City of RE NG CITY COUNCIL AGENDA REPORT TO: Honorable Mayor and City Council Members FROM: Public Works and Finance Departments Agenda Item No.: 8. P. Meeting : September 14, 2015 Community Solar Garden Subscription Letter of Intent ACTION REQUESTED: Motion to approve and authorize the execution of a Letter of Intent to subscribe to a community solar garden with the developer Innovative Power Systems and its project financing partner, New Energy Equity, LLC. ATTACHMENTS: Community Solar Garden Subscription Letter of Intent BACKGROUND: Please note that this matter is distinctly independent of the on- going land lease negotiations with Minnesota Community Solar and that nothing regarding that matter is contained herein. A Special City Council meeting was held on August 31, 2016, to discuss the recommendation of the Community Solar Power Subscription RFP evaluation team. The team recommendation was to award a Letter of Intent ( LOI) to Innovative Power Systems ( IPS) for a 25 -year solar power subscription. The original offer from IPS for a 10. 3 million kilowatt hours ( kwh) subscription was a Purchase Power Agreement Rate ( PPA) of $. 099 per kwh with a yearly escalator (or inflation) The estimated savings for the City at this rate would be $ 7. 9 million ( NPV $ 5. 2 million) over the 25 -year life of the subscription. After receiving Council approval to move ahead with pursuing the IPS subscription, price negotiations led to IPS providing a second offer of $.1099 for a PPA rate with zero percent escalation. The estimated savings for the City with this second rate of 2. 0 %. offer is $ 11. 9 million ( NPV $ 7. 4 million). This second pricing offer is the same rate as negotiated with the Red Wing School District. DISCUSSION: Based on previous discussions, the Council is already aware that this matter is time sensitive but the sensitivity bears repeating again here. Due to recent regulatory decisions developers desiring to build soar facilities in excess of 1 MW must demonstrate " significant progress" by September 25. While " substantial progress" isn' t well defined, it is interpreted by solar developers to suggest significant progress on land lease rights and demonstrated subscriber development. The Letter of Intent ( LOI) assists IPS in moving this project forward. 8- P Page 1 1
IPS has partnered with New Energy Equity LLC for project financing. As the financier, New Energy Equity is request a binding LOI as a solar power subscription agreement is being negotiated. Attached to this write up is the LOI for the City Council to consider. In reviewing the terms of the LOI, the City Attorney, Jay T. Squires, has some concerns regarding the Exclusivity clause as found in Section 3. However, in light of the fact New Energy Equity is looking for assurances that the City will not pursue other subscription offers, the Staff are commending moving forward without substantial change to the Exclusivity clause. FUNDING: This matter regards the potential for future savings. City Staff are recommending the City Council approve accepting the second IPS PPA offer of $. 1099 p/ kw with zero percent escalation with the potential savings of $ 11. 9 million. The recommendation will move the City toward the realization of reduced costs within operating budgets for each year. ONGOING OPERATION AND MAINTENANCE COSTS: This matter has the potential to reduce electric costs. ALTERNATIVES: Options available include the following: 1. Authorize the execution of the Letter of Intent to proceed with a solar power subscription. 2. Decline to execute the Letter of Intent and provide direction on how to proceed. RECOMMENDATION: City Staff recommends that the Council authorize the execution of the Letter of Intent to subscript to a solar power subscription with IPS and New Energy Equity. 8- P Page 1 2
September 10, 2015 Mr. Dan Bendor Mayor City of Red Wing Re: Community Solar Garden Subscription Dear Mr. Bender: This Letter of Intent (" LOI") sets forth the preliminary terms and conditions of New Energy Equity, LLC' s NEE") proposed installation of, and the City of Red Wing, (" Subscriber"), purchase of a subscription to purchase solar array generated electricity, herein a " Subscription", in one or more Community Solar Garden Projects located throughout the State of Minnesota herein the " Transaction". For the purposes of this LOI, NEE and Subscriber may collectively be referred to as the " Parties" or individually referred to as a " Party". 1. Transaction Description and Assumptions NEE has made the following assumptions for the purpose of evaluating the viability of the Transaction whereby NEE will pay for the installation and serve as the financier and long term owner of the Transaction and Subscriber will purchase electricity in accordance with the terms outlined below. The following is a list of information provided and/ or assumptions made by NEE as of the date of this LOI: I. Total Subscription: 10, 303, 000 kwh per year Power Purchase Agreement ( PPA) Energy price: $. 1099 / kwh I PPA Yearly Escalator: 0% IV. PPA Term: 25 Years The Subscriber has made the following assumptions for the purpose of evaluating the viability of the Transaction whereby the Subscriber will purchase electricity from Community Solar Garden Transaction under a Power Purchase Agreement as outlined in the terms below. The following is a list of information provided and/ or assumptions made as of the date of this LOI: I. Total Subscription: 10, 303, 000 kwh per year Power Purchase Agreement ( PPA) Energy price: $. 1099 / kwh I PPA Yearly Escalator: 0% IV. PPA Term: 25 Years V. Xcel Year 1 Community Solar Garden Credit: [$. 1199 / kwh] VI. Construction Start: June 1, 2016. Construction of the Transaction will be completed by Innovative Power Systems, Inc. and their designated subcontractors. 1 of 5
2. Transaction Diligence and Conditions During the term of this LOI, NEE shall assess various additional diligence items as it relates to construction viability and NEE' s requirements for the financing of the Transaction. Successful completion of the Transaction will be dependent on the satisfactory review/ completion of the following items: I. Due diligence and approval of the financial condition of Subscriber; Negotiation and execution of Power Purchase Agreement on terms acceptable to both parties; I IV. Successful application and award of a Community Solar Garden by Xcel Energy and/ or its' affiliates; Final approval of the Transaction by Subscriber' s City Council and NEE' s financing partners. 3. Exclusivity NEE is aware that, prior to the date of this LOI, Subscriber may have had several discussions with one or more third parties concerning a possible transaction or transactions which may or may not be similar to the Transaction proposed by NEE. Notwithstanding the foregoing and upon execution of this LOI, Subscriber will not and will cause Subscriber' s members, officers, employees, and other agents not to at any time during the two hundred and sixty ( 260) day period commencing upon execution of this LOI ( the " Exclusivity Period"), directly or indirectly, (a) submit, solicit, initiate, encourage or discuss any proposals or offers from any person regarding the Transaction, or (b) enter into any agreement or commitment related to the Transaction, or (c) further participate in any negotiations regarding, or furnish to any other person any additional non- public information with respect to, or otherwise further cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person other than NEE to do or seek any of the foregoing. Both Parties agree that the City of Red Wing is in negotiations with Minnesota Community Solar to support their project through a site lease of City of Red Wing Land and subscription of up forty percent ( 40%) of a one ( 1) megawatt Solar Garden, and agree that this subscription is excluded from the terms of this Section 3. If NEE notifies Subscriber that NEE will proceed with the Transaction as a result of all diligence items being satisfied, then the Parties shall execute the negotiated Power Purchase Agreement and this LOI shall be terminated. Both Parties understand that time is of the essence in this Agreement and will use best efforts to complete the Transaction as expeditiously as possible. 4. Choice of Law The LOI and contemplated agreements would be governed by Minnesota law, without regard to conflicts of laws principles. 2 of 5
5. Intellectual Property Subject to the Minnesota Data Practices Act, any intellectual property of whatever nature and in whatever form contained, which is owned by either Party before or during the term of this LOI, together with any and all enhancements and modifications thereof ( and whether used or made available for any purpose in any way connected with the subject -matter of this LOI) shall be and remain the sole and absolute property of such Party and no other Party shall obtain any right, title or interest whatsoever to such intellectual property. 6. Fees and Expenses The Parties will each be responsible for its own fees, costs and expenses ( including, but not limited to legal, due diligence, financial advisors, commissions, advisory fees and accounting fees or expenses) incurred in connection with the contemplated Transaction. 7. Access to Information From the date of this LOI through the termination of this LOI, the Parties shall cooperate to furnish to each other such information as from time to time reasonably requested by any other Party for the purpose of completing additional due diligence, preparing proposals and/ or procuring the execution and delivery of other agreements. 8. Publicity The Parties shall advise and consult each other prior to the issuance of any public reports, statements or releases pertaining to this LOI or its implementation, or any matters relating to the activities contemplated by this LOI or its implementation. This provision is subject to the Subscriber' s obligations under Minn. Stat. Ch. 13, the Minnesota Data Practices Act, and other pertinent laws governing disclosure of public data. 9. Termination The obligations of each Party to this LOI may be terminated as follows: I. by mutual agreement between the Parties; execution of a definitive PPA between the Parties; 10. Binding effect Except for Sections 3, 4, 5, 6, 7, 8, 9, 11, 12 and this Section 10, this letter is not intended to be a binding agreement between the Parties and is only intended to be an expression of mutual understandings until definitive agreements are executed and delivered. Notwithstanding the foregoing, Sections 3, 4, 5, 6, 7, 8, 9, 11, 12 and this Section 10 will bind and inure to the benefit of the Parties and their respective successors and permitted assigns. The termination of this LOI or any failure of the Parties to perform hereunder, or execute and deliver any or all the agreements 3 of 5
contemplated by this LOI for any reason whatsoever shall not give rise to any right whatsoever on the part of either Party to claim for damages, whether under contract, tort, at law or in equity. 11. Assignment This letter may not be assigned without the other Party' s prior written consent. 12. Execution in Counterparts This LOI may be executed in one or more counterparts and by one or more Parties to any counterpart, each of which shall be deemed an original and all of which together shall constitute one and the same LOI. Each signer below represents that they are authorized to execute the LOI on behalf of their respective organizations. New Energy Equity is extremely excited to work with City of Red Wing to bring this Transaction to a successful close. We look forward to building a mutually beneficial relationship that will hopefully lead to many successful future transactions. Please do not hesitate to email or call with any questions. Matthew Hankey New Energy Equity LLC mhankey@newenereyequity. com 443) 267-5010 ( office) 443) 875-4049 ( cell) SIGNATURE PAGE FOLLOWS 4of5
CITY: CITY OF RED WING Dan Bender, Mayor Kay Kuhlmann, Council Administrator Kathy Seymour Johnson, City Clerk NEW ENERGY EQUITY, LLC Matthew Hankey, COO 5 of 5