be deemed deleted to that extent, and all other provisions of
this Agreement will remain in full force and effect.
24. Counterparts. This Agreement may be executed in more than one counterpart, each of
which will be deemed to be an original, but all of which together will constitute one original. This
Agreement will not be binding on the Parties until each Party has executed a counterpart of this Agreement.
A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission
shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
25. Non-Recourse. This Agreement may only be enforced against, and any claim, action, suit
or other legal proceeding based upon, arising out of or related to this Agreement, or the negotiation,
8
execution or performance of this Agreement, may only be brought against the entities that are expressly
named as parties hereto and then only with respect to the specific obligations set forth herein with respect
to such party. No past, present or future director, councilmember, officer, employee, incorporator, manager,
member, partner, equity holder, affiliate, agent, attorney or other representative of any party hereto or of
any affiliate of any party hereto, or any of their successors or permitted assigns, shall have any liability for
any obligations or liabilities of any party hereto under this Agreement or for any claim, action, suit or other
legal proceeding based on, in respect of or by reason of the transactions contemplated hereby.
(Signature page follows)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first written above by their respective officers thereunto duly authorized.
CEC SOLAR #1038, LLC
By: Clean Energy Collective, LLC, its Manager
By_____________________
Tom Sweeney
Chief Executive Officer
FORT COLLINS UTILITIES
By_____________________
Darin A. Atteberry
City Manager
ATTEST:
City Clerk
Approved as to form
Assistant/City Attorney
LIST OF EXHIBITS TO ASSET PURCHASE AGREEMENT
Exhibit A – Description of Project
Exhibit B – Project Assets
Exhibit C – Termination Agreements
Exhibit D – Model Continuing Customer Agreement
Exhibit A
Description of Project
CEC Solar #1038, LLC solar array located at or about 500 Riverside Avenue, Fort Collins, Colorado
80521
Exhibit B
Project Assets
The following equipment:
Inverter(s) Inverter Type: Schneider GT500-480
Manufacturers Serial #: C11323160565
Racking Racking Type: RBI-Ground Mounted
DAS Monitoring Type: Also Energy
including any ancillary solar equipment located on the Site (but excluding the modules, which are
owned by the Project’s customers) and any existing warranties with respect to such equipment to
the extent such warranties are assignable.
Balance of Operations and Maintenance fund of $[45,417.92] less any amounts that are
outstanding as of the Closing such as Seller’s share of any Taxes through the Closing.
Exhibit C
Termination Agreements
See attached.
Exhibit D
Model Continuing Customer Agreement
(Subject to revision by Buyer)