Proposed Amended Financial Capacity Document
5.C.3
Attachment: Amended Financial Capacity Document - Edward Byrne JAG Grant 051014_Redacted (City Council Review of and Public Comment U.S. DEPARTMENT OF JUSTICE
OFFICE OF JUSTICE PROGRAMS
Approved: OMB No. 1121-0329
Expires 12/31/2023
AUDIT INFORMATION
9. b) Does the applicant nonprofit organization maintain offshore accounts for the purpose of avoiding paying the tax described in 26 U.S.C. 511(a)?
9. c) With respect to the most recent year in which the applicant nonprofit organization was required to file a tax return, does the applicant nonprofit organization believe (or assert) that it satisfies the requirements of 26 C.F.R. 53.4958-6 (which relate to the reasonableness of compensation of certain individuals)? If "Yes", refer to “Additional Attachments” under “What An Application Should Include” in the OJP solicitation (or application guidance) under which the applicant is submitting its application. If the solicitation/guidance describes the “Disclosure of Process related to Executive Compensation,” the applicant nonprofit organization must provide -- as an attachment to its application -- a disclosure that satisfies the minimum requirements as described by OJP.
For purposes of this questionnaire, an “audit” is conducted by an independent, external auditor using generally accepted auditing standards (GAAS) or Generally Governmental Auditing Standards (GAGAS), and results in an audit report with an opinion.
10. Has the applicant entity undergone any of the following types of audit(s)(Please check all that apply):
“Single Audit” under OMB A-133 or Subpart F of 2 C.F.R. Part 200 Financial Statement Audit
Defense Contract Agency Audit (DCAA) Other Audit & Agency (list type of audit):
None (if none, skip to question 13)
11. Most Recent Audit Report
Issued: Within the last Within the last Over 2 years ago N/A 12 months 2 years
Name of Audit Agency/Firm:
AUDITOR'S OPINION
Unqualified Opinion Qualified Opinion Disclaimer, Going Concern N/A: No audits as or Adverse Opinions described above
Enter the number of findings (if none, enter "0":
Enter the dollar amount of questioned costs (if none, enter "$0"):
Were material weaknesses noted in the report or opinion? Yes No
13. Which of the following best describes the applicant entity's accounting system:
ACCOUNTING SYSTEM
Manual Automated Combination of manual and automated
14. Does the applicant entity's accounting system have the capability to Yes No Not Sure identify the receipt and expenditure of award funds separately for each Federal award?
15. Does the applicant entity's accounting system have the capability to Yes No Not Sure record expenditures for each Federal award by the budget cost categories shown in the approved budget?
16. Does the applicant entity's accounting system have the capability to Yes No Not Sure record cost sharing ("match") separately for each Federal award, and maintain documentation to support recorded match or cost share?
Yes No
Yes No
12. On the most recent audit, what was the auditor’s opinion?
5.C.3
Attachment: Amended Financial Capacity Document - Edward Byrne JAG Grant 051014_Redacted (City Council Review of and Public Comment U.S. DEPARTMENT OF JUSTICE
OFFICE OF JUSTICE PROGRAMS
Approved: OMB No. 1121-0329
Expires 12/31/2023
17. Does the applicant entity's accounting system have the capability to Yes Not Sure accurately track employees actual time spent performing work for each federal award, and to accurately allocate charges for employee salaries and wages for each federal award, and maintain records to support the actual time spent and specific allocation of charges associated with each applicant employee?
18. Does the applicant entity’s accounting system include budgetary controls Yes No
Not Sure to preclude the applicant entity from incurring obligations or costs that exceed the amount of funds available under a federal award (the total amount of the award, as well as the amount available in each budget cost cate gory)?
19. Is applicant entity familiar with the "cost principles" that apply to recent No
Not Sure
and future federal awards, including the general and specific principles set out in 2 C.F.R Part 200? Yes No
PROPERTY STANDARDS AND PROCUREMENT STANDARDS
20. Does the applicant entity’s property management system(s) maintain the No Not Sure following information on property purchased with federal award funds (1) a Yes description of the property; (2) an identification number; (3) the source of funding for the property, including the award number; (4) who holds title; (5) acquisition date; (6) acquisition cost; (7) federal share of the acquisition cost; (8) location and condition of the property; (9) ultimate disposition information?
21. Does the applicant entity maintain written policies and procedures for Not Sure procurement transactions that -- (1) are designed to avoid unnecessary or duplicative purchases; (2) provide for analysis of lease versus purchase alternatives; (3) set out a process for soliciting goods and services, and (4) include standards of conduct that address conflicts of interest ?
22. a) Are the applicant entity’s procurement policies and procedures Yes No Not Sure designed to ensure that procurements are conducted in a manner that provides full and open competition to the extent practicable, and to avoid practices that restrict competition?
22. b) Do the applicant entity's procurement policies and procedure s require Yes No Not Sure documentation of the history of a procurement, including the rationale for the method of procurement, selection of contract type, selection or rejection of contractors, and basis for the contract price?
23. Does the applicant entity have written policies and procedures designed Yes No Not Sure to prevent the applicant entity from entering into a procurement contract under a federal award with any entity or individual that is suspended or debarred from such contracts, including provisions for checking the “Excluded Parties List” system (www.sam.gov) for suspended or debarred sub-grantees and contractors, prior to award? Yes No
TRAVEL POLICY
24. Does the applicant entity:
No (a) maintain a standard travel policy? Yes
(b) adhere to the Federal Travel Regulation (FTR)? Yes
SUBRECIPIENT MANAGEMENT AND MONITORING
No
Yes No Not Sure
N/A - Applicant does not make
25. Does the applicant entity have written policies, procedures, and/or guidance designed to ensure that any subawards made by the applicant entity under a federal award -- (1) clearly document applicable federal requirements, (2) are appropriately monitored by the applicant, and (3) comply with the requirements in 2 CFR Part 200 (see 2 CFR 200.331)? subawards under any OJP awards
5.C.3
Attachment: Amended Financial Capacity Document - Edward Byrne JAG Grant 051014_Redacted (City Council Review of and Public Comment
U.S. DEPARTMENT OF JUSTICE
OFFICE OF JUSTICE PROGRAMS
Approved: OMB No. 1121-0329
Expires 12/31/2023
26. Is the applicant entity aware of the differences between subawards under No Not Sure federal awards and procurement contracts under federal awards, including the different roles and responsibilities associated with each? N/A - Applicant does not make subawards under any OJP
awards
27. Does the applicant entity have written policies and procedures designed Yes
Not Sure
to prevent the applicant entity from making a subaward under a federal award to any entity or individual is suspended or debarred from such N/A - Applicant does not make subawards? subawards under any OJP
awards
Yes No
DESIGNATION AS 'HIGH-RISK' BY OTHER FEDERAL AGENCIES
28. Is the applicant entity designated “high risk” by a federal grant-making Yes No Not Sure agency outside of DOJ? (High risk includes any status under which a federal awarding agency provides additional oversight due to the applicant's past performance, or other programmatic or financial concerns with the applicant.) If "Yes", provide the following:
(a) Name(s) of the federal awarding agency:
(b) Date(s) the agency notified the applicant entity of the "high risk" designation:
(c) Contact information for the "high risk" point of contact at the federal agency:
Name:
Phone:
Email:
(d) Reason for "high risk" status, as set out by the federal agency:
CERTIFICATION ON BEHALF OF THE APPLICANT ENTITY
(Must be made by the chief executive, executive director, chief financial officer, designated authorized representative ("AOR"), or other official with the requisite knowledge and authority) On behalf of the applicant entity, I certify to the U.S. Department of Justice that the information provided above is complete and correct to the best of my knowledge. I have the requisite authority and information to make this certification on behalf of the applicant entity.
Name: Date:
Title: Executive Director Chief Financial Officer Chairman Other:
Phone:
5.C.3
Attachment: Amended Financial Capacity Document - Edward Byrne JAG Grant 051014_Redacted (City Council Review of and Public Comment
Staff Report re Reimbursement Agreement – LahavGE Ltd. – CC Mtg of 05/14/24.
CITY OF ARVIN
Staff Report
Meeting Date: May 14, 2024
TO: Arvin City Council
FROM: Jeff Jones, City Manager / Finance Director
SUBJECT: Consideration and Approval of Reimbursement Agreement between the City of Arvin and Lahav Green Energy Ltd. Related to A Proposed Solar Project.
BACKGROUND:
At the council meeting of April 23, 2024, the Arvin City Council approved providing LahavGE Ltd. with a letter of support for their solar project contingent upon LahavGE Ltd. signing a reimbursement agreement.
The Letter of Support did not bind the City to anything other than the requirement to engage in discussions and/or negotiations with Lahav once the Solar Project plans have been completed (the “City Commitment”). Such negotiations would include the use of City staff time, invoiced time of consultants engaged in writing by the City, and billed time of the City’s City Attorney to aid the City Council in determining whether to enter into an agreement to procure electricity from Lahav in the future (the reasonable, and documented costs associated with such City staff time, invoiced time of consultants engaged in writing by the City, and billed time of the City Attorney, collectively, the “City Costs”).
As a condition of the execution and issuance of the Letter, the City of Arvin required, and Lahav agreed to enter into a reimbursement agreement to reimburse the City for the City Costs.
The City Manager and City Attorney have reviewed the Reimbursement Agreement and recommend the Council’s approval.
STAFF RECOMMENDATION:
Staff recommends approval of the Reimbursement Agreement.
FINANCIAL IMPACT:
All costs will be reimbursed to the City of Arvin by LahavGE, Ltd.
ATTACHMENTS:
Reimbursement Agreement between the City of Arvin and Lahav Green Energy Ltd. including Attachment A – Letter of Support.
5.D.1
Attachment: Staff Report LahavGE Reimbursement Agreement related to solar project_051424 (LahavGE Ltd. Reimbursement Agreement -
REIMBURSEMENT AGREEMENT
CITY OF ARVIN AND LAHAV GREEN ENERGY, LTD
AGREEMENT NO. ____________
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement(“Agreement”) is entered into as of May 14, 2024 by and between the City of Arvin, a California municipal corporation (“City”) and Lahav Green Energy Ltd. (“Lahav”) with reference to the following facts:
RECITALS
A. Lahav has proposed to develop within Kern County and Arvin city limits an approximate 50MW ground mounted photovoltaic solar energy system with fuel cell generators (Bloom Energy) and as-needed back-up electric storage systems (the “Solar Project”).
B. In order for Lahav to move forward with development of the Solar Project, Lahav requested that the City provide the Letter (as defined below).
C. On or about April 23, 2024, the City Council for the City of Arvin approved providing Lahav a letter of support for the Solar Project. A fully executed, true, and correct copy of the letter of support is attached hereto as Attachment “A” and incorporated herein by reference (the “Letter”). The Letter of support did not bind the City to anything other than the requirement to engage in discussions and/or negotiations with Lahav once the Solar Project plans have been completed (the “City Commitment”). Such negotiations would include the use of City staff time, invoiced time of consultants engaged in writing by the City, and billed time of the City’s City Attorney to aid the City Council in determining whether to enter into an agreement to procure electricity from Lahav in the future (the reasonable, and documented costs associated with such City staff time, invoiced time of consultants engaged in writing by the City, and billed time of the City Attorney, collectively, the “City Costs”).
D. As a condition of the execution and issuance of the Letter, the City of Arvin required, and Lahav agreed to enter into a reimbursement agreement to reimburse the City for the City Costs.
NOW THEREFORE in consideration of the City's agreement to provide Lahav the Letter and engage with respect to the City Commitment, and for other good and valuable consideration, receipt of which is hereby acknowledged, and the mutual promises set forth below, the City and Lahav (individually a “Party” and collectively, the “Parties”) agree as follows:
I. City Costs.
5.D.2
Attachment: LahavGE Reimbursement Agreement - Final 051424 (LahavGE Ltd. Reimbursement Agreement - Solar Project)
REIMBURSEMENT AGREEMENT
CITY OF ARVIN AND LAHAV GREEN ENERGY, LTD
a. Internal and Out of Pocket Third Party Costs. Commencing on the date of this Agreement, Lahav shall reimburse the City for the City Costs, as defined in the recitals above, related to the Solar Project.
b. Time and Materials Basis. The City Costs shall be incurred and accrue on a time and materials basis. The hourly rates for City staff, the City Attorney and the City's consultants as of the date of this Agreement, if any, are set forth in the attached Attachment “B,” and may be updated from time to time by the City upon thirty (30) days' prior notice to Lahav.
c. Payments by Lahav. Lahav agrees to provide the City a reimbursement deposit in the amount of Ten Thousand Dollars ($10,000.00) (the “Reimbursement Deposit”).
On the first (1st) and fifteenth (15th) of every calendar month (or if such day is not a business day, on the following business day) the City shall provide an itemized update of all City Costs accrued but against which no portion of the Reimbursement Deposit was applied, in accordance with this Agreement. On a monthly basis, the City shall in writing request with Lahav that the remaining Reimbursement Deposit be applied against the outstanding City Costs by providing Lahav (i) in writing an accounting, invoices, and other documentation, reasonably satisfactory to Lahav as relate to the proposed reimbursements to be made out of the Reimbursement Deposit, through the date of the City’s request and (ii) ten (10) days after receipt by Lahav of such written request to partially or fully dispute the applicable outstanding City Costs. If Lahav disputes any such City Costs, the City may apply the remaining Reimbursement Deposit against any non-disputed amounts. Any disputes shall be resolved in accordance with Section III. When at any time the difference of the remaining Reimbursement Deposit minus any accrued City Costs against which no portion of the Reimbursement Deposit has yet been applied, in accordance with this Agreement, is (i) less than Two Thousand Dollars ($2,000.00) but (ii) greater than -$5,000 (meaning not more negative than negative five thousand dollars), the City shall request in writing that Lahav replenish the Reimbursement Deposit amount to bring the unencumbered balance to at least Ten Thousand Dollars ($10,000.00) and the City shall not accrue or cause to be accrued any further City Costs until such replenishment. At the time the City delivers such a request for replenishment to Lahav, the City shall also provide to Lahav an accounting, invoices, and other documentation, reasonably satisfactory to Lahav, of the reimbursements to be made out of the Reimbursement Deposit, through the date of the City’s request to replenish the Reimbursement Deposit in accordance with the terms of the Reimbursement Agreement. Lahav’s failure to replenish the Reimbursement Deposit in accordance with this Section I(c) shall not be a breach or default under this Agreement; provided, however, that the City’s Commitment shall be tolled until such replenishment has been made and either
5.D.2
Attachment: LahavGE Reimbursement Agreement - Final 051424 (LahavGE Ltd. Reimbursement Agreement - Solar Project)
REIMBURSEMENT AGREEMENT
CITY OF ARVIN AND LAHAV GREEN ENERGY, LTD
Party may terminate this Agreement in writing if the replenishment is not made within 30 days of the initial request therefore.
d. Monthly Reporting. If requested by Lahav, City and Lahav may meet regarding the then current status of City Costs and City Costs anticipated to be incurred in the subsequent month. The City may consider Lahav’s comments at such meeting, but the meeting will not limit, reduce or otherwise affect Lahav’s reimbursement obligations under this Agreement. Lahav shall remain liable for the City Costs pursuant to this Agreement, regardless of (a) any information or estimates provided by the City at such meeting, (b) the outcome of the meeting, the nature and content of Lahav’s comments, or (c) otherwise. The City shall not be obligated to meet with Lahav more than one time per month concerning the City Costs.
II. Notices. Any notice, demand, request, consent, approval or communication that either Party desires or is required to give to the other Party shall be in writing, (i) served personally or sent by prepaid, first-class mail and (ii) delivered by electronic mail. Any such notice, demand, etc. shall be addressed to the other Party at the address and sent to the email address of such other Party, as set forth below. Either Party may change its address by notifying the other Party of the change of address. A notice shall be deemed given on the sooner to occur of (A) if a physical notice, within 96 hours from the time of mailing if mailed as provided in this section and (B) if an electronic notice, on the same day of such sending, or, if not a business day in California, on the next business day.
If to City: City of Arvin
Attn: City Manager
200 Campus Drive
Arvin, CA 93203
Email: [email protected]
If to Lahav: Lahav Green Energy, Ltd
Attn: Ido Birenberg Europark,
Italia Building
2 nd Floor
Yakum, 6097200, Israel
Email: [email protected]
Any Party may change any of the foregoing as it relates to the Party by giving written notice to the other Party of the change in the manner set forth herein.
III. Disputes.
a. In the event that Lahav disputes any request for reimbursement or replenishment or accounting, invoices or other documentation provided to Lahav by the City pursuant to this Agreement, Lahav shall notify City in writing within ten (10) days of Lahav’s receipt of the reimbursement or invoice. If not disputed by Lahav within such ten (10) day period, the applicable requests for reimbursement or replenishment or accounting, invoices or other documentation by the City shall be deemed approved by Lahav.
5.D.2
Attachment: LahavGE Reimbursement Agreement - Final 051424 (LahavGE Ltd. Reimbursement Agreement - Solar Project)
REIMBURSEMENT AGREEMENT
CITY OF ARVIN AND LAHAV GREEN ENERGY, LTD
IV. General Provisions.
a. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement.
b. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
c. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Kern.
d. Time is of the essence with regard to each covenant, condition and provision of this Agreement.
e. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter herein and supersedes any prior oral and written agreements and understandings between the Parties with respect thereto. f. This Agreement may not be altered, amended, or modified except by a writing executed by duly authorized representatives of all Parties. g. In the event any action or proceeding is instituted arising out of or relating to this Agreement, the prevailing Party shall be entitled to its reasonable attorney's fees and actual costs.
h. This Agreement may be executed in counterparts. A facsimile or electronic copy of this Agreement shall be as effective as the original for all purposes. i. This Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective heirs, successors, and assigns. Notwithstanding the foregoing, neither Party shall assign this Agreement or any part thereof to any other entity or individual.
j. City and Lahav each acknowledge that each Party and their respective legal counsel have reviewed this Agreement and agree that this Agreement is the product of negotiations between the Parties. This Agreement shall be interpreted without reference to the rule of interpretation of documents that uncertainties or ambiguities therein shall be determined against the Party so drafting the Agreement. k. All references to a statute or ordinance, shall incorporate any, or all, successor statute or ordinance enacted to govern the activity now governed by the statute or ordinance, noted herein to the extent, however, that incorporation of such successor
5.D.2
Attachment: LahavGE Reimbursement Agreement - Final 051424 (LahavGE Ltd. Reimbursement Agreement - Solar Project)
REIMBURSEMENT AGREEMENT
CITY OF ARVIN AND LAHAV GREEN ENERGY, LTD
statute or ordinance does not adversely affect the benefits and protections granted to Lahav under this Agreement.
[Signature Page Follows]
5.D.2
Attachment: LahavGE Reimbursement Agreement - Final 051424 (LahavGE Ltd. Reimbursement Agreement - Solar Project)
REIMBURSEMENT AGREEMENT
CITY OF ARVIN AND LAHAV GREEN ENERGY, LTD
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement on the day and year written below.
CITY LAHAV*
CITY OF ARVIN,
a municipal corporation
By: __________________________
Name: ________________________
Title: _________________________
Dated: _______________, 202__
ATTEST:
Cecilia Vela, City Clerk
LAHAV GREEN ENERGY, LTD
By: ____________________________
Name: __________________________
Title: ___________________________
Dated: ______________, 202__
*Signature must be notarized. Please attach
acknowledgement
APPROVED AS TO FORM:
____________________________
Nathan M. Hodges, City Attorney
5.D.2
Attachment: LahavGE Reimbursement Agreement - Final 051424 (LahavGE Ltd. Reimbursement Agreement - Solar Project) Page
7 of 8
REIMBURSEMENT AGREEMENT
CITY OF ARVIN AND LAHAV GREEN ENERGY, LTD
ATTACHMENT “A”
LETTER OF SUPPORT
5.D.2
Attachment: LahavGE Reimbursement Agreement - Final 051424 (LahavGE Ltd. Reimbursement Agreement - Solar Project) Page
8 of 8
REIMBURSEMENT AGREEMENT
CITY OF ARVIN AND LAHAV GREEN ENERGY, LTD
ATTACHMENT “B”
REIMBURSABLE HOURLY RATES
City Staff:
City Manager $197.51 per hour
City Clerk $112.81 per hour
City Engineer $112.70 per hour
Grants Manager $103.60 per hour
City Planner $96.29 per hour
Consultants: - To be provided once a Consultant is Retained by the City City Attorney: - $380 per hour
5.D.2
Attachment: LahavGE Reimbursement Agreement - Final 051424 (LahavGE Ltd. Reimbursement Agreement - Solar Project)