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HomeMy WebLinkAboutC09-477 Inpower LetterS?l ~iaiti `iiit't'i ,rill~,n;i;iit~, S li tiler": . . 5,~ g~dss a,p8 .,~~ii;-L.'~I ~ eUi } t Y°' t.~ ~ ti 1` ~'iY November 17.2009 Board of County Commissioners Eagle County, Colorado PO Box 850 X00 Broadway Eagle, CO 81 b31 Dear County Commissioners: This letter, when countersigned below, will colltirm the intcntian of Eagle County Airport ("Host") to host and purchase ali power generated by a solar electric system of approximately 1 MWp DC in size ("Solar Generation i~acilities") and the exclusive engagement of lnpower Systems, LLC' and its af~tiliates ("Developer"), to develop, construct, own and operate these Solar Generation Facilities. Development process (,"Dcvek)pmcnt"). Development includes, but. is not limited to, the following tasks: (a) Phase One (i) Xcel ItEC RFP --Submission deadline November 20, 2009 (ii) Holy Cross Presentation: Interest in RECs and Interconnection (iii} Discussions begin with FAA on detailed design (b} Phase Two (i) Local permitting {ii) Finalize FAA parameters and approval (iii} Finalize construction and permanent financing; 2. Non-Solicitation and Exclusive Nes,otiatiuns In consideration of the substantial time, effort, and expense to be expended by Developer in the course of Development, 1-lost will not directly or indirectly, through any of~Iicer, director, employee, stockholder, representative or othen~~ise, at any time prior to twelve (12) nlalths l~~lk)wing the signing of ibis letter {i} solicit, entertain, or encourage offers from, negotiate with, or in any manner encourage, discuss, accept, or consider any proposal of any other person relating to Solar Generation Facilities at Eagle County Airport in the form similar t0 thal. ItlClude(1 111 the IZFP dated July 17, 2009, (ii) furnish any non-public information about 1-fost or provide access to the properties, books and records of Host to any other person in connection with any snmlar proposal, or (iii) otherwise cooperate in any way with another person, or facilitate or encourage any other person, in any effort or attempt to do any of the foregoing. Access to Information Host will provide Developer and its rcprescntatives with reasonable access to all of its facilities, books, t~tnd records (including all financial records) and will cause Hast's representatives to cooperate fully with Developer and Developer's rcprescntatives in connection with Development. 4. '['erms (a) Solar lnccntives: Developer shall be entitled to all Solar Incentives and Environmental Attributes. (b) Contract "Term: Beginning on the "Commercial Operation Date" or "COD" with a minimum of six (G) and a maximum of twenty (2U) years (c) Energy Production: }-it.ast will be reduired to make monthly payments for all of the energy produced, based on pricing materially similar to that presented during the RFP process. Developer will ensure the system produces SO%, ~~~f the projected output for each year of the agreement. Should the actual energy produced not meet the minimum, Developer will remedy or repair the system as necessary. (cl) System Maintenance: Developer shall provide all maintc:nancc on the system. (e) Property Tax: Host agrees that any change in legislations that would increase property taxes shall be paid by Host. (i) Insurance: I-Iost shall provide general liability insurance on the system. Host shall provide property insurance on the system. (i) Host shall not be responsible to provide [3usiness Interruption [nsurance. Definitive Documentation Following the execution of this letter, Developer will begin its Development. In addition, and subject to Development, Developer will prepare and deliver to Host detitlitive power purchase, site access and related agrectncnts (the "Definitive Documents"} containing terms materially consistent with this letter, the correspondence crcateci during the RIP Ix-occss and customary representations, warranties, covenants, indemnities and conditions for a transaction of this nature, including, without limitation, closing conditions in respect of Developer completing Development to its satisfaction and obtaining third party financing. This LOI servos to outline the general leans for the Development and captains a list of proposed points that may or may not become part of an executed contract. Except for the non-solicitation provisions found at Section 2 herein, 1 [ost and Developer understand and acknowledge that no legal obligations are created by this LO1, and that neither Developer or Host will have any legal obligations with respect to the proposed Development unless and u11t11 Defnutlve Documents are approved and executed. This LOI is not intended to impose arty obligation on either party, and in particular does not irnposc on any party any obligation to bargain in any way other them at arm's length. This paragraph supersedes all other contlicting language. 6. Bindin =_ )~ftcct The parties acknowledge and ag=ree that this letter is: (a) Non-binding and is }mended to be, and shall be constnled only as, a summary of the discussions between Developer and Host to the date hereof; provided, however, that Section 2 of this letter shall be binding upon execution; and (b) The respective rights and obligations of Developer and Host shall be defined in the Definitive Documents, which shall supersede this letter and all pl-ior discussions, bclth written and oral, between the parties. (c) If both parties agree that progress towards definitive documents has ceased termination ofthis letter agreement can be effectuated using a written document executed by both parties. Miscellaneous (a) This lei.ter shall become effective as oi~ the date of Host's execution hereof and upon receipt by Developer of a signed counterpart ofthis letter. This letter shall be construed in accordance with the intc;rnal laws of'the State of Colorado. Venue for any action brought to enl~~orce the term ofthis LOI shall be in the Fif}h Judicial District in Eaf;le, Colorado. (b) Each of Developer and Host shall be responsible for their own expenses in amnection with the negotiation ofthis letter and the transactions contemplated by this letter. [End of text] If the foregoing correctly sets forth the understanding and intentions of Host, please silm the enclosed counterpart original ofthis letter and return it to Developer. Very tntly yours, INPOWCR SYSTEMS, LLC By: James C. Raras, Jr. _.._ ~,..... /' _...--- r ^-- ..- Name James C. Raras, Jr. Title: Principal Accepted and Agreed: ):AGL1/ COUNTY, COLORADO, by anti through its Boarci of County Commissioners By: Sara J. Fisher Narne: Sara 1. Sher Title: Chairman