HomeMy WebLinkAboutReso 37-19 Morro Dunes Solar CarportRESOLUTION NO. 37-19
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA
CONSENTING TO A LESSEE'S FINANCING FOR A SOLAR CARPORT STRUCTURE AND
APPROVAL OF THE RELATED SEVERANCE AND CONSENT AGREEMENT REQUIRED BY
LESSEE'S LENDER
WHEREAS, the City of Morro Bay ("City") and the Cayucos Sanitary District ("District")
are both the Owners of certain property located in the City of Morro Bay at 1700 Embarcadero
("Property"), as well as the Lessors of the Property, under a Lease Agreement with Morro Dunes
Trailer Park and Campground, Inc. (Lessee); and
WHEREAS, the City Council provided authorization to Lessee to submit a development
proposal to the City for the installation of a Solar Carport structure on the Property; and
WHEREAS, on April 16, 2019, the Planning Commission of the City of Morro Bay
adopted Resolution 06-19 to approve MAJ19-002 amending Conditional Use Permit 09-90 and
Coastal Development Permit 13-90 to allow installation by Lessee of a Solar Carport structure
on the Property; and
WHEREAS, Lessee desires to finance the installation of a Solar Carport structure and
the lender, Rabobank N.A., has requested approval of a Severance and Consent Agreement
providing that new Solar Carport structure as security for the related loan; and
WHEREAS, the Lease Agreement, renewed on September 22, 2008 fora 10-year term,
includes a provision that requires City/District approval for any leasehold mortgages; and
WHEREAS, the District provided authorization on November 15, 2018 to the District
Manager to sign a Severance and Consent Agreement, and thereafter the District executed a
Severance and Consent Agreement; and
WHEREAS, the City desires to now approve that Severance and Consent Agreement,
and authorize the City Manager to sign the same; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay as
follows:
SECTION 1. On behalf of the City of Morro Bay, the City Manager is authorized to execute a
Severance and Consent Agreement with Morro Dunes Trailer Park and Campground, Inc.,
Rabobank, N.A., and the Cayucos Sanitary District, attached hereto as Exhibit A and
incorporated herein as though set forth in full, concerning the use of a new Solar Carport
Structure as security for a loan from Rabobank, N.A. to Morro Dunes Trailer Park and
Campground, Inc. to finance the installation of said new Solar Carport Structure.
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting
thereof held on this 28th day of May 2019, on the following vote:
AYES:
NOES:
ABSENT:
ABSTAI N
ATTEST
Headding, Addis, Davis,
None
None
None
Virv., 6,4, SNeo;
ana Swanson, City Clerk
Heller, McPherson
RECORDATION
REQUESTED BY AND
WHEN RECORDED MAIL
T0:
Rabobank, N.A.
P.O. Box 6010
Santa Maria, CA 93456-6010
Attn: Santa Maria Operations, Legal Doc Request
Morro Dunes NRLOC to
Term 2018 Solar Line of
Credit: xxx2149-1 Term
Loan: xxx2149-1
SEVERANCE AND CONSENT AGREEMENT
This Agreement is dated December, 2018, by and among the CITY OF
MORRO BAY, a municipal corporation, and CAYUCOS SANITARY DISTRICT, a
political subdivision of the State of California (collectively "Lessor"), MORRO DUNES
TRAILER PARK AND CAMPGROUND, INC., a California corporation ("Dunes"), and
RABOBANK, N.A., a national banking association ("Lender").
Lender has extended credit to Dunes under the terms and conditions of the
Credit Agreement between Dunes and Lender dated as of the date of this Agreement
the "Credit Agreement"). Each capitalized term used in this Agreement that is defined
�n the Credit Agreement and not defined in this Agreement will have the meaning
specified in the Credit Agreement, This Agreement will be interpreted in accordance
with the Drafting Conventions.
Lessor has an interest as lessor under a lease in the real property ("Real
Property") described on EXHIBIT A attached hereto and incorporated herein by this
reference.
Dunes holds a leasehold interest in the Real Property under an unrecorded
Commercial Lease with Lessor dated as of September 1, 2008 (the "Lease").
Dunes has, or will execute, a Security Agreement dated as of the date of this
Agreement as security for indebtedness owed, or that will be owed, to Lender, where
Lender is the Secured Party and Dunes is the Debtor, which covers certain personal
property and fixtures, that is or will be located upon the Real Property and is described
as follows (referred to herein as "Lender's Collateral"):
(a) all equipment, parts and components necessary for that certain 124kW
DC solar photovoltaic energy system (the "Solar Energy System") located on the
Real Property;
(b) all fixtures necessary for the Solar Energy System;
(c) all Intellectual Property relating or pertaining to the Solar Energy System
(as used in this Agreement, "Intellectual Property" means all trade secrets, computer
software, service marks, trademarks, trade names, trade styles, copyrights, patents,
applications for any of the foregoing, customer lists, working drawings, instructional
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manuals, and rights in processes for technical manufacturing, packaging and labeling,
in which Dunes has any right or interest, whether by ownership, license, contract or
otherwise);
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(d) the Engineering, Procurement and Construction Agreement (EPC
Agreement"), as may be amended, amended and restated, supplemented or otherwise
modified from time to time, including (i) all rights of Dunes to receive moneys due and
to become due under or pursuant to the EPC Agreement, (ii) all rights of Dunes to
receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the
EPC Agreement, (iii) claims of Dunes for damages arising out of or for breach of or
default under the EPC Agreement, and (iv) the right of Dunes to terminate the EPC
Agreement, to perform thereunder, and to compel performance and otherwise exercise
all remedies thereunder;
(e) the following (the "Account Collateral"): (i) the Designated Account and all
funds and Financial Assets (as defined in the UCC) from time to time credited thereto,
and all certificates and instruments, if any, from time to time representing or evidencing
the Designated Account; (ii) all promissory notes, certificates of deposit, checks and
other instruments from time to time delivered or otherwise possessed by the Secured
Party for or on behalf of Dunes in substitution for or in addition to any or all of the then
existing Account Collateral; and (iii) all interest, dividends, distributions, cash,
instruments and other property from time to time received, receivable, or otherwise
distributed in respect of or in exchange for any or all of the then existing Account
Collateral;
(f) accessions, attachments and other additions to the Lender's Collateral;
(g) substitutes or replacements for any Lender's Collateral, all proceeds,
products, rents and profits of any Lender's Collateral, all rights under warranties and
insurance contracts covering the Lender's Collateral, and rights under any causes of
action relating to any and all of the Lender's Collateral;
(h) books, correspondence, credit files, records, invoices, manuals, service
records and programs, other papers and documents, computer records, runs, software,
systems, procedures, disks, tapes and other storage media relating to any of the
Account Collateral, including any of the foregoing in the possession or control of any
service, consultant, or outside vendor (collectively, 'Books and Records");
(i) all Permits obtained in connection with the Solar Energy System; and
all
Proceeds, products, accessions, rents, profits and other payments now
or her after due and payable with respect to, and supporting obligations relating to,
any and all of the Lender's Collateral, including Proceeds and supporting obligations
that constitute property types described herein and, to the extent not otherwise
included, all (i) payments under insurance, or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with respect to any of the
foregoing Lender's Collateral and (ii) cash.
Lender, as a condition of making financial accommodations available to Dunes
requires that Lessor consent to Lender's removal of Lender's Collateral from the Real
Property, no matter how it is affixed, in the event Lessor (or its successors and
assigns) take possession of the Real Property or there is a default under the parties
Loan Documents.
NOW, THEREFORE, for good and sufficient consideration, the receipt of
which is hereby acknowledged, the undersigned agrees to the following:
1. Estoppel. A true and correct copy of the Lease has been provided to
Lender and has not been modified, supplemented or amended in any way. The Lease
represents the entire agreement between the parties for the lease of the Real Property.
Lessor has no current defenses or offsets against any of Dunes' obligations under the
2
Lease. The Lease is in full force and effect and there is no event of default under the
Lease.
2. Consent to Encumbrance. Lessor consents to Dunes encumbering its
leasehold interests in the Real Property established by the Lease with a deed of trust
and/or fixture filing for the Solar Energy System to secure its obligations to Lender.
3. Subordination of Interest to Lender's Collateral, Lessor agrees to
subordinate any interest they have in Lender's Collateral to Lender's interest in such
property. Lessor further agrees not to claim any interest that is superior to Lender's
interests and rights in and to Lender's Collateral.
(a) Subordination. To the extent Lessor has or claims an interest or rights in all
or any portion of Lender's Collateral, Lessor hereby subordinates its interests or rights in
and to such property, to Lender's interests or rights in the property described as
Lender's Collateral. This subordination shall continue in effect as to all credit or other
financial accommodations extended by Lender to Borrower, together with any interest
and other charges on such indebtedness, whether resulting from loans or advances
heretofore or hereafter made.
(b) Effectiveness of the Subordinations. Subject to the terms of the Lease
and only to the extent of the leasehold interest Dunes possesses, the subordinations,
agreement and priorities set forth in this Agreement shall remain in full force and
effect, regardless of whether or not any party hereto in the future seeks to rescind,
amend, terminate, or reform by litigation or otherwise, their respective agreements with
Dunes.
(c) Further Effectiveness of the Subordinations. The subordinations,
agreements, and priorities specified herein are applicable as beiween the parties
irrespective of the time or order of attachment or perfection of the security interests or other
interests referred to herein, the time or order of filing of financing statements, or the recording
of deeds of trust, the acquisition of purchase money or other security interests, or the time of
giving or failure to give notice of the acquisition or expected acquisition of purchase money or
other security interests.
4. Nature of Lender's Account Collateral. Lender's Account Collateral shall be
considered and is intended to be trade fixtures and personal property and shall not be
considered part of the Real Property regardless of whether or by what means it is or may
become attached to the Real Property.
5. Removal of Lender's Collateral Upon a Default. Lender may, at any time at
its option upon an event of default under the Loan Documents or where Lessor (or its
successors and assigns) take possession of the Real Property, enter on the Real Property
and remove Lender's Collateral, whether it is classified or considered personal property or
fixtures, at its sole cost and expense. Lender agrees to make such repairs caused by any
such removal to the extent necessary to restore the Real Property to its condition
immediately prior to such removal
(a) Access to Collateral. Subject to the limitations set forth in the preceding
paragraph, both Dunes and Lessor agree at any time within 7-days' notice from Lender,
they will allow Lender, or its agents or employees, to go on to the Real Property and
remove Lender's Collateral to the extent it is located on or attached to the Real
Property.
(b) Binding Effect. Lessor acknowledges and agrees the provisions of this
paragraph shall be binding upon it and/or any third party who acquires the Real
Property.
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6. Acknowledgement and Consent by Dunes. Dunes hereby consents to the
terms and conditions contained in this Agreement, and agrees to recognize and adhere to
all the priorities and other rights granted to Lender and Lessor in this Agreement. Dunes
#urther agrees not to do any act, nor perform any obligation, which is not in accordance
with the priorities and agreements set forth herein. Dunes also agrees Lender and Lessor
may exchange information regarding Dunes and may advise each other of any breaches
or defaults by Dunes or terminations by Lender or Lessor as contained in this Agreement.
Dunes further agrees to execute and deliver to Lender and Lessor such additional
documents and authorizations as either Lender or Lessor may request or require to carry
out the intent and purposes of this Agreement. Without limiting any provision hereof or of
any other document, Dunes hereby agrees the terms of this Agreement do not give it any
substantive rights against Lender or Lessor, and none of the undersigned shall use a
violation of this Agreement by any party as a defense to the enforcement by Lender or
Lessor of any of their respective rights or remedies under their agreements with Dunes.
7. Waiver. No failure to exercise and no delay in exercising any right, power, or
remedy hereunder shall impair any right, power or remedy which Lessor or Lender may
have, nor shall any such delay be construed to be a waiver by such Person of any breach or
default under this Agreement or the other Loan Documents; nor shall it be construed as a
waiver of any default or breach subsequently occurring. All rights and remedies granted to
Lender or Lessor under this Agreement or the Loan Documents shall remain in full force and
effect notwithstanding any single or partial exercise of, or any discontinuance of action
begun to enforce any such right or remedy. The rights and remedies specified herein are
cumulative and not exclusive of each other or of any rights or remedies that a party would
otherwise have. Any waiver, permit, consent or approval by a party of any breach or default
hereunder must be in writing and shall be effective only to the extent set forth in such writing
and only as to that specific instance.
8. Consultations with Professionals. The parties verify they have carefully read
this Agreement and have discussed its legal effect with their attorney(s); they have
discussed this Agreement's financial effect with their accountant(s); they understand the
content of this Agreement and in executing this Agreement, they have not relied on the
advice, opinions or statements by Lender's officers, directors, employees, affiliates,
subsidiaries, or attorneys; and they sign this Agreement of their own free will and accord. To
the extent the parties have not consulted with their own attorney(s) or accountant(s) they
acknowledge they were given the opportunity to do so and waived the same of their own free
will and accord.
9. Notices. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, if hand delivered, when
deposited with a nationally recognized overnight courier, or, if mailed, when deposited in
the United States mail, as first class, certified or registered mail postage prepaid, directed
to the addresses shown next to the party's signature below. Any party may change its
address for notices under this Agreement by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the party's address. For
notice purposes, Lessor agrees to keep Lender informed at all times of its current
address. Unless otherwise provided or required by law, if there is more than one party
comprising the undersigned, any notice given by Lender to any of the undersigned is
deemed to be notice given to all of the undersigned.
1 Q. Event of Default. The breach of any term, provision, warranty or
representation under this Agreement, which is not cured within any cure or grace
period, if any, will be an "Event of Default" under this Agreement.
11. Binding Effect' Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the parties and their respective successors and assigns.
12. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of that provision in any other
jurisdiction; except that if such provision relates to the payment of any monetary sum,
then Lender may, at their option declare all Obligations in their favor immediately due
and payable.
13. Time is of the Essence. Time is of the essence in the performance of this
Agreement.
14. Amendments in Writing. This Agreement may not be amended,
changed, modified, altered or terminated without prior written consent of all parties to
the Agreement.
15. Governing Law. This Agreement will be governed and interpreted by
applying the laws of the State of California (the "Governing Law State") without
regard to its conflict of laws principles.
16. Jurisdiction and Venue. THE PARTIES HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF THE STATE OF CALIFORNIA FOR THE
PURPOSES OF ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO ANY LOAN DOCUMENT TO WHICH IT IS A PARTY OR ANY
INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER, WITH VENUE TO BE
IN THE SUPERIOR COURT OF CALIFORNIA, SAN LUIS OBISPO COUNTY,
CALIFORNIA, OR THE UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA.
17. Waiver of Jury Trial. THE PARTIES WAIVE THE RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF
OR IN ANY WAY CONNECTED TO THIS AGREEMENT,
18. Counterpart Execution. This Agreement may be executed in counterparts,
each of which will be an original and all of which together are deemed one and the
same instrument.
IN WITNESS WHEREOF, this Agreement is executed as of the date first set forth
above.
CITY OF MORRO BAY
By:
Scott City Manager
ATTEST:
Dana Swanson, City Clerk
CAYCOS SANITARY DISTRICT
gy: �1C% �,r�c s�— �.►�,LJ
Robert B. Enns, Board President
A T ST:
tc'm>Z
Rick koon, District Manager
City Attorney
APPROVED AS TO FORM:
Tim/Carmel, District Counsel
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, Cl"d not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On , 2Q_, 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 PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
IN WITNESS WHEREOF, this Agreement is executed as of the date first set forth
above.
Address far notices:
970Q Embarcadera By:
Morro Bay, CA 93442
DUNES
MORRO DUNES TRAILER PARK AND
CAMPGROUND, INC., a California
corporation
DOUGLAS J. GLAASSEN
Chief Executive Officer
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached and not the
truthfulness, accuracy, or validity of that documen .
STATE OF CALIFORNIA
COUNTY OF
)) ss
On , 20_, before me, , a notary
public, personally appeared , who proved to me on the basis
of satisfactory evidence to be the persons) 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 PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first set forth
above.
Addresses far Notices:
Rabobank, N.A.
45 E. River Park Place West, Suite 401
Fresno, CA 93720
Attention: Commercial Loan
Administration Services
LENDER
RABOBANK, N.A., a national
banking association
Name:
Title:
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA }
} 5S
COUNTY OF )
On , 20_, before me, , a notary
public,
personally appeared , who proved to me on the
basis of satisfactory evidence to bet the person(s) whose names) 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 signatures) an the
instrument the person(s), or the entity upon behalf 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 paragraph is true and correct.
WITNESS my hand and official seal.
3
EXHIBIT A
to Severance and Consent Agreement
Legal Description of Rea( Property
(San Luis Obispo County)
Reaf property in the City of Morro Bay, County of San Luis Obispo, State of
Galifornia, described as follows:
That portion of the Speedway lot, in the City of Morro Bay, Gounty of San Luis
Obispo, State of California, according to the Map of the Atascadero Beach Tract
recorded July 2, 1917, in Book 2, Page 15 of Maps in the office of the County
Recorder described as:
Bounded on the East by the center [ine of C Street;
Bounded on the West by the easterly line of Embarcadero Road;
Bounded on the North by center line of 69th Street;
Bounded on the South by the center line on 79 Street;
as shown on said Tract and Map
APN: 066-331-028 and 940-000-140
�:7
CALIFORNIA ALL-FURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of San Luis Obispo
On December 10, 2018 before me,
personally appeared
Danielle C. Crawford, Notary Public
(Here insert name and tide of the officer)
Richard L. Koon, and Robert B, Enns
who proved to me on the basis of satisfactory evidelnce to be the persor�s whose narne0 ' ar subscribed to
the within instrument and acknowledged to me that he executed the same in hi;/hereir authorized
capacit ie ), and that by his/hefAg signature0 on the instrument the persoreor the entity upon behalf of
which the persole acted, executed the instrument.
I certify under• PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
DANIELLE C. CRAWFORD
Notary Public Calitomia
{�. • San Luis Obispo County
WITNESS mypa, d and official seal. Commission 4 2224432
My Comm. Expires Dec 7.2021
(Notary Seal)
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CAPACITY CLAIMED BY THE SIGNER
Individual (s)
[ICorporate Officer
(Title)
ElPartner(s)
El Attorney -in -Fact
ElTrustee(s)
❑ Other
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE W 1189
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document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Lki ,; OL I WI )
On �) �1C)l 9 before me, l G
Date
Here Insert Name and Title of the
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person whose name(�s/
subscribed to the within instrument and acknowledged to me that he/sly/>ey executed the same in
his/h>WtAdr authorized capacity(ig end that by his/,46w/t1eeir signatureCs}- n the instrument the person (
or the entity upon behalf of which the person,($} acted, executed the instrument.
HEATHER SUZANNE GOODWIN
I certify under PENALTY OF PERJURY under the laws
WITNESS my hand and official seal.
Signature of Nota Public
Place Notary Seal Above
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❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillilllI ME
Signer Is Representing:
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❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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