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Home My WebLink AboutC16-209 GCASA II LLCFIRST AMENDMENT TO SOLAR INTEREST PURCHASE AGREEMENT THIS FIRST AMENDMENT ("First Amendment") is effective as of the 14th day of June. 2016. by and between GCASA II, LLC (hereinafter "GCASA" or "Company") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, County and GCASA entered into a solar interest purchase agreement with an effective date of on or about April 28, 2015 (the "Original Agreement"); and WHEREAS' the parties desire to amend the Original Agreement to document that County may, in the future, be entitled to claim certain Tax Benefits (defined below) in connection with the Selected Solar Panels; and WHEREAS, County and GCASA desire by this First Amendment to supplement and amend the Original Agreement. FIRST AMENDMENT NOW THEREFORE, in consideration of the foregoing and the mutual rights and obligations as set forth below, the parties agree as follows: 1. Paragraph 6(b) of the Original Agreement shall be deleted and is hereby replaced with the followine : "(blOther Envir,onmentq! lncentives. Customer acknowledges that the Utility and/or another third party may provide incentives, other than the Bill Credits as described under this Section 6, with regard to the Array andlor Environmental Attributes associated with the Selected Solar Panels in the Array. These other incentives (the "Other Environmental lncentives") may include, but are not limited to, certain tax credits, renewable energy credits or other payments, credits or incentives which may be made, transferred or credited to us or Company Affiliates by the Utility and/or another third party. Customer acknowledges that the Other Environmental Incentives are not part of Customer's Solar lnterest and will be paid to, received or transferred directly to us or Company Affiliates. Customer hereby waives, relinquishes, quitclaims and assigns to Company all right, claim, and interest in the Other Environmental lncentives and acknowledges that Customer is not entitled to retain any of the Other Environmental Incentives. Customer also authorizes us to notify such Utility and/or third parties that Customer has assigned such Other Environmental Incentives to us and that the Utility and/or third parties may make any such payment in regard thereto directly to Company. Customer agrees to promptly execute, in a form reasonably acceptable to Customer, any additional documents and/or authorizations as Company or the Utility or another third party may reguest to assist Company in claiming or directly receiving such Other Environmental lncentives. In the event that Utility andlor another third party provides any such Other Environmental lncentives directly to Customer, whether as a bill credit or other payment or credit, Customer agrees to inform Company of that fact and to pay the amount of such Other Environmental Incentives to us within ten (10) days of Customer receipt thereof. The Parties agree that the Other Environmental Incentives to be paid to Company or its Affiliates hereunder apply only to the Selected Solar Panels in the Array and related Environmental Attributes and not to any other project or other solar panels owned or operated by Customer or its related entities. Nptwithstandine the f definition of glthgr Environmental ll,centiveldoes not include the TeI Benefils (defined below) associated with Customer's possihle futufe or4rnqrship.of the Selqcted, Solar?anels as set forth in pa,ragfaph 11(fl hereof." 2. Paragraph 11 of the Original Agreement is hereby amended by the addition of TO FORM { wf,- Attorney's Office EEqle County Commlssioners' Office C16-209 paragraph 11(0(i) and 11 (fxii) as follows: "(fl Tronsfer of Tax Benefits. (i) The Parties agree that "Tax Benefits" as used in this Agreement shall mean all tax benefits available to Customer at such time as Customer acquires ownership of the Selected Solar Panels including but not limited to depreciation. Tax Benefits do not include Federal Business Energy Investment Tax Credits, or Environmental Attributes and Green Attributes as defined herein. (ii) Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall prohibit Customer from utilizing or transferring to a third party or parties the Tax Benefits, associated with ownership of the Selected Solar Panels at such time as Customer may own the Selected Solar Panels through its exercise of the option to purchase the Selected Solar Panels as set forth in this Agreement. The parties agree that Company has and may retain the benefits of depreciation associated with the Selected Solar Panels for the first five (5) years of this Agreement. Upon exercise of the option to purchase, Customer may be entitled to utilize or transfer the Tax Benefits related to the Selected Solar Panels. Customer acknowledges and agrees that Company has made no representation or assurance about the ability of Customer to utilize or transfer such Tax Benefits and Customer is solely responsible for obtaining its own tax or other advice and Company shall have no responsibility therefor. Customer may be entitled to Tax Benefits which may be made, transferred or credited to Customer as a result of its ownership of the Selected Solar Panels. Company hereby waives, relinquishes, and releases to Customer all right, claim, and interest in any Tax Benefits associated with ownership by Customer of the Selected Solar Panels after the first five (5) years. Company agrees to promptly execute, in a form reasonably acceptable to Company, any additional documents and/or authorizations as Customer may request to assist Customer in claiming or directly receiving such Tax Benefits." 3. Paragraph 13 (c) and 13 (d) of the Original Agreement are hereby deleted and replaced with the followins: "(.) Customer has not transferred, assigned or sold all or any portion of the Selected Solar Panels, Production Capability, Solar Output, Environmental Attributes associated with Selected Solar Panels, Other Environmental Incentives or its Solar Interest as set forth herein to any other person or entity, and Customer will not do so during the Term of this Agreement, except as permitted under Sections 9(h), 11(c) and 11(f). Customer has not provided to any other person or entity any of the authority granted to us under this Agreement and Customer will not do so during the Term of this Agreement. Notwithst?ndine the fo,rcgqing-And anvthing elsejn this Agreement to the contrarv, ,nothing in this Agreement shall preclude Customer from trqnsferring or utilizing the Tax Benefits associated with its ownership of the Selected Solar Panels to a third partv or parties..ProvideC however. that this Agfeement does not guarantee to Customer, that Customer will be entitled to utilize or transfer the Tax Benefils qnd Customer shall relv on its own tax advisors and expefis. (d) Customer has not granted or placed or allowed others to place any liens, security interests, or other encumbrances on the Selected Solar Panels, Production Capability, Solar Output, Environmental Attributes, QlftlEnvironmental Incentives or Customer Solar Interest, and Customer will not do so during the Term of this Agreement, except that Customer may grant a security interest in its Solar Interest under this Agreement to secure a loan for the Purchase Price and, upon Custqmer taking ownership of thq panef s pursuant to lhe terns of this AgreetTent, Companv will.not prohibit Customer from transferring or utilizing the Tax Benefits associaled wilh its,ownership-o{ the Selected Solar Panels to a third partv or parties." 4. Paragraph la (e) of the Original Agreement is hereby deleted and replaced withthe following: " (el Survival. ln the event of expiration or early termination of this Agreement, the following sections shall survive: Sections 5(b), 9(e), 9(f), 9(g), 11(d), 11(e), 11(fl. 14(b), 15, 18, 20,22 and 24." 5. Paragraph 17 (a) of the Original Agreement is hereby deleted and replaced with the following: "(a) Customer may not assign this Agreement and may not otherwise assign or transfer the Solar Interest, except as provided in Sections 9(h) and 11(c). Further, upon Customertakins ownership of the panels pursuant to the terms of this Aereement, Companv will not prohibit Customer from transferrins or utilizing Tax Benefits as set forth in Section 11(fl." 6. Appendix B concerning Definitions of the Original Agreement is hereby amended by the addition of the following: oo"Green Attributes" mean the full set of environmental, power source and emissions characteristics, whether in the form of credits (including Renewable Energy Credits), benefits, emissions reductions, offsets, allowances of by any other designation, attributable to the Generation of Electric Energy from the Selected Solar Panels or the Array. Green Attributes include but are not limited to (1) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluoro carbons, perfluoro carbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change as of the effective date of this agreement, or otherwise under Law, to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere, (2) any avoided emissions of sulfur oxides (Sox), nitrogen oxides {NOx) and carbon monoxide (C0), and of any other pollutant of the air, soil or water (other than GHGs) that is now regulated under law, including as part of any renewable portfolio standard, or tradable under any registration or trading program; and i3) the right of the Utility andlor another third party as the owner or prospective owner of Green Attributes to report the ownership of accumulated Green Attributes to any agency, authority or other party, including without limitation those Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present domestic, international or foreign Law, renewable portfolio standard or registration or trading program. One (1) MWh of energy output is assumed to be the equivalent to one unit of Green Attributes, subject to applicable law, standards, or trading program requirements. Green Attributes do not include: (i) any energy, capacity, reliability or other power attributes from the Selected Solar Panels or the Array or ; (ii) production tax credits associated with the construction or operation of the energy projects, as well as any other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation; or (iii) fuel-related subsidies or "tipping fees" that may be paid to accept or dispose of certain fuels, or local subsidies received by the generator for the destruction of particular pre-existing pollutants or the promotion of local environmental benefits." 7. Capitalized terms in this First Amendment will have the same meaning as in the Original Agreement. To the extent that the terms and provisions of the First Amendment conflict with, modify or supplement portions of the Original Agreement, the terms and provisions contained in this First Amendment shall govern and control the rights and obligations of the parties. 8. Except as expressly altered, modified and changed in this First Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect, and are hereby ratified and confirmed in all respects as of the date hereof. 9. This First Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Original Agreement the day and year first above written. COLINTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COLTNTY COMMISSIONERS COMPANY: Print Name: Paul Spencer Title : Auth orized Repre sentative T*k J. Sit"*t*, Cl*k t" GCASA II, LLC a Colorado limited liability