Revisions
Revision to Agenda Item #15
• Correction of two typos in Attachment A
o Section 1(b) should read:
“Article 8.1(b)(i) is hereby replaced by the following:” o Section 2(c)(v)(A) the date is
changed from August 30 to August
31 Redline Version
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 1 of 5
AMENDMENT No. 1 TO
RENEWABLE POWER PURCHASE AGREEMENT
(AM WIND REPOWER LLC)
This is an amendment (“Amendment No. 1”) to that certain Power Purchase Agreement (“PPA”) made by and between the City of Victorville, a municipal corporation and Charter City organized and existing under the laws of the State of California, (“Buyer”) and AM Wind Repower LLC a Delaware limited liability company, (“Seller”) dated June 24, 2020. Capitalized terms used in this Amendment No.1, unless defined herein, are intended to have the definition ascribed to them in the PPA. This Amendment No. 1 is entered into as of July 18, 2023 (the “Effective Date”).
RECITALS
WHEREAS, Industry Public Utilities, a public agency organized and existing under the laws of the State of California, and City of Corona a municipal corporation organized and existing under the laws of the State of California (collectively “Other Buyers”) and Buyer jointly negotiated with Seller and entered into separate but substantially identical power purchase agreements with Seller the latest of which is dated June 24, 2020.
WHEREAS, Buyer and Other Buyers each executed a separate letter agreement with Seller on May 25, 2023 (“Termination Date Extension Letter”), in which Buyer and Other Buyers agreed to not pursue any right or remedy to terminate the PPA due to the Facility not having achieved Commercial Operation prior to or on the Guaranteed Commercial Operation Date and in exchange Seller agreed to pay Buyer and the Other Buyers Commercial Operation Delay Damages for each day after June 26, 2023 until August 31, 2023 that Commercial Operation is not achieved, with such damages to be paid through a netting of those amounts against the Monthly Cash Settlement Amounts owed by Buyer or Other Buyers to Seller pursuant to Section 8.1(b) of the PPA.
WHEREAS, Buyer and Seller desire to make certain changes to the PPA and to supersede the Termination Date Extension Letter.
NOW THEREFORE, in consideration of the mutual covenants, conditions and terms recited herein and made a material part hereof, the parties agree as follows:
1. Contract Price.
(a) Cover Sheet, Contract Price is hereby replaced by the following:
Contract Price:
Contract Year Contract Price ($/MWh)
1 – 25
$44.00 (flat) with no
escalation, subject to
reduction pursuant to Section
3.3(f) and Section 3.3(g).
(b) Article 8.1(b)(i) is hereby replaced by the following:
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 2 of 5
“(i) An amount equal to the quantity of Energy delivered to the Delivery Point at the Contract Price minus the “Facility Energy Green Attribute Price.” For example, for 3,000 MWh of Energy delivered to the Delivery Point during the month, the Contract Price minus the Facility Energy Green Attribute Price ($44.00-$13.00) equals $31.00 and the amount due would be $31.00 times 3,000 MWh or $93,000 for the Energy delivered that month.”
(c) Exhibit C, Exhibit C is hereby replaced by the following:
CONTRACT PRICE
The Contract Price of the Product shall be:
Contract Year Contract Price ($/MWh)
1 – 25
$44.00 (flat) with no
escalation, subject to
reduction pursuant to Section
3.3(f) and Section 3.3(g).
2. Additional Extension of Commercial Operation Date.
(a) Article 1, Definitions, is hereby amended to add the following definitions:
“Additional COD Extension Delay Damages” means the amount(s) that may be owed to Buyer from Seller pursuant to Section 2.3(c)(v)(A)-(B).
“Daily Incentive Payment” means the amount(s) that may be owed to Seller from Buyer pursuant to Section 2.3(c)(v)(C).
(b) Section 2.3(c)(iii) is amended by deleting it in its entirety and replacing it to read as follows:
“(A) If Commercial Operation is not achieved by June 30, 2024 ("COD Termination Deadline"), as such date may be extended in accordance with Section 2.3(c)(iii)(B), Buyer may elect to terminate this Agreement, which termination shall be effective upon Notice to Seller.
(B) If the Interconnection Facilities are not expected to be complete and ready for the Facility to connect and sell Product at the Delivery Point by June 20, 2024 despite the exercise of diligent and commercially reasonable efforts by Seller, Seller may extend the COD Termination Deadline by up to 180 days by providing advance written notice to Buyer.”
(c) Section 2.3, Facility Construction and Commercial Operation, is hereby amended to add a new subsection (c)(v) (Sections 2.3(a)-(c)(ii) and Section 2.3(c)(iv)) remain unchanged):
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 3 of 5
“(v) Additional COD Extension Delay Damages and Daily Incentive Payment
(A) Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after June 23, 2023 until (but excluding) August 31, 2023 that Commercial Operation is not achieved. Except as specified in Section
2.3(c)(v)(D), Buyer shall be compensated for such Additional COD Extension Delay Damages through the netting of any such Commercial Operation Delay Damages amount owed against the Monthly Cash Settlement Amounts owed by Buyer to Seller pursuant to Section 8.1(b) of the PPA. For avoidance of doubt, other than the liquidated damages described in this Section 2.3(c)(v)(A), Seller shall have no obligation to pay any other liquated damages to Buyer for the period between June 23, 2023 to (but excluding) August 3031, 2023 for the failure of the Facility to achieve Commercial Operation.
(B) Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after March 22, 2024 until (but excluding) July 1, 2024 that Commercial Operation is not achieved. Except as specified in Section
2.3(c)(v)(D), Buyer shall be compensated for such Additional COD Extension Delay Damages through the netting of any such Commercial Operation Delay Damages amount owed against the Monthly Cash Settlement Amounts owed by Buyer to Seller pursuant to Section 8.1(b) of the PPA. For avoidance of doubt, no Additional COD Extension Delay Damages shall be due to Buyer for the period from August 30, 2023 until (but excluding) March 22, 2024.
(C) Buyer shall pay Seller a Daily Incentive Payment of $3,055.56 for each day before December 31, 2023 that Commercial Operation is achieved. Seller shall be solely compensated for such Daily Incentive Payment through return of any Additional COD Extension Delay Damage paid to Buyer by Seller pursuant to this Section 2.3(c)(v).
(D) Buyer shall issue an invoice to Seller prior to the 10th calendar day of each month that specifies the outstanding Additional COD Extension Delay Damages owed to Buyer by Seller, as such amount may be offset by any Daily Incentive Payment amounts. If Commercial Operation is not achieved by June 30, 2024, regardless of whether such date has been extended pursuant to Section 2.3(c)(iii), all outstanding Additional COD Extension Delay Damages shall be immediately due and payable to Buyer by Seller and Buyer shall not be limited to collecting such liquated damage through netting the amount owed against the Monthly Cash Settlement Amounts.
(E) If the COD Termination Deadline is extended pursuant to Section 2.3(c)(iii)(B), Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after June 30, 2024 until the earlier to occur of (i) the date that Commercial Operation is achieved, or (ii) the extended COD Termination Deadline. Buyer shall issue an invoice to Seller prior to the 10th calendar day of each month for such Additional COD Extension Delay Damages owed to Buyer by Seller, and Seller shall pay Buyer for such Additional COD Extension Delay Damages within thirty (30) days after receipt of such invoice.
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 4 of 5
3. Sales from the Facility After Termination. Section 11.8, Limitations on Seller’s and Seller’s Affiliates’ Ability to Make or Agree to Third Party Sales from the Facility after Specified Termination, subdivision (a), is hereby replaced in its entirety with the following (the remaining subdivisions of Section 11.9 are unchanged):
“(a) If this Agreement is terminated as provided in Section 2.3(c)(iii) or 2.3(c)(v) or if Seller terminates this Agreement as provided in Section 10.4 (based on a Force Majeure Event as to which Seller is the claiming Party and the terminating Party), then, subject to Section 11.8(b), neither Seller nor Seller’s Affiliates may sell, or enter into a contract to sell Energy, or Green Attributes generated by, associated with or attributable to a generating facility installed at the Site to a party other than Buyer for a period of two (2) years following the effective date of such termination (the “Restricted Period”).”
4. Merger Clause . This Amendment constitutes the entire agreement between Buyer and Seller concerning the subject matter hereof, and supersedes all previous communications, representations, or contracts, either written or oral, including the Termination Date Extension Letter, that purport to describe or embody the subject matter hereof. There are no oral understandings, terms, or conditions and neither Buyer nor Seller has relied upon any representation, express or implied, not contained in this Amendment.
5. Ratification of Agreement . The terms and conditions of the PPA, including all exhibits and attachments, are ratified in their entirety except to the extent inconsistent with the terms and provisions of this Amendment. In the event of such inconsistency, this Amendment shall control.
IN WITNESS WHEREOF, the parties have executed this Amendment No.1 effective as of the date written above.
(signatures follow on next page)
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 5 of 5
AM WIND REPOWER, LLC, Delaware limited liability company:
By: ______________________
Name:
Title:
City of Victorville, a California Municipal Corporation and Charter City
APPROVAL AS TO FORM
By: ________________________
Name: Debra Jones
Title: Mayor
ATTEST
By: ________________________
Name: Jennifer Thompson
Title: City Clerk
APPROVAL AS TO FORM
By: ________________________
Name: Andre de Bortnowsky
Title: City Attorney
CITY OF VICTORVILLE RISK MANAGEMENT
By: ________________________
Name: Sandra Bostrick
Title: Risk Manager
Clean Version
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 1 of 5
AMENDMENT No. 1 TO
RENEWABLE POWER PURCHASE AGREEMENT
(AM WIND REPOWER LLC)
This is an amendment (“Amendment No. 1”) to that certain Power Purchase Agreement (“PPA”) made by and between the City of Victorville, a municipal corporation and Charter City organized and existing under the laws of the State of California, (“Buyer”) and AM Wind Repower LLC a Delaware limited liability company , (“Seller”) dated June 24, 2020. Capitalized terms used in this Amendment No.1, unless defined herein, are intended to have the definition ascribed to them in the PPA . This Amendment No. 1 is entered into as of July 18, 2023 (the “Effective Date”).
RECITALS
WHEREAS, Industry Public Utilities, a public agency organize d and existing under the laws of the State of California, and City of Corona a municipal corporation organized and existing under the laws of the State of California (collectively “Other Buyers”) and Buyer jointly negotiated with Seller and entered into separate but substantially identical power purchase agreements with Seller the latest of which is dated June 24, 2020.
WHEREAS, Buyer and Other Buyers each executed a separate letter agreement with Seller on May 25, 2023 (“Termination Date Extension Letter”), in which Buyer and Other Buyers agreed to not pursue any right or remedy to terminate the PPA due to the Facility not having achieved Commercial Operation prior to or on the Guaranteed Commercial Operation Date and in exchange Seller agreed to pay Buyer and the Other Buyers Commercial Operation Delay Damages for each day after June 26, 2023 until August 31, 2023 that Commercial Operation is not achieved, with such damages to be paid through a netting of those amounts against the Monthly Cash Settlement Amounts owed by Buyer or Other Buyers to Seller pursuant to Section 8.1(b) of the PPA.
WHEREAS, Buyer and Seller desire to make certain changes to the PPA and to supersede the Termination Date Extension Letter.
NOW THEREFORE, in consideration of the mutual covenants, conditions and terms recited herein and made a material part hereof, the parties agree as follows:
1. Contract Price.
(a) Cover Sheet, Contract Price is h ereby replaced by the following:
Contract Price:
Contract Year Contract Price ($/MWh)
1 – 25
$44.00 (flat) with no
escalation, subject to
reduction pursuant to Section
3.3(f) and Section 3.3(g).
(b) Article 8.1(b)(i) is hereby replaced by the following:
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 2 of 5
“(i) An amount equal to the quantity of Energy delivered to the Delivery Point at the Contract Price minus the “Facility Energy Green Attribute Price.” For example, for 3,000 MWh of Energy delivered to the Delivery Point during the month, the Contract Price minus the Facility Energy Green Attribute Price ($44.00-$13.00) equals $31.00 and the amount due would be $31.00 times 3,000 MWh or $93,000 for the Energy delivered that month.”
(c) Exhibit C, E xhibit C is hereby replaced by the following:
CONTRACT PRICE
The Contract Price of the Product shall be:
Contract Year Contract Price ($/MWh)
1 – 25
$44.00 (flat) with no
escalation, subject to
reduction pursuant to Section
3.3(f) and Section 3.3(g).
2. Additional Extension of Commercial Operation D ate.
(a) Article 1, D efinitions, is hereby amended to add the following definitions:
“Additional COD Extension Delay Damages ” m
eans the amount(s) that may be owed to Buyer
from Seller pursuant to Section 2.3(c)(v)(A)-(B).
“Daily Incentive Payment” means the am ount(s) that may be owed to Seller from Buyer pursuant to Section 2.3(c)(v)(C).
(b) Se
ction 2.3(c)(iii) is amended by deleting it in its entirety and replacing it to read as follows:
“(A) If Commercial Operation is not achieved by June 30, 2024 ("COD Termination Deadline"), as such date may be extended in accordance with Section 2.3(c)(iii)(B), Buyer may elect to terminate this Agreement, which termination shall be effective upon Notice to Seller.
(B) If the Interconnection Facilities are not expected to be complete and re ady for the Facility to connect and sell Product at the Delivery Point by June 20, 2024 despite the exercise of diligent and commercially reasonable efforts by Seller , Seller may extend the COD Termination Deadline by up to 180 days by providing advance wr itten notice to Buyer.”
(c) Section 2.3, F
acility Construction and Commercial Operation, is hereby amended to add a new subsection (c)(v) (Sections 2.3(a)-(c)(ii) and Section 2.3(c)(iv)) remain unchanged):
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 3 of 5
“(v) Additional COD Extension Delay Damages and Daily Incentive Payment
(A) Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after June 2 3, 2023 until (but excluding) August 3 1, 2023 that Commercial Operation is not achieved. Except as specified in Section
2.3(c)(v)(D), Buyer shall be compensat ed for such Additional COD Extension Delay Damages through the netting of any such Commercial Operation Delay Damages amount owed against the Monthly Cash Settlement Amounts owed by Buyer to Seller pursuant to Section 8.1(b) of the PPA . For avoidance of doubt, other than the liquidated damages described in this Section 2.3(c)(v)(A), Seller shall have no obligation to pay any other liquated damages to Buyer for the period between June 23, 2023 to (but excluding) August 31, 2023 for the failure of the Facility to achieve Commercial Operation.
(B) Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after March 22, 2024 until (but excluding) July 1 , 2024 t hat Commercial Operation is not achieved. Except as specified in Section
2.3(c)(v)(D), Buyer shall be compensated for such Additional COD Extension Delay Damages through the netting of any such Commercial Operation Delay Damages amount owed against the Monthly Cash Settlement Amounts owed by Buyer to Seller pursuant to Section 8.1(b) of the PPA. For avoidance of doubt, no Additional COD Extension Delay Damages shall be due to Buyer for the period from August 30, 2023 until (but excluding) March 22, 2024.
(C) Buyer shall pay Seller a Daily Incentive Payment of $ 3,055.56 for each day before December 31, 2023 that Commercial Operation is achieved . Seller shall be solely compensated for such Daily Incentive Payment through return of any Additional COD Extension Delay Damage paid to Buyer by Seller pursuant to this Section 2.3(c)(v).
(D) Buyer shall issue an invoice to Seller prior to the 10 th calendar day of each month
that specifies the outstanding Additional COD Extension Delay Damages owed to Buyer by Seller, as such amount may be offset by any Daily Incentive Payment amounts. If Commercial Operation is not achieved by June 30, 2024 , regardless of whether such date has been extended pursuant to Section 2.3(c)(iii), all outstanding Additional COD Extension Delay Damages shall be immediately due and payable to Buyer by Seller and Buyer shall not be limited to collecting such liquated damage through netting the amount owed against the Monthly Cash Settlement Amounts.
(E) If the COD Termination Deadline is extended pursuant to Section 2.3(c)(iii)(B), Seller shall pay Buyer Additional COD Extension Delay Damages of $3,055.56 for each day after June 30, 2024 until the earlier to occur of (i) the date that Commercial Operation is achieved , or (ii) the extended CO D Termination Deadline. Buyer shall issue an invoice to Seller prior to the 10 th calendar day of
each month for such Additional COD Extension Delay Damages owed to Buyer by Seller, and Seller shall pay Buyer for such Additional COD Extension Delay Damages within thirty (30) days after receipt of such invoice.
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 4 of 5
3. Sales from the Facility After Termination. Section 11.8, Limitations on Seller’s and Seller’s Affiliates’ Ability to Make or Agree to Third Party Sales from the Facility after Specified Termination, subdivision (a), is hereby replaced in its entirety with the following (the remaining sub divisions of Section 11.9 are unchanged):
“(a) I
f this Agreement is terminated as provided in Section 2.3(c)(iii) or 2.3(c)(v) or if Seller terminates t his Agreement as provided in Section 10.4 (based on a Force Majeure Event as to which Seller is the claiming Party and the terminating Party), then, subject to Section 11.8(b), neither Seller nor Seller’s Affiliates may sell, or enter into a contract to sell Energy, or Green Attributes generated by, associated with or attributable to a generating facility installed at the Site to a party other than Buyer for a period of two (2) years following the effective date of such termination (the “Restricted Period”).”
4. Merger Clause. This Amendment constitute s t
he entire agreement between Buyer and Seller
concerning the subject matter hereof, and supersedes all previous communications, representations, or contracts, either written or oral, including the Termination Date Extension Letter, that purport to describe or embody the subject matter hereof. There are no oral understandings, terms, or conditions and neither Buyer nor Seller has relied upon any representation, express or implied, not contained in this Amendment.
5. Ratification of Agreement . T
he terms and conditions of the PPA, including all exhibits and attachments, are ratified in their entirety except to the extent inconsistent with the terms and provisions of this Amendment. In the event of such inconsistency, this Amendment shall control.
IN WITNE
SS WHEREOF, the parties have executed this Amendment No.1 effective as of the date written above.
(signatures follow on next page)
AMENDMENT No. 1 to AM WIND REPOWER PPA Page 5 of 5
AM WIND REPOWER, LLC, Delaware limited liability company:
By: ______________________
Name:
Title:
City of Victorville, a California Municipal Corporation and Charter City
APPROVAL AS TO FORM
By: ________________________
Name: Debra Jones
Title: Mayor
ATTEST
By: ________________________
Name: Jennifer Thompson
Title: City Clerk
APPROVAL AS TO FORM
By: ________________________
Name: Andre de Bortnowsky
Title: City Attorney
CITY OF VICTORVILLE RISK MANAGEMENT
By: ________________________
Name: Sandra Bostrick
Title: Risk Manager
Revision to Agenda Item #20
• Revising the cost comparison table in the
Discussion section to reflect the updated
costs of the proposed, newly designed,
Certificates of Recognition
Item Number: {{item.number}}
City Council / Board of Directors
Written Communications
Meeting of: July 18, 2023
Submitted By:
Jennifer Thompson, City Clerk
Sue Jones, Public Information Officer
Subject:
Ceremonial Recognition Items
Recommendation:
Any action is at the discretion of Your Honorable City Council.
Fiscal Impact:
There is no fiscal impact associated with this item.
Background:
At the City Council meeting of May 2, 2023, it was moved by Mayor Jones, and approved by a majority vote, to agendize an item for discussion and possible action wherein staff brings a plan for ceremonial recognition items so that they are elevated in appearance such that they better reflect the stature of Victorville within our region.
Discussion:
The City Council Policy and Procedure Manual, Chapter 8, Section V, C states the following relating to Ceremonial Recognition Items:
C. Jurisdictional Limitations and Description of Ceremonial Recognition Items .
Ceremonial recognition items shall be awarded to businesses, organizations, and individuals located in, providing services in, or residing exclusively in the City of Victorville. All other requests will be denied, and the requesting party shall be referred to the appropriate jurisdiction.
1. Certi
ficates of Recognition in Presentation Folders. Certificates of Recognition in Presentation Folders are intended to commend and recognize businesses located in the City of Victorville during small - scale ribbon cuttings, grand openings, and open house events.
2. Letters of Recognition / Congratulations. Letters of R ecognition / Congratulations are intended to commend and recognize the following:
(a) Major achievements, such as the Eagle Scout Award and Girl Scout Gold Award.
(b) Milestone events, such as the anniversary of an organization, wedding anniversaries of 50 or more years, or other life milestones, such as significant birthdays.
3. Framed Certificates of Recognition. Framed Certificates of Recognition are intended to commend and recognize the following:
(a) Exceptional contributions to the City of Victorville by a community organization, business, or individual; and
(b) Large scale ribbon cuttings, grand openings, anniversaries, and open house events for businesses located in the City of Victorville.
4. Plaques.
(a) Plaques shall be presented only to prominent business and/or organizations that have made a significant contribution to the City of Victorville and its residents.
(b) Plaques may also be prepared for presentation to certain individuals who have acted with distinction in carrying out their duties or who have taken extraordinary actions that further the best interests of the City of Victorville and its residents. (c) The presentation of plaques will only be made in the City of Victorville where the business/organization/individual can be formally acknowledged.
5. Proclamations. Proclamations are ceremonial documents signed by the Mayor for
(a) public awareness,
(b) charitable fundraising campaigns, and
(c) arts and cultural celebrations.
Proclamations will not be issued to or for any of the following:
(a) Individuals. Proclamations must affect a broad group of people. (b) Matters of political controversy, ideological or religious beliefs, or individual convictions.
(c) Events or organizations with no direct relationship to the City of Victorville.
(d) Campaigns or events contrary to policies of the City of Victorville.
Staff contacted surrounding jurisdictions to ascertain how they handle ceremonial recognition items and received the following responses:
Agency Certificates of
Recognition
City of Hesperia Certificate of Recognition
is printed on a gold scroll
thick paper and contains a
blue ribbon and city seal,
placed inside a City of
Hesperia folder
(Attachment B)
Town of Apple Valley Certificate of Recognition
are displayed in a wooden
frame
Staff has created a sample Certificate of Recognition with the proposed new design for Council’s consideration, to be presented at the July 18, 2023, meeting. A picture of the current design has been included in this staff report, as Attachment A, for comparison.
The new design incorporates thick certificate paper and a foil sticker embossed with the City’s seal, placed within a custom designed certificate folder.
Approximately fifty Certificates of Recognition are issued annually in the City of Victorville, based on an average taken from the years of 2021- 2023. A comparison of the cost of supplies needed to produce the certificates, between the current design and the proposed new design, based on the abovementioned annual average, has been provided in the table below.
Current Proposed Price Difference
Certificate Paper $47 $48 +$1
Folio / Folder $81 $311 +$230
Embossed Seal NA $12 +$12
Total Annual Cost $128 $371 +$243
*Prices shown are approximate and based on an annual supply
This item is being presented to Council for further discussion. Staff will plan and make updates to the City Council Policy and Procedure Manual as necessary based on Council direction for ceremonial recognition items.
Staff remains available for any questions or comments you might have.
Attachments: A. Current Design of City of Victorville Certificate of Recognition B. City of Hesperia Certificate of Recognition