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HomeMy WebLinkAbout11-21 Solar Facility Siting AgreementFrederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 1 of 11 SOLAR FACILITY SITING AGREEMENT This Solar Facility Siting Agreement (“Agreement”), dated as of ____________, 2022 (the “Effective Date”), is by and between Frederick County, Virginia, a political subdivision of the Commonwealth of Virginia (the “County”) and Bartonsville Energy Facility, LLC and Bartonsville Energy Facility II, LLC, both Delaware limited liability companies (collectively, “Applicant”). The County and Applicant are herein each a “Party” and collectively, the “Parties”. RECITALS WHEREAS, the Applicant intends to develop, install, build, and operate a ground-mounted solar photovoltaic electric generating facility (“Project”) on certain parcels of land identified as Frederick County Tax Map Parcels 74-A-45; 74-A-44A; 74-A-4; 74-A-6C; 74-A-44; 74-A-35A; 74-A-20; 74-A-3; 74-A-21; 85-A-1; 74-A-18B; 74-A-18A; 74-A-19; 74-A-18; 73-A-104; Lots 1-52, Carrollton Estates; and Lots 1-12, Springdale Glen (collectively, the “Property”); WHEREAS, Pursuant to Title 15.2, Chapter 22, Article 7.3 of the Code of Virginia titled “Siting of Solar Energy Facilities” Applicant and the County may enter into a siting agreement (“Siting Agreement”) for solar facilities; WHEREAS, pursuant to Virginia Code § 15.2-2316.7, the Project is eligible for a Siting Agreement; WHEREAS, after negotiation between the County and the Applicant, the Parties desire to enter into this Agreement to mitigate certain potential impacts of the Project. WHEREAS, pursuant to Virginia Code § 58.1-2636, the County has not adopted an ordinance assessing a revenue share of up to $1,400.00 per megawatt, as measured in alternating current (AC) generation capacity of the nameplate capacity of the Solar Facility (“Solar Revenue Share”). WHEREAS, the Applicant has agreed to the payments and financial terms contained herein; WHEREAS, pursuant to the requirement of Virginia Code § 15.2-2316.8 (B), the County has held a public hearing in accordance with subdivision A of Virginia Code § 15.2-2204 for the purpose of considering this Agreement, after which a majority of a quorum of the members of the Frederick County Board of Supervisors approved this agreement; NOW, THEREFORE, pursuant to Title 15.2, Chapter 22, Article 7.3 of the Code of Virginia, intending to be legally bound hereby and in consideration of the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the County and Applicant do hereby agree as follows: Article I Project Features, Conditions and Mitigation 1.CUP Conditions. The Applicant acknowledges and agrees that it is subject to all the terms and conditions contained in any conditional use permit (“CUP”) approved by the Board of Supervisors for the January 26 Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 2 of 11 Project. On September 23, 2020, the Board approved CUP 05-20, a copy of which is attached hereto as Schedule B-1 and hereby incorporated herein (“CUP 1”). CUP 1 applies to those portions of the Property identified on Schedule B-2 attached hereto (the “CUP 1 Property”). On _____________, 2022, the Board approved CUP 11-21, a copy of which is attached hereto as Schedule C-1 and hereby incorporated herein (“CUP 2”, and together with CUP 1, the “CUPs”) and which applies to the portion of the Property identified on Schedule C-2 attached hereto. Violation by the Applicant or by any of Applicant’s agents, assigns, or successors in interest of any terms and conditions of the CUPs or of any other applicable zoning requirements shall constitute a violation of this Agreement. Article II 1. Capital Payment. Within thirty (30) days after the Commercial Operation Date (as hereinafter defined), the Applicant shall make a one-time payment to the County in the amount of Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Payment”). The Payment is separate and distinct from the amounts owed pursuant to any machinery and tools taxes on equipment pursuant to Article 2, Chapters 35 of Title 58.1 of the Code of Virginia and applicable County Ordinances, and all real estate taxes owed pursuant to Title 58.1, Subtitle III, Chapter 32 of the Code of Virginia. As used herein, “Commercial Operation Date” shall mean the date on which the Applicant commences the sale of electric power generated by the Project. 2. Statutory Structure of Payments; Statement of Benefit. The Applicant agrees that by entering into this Agreement, pursuant to Virginia Code § 15.2-2316.6 et seq., the Payment is authorized by statute and that it acknowledges it is bound by law to make the Payment in accordance with this Agreement. The Parties acknowledge that this Agreement is fair and mutually beneficial to them both. As of the date of this Agreement, the County has not adopted a Solar Revenue Share Ordinance as provided under Virginia Code § 58.1-2636, and the Payment under this agreement is not conditioned upon the County adopting such ordinance. Should the County at a later date adopt a Solar Revenue Share Ordinance, the County acknowledges its intent to work with the Applicant to modify this Agreement to eliminate any adverse impact on the Applicant. Applicant acknowledges that this Agreement is beneficial to Applicant in allowing it to proceed with the installation of the Project with clear project design terms. The parties acknowledge that the funding provided pursuant to this Agreement is beneficial in that it will result in a mutually acceptable payment to the County. 3. Use of Payment by the County. The County plans to apply the Payment to critical infrastructure projects to improve citizen quality of life, including but not limited to expanding educational opportunities, health care (telehealth), and economic development, through significant investments in broadband deployment throughout the County. Notwithstanding the above, the Payment may be used for any of the following purposes: (a) to fund the capital improvement program (CIP) of the County (b) to meet needs of the current fiscal budget of the County, (c) supplement or establish any fund for which the County maintains a balance policy; (d) support broadband funding, all as permitted § 15.2-2316.7. Article III General Terms 1. Mutual Covenants. The Applicant covenants to the County that it will pay the County the amount due hereunder when due in accordance with the terms of this Agreement, and will not seek to Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 3 of 11 invalidate this Agreement, or otherwise take a position adverse to the purpose or validity of this Agreement. So long as Applicant is not in breach of this Agreement during its term, the County covenants to the Applicant that it will not seek to invalidate this Agreement or otherwise take a position adverse to the purpose or validity of this Agreement. 2. No Obligation to Develop. The Applicant has no obligation to develop the Project and this Agreement does not require the making of the Payment until the Project reaches the Commercial Operation Date. Any test energy or other energy produced prior to the Commercial Operation Date shall not trigger payment under this Agreement. It is understood that development of the Project by Applicant is contingent upon a number of factors including, but not limited to, regulatory approvals, availability and cost of equipment and financing, and demand for renewable energy and renewable energy credits. No election by the Applicant to terminate, defer, suspend or modify plans to develop the Project shall be deemed a default of Applicant under this Agreement. 3. Successors and Assigns. This Agreement will be binding upon the successors and assigns of the Applicant. If Applicant sells, transfers, leases or assigns all or substantially all of its interest in the Project or the ownership of the Applicant, Applicant will require this Agreement to be assumed by and be binding on the purchaser, transferee or assignee. Upon such assumption, the sale, transfer, lease or assignment shall relieve the Applicant of all obligations and liabilities under this Agreement accruing from and after the date of sale or transfer, and the purchaser or transferee shall automatically become responsible under this Agreement. The Applicant shall execute such documentation as reasonably requested by the County to memorialize the assignment and assumption by the purchaser or transferee. 4. Notices. Except as otherwise provided herein, all notices required to be given or authorized to be given pursuant to this Agreement shall be in writing and shall be delivered or sent by (i) registered or certified mail, postage prepaid, by recognized overnight courier, or by commercial messenger or (ii) via electronic mail to: County: Frederick County, Virginia 107 North Kent Street Winchester, Virginia 22601 Attn: Wyatt Pearson, Planning Director Email: wpearson@fcva.us With a copy to: Roderick B. Williams County Attorney Third Floor, 107 North Kent Street Winchester, Virginia 22601 Email: rwillia@fcva.us Applicant: Bartonsville Energy Facility, LLC and Bartonsville Energy Facility II, LLC c/o Travis Haggard 230 Court Square, Suite B102 Charlottesville, Virginia 22902 Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 4 of 11 Email: thaggard@torchcleanenergy.com With a copy to: Bartonsville Energy Facility, LLC and Bartonsville Energy Facility II, LLC c/o D. E. Shaw Renewable Investments (DESRI) 1166 Avenue of the Americas, Ninth Floor New York, New York 10036 Attention: DESRI General Counsel Email: desri-notices@deshaw.com, hy.martin@deshaw.com The County and Applicant, by notice given hereunder, may designate any further or different persons or addresses to which subsequent notices shall be sent. 5. Governing Law; Jurisdiction; Venue. This agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to any of its principles of conflicts of laws or other laws which would result in the application of the laws of another jurisdiction. The parties hereto (a) agree that any suit, action or other legal proceeding, as between the parties hereto, arising out of or relating to this agreement shall be brought and tried only in the circuit court of Frederick County, Virginia, (b) consent to the jurisdiction of such court in any such suit, action or proceeding, and (c) waive any objection which any of them may have to the laying of venue in such court and any claim that any such suit, action, or proceeding has been brought in an inconvenient forum. The parties hereto agree that a final judgment in any such suit, action, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 6. Severability; Invalidity Clause. Any provision of this Agreement that conflicts with applicable law or is held to be void or unenforceable shall be ineffective to the extent of such conflict, voidness or unenforceability without invalidating the remaining provisions hereof, which remaining provisions shall be enforceable to the fullest extent permitted under applicable law. If, for any reason, including a change in applicable law, it is ever determined by any court or governmental authority of competent jurisdiction that this Agreement is invalid then the parties shall, subject to any necessary County meeting vote or procedures, undertake reasonable efforts to amend and or reauthorize this Agreement so as to render the invalid provisions herein lawful, valid and enforceable. If the Parties are unable to do so, this Agreement shall terminate as of the date of such determination of invalidity, and the Property and Project will thereafter be assessed and taxed as though this Agreement did not exist. The Parties will cooperate with each other and use reasonable efforts to defend against and contest any challenge to this Agreement by a third party. 7. Entire Agreement. This Agreement and any schedules or exhibits constitute the entire agreement and supersedes all other prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof. No provision of this Agreement can be modified, altered or amended except in a writing signed by all parties hereto. 8. Construction. This Agreement was drafted with input by the County and the Applicant, and no presumption shall exist against any Party. This Agreement is a Siting Agreement. Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 5 of 11 9. Force Majeure. A. "Force Majeure Event" means the occurrence of: (i) an act of war (whether declared or not), hostilities, invasion, act of foreign enemies, terrorism or civil disorder; (ii) a strike or strikes or other industrial action or blockade or embargo or any other form of civil disturbance (whether lawful or not), in each case affecting on a general basis of the industry related to the construction, operation, or maintenance of the solar facility, as for example but not in limitation, the interruption in the supply of replacement solar panels, and which is not attributable to any unreasonable action or inaction on the part of Applicant or any of its subcontractors or suppliers and the settlement of which is beyond the reasonable control of all such persons; (iii) specific incidents of exceptional adverse weather conditions in excess of those required to be designed for that are materially worse than those encountered in Frederick County during the twenty (20) years prior to the Effective Date; (iv) tempest, hurricane, tropical storm, earthquake, flood, tornado, or any other natural disaster of overwhelming proportions; disruption of operations resulting from any aircraft or vehicle crashing into the solar facility to the extent that all or a substantial portion thereof is unable to generate electricity sufficient to meet Applicant’s payment obligations hereunder; (v) discontinuation of electricity supply, or unanticipated termination of a power purchase agreement; (vi) other unforeseeable circumstances beyond the control of the Parties against which it would have been unreasonable for the affected party to take precautions and which the affected party cannot avoid even by using its best efforts, including quarantines ordered by competent governmental authority in the event of a public health emergency, which in each case directly causes either party to be unable to comply with all or a material part of its obligations under this Agreement. B. Neither Party will be in breach of its obligations under this Agreement or incur any liability to the other Party for any losses or damages of any nature whatsoever incurred or suffered by the other (otherwise than under any express indemnity in this Agreement) if and to the extent it is prevented from carrying out those obligations by, or such losses or damages are caused by, a Force Majeure Event except to the extent that the relevant breach of its obligations would have occurred, or the relevant losses or damages would have arisen, even if the Force Majeure Event had not occurred. C. As soon as reasonably practicable following the date of commencement of a Force Majeure Event, and within a reasonable time following the date of termination of a Force Majeure Event, any Party invoking it will submit to the other Party reasonable proof of the nature of the Force Majeure Event and of its effect upon the performance of the Party's obligations under this Agreement. D. The Parties will consult together in relation to the above matters following the occurrence of a Force Majeure Event. Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 6 of 11 E. Should paragraph (A) apply as a result of a single Force Majeure Event for a continuous period of more than 180 days then the Parties must endeavor to agree any modifications to this Agreement (including without limitation, determination of new revenue sharing payments) that are equitable having regard to the nature of the ability of Applicant to continue to meet its financial obligations to the County. F. For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) Applicant’s financial inability to perform its obligations hereunder. 10. Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto and their respective successors and permitted assigns, and no other person shall have any right, benefit, priority or interest in, under or because of the existence of, this Agreement. 11. Counterparts; Electronic Signatures. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed to be an original, and all of which shall constitute but one and the same instrument. A signed copy of this Agreement delivered by facsimile, e- mail/PDF 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. [signature page follows] Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 8 of 11 SCHEDULE B-1 CONDITIONAL USE PERMIT 05-20 Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 9 of 11 SCHEDULE B-2 CUP 1 PROPERTY Frederick County Tax Map Parcels 74-A-3, 74-A-21, 74-A-45, 74-A-44A, 74-A-4, 74-A-6C, 74-A-44, 74-A-35A, 74-A-20, Lots 1-12 in the Springdale Glen Subdivision, and Lots 1-52 in the Carrolton Estates Subdivision. Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 10 of 11 SCHEDULE C-1 CUP 11-21 Frederick County – Bartonsville Energy Facility and Bartonsville Energy Facility II, LLC Solar Facility Siting Agreement Page 11 of 11 SCHEDULE C-2 CUP 2 PROPERTY Frederick County Tax Map Parcels 85-A-1; 74-A-18B; 74-A-18A; 74-A-19; 74-A-18; 74-A-20, 73-A- 104.