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HomeMy WebLinkAboutStaff Report 266-07TO: City of Palo Alto City Manager’s Rep_o__r) 1 HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE:JUNE 11, 2007 CMR:266:07 SUBJECT:APPROVAL OF AN AGREEMENT WITH SoLFOCUS, INC. FOR A SOLAR-ELECTRIC RESEARCH PROJECT AT THE REGIONAL WATER QUALITY CONTROL PLANT RECOMMENDATION Staff recommends that Council approve and authorize the City Manager to execute the attached agreement, Attachment A, with SolFocus, Inc. (SolFocus) for a solar-electric research project at the Regional Water Quality Control Plant (RWQCP). DISCUSSION The RWQCP is interested in solar power but has not been able to invest in solar due to high capital costs. SolFocus, located in Palo Alto, develops, manufactures, and markets products that generate electricity using solar concentrator photovoltaic technology. SolFocus needs a full- scale demonstration site to research, test, develop, and improve its large-scale solar projects near marine environments. SolFoeus contacted Sustainable Silicon Valley and the Palo Alto Utilities Department in search of a site to host the research project, and was referred to the RWQCP. The partnership between the RWQCP and SolFocus will be one of the first public-private partnerships to emerge ~om this important new growth industry and will highlight the role both governments and utilities can play in driving the adoption of renewable energy. Under this agreement, SolFocus will install an initial 10 - 15 KW demonstration unit on the grounds of the RWQCP at its own cost and will deliver power to the RWQCP at zero cost to the RWQCP. The agreement will terminate in October 2008 unless extended for a subsequent phase to expand the capacity to 100 KW. If the parties agree to extend to the subsequent phase, staff will return to Council with an amendment that sets forth the new terms and conditions. In the event the parties elect not to extend the agreement, SolFocus agrees to remove the equipment and return the site to its Original condition. RESOURCE IMPACT This agreement allows SolFocus the use and access to designated sites within the RWQCP property for the term of the agreement, which expires in October 2008 unless extended. There is no monetary impact to the City. CMR:266:07 Page 1 of 2 POLICY IMPLICATIONS Recommendation of this staff report is consistent with City Council’s Top 4 priority, Global Climate Protection. The project promotes renewable energy and reduces greenhouse gases while achieving a sustainable budget. ENVIRONMENTAL REVIEW This project is a minor alteration of an existing structure, which is categorically exempt from California Environmental Quality Act (CEQA) review pursuant to section 15301 of the California Code of Regulations Guidelines for Implementation of CEQA. ATTACHMENTS Attachment A: Agreement PREPARED BY: DEPARTMENT HEAD: Daisy Stark, Senior EngineeriRWQCP Richard Wetzel, Manager/RWQCP GLENN S. ROBERTS Director of Public Works CITY MANAGER APPROVAL: Assistant City Manager CMR:266:07 Page 2 of 2 ATTACHMENT A INSTALLATION AND USE AGREEMENT THIS AGREEMENT (hereinafter referred to as :’Agreement") is made and effective as of the __day of ,2007, by and between the City of Pale Alto, on behalf of the Pale Alto Regional Water Quality Control Plant (hereinafter referred to as "Plant"), a California municipal entity, and SolFoeus, Inc, a Delaware corporation having its offices at 3333 Coyote Hill Road, Pale Alto California 94304 (hereinafter referred to as "SolFoeus"). Plant and SolFoeus.may be collectively referred to herein as "Parties," *and each individually as a "Party." WHEREAS,. Plant has a desire to allow SolFoeus to operate a demonstration solar electricity, installation on the grounds oftbe Piant~ and~ WHEREAS, pursuant to Encroachment Permit and Temporary Lease #3240, issued by the City on October 30, 2006, andhereby incorporated herein by this reference (hereinafter referred to as the- "Permit"), SolFocus iS installing On the Plant property at a location mutually agreed upon by the Parties, five (5) solar concentrator arrays, capable of gen.erating approximately 10-15 KW, and related equipment and facilities necessary and useful to allow the Plant to take anduse alt power generated by the arrays. WHEREAS, SolFocus desires:to use the installation on the Plant property for demonstrating the performance of SolFoeus’ concentrating photovoltaic products, and WHEREAS, the purpose of this Agreement is to establish a mutual understanding of the basic principies upon which the Parties will undertake the product demonstration program (the "Program"), NOW THEREFORE, the Parties hereby mutually agree to proceed with the co- development of the’Program as follows: l.General Terms. I.I Use and access to the Plant property is granted under the terms and provisions ¯ stated in the Permit. 1.2 1.3 SolFocus has been and will eontinue to be solely responsible for the actual physical instal!ation of the solar arrays and related and aneill~ equipment, and facilities. All requirements for third party assistance with the physical installation have been and will=remain the sole responsibility of SolFoeus: SolFoeus is also solely :~pomible for the operation ~d maiiitenance of the install~ arrays and related and ancillary equipment:and facilities. SolFoeus and Plant have mutually agre~on the installation site(s). Pint agrees that no changes to the sel~ted installationloeation(s) ~ anticipated during the term of the Permit that would materially impact: 070604 syn 60~0158 1.4 1.5 1.7 1.8 070604 s~n ~0501:58 Good direct visibility to the sun, morning to night and. annually; e.g., there are no tall structure(s) planned to southwards of the installation; b.Existing security and limited public access. Plant agrees to continue to make the designated installation site(s) available for the remainder of the term of the Permit. Both Parties will be responsible for their own costs incurred in this project. The Plant’s costs are anticipated to be limited to land allocation overhead. So[Focus will not pay any fees to Plant, nor will Plan[ require any fees for use of the property for the purpose stated herein during the term of this Agreement ("Phase I") for use of the identified property. So[Focus shall retain all right, title and ownership in the arrays and all equipment, materials and other property installed or delivered as part of the installed arrays. Plant agrees to continue to provide to SolFocus or its authorized agents ace,s tO the plant under the terms of the Permit. The installation and operation of the 5 arrays during Phase I is for SolFocus test and development purposes only. So[Focus shall not owe any power to the Plant during Phase I; however, all power generated during Phase I shall be provided to the Plant free of charge. The Parties may mutually agree to engage a subsequent phase of this project that would anticipate the installation of an additional number of arrays, up to a possible 100KW, and the provision of electricity generated by the arrays to the Plant, This possible subsequent phase ("Phase II") will be subject to separate terms and conditions as agreed by the Parties at that time. This agreement does not obligate either Party to any element of a proposed or contemplated Phase 1I, or any furtherobligation other than stated herein. Term and Termination. This Agreement, unless extended by mutual written agreement of the Parties, shall expire on October 29, 2008. This Agreement may be amended or terminated earlier by mutual written agreement of the Parties at any time. Either Party shall also have the fight to terminate its participation in this Agreement, if the other Party is found to be in material breach of any of its obligations hereunder, and if such breach is not cured within thirty (30) days of written notice of the default. In the event that the City elects to terminate the Permit before October 29, 2008, Plant shall have the right to terminate this Agreement upon thirty (30) days written notice from the Plant manager. Deinstailation. If the Parties do not agree to continue this Agreement after Phase I, or if the Agreement is terminated for any reason, SolFocus agrees to remove the installed arrays and to take reasonable steps to return the install site to its original condition. This does not include removal of installed below-ground 2 t concrete platforms, or any amendments or changes to the property that may be provided by Plant. It does include removal of arrays, and such other electrical connection and monitoring equipment as was installed by SolFocus. All deinstallation costs shall be at SolFocus’ expense. Intellectual Property. SolFocus shall retain exclusive ownership of any intellectual property in existence before the Program took place ("Background Intellectual Property") and shall retain exclusive title and ownership to any intellectual property generated during the Program, (’Toreground Intellectual Property") that it developed, authored, or conceived in the performance of this Agreement. License. Nothing in this Agreement shall be construed as granting by SolFocus to Plant any license,: express or implied, or other right of use to any Background or Foreground Intellectual Property without the further written agreement of SolFo~us. 070604 sya 6050158 Confidential Information. 6.1 "Confidential Information" shall include (a) all information, data, analyses, documents, ideas, records, reports, notes, interpretations, opinions, forecasts and materials of a disclosing Party or its Representatives, in oral, written, electronic, computer-readable, or other tangible or intangible form, which may include, but is not limited to, discoveries, ideas, know-how, concepts, techniques, maps, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, spreadsheets, flow charts, energy loaddata, computer programs, disks, diskettes, tapes, marketing plans, customer: names and other technical, financial or business information, or of or about adisolosing Party or its Representative, furnished or made available by, the other Party .or its Representatives, andhbeled, marked or otherwise identified as "confidential" or "proprietary information", and is not available to the general public, (b) information derived from information described in (6.1)(a) above, and (c) all information relating to the customers or either party, including customer lists. 6.2 Confidential information:, disclosed by either party to the other shall be held by the recipient in confidence and not: (a)used by the recipient, for personal advantage of any kind, or (b) made available for third parties tO use. Each party will direct its employees, contractors, consultants and representatives= who have access to any COnfidential Information to comply with all the terms of this Section. The following information shall not be Confidential information, if: (i) it is or becomes available to the public through no wrongful act of the receiving party; (i i) it is already in the possession of the receiving party and not subject to any agreement of confidence between the parties; (iii) it is received from a third party without restriction for tile benefit ~of the disclosing.party and without breach of this Agreement; (iv) it is independently developed by the receiving party; (v) it is disclosed pursuant to a req~rement of law or a duly empowered government agency or a court of competent jurisdiction after due notice and an adequate opportunity to intervene is given to the disclosing party unless such notice is 3 o 10. prohibited. Upon termination or expiration of this Agreement, the receiving party shall at the disclosing party’s direction, either return or destroy all of the disclosing party’s Confidential information and so certify in writing. The obligations of this provision will survive for one (1) year after any termination or expiration of this Agreement. Publicity. No advertising or publicity shall be released or promotional activities undertaken by any Party in connection with this Agreement without the prior written approval of the other Party. SolFocus agrees that Plant may make oral and written reports and other communications regarding th¢ SolFocus product demonstration to the Pale Alto City Manager, City Council and other public officials, which reports and communications will be public reports and communications. Independent Contractor Status. During the term of this Agreement, each Party shall act as an independent contractor and not as an agent for the other Party. Indemnification by SolFocus. SolFocus shall indemnify, defend and hold harmless Plant and the City of Pale Alto, their officers, agents, employe~ and contractors, and each of them, from and against any and all .demands, claims, legal or administrative proceedings, losses, costs, penalties, fines, liens, judgments, damages and liabilities of any ldnd (collectively, "Losses"), arising in any manner out of (a) any injury to or death of any person or damage to or destruction of any property occurring in, on or about the Plant property, or any part thereof, whether the person or property of SolFocus, its officers, agents, employees, contractors or subcontractors (collectively, "Agents,’), its invitees, guests or business visitors (collectively, "Invitees")~ or third persons, relating in any manner to any use or activity under this Agreement, (b) any~failure by SolFocus to faithfully observe or perform any of the terms, covenants, or conditions of this Agreement, (c) the use of the Plant property or any activities conducted thereon by SolFocus, its Agents or Invitees, on, in, under or about the Plant property, any improvements permitted thereon, or into the environment; except solely to the extent of Losses resulting directly from the gross negligence or willful misconduct of Plant or Plant’s authorized representatives. SolFocus’ obligations under this Section shall survive the expiration or other termination of this Agreement. Assignment. This Agreement may not be assigned in whole or in part except that: 10.1 SolFocus may assign or transfer all of its respective rights and obligations under this Agreement, in their entirety, to (i) any of its respe.tive wholly or majority owned subsidiaries or business units upon sixty (60) calendar days written notice or (ii) a company which purchases all or substantially all of SolFocus’ stock, business or assets during a merger or acquisition; and 070604 syn 6050158 4 11. 12. 10.2 SolFocus may not assign or transfer its rights and obligations under this Agreement pursuant to this Section 10 without Plant’s express written consent, which consent may not be unreasonably withheld by Plant. Entire Understanding. This Agreement and the incorporated Permit constitute the entire understanding of the Parties with regard to its subject matter and supersede any .prior communications and exchanges. Oral modifications to this Agreement shall not be binding upon the Parties. Any modification to’this Agreement must be in writing and signed by the Parties. Limitation of Damages. In no event shall either Party be liable to the other Party for lost profits, cost of cover, punitive, consequential, special or incidental damages, however caused and on any theory of liability, arising out of or related to this Agreement, in any claim, dispute, arbitration or judicial proceeding. Neither Plant, nor the City of Paio Alto; nor any of its commissions, departments, boards, officers, agents or employees shall be liable for any damage to the property of So[Focus, its offiqers, agents, employees, contractors or subcontractors, or their employees, or for any bodily injury or death to such persons, resulting or arising from. the condition of the Plant property or its use by SolFocus. fl // 13. 14. 15. Choice of Law. The laws of the State of California shall be applied and be controlling for all purposes, and all matters relating to this Agreement. Counterp.arts. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and all of which together shall constitute a single instrument Representations and Warranties. 15.1 SolFocus represents and warrants that the execution and performance of this Agreement does not conflict with or result in a breach of. any other agreement to which it is a party. 15.2 SolFocus represents and warrants that it is duly organized, validly existing and in good standing under the laws of a state of the United States of America. 15.3 So[Focus represents and warrants that it has full power and authority to make, execute, deliver and perform this Agreement. 5 IN WITNF~S WHEREOF, the Parties have caused this Agreement to be signed by their duly authorized representatives on the day and year first listed above. SOLFOCUS, INC.CITY OF PALO ALTO Vice President Emily Harrison Assistant City Manager APPROVED AS TO FORM: Gary M. Baum City Attorney 070604 syn 6050158 6