Resolution No. 2013-068RESOLUTION NO. 2013-68
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
THE FIRST AMENDMENT TO THE AMENDED AND RESTATED RED
ROCK ACCESS EASEMENT AND LICENSE AGREEMENT BY AND
BETWEEN THE CITY OF VERNON AND NORTH SKY RIVER
ENERGY, LLC
WHEREAS, the City of Vernon (the "City"), is a chartered
municipal corporation of the State of California that owns and operates
a system for the generation, purchase, transmission, distribution and
sale of electric capacity and energy; and
WHEREAS, on February 8, 2010, the City Council of the City of
Vernon adopted Resolution No. 2010-21, approving the Purchase and Sale
Agreement, made as of February 11, 2010 (the "Purchase Agreement"), by
and between the City and North Sky River Energy, LLC, a Delaware
limited liability company (as assignee of Boulevard Associates, LLC, a
Delaware limited liability company)("Buyer"), a subsidiary of NextEra
Energy Resources, LLC, for the sale of property in Kern County in the
area known as the Tehachapi Wind Resource Area (the "Red Rock Land")
for the potential development of renewable resources; and
WHEREAS, on March 6, 2012, the City Council of the City of
Vernon adopted Resolution No. 2012-38 approving the Amended and
Restated Red Rock Access Easement and License Agreement (the "Easement
and License Agreement"), to put of -record specific easement locations
determined by the Buyer and the City and to grant sub -easements
benefitting the Red Rock Land, pursuant to the terms of the Purchase
Agreement; and
WHEREAS, the City desires to approve the First Amendment to
the Easement and License Agreement (the "First Amendment"); and
oCz613800
WHEREAS, the First Amendment pertains to non-exclusive
easements for access over and across certain real property located in
Kern County, California, and will incorporate customary lender
protections.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the above recitals are true and correct.
SECTION 2: The City Council of the City of Vernon finds
that this action is exempt under the California Environmental Quality
Act (CEQA), in accordance with Section 15061 (b)(3), the general rule
that CEQA only applies to projects that may have an effect on the
environment.
SECTION 3: The City Council of the City of Vernon hereby
approves the First Amendment to the Amended and Restated Red Rock
Access Easement and License Agreement (the "First Amendment"), in
substantially the same form as the copy which is attached hereto as
Exhibit A, together with all other agreements and documents the City
Administrator, or his designee, may deem necessary or desirable to
effect and carry out the purposes and intent thereof.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the Mayor or Mayor Pro-Tem to execute said First Amendment
for, and on behalf of, the City of Vernon and the City Clerk, or Deputy
City Clerk, is hereby authorized to attest thereto.
SECTION 5: The City Council of the City of Vernon hereby
instructs the City Administrator, or his designee, to take whatever
actions are deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this Resolution and the
- 2 - U62613800
transactions herein approved or authorized, including, but without
limitation, recording the First Amendment.
SECTION 6: The Interim City Clerk, or Deputy City Clerk, of
the City of Vernon shall certify to the passage, approval and adoption
of this resolution, and the Interim City Clerk, or Deputy City Clerk,
of the City of Vernon shall cause this resolu-ion and the Interim City
Clerk's, or the Deputy City Clerk's, certification to be entered in the
File of Resolutions of the Council of this City.
APPROVED AND ADOPTED this 2nd day of July, 2013.
1�&IL
—1 Z t 6 1 C; � ac" 0 Name: `rJ Michael McCormick
Title: Mayor /-
ATTES
vana Rees?
Interim City Clerk /_ � y e 1 - �
APPROVED r AS TO FORM:
NichHas George Rodriguez, City Attorney
- 3 - 062613800
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I Dana Reed
Interim City Clerk /gp—Clay C± of
the City of Vernon, do hereby certify that the foregoing Resolution,
being Resolution No. 2013-68, was duly passed, approved and adopted by
the City Council of the City of Vernon at a regular meeting of the City
Council duly held on Tuesday, July 2, 2013, and thereafter was duly
signed by the Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this � day of July, 2013, at Vernon, California.
(SEAL)
-, ana VReed
Interim City Clerk /.-
- 4 - 062613800
EXHIBIT A
RECORDING RLQUESTED BY AND
WHEN RECORDED MAIL TO:
Mikel Greene,
NextEra Energy Resources, LLC
700 Universe Blvd. (LAW/.IB)
hino Beach, FL 33408
(The space above this line is for the Recorders use only)
FIRST AMENDMENT TO AMENDED AND RESTATED RED ROCK ACCESS
EASEMENT AND LICENSE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED RED ROCK ACCESS
EASEMENT AND LICENSE AGREEMENT ("First Amendment") is made, dated and
effective as of' _ 2013 ("Effective Date"), between City of Vernon, a
California chartered city ("Grantor"), whose address is 4305 Santa Fe Avenue, Vernon, CA
90058 and North Sky River Energy, LLC, a Delaware limited liability company, whose address
is 700 Universe Boulevard, Juno Beach, FL 33408-0420 ("Grantee"). Each of Grantor and
Grantee are sometimes referred to in this Agreement as a "Party" or collectively as the
"Parties."
RECITALS
WHEREAS, Grantor and Grantee entered in to an Amended and Restated Red Rock
Access Easement and I_,icense Agreement dated March 6, 2012 and recorded March 21, 2012 as
Document 4: 0212037812 in the Kern County Official Records ( the "Agreement"),
WHEREAS, Grantor granted to Grantee non-exclusive easements for access
("Easements") over and across certain real property located in the County of Kern, State of
California, described on Exhibits C and D attached to the Agreement ("Specific Easement
Locations"").
WHEREAS, the Effective Date of the Easements was March 6, 2012; and
WHEREAS, the Parties agree to amend the Agreement in accordance with Section 7.3 of
the Agreement as set forth herein.
NOW. HIFRFI ORE, in consideration of the mutual obligations and covenants of' the
Parties herein contained. and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the Parties hereto agree as follows:
The following provisions are hereby added to the Agreement as a new Section 10:
10. Mortgage of Easements.
10.1 Right to Mortgage. Grantee may, upon notice to Grantor, but without Grantor's
consent or approval, mortgage, collaterally assign, or otherwise encumber and grant
security interests in all or any part of its interest in the Easements. These various security
interests in all or a part of the Easements are collectively referred to as a "Mortgage" and
each holder of the Mortgage, is referred to as "Mortgagee." Any such Mortgagee shall
use the Easements only for the uses permitted under this Agreement. Whenever Grantee
has mortgaged an interest under this Section 10, it will give notice of the Mortgage
(including the address of the Mortgagee for notice purposes) to Grantor: provided that
failure to give this notice shall not constitute a default under this Agreement, but rather
shall only have the effect of not binding Grantor with respect to such Mortgage until
notice is given.
10.2 Notice of Default and Opportunity to Cure. As a precondition to exercising
any rights or remedies related to any alleged default by Grantee under the Agreement,
Grantor shall give written notice of the default to each Mortgagee at the same time it
delivers notice of default to Grantee, specifying in detail the alleged event of default and
the required remedy. Each Mortgagee shall have the same right to cure any default as
Grantee, and/or the same right to remove any improvements or other property owned by
Grantee or such Mortgagee located on the Grantor's Property. The cure period for any
Mortgagee shall be the later of (i) the end of the Grantee cure period; (ii) thirty (30) days
after such Mortgagee's receipt of the default notice, or (iii) if applicable, the extended
cure period provided for in Section 10.3. Failure by Grantor to give a Mortgagee notice
of default shall not diminish Grantor's rights against Grantee, but shall preserve all rights
of the Mortgagee to cure any default and to remove any Improvements or other property
of Grantee or the Mortgagee located on the Grantor's Property.
10.3 Extended Cure Period. If any default by Grantee under this Agreement cannot
be cured without the Mortgagee obtaining possession of all or part of the Easements, then
any such default shall be deemed remedied if a Mortgagee: (i) within sixty (60) days after
receiving notice from Grantor as set forth in Section 10.2, acquires possession of all or
part of the Easements, or begins appropriate judicial or nonjudicial proceedings to obtain
the same, (ii) diligently prosecutes any such proceedings to completion; and (iii) after
gaining possession of all or part of the Easements performs all other obligations as and
when the same are due in accordance with the terms of this Agreement; provided,
however, that Mortgagee shall have no longer than one hundred eighty (180) days to cure
such default.
10.4 Mortgagee's Right to Enforce Mortgage and Assign Easements. A Mortgagee
shall have the absolute right: (i) to assign its Mortgage. (ii) to enforce its lien and acquire
title to all or any portion of the Easements by any lawful means; (iii) to take possession of
and operate all or any portion of the Easements and to perform all obligations to be
performed by Grantee under the Agreement, or to cause a receiver to be appointed to do
so; and (iv) to acquire all or any portion of the Easements by foreclosure or by an
assignment in lieu of foreclosure and thereafter, without Grantor's consent, to assign or
transfer all or any portion of the Easements to a third party. Any Mortgagee or other
party who acquires Grantee's interest in the Easements pursuant to foreclosure or
assignment in lieu of foreclosure shall not be liable to perform the obligations imposed on
Grantee by the Agreement which are incurred or accruing after such Mortgagee or other
party no longer has ownership or possession of the Easements.
10.5 New Agreement. If the Easements is foreclosed upon or there is an assignment
in lieu of foreclosure, or if the Agreement is rejected or disaffirmed pursuant to
bankruptcy law or other law affecting creditor's rights and, within ninety (90) days after
such event. Grantee or any Mortgagee or other purchaser at a foreclosure sale shall have
arranged to the reasonable satisfaction of Grantor for the payment of all Annual
Easements Fee or other charges due and payable by Grantee as of the date of such event,
then Grantor shall execute and deliver to Grantee or such Mortgagee or other purchases- at
a foreclosure sale, or to a designee of one of these parties, as the case may be, a new
agreement ("New Agreement") which (i) shall be for a term equal to the remainder of the
Term of the Agreement before giving effect to such rejection or termination, (ii) shall
contain the same covenants, agreements, terms, provisions and limitations as the
Agreement (except for any requirements that have been fulfilled by Grantee or any
Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination of the
Agreement); and (iii) shall include that portion of the Easements in which Grantee or
such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date
of rejection or termination. If more than one Mortgagee makes a written request for a
New Agreement pursuant to this provision, the New Agreement shall be delivered to the
Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the
written request of any other Mortgagee whose lien is subordinate shall be void and of no
further force or effect. The provisions of this Section 10 shall survive the termination.
rejection or disaffirmation of the Agreement and shall continue in full force and effect
thereafter to the same extent as if this Section 10 were a separate and independent
contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of
such termination, rejection or disaffirmation of the Agreement to the date of execution
and delivery of such New Agreement, such Mortgagee or other purchaser at a foreclosure
sale may use and enjoy the Easements without hindrance by Grantor or any person
claiming by, through or under Grantor; provided that all of the conditions for the New
Agreement as set forth above are complied with.
10.6 Release. Upon the repayment in full of any amounts owed to Mortgagee by
Grantee (other than contingent obligations that have not yet become due and payable).
Grantee shall use commercially reasonable efforts to require Mortgagee to execute and
deliver a quitclaim deed or any such other agreements or instruments as are reasonably
requested by Grantor and/or Grantee to release Mortgagee's security interest against the
Easements.
2. The Agreement may not be further modified or amended except by a written
instrument recorded in the Official Records of Kern County, California, or by an agreement that
is referenced in any memorandum thereof recorded in the Official Records of Kern County,
California.
I All of the terms, conditions and provisions of the Agreement not in conflict
herewith shall remain in full force and effect and are hereby ratified.
4. In the event of any conflict between this First Amendment and the Agreement, the
provisions of this First Amendment shall prevail.
5. This Amendment may be executed in multiple counterparts, each of which shall
be deemed an original, and all of which together shall constitute a single instrument.
[SIGNATURES ON FOLLOWING PAGES]
4
IN WITNESS WHEREOF, the Parties have executed and delivered this
First Amendment as of the date first set forth above.
Grantor:
CITY OF VFRNON.
a California Chartered City
By: _
Name:
Title:
ACKNOWLEDGMENT
State of California
County of
On before me, a notary
public, personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under P1NALTY OF PERJURY under the laws ofthe State of California that the
foregoing is true and correct.
Witness my hand and official seal.
Signature
5
(Seal)
Grantee:
North Sky River Energy, LLC,
a Delaware Limited Liability Company
By: _
Name:
Title:
ACKNOWLEDGMENT
STATE OF FLORIDA
ss.
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me on
2013, by as -- who is personally known to me to be the person who subscribed the within instrument and who
did not take an oath.
Notary Public in and for said State
Print Name:
My Commission Expires:
SEAL,
6
CONTRACT/AMENDMENT SIGNATURE ROUTING FORM
CONTRACTOR''_'_
CONTRACT PURPOSE:
</1 /fir /{ f✓'
CONTRACT IS: ❑ FEDERAL ❑ PREVAILING WAGE ❑ COMPETIVE SELECTION & NOTICED RFP
Cl COMPETITIVE BID & NOTICED INVITATION TO BID
❑ EXEMPT FROM COMPETITIVE PROCESS (APPROVAL ATTACHED)
rt SFRVICES ❑ MATERIALS ❑ BUDGETED Ci NOT BUDGETED
TOTAL CONTRACT VALUE: $/� Char;c Acct. No(s)
Amendment Value $ o Contract is an Amendment to Contract No._ (if Applicable)
RESPONSIBLE DEPARTMENT PERSON: �'ri�E'Gc'���/ PHONE: X
AUTHORIZATION: �l .Approved b} Council on 71 +-3 _
(Check One) Resolution No.'i(W-) (if applicable)
❑ Approved b} Cite Administrator on _
Note: Attach supporting documentation
uAmendment Approved b}
(if applicable)
ROUTING SEOUI NCL_ (Please Follow In Order— Do not use N/A)
Initials
Date
(1) Responsible Department Person
Checks substance of contract and assembles tyvo (2) copies of
Contract_ rcquircd AA, insurancc & bond documents, certifies compliance
With Competitive Bidding and Purchasing Ordinance
(2) Liability and Claims
Approves insurance if bonds rcquircd
and sureties.
(3) Finance ( Purchasing)
Checks compliance with Competitive Bidding & Living Wage Ordinances
And reflected in current budget
(4) City Attorney
Approv-cs contract as to form, verifies bonds and insurance included
(5) City Signatory
Signs behalf Cite
—.
all copies on of
(6) City Clerk
Attests signatures. numbers_ tiles contract_ insuranceand bonds. and
transmits duplicate original to contractor
Rey. 2 25 13
of
I 0
OFFICE OF THE CITY CLERK
4305 Santa Fe Avenue, Vernon, California 90058
.July 1, 2013
Telephone (323) 583-8811
3
.lames W. Fitch
Kern County Assessor -Recorder
1 l 15 TruxtUn Avenue
Bakersfield, CA 93301-4639
Dear Mr. Fitch:
Transmitted herewith is one fully executed First Amendment to Amended and Restated Red
Rock Access h:asement and License Agreement for certain real property in the unincorporated
areas of Kern County, as more particularly described on Exhibits C and D attached to the
agreement, approved by City Council minute order on .luly 2, 2013.
Please record the documents and return one copy of each to the attention of the undersigned and
send the original recorded documents to the following party:
NextFra Energy Resources, LLC
700 Clniverse Blvd. (LAW/.IB)
Juno Beach, FL 33408
Attn: IVlikel Greene
If you have any questions, you may contact Carlos Fandino at (323) 583-881 1 Ext. 834.
Very truly yours,
Deborah R..luarcz
Records Management Assistant
E11cIOSnres
c: Carlos Fandino
Mikel Greene
David B. Rogers
Agreement File No. 13-057
EXcfusivefy Industriaf
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Mike] Greene,
NextEra Energy Resources, LLC
700 Universe Blvd. (LAW/JB)
Juno Beach, FL 33408
(The space above this line is for the Recorder's use only)
FIRST AMENDMENT TO AMENDED AND RESTATED RED ROCK ACCESS
EASEMENT AND LICENSE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED RED ROCK ACCESS
EASEMENT AND LICENSE AGREEMENT ("First Amendment") is made, dated and
effective as of July 2 , 2013 ("Effective Date"), between City of Vernon, a
California chartered city ("Grantor"), whose address is 4305 Santa Fe Avenue, Vernon, CA
90058 and North Sky River Energy, LLC, a Delaware limited liability company, whose address
is 700 Universe Boulevard, Juno Beach, FL 33408-0420 ("Grantee"). Each of Grantor and
Grantee are sometimes referred to in this Agreement as a "Party" or collectively as the
"Parties."
RECITALS
WHEREAS, Grantor and Grantee entered in to an Amended and Restated Red Rock
Access Easement and License Agreement dated March 6, 2012 and recorded March 21, 2012 as
Document 4: 0212037812 in the Kern County Official Records ( the "Agreement");
WHEREAS, Grantor granted to Grantee non-exclusive easements for access
("Easements") over and across certain real property located in the County of Kern, State of
California, described on Exhibits C and D attached to the Agreement ("Specific Easement
Locations").
WHEREAS, the Effective Date of the Easements was March 6, 2012; and
WHEREAS, the Parties agree to amend the Agreement in accordance with Section 7.3 of
the Agreement as set Forth herein.
NOW, THEREFORE, in consideration of the mutual obligations and covenants of the
Parties herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the Parties hereto agree as follows:
The following provisions are hereby added to the Agreement as a new Section 10:
10. Mortgage of Easements.
10.1 Right to Mortgage. Grantee may, upon notice to Grantor, but without Grantor's
consent or approval, mortgage, collaterally assign, or otherwise encumber and grant
security interests in all or any part of its interest in the Easements. These various security
interests in all or a part of the Easements are collectively referred to as a "Mortgage" and
each holder of the Mortgage, is referred to as "Mortgagee." Any such Mortgagee shall
use the Easements only for the uses permitted under this Agreement. Whenever Grantee
has mortgaged an interest under this Section 10, it will give notice of the Mortgage
(including the address of the Mortgagee for notice purposes) to Grantor; provided that
failure to give this notice shall not constitute a default under this Agreement, but rather
shall only have the effect of not binding Grantor with respect to such Mortgage until
notice is given.
10.2 Notice of Default and Opportunity to Cure. As a precondition to exercising
any rights or remedies related to any alleged default by Grantee under the Agreement,
Grantor shall give written notice of the default to each Mortgagee at the same time it
delivers notice of default to Grantee, specifying in detail the alleged event of default and
the required remedy. Each Mortgagee shall have the same right to cure any default as
Grantee, and/or the same right to remove any improvements or other property owned by
Grantee or such Mortgagee located on the Grantor's Property. The cure period for any
Mortgagee shall be the later of (i) the end of the Grantee cure period; (ii) thirty (30) days
after such Mortgagee's receipt of the default notice; or (iii) if applicable, the extended
cure period provided for in Section 10.3. Failure by Grantor to give a Mortgagee notice
of default shall not diminish Grantor's rights against Grantee, but shall preserve all rights
of the Mortgagee to cure any default and to remove any Improvements or other property
of Grantee or the Mortgagee located on the Grantor's Property.
10.3 Extended Cure Period. If any default by Grantee under this Agreement cannot
be cured without the Mortgagee obtaining possession of all or part of the Easements, then
any such default shall be deemed remedied if a Mortgagee: (i) within sixty (60) days after
receiving notice from Grantor as set forth in Section 10.2, acquires possession of all or
part of the Easements, or begins appropriate judicial or non_judicial proceedings to obtain
the same; (ii) diligently prosecutes any such proceedings to completion; and (iii) after
gaining possession of all or part of the Easements performs all other obligations as and
when the same are due in accordance with the terms of this Agreement; provided,
however, that Mortgagee shall have no longer than one hundred eighty (180) days to cure
such default.
2
10.4 Mortgagee's Right to Enforce Mortgage and Assign Easements. A Mortgagee
shall have the absolute right: (i) to assign its Mortgage; (ii) to enforce its lien and acquire
title to all or any portion of the Easements by any lawful means; (iii) to take possession of
and operate all or any portion of the Easements and to perform all obligations to be
performed by Grantee under the Agreement, or to cause a receiver to be appointed to do
so; and (iv) to acquire all or any portion of the Easements by foreclosure or by an
assignment in lieu of foreclosure and thereafter, without Grantor's consent, to assign or
transfer all or any portion of the Easements to a third party. Any Mortgagee or other
party who acquires Grantee's interest in the Easements pursuant to foreclosure or
assignment in lieu of foreclosure shall not be liable to perform the obligations imposed on
Grantee by the Agreement which are incurred or accruing after such Mortgagee or other
party no longer has ownership or possession of the Easements.
10.5 New Agreement. If the Easements is foreclosed upon or there is an assignment
in lieu of foreclosure, or if the Agreement is rejected or disaffirmed pursuant to
bankruptcy law or other law affecting creditor's rights and, within ninety (90) days after
such event, Grantee or any Mortgagee or other purchaser at a foreclosure sale shall have
arranged to the reasonable satisfaction of Grantor for the payment of all Annual
Easements Fee or other charges due and payable by Grantee as of the date of such event,
then Grantor shall execute and deliver to Grantee or such Mortgagee or other purchaser at
a foreclosure sale, or to a designee of one of these parties, as the case may be, a new
agreement ("New Agreement") which (i) shall be for a term equal to the remainder of the
Term of the Agreement before giving effect to such rejection or termination; (ii) shall
contain the same covenants, agreements, terms, provisions and limitations as the
Agreement (except for any requirements that have been fulfilled by Grantee or any
Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination of the
Agreement); and (iii) shall include that portion of the Easements in which Grantee or
such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date
of rejection or termination. if more than one Mortgagee makes a written request for a
New Agreement pursuant to this provision, the New Agreement shall be delivered to the
Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the
written request of any other Mortgagee whose lien is subordinate shall be void and of no
further force or effect. The provisions of this Section 10 shall survive the termination,
rejection or disaffirmation of the Agreement and shall continue in full force and effect
thereafter to the same extent as if this Section 10 were a separate and independent
contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of
such termination, rejection or disaffirmation of the Agreement to the date of execution
and delivery of such New Agreement, such Mortgagee or other purchaser at a foreclosure
sale may use and enjoy the Easements without hindrance by Grantor or any person
claiming by, through or under Grantor; provided that all of the conditions for the New
Agreement as set forth above are complied with.
10.6 Release. Upon the repayment in full of any amounts owed to Mortgagee by
Grantee (other than contingent obligations that have not yet become due and payable),
Grantee shall use commercially reasonable efforts to require Mortgagee to execute and
deliver a quitclaim deed or any such other agreements or instruments as are reasonably
3
requested by Grantor and/or Grantee to release Mortgagee's security interest against the
Easements.
2. The Agreement may not be further modified or amended except by a written
instrument recorded in the Official Records of Kern County, California, or by an agreement that
is referenced in any memorandum thereof recorded in the Official Records of Kern County,
California.
3. All of the terms, conditions and provisions of the Agreement not in conflict
herewith shall remain in full force and effect and are hereby ratified.
4. In the event of any conflict between this First Amendment and the Agreement, the
provisions of this First Amendment shall prevail.
5. This Amendment may be executed in multiple counterparts, each of which shall
be deemed an original, and all of which together shall constitute a single instrument.
[SIGNATURES ON FOLLOWING PAGES]
4
IN WITNESS WHEREOF, the Parties have executed and delivered this
First Amendment as of the date first set forth above.
Grantor:
CITY OF VBRNON,
a California Chartered City ATTEST:
r Z"
ZaAna Barcia, Deputy City Clerk
me: W. Michael McCormick
Title: Mavor
ACKNOWLEDGMENT
State of California )
i ) SS
County of 1 � t� '` i it .k- ji )
On J �/ �/ 7 before me, ! / )� 4111"IPI C J 1` tW(Iti a notary
----:-7 /1public, personally appeared 1�,� liyd/r � />(�j ht f fti ll'('tpf'Y✓ ', who proved to me on the
basis of satisfactory evidence to be the persons whose name(f is/ate subscribed to the within
instrument and acknowledged to me that he/4r6 tp,�y executed the same in his/lyr/tl it
authorized capacity), and that by his/*r/t#ir signatures') on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing is true and correct.
Witness my hand and official seal.
����� Signature _.° _ (Seal )
Y 6:�" ANA KARINA RUEDA
Commission # 1900284
z +. Notary Public - California i
Z Los Angeles County D
� y Comm. Ex ire, Augg 119,22014
Grantee:
North Sky River Energy, LLC,
a Delaware Limited Liability Company
By:
Name:
Titl5
ACKNOWLEDGMENT
STATE OF FLORIDA
ss.
COUNTY OF PALM BEACH
The foregoing i►istrt4ment was acknowledged before me on
2013, by.-Y ics.i' as
who is personally known to me to be the person who subscribed the within instrument and who
did not take an oath.
Notary Public in and for said State
Print Name:
My Commission Expires:
SEAL.
6
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OF `'ERti
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`S��'SLY �MOJ6
STAFF REPORT
DEPARTMENT OF LIGHT & POWER
DATE: July 2, 2013
TO: Honorable Mayor and City Council
FROM: Carlos R. Fandino, .lr., Director of Light & Power (p�Z&j
RE: Request for Approval of First Amendment to Red Rock Access Easement and
License Agreement
Recommendation
It is recommended that the City Council:
1. Find that the approval requested in this stafl' report is exempt under the California
Environmental Quality Act (CEQA) in accordance with Section 15061(b)(3), the general
rule that CFQA only applies to projects that may have an effect on the environment, and
2. Adopt a Resolution approving the First Amendment to the Amended and Restated Red
Rock Access Easement and License Agreement dated March 6, 2012, pursuant to
Resolution No. 2012-38, and in the form attached to the Resolution. This pertains to non-
exclusive easements for access over and across certain real property located in Kern
County, California, and the proposed amendment will incorporate customary lender
protections.
Background
The City of Vernon entered into a Purchase and Sale Agreement dated February 8, 2010, with
North Sky River Energy, LLC (as assignee of Boulevard Associates, LLC), a subsidiary of
NextEra Energy Resources, LLC, for the sale ofreal property in Kern County for the potential
development oi' renewable resources. Under the Purchase Agreement, the buyer was granted
general access easements over land owned by Vernon, as well as sub -easements over land owned
by ReNu Resources, L,LC'. Pursuant to the Purchase Agreement, the buyer exercised its right to
determine specific easement locations on the Vernon land and ReNu land, and then amended and
restated the general easement to reflect the specific locations. The buyer and the City entered
into and recorded an Amended and Restated Red Rock Access Easement and License Agreement
dated March 6, 2012, which established the buyer's specific easements of record.
The buyer is now seeking financing for its project, and buyer's lender is requiring an amendment
to the easement agrecment to include customary lender protections. 'hhe buyer and its lender
have requested the following amendments:
1. The buyer will have the right to mortgage the easements.
2. The lender will have the right to receive notice from the City of buyer's defaults under
the easement agreement.
3. The lender will have the right to cure buyer's defaults within 30 days of such notice, or at
the end of buyer's cure period if it is longer than 30 days. or within 60 days it -the default
cannot be cured without foreclosure by lender.
4. "hhe lender will have no liability unless it holds absolute title to the easements.
5. The City agrees to execute estoppel certificates, consent to assignment and non -
disturbance agreements, and cooperate in amendments reasonably requested by buyer and
lender.
6. The lender will have the right to assign its mortgage, enforce its lien, acquire title to the
easements, take possession of and operate the easements and foreclose on the easements
or acquire by deed in lieu of foreclosure.
7. If a party acquires the easement pursuant to a foreclosure sale, assignment in lieu of
foreclosure, or a rejection or disaffirmation in bankruptcy, the City agrees to enter into a
new easement agreement with that party containing the same terms as the existing
easement agreement.
The City and buyer will not amend the easement without lender's written and recorded
consent so long as lender remains unpaid.
Pursuant to Section 7.3 of the existing easement agreement, the City agreed to cooperate in
amending the easement agreement to include lender protection provisions reasonably requested
by the buyer and its lender. In addition, the City has a reciprocal general easement with the
buyer, so to the extent the City cooperates with the buyer in this request, the buyer may be more
likely to cooperate with the City in the future. It is in the City's best interest to accommodate the
NextEra request for an amendment.
Outside legal counsel have determined the proposed amendments to be reasonable for project
financing. Further, the amendments will not present any material risks to the City.
Fiscal Impact
The First Amendment to the Red Rock Access Easement and License Agreement will have no
fiscal impact upon the City, as the Amendment carries no financial bearing.
Attachments
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Mikel Greene,
NextEra Energy Resources, LLC
700 Universe Blvd. (LAW/JB)
Juno Beach, FI_. 33408
('I'hc space above this line is fur the Recor(Icr's use only)
FIRST AMENDMENT TO AMENDED AND RESTATED RED ROCK ACCESS
EASEMENT AND LICENSE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED RED ROCK ACCESS
EASEMENT AND LICENSE AGREEMENT ("First Amendment") is made, dated and
effective as of _ 2013 ("Effective Date"), between City of Vernon, a
California chartered city ("Grantor"), whose address is 4305 Santa Fe Avenue, Vernon, CA
90058 and North Sky River Energy, LLC, a Delaware limited liability company, whose address
is 700 Universe Boulevard, Juno Leach, FL 33408-0420 ("Grantee" ). Each of Grantor and
Grantee are sometimes referred to in this Agreement as a "Party" or collectively as the
"Parties."
RECITALS
WHEREAS, Grantor and Grantee entered in to an Amended and Restated Red Rock
Access Easement and License Agreement dated March 6, 2012 and recorded March 21, 2012 as
Document #: 0212037812 in the Kern County Official Records ( the "Agreement"),
WHEREAS, Grantor granted to Grantee non-exclusive easements for access
("Easements") over and across certain real property located in the County of Kern, State of
California, described on Exhibits C and D attached to the Agreement ("Specific Easement
Locations"),
WHEREAS, the Fffective Date of the Easements was March 6, 2012; and
WHEREAS, the Parties agree to amend the Agreement in accordance with Section 7.3 of
the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual obligations and covenants of the
Parties herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the Parties hereto agree as follows:
Me following provisions are hereby added to the Agreement as a new Section 10:
10. Mortgage of Easements.
10.1 Right to Mortgage. Grantee may, upon notice to Grantor, but without Grantor's
consent or approval, mortgage, collaterally assign, or otherwise encumber and grant
security interests in all or any part of its interest in the Easements. These various security
interests in all or a part of the Easements are collectively referred to as a "Mortgage" and
each holder of the Mortgage, is referred to as "Mortgagee.." Any such Mortgagee shall
use the Easements only for the uses permitted under this Agreement. Whenever Grantee
has mortgaged an interest under this Section 10, it will give notice of the Mortgage
(including the address of the Mortgagee for notice purposes) to Grantor; provided that
failure to give this notice shall not constitute a default under this Agreement, but rather
shall only have the effect of not binding Grantor with respect to such Mortgage until
notice is given.
10.2 Notice of Default and Opportunity to Cure. As a precondition to exercising
any rights or remedies related to any alleged default by Grantee under the Agreement,
Grantor shall give written notice of the default to each Mortgagee at the same time it
delivers notice of default to Grantee, specifying in detail the alleged event of default and
the required remedy. Each Mortgagee shall have the same right to cure any default as
Grantee, and/or the same right to remove any improvements or other property owned by
Grantee or such Mortgagee located on the Grantor's Property. The cure period for any
Mortgagee shall be the later of (i) the end of the Grantee cure period; (ii) thirty (30) days
after such Mortgagee's receipt of the default notice; or (iii) if applicable, the extended
cure period provided for in Section 10.3. Failure by Grantor to give a Mortgagee notice
of default shall not diminish Grantor's rights against Grantee, but shall preserve all rights
of the Mortgagee to cure any default and to remove any Improvements or other property
of Grantee or the Mortgagee located on the Grantor's Property.
10.3 Extended Cure Period. if any default by Grantee under this Agreement cannot
be cured without the Mortgagee obtaining possession of all or part of the Easements, then
any such default shall be deemed remedied ifa Mortgagee: (i) within sixty (60) days after
receiving notice from Grantor as set forth in Section 10.2, acquires possession of all or
part of the Easements, or begins appropriate judicial or nonjudicial proceedings to obtain
the same: (ii) diligently prosecutes any such proceedings to completion, and (iii) after
gaining possession of all or part of the Easements performs all other obligations as and
when the same are due in accordance with the terms of this Agreement; provided,
however, that Mortgagee shall have no longer than one hundred eighty (180) days to cure
such default.
10.4 Mortgagee's Right to Enforce Mortgage and Assign Easements. A Mortgagee
shall have the absolute right: (i) to assign its Mortgage, (ii) to enforce its lien and acquire
title to all or any portion of the Easements by any lawful means; (iii) to take possession of
and operate all or any portion of the Easements and to perform all obligations to be
performed by Grantee under the Agreement, or to cause a receiver to be appointed to do
so; and (iv) to acquire all or any portion of the Easements by foreclosure or by an
assignment in lieu of foreclosure and thereafter, without Grantor's consent, to assign or
transfer all or any portion of the Easements to a third party. Any Mortgagee or other
party who acquires Grantee's interest in the Easements pursuant to foreclosure or
assignment in lieu of foreclosure shall not be liable to perform the obligations imposed on
Grantee by the Agreement which are incurred or accruing after such Mortgagee or other
party no longer has ownership or possession of the Easements.
10.5 New Agreement. If the Easements is foreclosed upon or there is an assignment
in lieu of foreclosure, or if the Agreement is rejected or disaffirmed pursuant to
bankruptcy law or other law affecting creditor's rights and, within ninety (90) days after
such event, Grantee or any Mortgagee or other purchaser at a foreclosure sale shall have
arranged to the reasonable satisfaction of' Grantor for the payment of all Annual
Easements Fee or other charges due and payable by Grantee as of the date of such event,
then Grantor shall execute and deliver to Grantee or such Mortgagee or other purchaser at
a foreclosure sale, or to a designee of one of these parties, as the case may be, a new
agreement ("New Agreement") which (i) shall be for a term equal to the remainder of the
Term of the Agreement before giving effect to such rejection or termination; (ii) shall
contain the sarne covenants, agreements, terms, provisions and limitations as the
Agreement (except for any requirements that have been fulfilled by Grantee or any
Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination of the
Agreement); and (iii) shall include that portion of the Easements in which Grantee or
such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date
of rejection or termination. If more than one Mortgagee makes a written request for a
New Agreement pursuant to this provision, the New Agreement shall be delivered to the
Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the
written request of any other Mortgagee whose lien is subordinate shall be void and of no
Further lorce or effect. The provisions of this Section 10 shall survive the termination,
rejection or disaffirmation of the Agreement and shall continue in full force and effect
thereafter to the same extent as if this Section 10 were a separate and independent
contract made by Grantor, Grantee and each Mortgagee, and, frorn the effective date of
such termination, rejection or disaffirmation of the Agreement to the date of' execution
and delivery of such New Agreement, such Mortgagee or other purchaser at a foreclosure
sale may use and enjoy the Easements without hindrance by Grantor or any person
claiming by, through or under Grantor; provided that all of the conditions for the New
Agreement as set forth above are complied with.
10.6 Release. Upon the repayment in full of any amounts owed to Mortgagee by
Grantee (other- than contingent obligations that have not yet become due and payable),
Grantee shall use commercially reasonable efforts to require Mortgagee to execute and
deliver a quitclaim deed or any such other agreements or instruments as are reasonably
requested by Grantor and/or Grantee to release Mortgagee's security interest against the
Easements.
2. The Agreement may not be fi►rther modified or amended except by a written
instrument recorded in the Official Records of Kern County, California, or by an agreement that
is referenced in any memorandum thereof recorded in the Official Records of Kern County,
California.
3. All of the terms, conditions and provisions of the Agreement not in conflict
herewith shall remain in full force and effect and are hereby ratified.
4. In the event of any conflict between this First Amendment and the Agreement, the
provisions of this First Amendment shall prevail.
5. This Amendment may be executed in multiple counterparts, each of which shall
be deemed an original, and all of which together shall constitute a single instrument.
[SIGNATURES ON FOLLOWING PAGES]
4
IN WITNESS WHEREOF, the Parties have executed and delivered this
First Amendment as of the date first set forth above.
Grantor:
CITY OF VERNON,
a California Chartered City
By:
Name:
"title:
ACKNOWLEDGMENT
State of California )
SS
County of )
On before me, a notary
public, personally appeared _ who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon bchalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing is true and correct.
Witness my hand and official seal.
Signature
5
(Seal)
Grantee:
North Sky River F,nergy, LLC,
a Delaware Limited Liability Company
By: _
Name:
Title:
ACKNOWLEDGMENT
STATE OF FLORIDA )
ss.
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me on
2013, by _ as
who is personally known to me to be the person who subscribed the within instrument and who
did not take an oath.
Notary Public in and for said State
Print Name:
My Commission Expires:
SEAL
6
NOTICE TO LANDOWNER
fj�,'
ED
�r�a
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Mark Whitworth
City Administrator
The City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
July 8, 2013 iE
CITY CLERK'S OFFICE
Re: Notice of Mortgage Pursuant to Section 10 of Amended and Restated Red Rock
Access Easement and License Agreement, as amended
Dear Mr. Whitworth:
You are hereby notified that North Sky River Energy, LLC, a Delaware limited liability
company, the grantee ("Grantee") under that certain Amended and Restated Red Rock Access
Easement and License Agreement dated March 6, 2012 by and between the City of Vernon
("Grantor") and Grantee, recorded on March 21, 2012 as Document No. 0212037812 in the Official
Records of Kern County, as amended by the certain First Amendment to Amended and Restated Red
Rock Access Easement and License Agreement dated July 2, 2013 to be recorded in the Official
Records of Kern County (collectively, the "Easement') has granted a security interest in the
Easement to U.S. Bank National Association, a national banking association, as collateral agent and
depository agent ("Lender"), as evidenced by, among other things, Deed of Trust dated June 27,
2013 by and between Lender and Grantee, as the same may be supplemented, modified or amended
in the future. Lender is a "Mortgagee" for purposes of and as defined in the Easement. Pursuant to
Section 10.1 of the Easement, you are hereby instructed to send copies to Lender of all notices
hereafter given by the Grantor to Grantee under the Easement. Such notices are to be sent as
follows:
U.S. Bank National Association
Attn: Corporate Trust Administration
200 South Biscayne Boulevard, Suite 1870
Miami, FL 33131
Phone: (305) 350-1738
Fax: (305) 350-1746
Attention: Mike Daly
E-mail Address: michael.daly3@usbank.com
with a copy to: Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attn: David Lieberman, Esq.
or to such other address as Lender may hereafter specify by written notice to Lessor.
US -WEST 803836062.1
SIGNATURE PAGE TO NOTICE TO LANDOWNER
Dated: .)Line 27, 2013
cc: David B. Rogers, Esq.
Mikel Green, Esq.
Mardi R. Merjian, Esq.
US -WEST 803836062.1
TR U STO R:
NORTH SKY RIVER ENERGY, LLC, a Delaware
limited liability company
By:
Name: Aldo Portales
Title: Assistant Treasurer
Juarez, Debbie
From:
Figueroa, Diana
Sent:
Wednesday, July 24, 2013 10:33 AM
To:
Juarez, Debbie
Cc:
Fandino, Carlos
Subject:
RE: Resolution No. 2012-38 North Sky River Amended and Restated Red Rock Access
Easement and License Agreement
There is no objection from me... I see no problem with handling the First Amendment in the same manner. That should
be just fine. Thank you very much for your help.
Diana
From: Juarez, Debbie
Sent: Wednesday, July 24, 2013 9:29 AM
To: Figueroa, Diana
Subject: Resolution No. 2012-38 North Sky River Amended and Restated Red Rock Access Easement and License
Agreement
Hi Diana. I have attached a copy of how the first set of documents was handled/recorded for your reference. If there's
no objection, I would like to go ahead and send out the First Amendment to be handled in the same manner so we are
not sitting on the documents. Please advise. Thank you.
<I7eFura 1 Juarez
��ecords S�anaf�e�ncnt �lssistant-
City of`Cernon - City C( lr "'S Office
4.305Santa 11'e%I venue
`Cernolr, (f1 90058
(_323) 583-,1811
1
NORTH SKY RIVER ENERGY, LLC
700 Universe Blvd.
Juno Beach, Ilorida 33408-2683
VIA UPS NEXT DAY AIR
June 26, 2013
City of Vernon
Attn.: Diana Figueroa,
Light & Power Department
4305 Santa Fe Avenue
Vernon, CA 90058
Re: First Amendment to Amended and Restated Red Rock Access Easement and License
Agreement between City of Vernon and North Sky River Energy, LLC ("First
Amendment")/Kern County, CA
Dear Ms. Figueroa:
I have enclosed two duplicate, partially executed, originals of the above referenced First
Amendment. It is our understanding that the City of Vernon is planning to address the First
Amendment in the July 2, 2013 meeting, and if approved, a resolution to that effect will be
signed that day, along with the First Amendment. Should you have any comments or questions,
please contact me at (561) 304-5934. Otherwise, when approved, please return to me a fully
executed original of the First Amendment and a copy of the signed Resolution. I have enclosed a
pre -addressed, pre -paid UPS return envelope for your convenience.
Sincer y,
f� _
Mike] Greene
Real Estate, Land Use and
Environmental Group
/nel
Enclosures