Minutes — Cloverdale City Council, October 26, 2022 (part 1 of 2)

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124 N. Cloverdale Boulevard
Cloverdale, CA 95425
Phone: 707-894-2521
www.cloverdale.net

MINUTES - DRAFT

REGULAR MEETING OF THE CITY COUNCIL AND JOINT MEETING OF THE CLOVERDALE COMMUNITY

DEVELOPMENT SUCCESSOR AGENCY BOARD OF DIRECTORS
WEDNESDAY, OCTOBER 26, 2022

CLOVERDALE PERFORMING ART CENTER
209 N. CLOVERDALE BOULEVARD, CLOVERDALE, CA 95425

CLOSED SESSION
A. OPENING CLOSED SESSION:
-Call to Order: Mayor Lands called the meeting to order at 4 p.m. -Roll Call: Present: Mayor Lands, Vice Mayor Wolter, Councilmember Bagby, Cruz, Palla

Absent: None.
-Closed Session Agenda Review: None.

PUBLIC COMMENTS ON CLOSED SESSION AGENDA:

None.

RECESS TO CLOSED SESSION TO HEAR THE FOLLOWING ITEM(S):

Mayor Lands recessed the meeting to Closed Session at 4:02 p.m.

Mayor Lands rearranged the Closed Session Agenda to hear item A.4, followed by items A.1-A.3.

A.1 PUBLIC EMPLOYEE PERFORMANCE EVALUATION
(Pursuant to Government Code Section 54957)
Title: City Manager
Action: The item was received and filed.

A.2 CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Government Code Section 54957.6)
Labor Negotiator: City Attorney Sanchez
Employee: City Manager
Action: The item was received and filed.

A.3 CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Government Code Section 54957.6)
Labor Negotiator: City Manager Kelley and City Attorney Sanchez Employee Groups: Unrepresented Employees - Executive Management Staff Action: The item was received and filed.

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A.4 CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Government Code Section 54956.8)
Property: APN 116-110-025 and APN 116-110-024
Agency negotiator: City Attorney Sanchez, City Manager Kelley, and Assistant City Manager Thompson
Negotiating parties: Johnson Michael L TR ET AL c/o Gerald Angeli Under negotiation: Price and terms of payment
Action: The item was received and filed.

Mayor Lands adjourned Closed Session at 5:33 p.m.

OPEN SESSION
B. OPENING PUBLIC SESSION
-Call to Order: Mayor Lands called the meeting to order at 6:01 p.m. -Pledge of Allegiance: Mayor Lands led the pledge of allegiance. -Roll Call: Present: Mayor Lands, Vice Mayor Wolter, Councilmembers: Cruz, Bagby, Palla -Report out on Closed Session: Mayor Lands Presented.
-Conflict of Interest Declaration: Mayor Lands recused himself from item H.1 due to financial conflicts and Councilmember Cruz recused herself from item H.1 due to a personal relationship with involved parties. -Agenda Review: None.

C. PUBLIC COMMENTS
Shawn Bovee inquired on a New Business item comment period.

Rob Koslowsky inquired on water/sewer rates and communication.

D. COMMUNICATIONS
None.

E. PROCLAMATIONS/PRESENTATIONS
E.1 Student Liaison Report
Student Liaison Garcia reported.

F. CONSENT CALENDAR
Mayor Lands pulled item F.6 from the Consent Calendar at the request of Councilmember Cruz.

A motion was made by Councilmember Cruz, seconded by Councilmember Bagby, to waive reading of the text and adopt items F.1-F.5 of the Consent Calendar.

The motion carried by the following vote:

Ayes (5) - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Cruz, Palla Nay (0) - None
F.1 Approval of Minutes - October 12, 2022
Action: Approved as submitted.

F.2 Reappointment of Eric Sanders to the Planning Commission as a regular member with a term expiration of July 30, 2024, and appointment of Craig Carni as an alternate Commissioner with a term expiration of October 26, 2024
Action: Planning Commission Appointments Approved.

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F.3 Award of the Cloverdale City Park Basketball Project to Rege Construction, Inc. in the amount of $352,845
Action: Resolution was adopted.

RESOLUTION NO. 102-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE AWARDING CLOVERDALE 2ND STREET PARK BASKETBALL PROJECT TO REGE CONSTRUCTION, INC. IN THE AMOUNT OF $352,845, AUTHORIZE AND APPROVE AN OVERALL PROJECT BUDGET OF $388,129 (INCLUDES 10% CONTINGENCY) AND AUTHORIZE THE CITY MANAGER TO EXECUTE A CONTRACT WITH REGE CONSTRUCTION, INC.

F.4 Accepting Public Improvements for the Cherry Creek Village Project and authorizing City Manager to release the Performance Bond and the Payment Bond Action: Resolution was adopted.

RESOLUTION NO. 103-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE ACCEPTING PUBLIC IMPROVEMENTS CONSTRUCTED AT 520 SOUTH CLOVERDALE

BOULEVARD AND AUTHORIZING THE CITY MANAGER TO RELEASE UNDISPUTED PERFORMANCE BOND AND PAYMENT BOND.”
F.5 Minor Construction Agreement with PumpMan Norcal for maintenance/repair services at the City of Cloverdale Wastewater Treatment Plant
Action: Resolution was adopted.

RESOLUTION NO. 104-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CLOVERDALE APPROVING AN AGREEMENT WITH PUMPMAN NORCAL IN THE AMOUNT OF $36,830.29 FOR THE REPAIR OF THE EFFLUENT PUMP AT THE CITY’S WASTEWATER TREATMENT PLANT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT.

F.6 Adoption of Ordinance amending Title 9 of the Cloverdale Municipal Code to repeal Chapter

9.34, “Human Habitation of Vehicles and Campers”, and add Chapter 9.35, “Protection of Critical Infrastructure and Wildfire Risk Areas”
A motion was made by Councilmember Bagby, seconded by Vice Mayor Wolter, to waive reading of the text and adopt:

THE SECOND READING OF ORDINANCE 749-2022 ENTITLED: ORDINANCE OF THE CITY OF CLOVERDALE AMENDING TITLE 9 OF THE CLOVERDALE MUNICIPAL CODE TO REPEAL CHAPTER

9.34, “HUMAN HABITATION OF VEHICLES AND CAMPERS”, AND ADD CHAPTER 9.35, “PROTECTION OF CRITICAL INFRASTRUCTURE AND WILDFIRE RISK AREAS” and
RESOLUTION NO 105-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CLOVERDALE IDENTIFYING CRITICAL INFRASTRUCTURE FOR THE PURPOSE OF IMPLEMENTING CHAPTER 9.35, “PROTECTION OF CRITICAL INFRASTRUCTURE AND WILDFIRE RISK AREAS” OF THE CLOVERDALE MUNICIPAL CODE.

The motion carried by the following vote:

Ayes (4) - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Palla Nay (1) - Councilmember Cruz

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G. PUBLIC HEARINGS
G.1 Financing Plan for City’s participation in PG&E Turnkey Program.

City Manager Kelley introduced the item and members of the consultant team presented.

Staff and Consultants responded to Councilmember inquiries and comments.

Mayor Lands opened the Public Hearing at 7:05 p.m.

Resident Koslovsky spoke regarding the project.

City Manager Kelley responded to Public Hearing comments.

Mayor Lands closed the Public Hearing at 7:13 p.m.

Council commented on the item.

A motion was made by Councilmember Bagby, seconded by Vice Mayor Wolter, to waive reading of the text and adopt:

RESOLUTION NO. 106-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE APPROVING THE PG&E INVESTMENT GRADE AUDIT (“IGA”) AND SUSTAINABLE

SOLUTIONS TURNKEY IMPLEMENTATION WORK ORDER FOR VARIOUS ENERGY AND RETROFIT PROJECTS (“PROJECT’) FOLLOWING THE TERMS OF THE PG&E MASTER SERVICE AGREEMENT AND

AUTHORIZING THE CITY MANAGER TO SUBMIT DOCUMENTATION AND EXECUTE AND ASSOCIATED AGREEMENTS AND APPLICATIONS TO IMPLEMENT THE PROJECT.

The motion carried by the following vote:

Ayes (5) - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Cruz, Palla Nay (0) - None.

A motion was made by Councilmember Bagby, seconded by Councilmember Palla, to waive reading of the text and adopt:

RESOLUTION NO. 107-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CLOVERDALE APPROVING AN EQUIPMENT LEASE PURCHASE AGREEMENT WITH BANC OF AMERICA

PUBLIC CAPITAL CORP (OR ONE OF ITS AFFILIATES) AND RELATED DOCUMENTS AND ACTIONS INCLUDING PROFESSIONAL SERVICES AGREEMENTS WITH W.J. FAWELL CO. (MUNICIPAL ADVISOR)

AND JONES HALL (BOND COUNSEL), AND A PLACEMENT AGENT AGREEMENT WITH OPPENHEIMER & CO., INC.

The motion carried by the following vote:

Ayes (5) - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Cruz, Palla Nay (0) - None.

Mayor Lands recessed the meeting at 7:20 p.m. and reconvened at 7:27 p.m.

H. NEW BUSINESS
Mayor Lands and Councilmember Cruz left the meeting at 7:27 p.m.

Vice Mayor Wolter presided over item H.1.

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H.1 Seed to Soul Payment Plan for local cannabis permitting fees.

Assistant City Manager Thompson and City Manager Kelley presented.

Public Comment:

Jammie King spoke in opposition to the item.

Erin Gore spoke in opposition to the item.

Shawn Bovee spoke regarding the item.

Councilmembers commented on the item and Staff responded to Councilmember inquiries.

Action: The resolution failed due to lack of a motion.

Mayor Lands and Councilmember Cruz returned to the meeting at 7:54 p.m.

H.2 Discussion on RHNA transfer agreement MOU between the County of Sonoma and City of Cloverdale City Manager Kelley presented and responded to Councilmember inquiries.

Councilmembers commented on the item.

A motion was made by Councilmember Cruz, seconded by Councilmember Palla, to authorize the City Manager to execute the MOU.

The motion carried by the following vote:

Ayes (5) - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Cruz, Palla Nay (0) - None.

H.3 Approve a Resolution of the City Council of the City of Cloverdale Approving a Fourth Amendment to At-Will Employment Agreement Between the City of Cloverdale and David Kelley for the Position of City Manager
City Attorney Sanchez presented.

Council commented on the item.

A motion was made by Councilmember Bagby, seconded by Councilmember Palla, to waive reading of the text and adopt:

RESOLUTION NO. 108-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CLOVERDALE APPROVING A FOURTH AMENDMENT TO AT-WILL EMPLOYMENT AGREEMENT BETWEEN THE CITY OF CLOVERDALE AND DAVID KELLEY FOR THE POSITION OF CITY MANAGER.

The motion carried by the following vote:

Ayes (5) - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Cruz, Palla Nay (0) - None.

I. SUBCOMMITTEE REPORTS
Councilmembers reported.

Finance, Administration & Police: Next Meeting - Nov. 7, 2022 Planning & Sustainability: Next Meeting - Dec. 20, 2022 Public Works & Facilities: Next Meeting - Nov. 16, 2020 Joint City/Cloverdale Unified School District: Next Meeting - Nov. 14, 2022 Homelessness Community Advisory Group: Next Meeting - November 8, 2022

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J. COUNCIL REPORTS
None.

K. LEGISLATIVE REPORTS, LETTERS OF SUPPORT/OPPOSITION
City Manager Kelly and Mayor Lands reported.

Councilmembers reported.

L. CITY MANAGER/CITY ATTORNEY REPORT(S)
City Manager Kelley reported.

City Attorney Sanchez reported and responded to Councilmember inquiries.

M. STATUS UPDATES
CURRENT IMPACTS TO WATER SUPPLY - City Manager Kelley reported.

COVID-19 EMERGENCY - None.

N. COUNCIL DIRECTION ON FUTURE AGENDA ITEMS
Councilmember Cruz reported and Chief Ferguson responded to inquiries.

O. ADJOURNMENT
Mayor Lands adjourned the meeting at 8:34 p.m.

Approved On: November 9, 2022
_________________________
Mike Maloney, City Clerk
124 N. Cloverdale Boulevard
Cloverdale, CA 95425
Phone: 707-894-2521
www.cloverdale.net
CLOSED SESSION: 4 PM
THIS PORTION OF THE MEETING WILL BE CLOSED TO THE PUBLIC IN PERSON.

THE ZOOM LINK IS AVAILABLE BELOW FOR PUBLIC COMMENTS PRIOR TO CLOSED SESSION.

OPEN SESSION: 6 PM

THIS PORTION OF THE MEETING WILL BE OPEN TO THE PUBLIC

BOTH IN PERSON AND VIA THE ZOOM LINK BELOW
PUBLIC PARTICIPATION:

City Council welcomes your interest, attendance, and participation at Public Session Meetings.

Attendees may join in-person at the Cloverdale Performing Arts Center - 209 N. Cloverdale Blvd, virtually at www.zoom.us/join, or by telephone: 1-(669) 900-6833, both using Meeting ID: 886 4841 6804, or directly at https://us02web.zoom.us/j/88648416804?pwd=QjFHTkt1TGIwMVN4V1lQR0FLRmw1UT09.

Regular City Council meetings are also streamed on YouTube via live webcast at cloverdale.net/youtube.

Members of the public can provide comment on an agenda Item In-Person or online via Zoom during the public comment periods. Zoom attendees will be muted until they are called upon by the Mayor or City Clerk. To make a public comment on Zoom, use the raise hand icon, or dial*9 if you are calling in. Please state your name for the record. Once you start, you will have three (3) minutes to speak. Please note the Council is unable to respond directly to questions or enter into dialogue with commenters. Written comments may alternatively be submitted prior to the meeting via email to the City Clerk at [email protected]. Please note all emails received are considered public records and subject to disclosure under the California Public Records Act.

Matters on the agenda may be taken out of order and Council may recess for breaks.

Members of the City Council may participate in the meeting in person or via Zoom consistent with the provisions of Assembly Bill 361 amending the Brown Act.

AGENDA

REGULAR MEETING OF THE CITY COUNCIL AND JOINT MEETING OF THE CLOVERDALE COMMUNITY

DEVELOPMENT SUCCESSOR AGENCY BOARD OF DIRECTORS
WEDNESDAY, OCTOBER 26, 2022

CLOVERDALE PERFORMING ART CENTER
209 N. CLOVERDALE BOULEVARD, CLOVERDALE, CA 95425
1 CLOSED SESSION
A. OPENING CLOSED SESSION:
-Call to Order
-Roll Call
-Closed Session Agenda Review (Changes and/or Deletions) PUBLIC COMMENTS ON CLOSED SESSION AGENDA:

Prior to recessing into Closed Session, the public may speak on items to be addressed in Closed Session. Per City Council Policy, three minutes are allotted to each speaker.

RECESS TO CLOSED SESSION TO HEAR THE FOLLOWING ITEM(S):

A.1 PUBLIC EMPLOYEE PERFORMANCE EVALUATION
(Pursuant to Government Code Section 54957)
Title: City Manager
A.2 CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Government Code Section 54957.6)
Labor Negotiator: City Attorney Sanchez
Employee: City Manager
A.3 CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Government Code Section 54957.6)
Labor Negotiator: City Manager Kelley and City Attorney Sanchez Employee Groups: Unrepresented Employees - Executive Management Staff A.4 CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Government Code Section 54956.8)
Property: APN 116-110-025 and APN 116-110-024
Agency negotiator: City Attorney Sanchez, City Manager Kelley, and Assistant City Manager Thompson
Negotiating parties: Johnson Michael L TR ET AL c/o Gerald Angeli Under negotiation: Price and terms of payment

OPEN SESSION
B. OPENING PUBLIC SESSION
-Call to Order
-Pledge of Allegiance
-Roll Call
-Report out on Closed Session
-Conflict of Interest Declaration
-Agenda Review (Changes and/or Deletions)
C. PUBLIC COMMENTS
Any person wishing to speak to the City Council on any item not listed on the agenda may do so at this Jme.

Members of the public have the right to speak on any item on the Council Agenda at the Jme the item comes up for consideraJon. Pursuant to the Brown Act, the City Council is not allowed to consider issues or take acJon on 2 any item not listed on the agenda. Three minutes are typically allotted to each speaker.

D. COMMUNICATIONS
Council may discuss at this Jme wriKen communicaJons sent to Councilmembers since the last council meeJng.

Written communications to be discussed will be listed below, if any.

E. PROCLAMATIONS/PRESENTATIONS
E.1 Student Liaison Report
F. CONSENT CALENDAR
All items under the Consent Calendar will be considered together by one acJon of the City Council unless any Councilmember or member of the public requests that an item be removed and considered separately.

F.1 Approval of Minutes - October 12, 2022
F.2 Reappointment of Eric Sanders to the Planning Commission as a regular member with a term expiration of July 30, 2024 and appointment of Craig Carni as an alternate commissioner with a term expiration of October 26, 2024.

Recommended Action(s):

F.3 Award of the Cloverdale City Park Basketball Project to Rege Construction, Inc. in the amount of $352,845.

Recommended Action(s):

Adopt resolution entitled, “A Resolution of the City Council of the City of Cloverdale Awarding Cloverdale 2nd Street Park Basketball Project to Rege Construction, Inc. in the amount of $352,845, authorize and approve an overall project budget of $388,129 (includes 10% Contingency) and authorize the City Manager to execute a contract with Rege Construction, Inc.” F.4 Accepting Public Improvements for the Cherry Creek Village Project and authorizing City Manager to release the Performance Bond and the Payment Bond.

Recommended Action(s):

Adopt a resolution titled, “A Resolution of the City Council of the City of Cloverdale Accepting Public Improvements constructed at 520 South Cloverdale Boulevard and authorizing the City Manager to release undisputed Performance Bond and Payment Bond.”
October 12, 2022 - Draft Minutes
Agenda Report
Attachment 1 - Eric Sanders Application
Atttachment 2 - Craig Carni Application
Agenda Report
Attachment 1 - Resolution
Attachment 2 - Bid Results
Agenda Report
Attachment 1 - Resolution
3 F.5 Minor Construction Agreement with PumpMan Norcal for maintenance/repair services at the City of Cloverdale Wastewater Treatment Plant
Recommended Action(s):

Adopt a Resolution entitled, "A Resolution of the City Council of the City of Cloverdale approving an agreement with PumpMan Norcal in the amount of $36,830.29 for the repair of the Effluent Pump at the City’s Wastewater Treatment Plant and authorizing the City Manager to execute said agreement." F.6 Adoption of Ordinance amending Title 9 of the Cloverdale Municipal Code to repeal Chapter 9.34, “Human Habitation of Vehicles and Campers”, and add Chapter 9.35, “Protection of Critical Infrastructure and Wildfire Risk Areas”.

Recommended Action(s):

1. Hold second reading and adopt by title only entitled: “An Ordinance of the City of Cloverdale amending Title 9 of the Cloverdale Municipal Code to repeal Chapter 9.34, “Human Habitation of Vehicles and Campers”, and add Chapter 9.35, “Protection of Critical Infrastructure and Wildfire Risk Areas”.

2. Adopt a Resolution entitled, “A Resolution of the City Council of the City of Cloverdale identifying critical infrastructure for the purpose of implementing Chapter 9.35, “protection of critical infrastructure and wildfire risk areas” of the Cloverdale Municipal Code.

G. PUBLIC HEARINGS
G.1 Financing Plan for City’s participation in PG&E Turnkey Program.

Recommended Action(s):

Hold a Public Hearing, consider all findings, hear public comment, and adopt Resolutions entitled:

1. A Resolution of the City Council of the City of Cloverdale approving the PG&E Investment Grade Audit (“IGA”) and Sustainable Solutions Turnkey Implementation Work Order for Various Energy and Retrofit Projects (“Project’) following the Terms of the PG&E Master Service Agreement and Authorizing the City Manager to Submit Documentation and Execute and associated Agreements and Applications to implement the project.

2. A Resolution of the City Council of the City of Cloverdale approving an equipment lease purchase agreement with Banc of America Public Capital Corp (or one of its affiliates) and related documents and actions including Professional Services Agreements with W.J. Fawell Co. (Municipal Advisor) and Jones Hall (Bond Counsel), and a Placement Agent Agreement with Oppenheimer & Co., Inc.

Agenda Report
Attachment 1 - Resolution
Attachment 2 - Exhibit A - Pumpman Proposal
Agenda Report
Attachment 1 - Ordinance
Attachment 2 - Exhibit A - Protection of Critical Infrastructure and Wildfire Risk Areas Attachment 3 - Resolution
Attachment 4 - Exhibit A - List of Critical Infrastructure Agenda Report
Attachment 1 - Presentation
Attachment 2 - Resolution - Approving IGA Findings and Implementation WO 4 H. NEW BUSINESS
H.1 Seed to Soul Payment Plan for local cannabis permitting fees.

Recommended Action(s):

Adopt a resolution authorizing the City Manager to enter into an agreement with Patrick King, part owner of Seed to Soul cannabis business establishing a payment plan for past due permit fees.

H.2 Discussion on RHNA transfer agreement MOU between the County of Sonoma and City of Cloverdale Recommended Action(s):

Review Memorandum of Agreement between the County of Sonoma and City of Cloverdale regarding Transfer of Regional Housing Needs Allocation and provide direction to staff including whether to authorize the City Manager to execute the MOU.

Approve the Resolution of the City Council of the City of Cloverdale Approving a Fourth Amendment to At-Will Employment Agreement Between the City of Cloverdale and David Kelley for the Position of City Manager.

I. SUBCOMMITTEE REPORTS
Finance, Administration & Police: Next Meeting - Nov. 7, 2022 Planning & Sustainability: Next Meeting - Dec.20, 2022
Public Works & Facilities: Next Meeting - Nov. 16, 2020 Joint City/Cloverdale Unified School District: Next Meeting - Nov. 14, 2022 Attachment 3 - Exhibit A - IGA Results
Attachment 4 - Exhibit B - SST Cloverdale Implementation WO Attachment 5 - Resolution - Approving a Lease Purchase Agreement and Financing Attachment 6 - Exhibit A - Cloverdale Equipment Lease Purchase Agreement (CA Annual Appropriation)
Attachment 7 - Exhibit B - Cloverdale Escrow Account and Control Agreement Attachment 8 - Exhibit C - Jones Hall Agreement
Attachment 9 - Exhibit D Municipal Advisor Agreement
Attachment 10 - Exhibit E - Placement Agent Agreement with Oppenheimer & Co. Inc.

Attachment 11 - Cloverdale Memo - OpCo Discussions with Lenders Attachment 12 - Cloverdale BofA Equip Financing Proposal and Terms Agenda Report
Attachment 1 - Resolution
Agenda Report
Attachment 1 - Draft MOU Transfer Agreement
Attachment 2 - ABAG Transfer Request Letter
Attachment 3 - Letter from Tennis Wick, PRMD
Agenda Report
Attachment 1 - Resolution
Attachment 2 - Exhibit A - 4th Amendment to At-Will Employment Agreement 5 Homelessness Community Advisory Group: Next Meeting - November 8, 2022 J. COUNCIL REPORTS
K. LEGISLATIVE REPORTS, LETTERS OF SUPPORT/OPPOSITION
L. CITY MANAGER/CITY ATTORNEY REPORT(S)
M. STATUS UPDATES

CURRENT IMPACTS TO WATER SUPPLY
COVID-19 EMERGENCY
N. COUNCIL DIRECTION ON FUTURE AGENDA ITEMS
O. ADJOURNMENT
The next regular meeting of the City Council is scheduled for November 9, 2022.

CERTIFICATE OF POSTING
I, Mike Maloney, City Clerk, do hereby declare under penalty of perjury that the foregoing agenda was posted on 1) the outdoor bulletin board at City Hall, 124 N. Cloverdale Blvd., Cloverdale, CA 95425, and 2) Cloverdale Performing Arts Center, 209 N. Cloverdale Blvd., Cloverdale, CA 95425; online at cloverdale.net/agendacenter and made available for public review at least 72 hours prior to the meeting as required by the Brown Act.

Date posted: 10.20.2022 Time posted: 4:30 p.m. City Clerk Signature: s/Mike Maloney

IMPORTANT NOTICES REGARDING CITY COUNCIL MEETINGS
DISABLED OR SPECIAL NEEDS ACCOMMODATION: In compliance with the Americans with DisabiliJes Act, if you need assistance to aKend or parJcipaJon in a City Council meeJng, please contact the City Clerk's office at 894-2521.

NoJficaJon at least 72 hours prior to the meeJng will assist the City Clerk in assuring those reasonable accommodations are made to provide accessibility to the meeting.

AB343 REQUIREMENTS: Any wriJngs or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspecJon in the City Hall offices located at 124 N. Cloverdale Blvd., Cloverdale, CA 95425 during normal business hours.

WAIVER WARNING: If you challenge decisions/direcJons of the City Council in court, you may be limited to raising only those issues you or someone else raised at public hearings described in this agenda, or in wriKen correspondence delivered to the City of Cloverdale, or prior to, the public hearing.

TRANSCRIPTIONS: The City does not transcribe its proceedings. Anyone who desires a verbal record of this meeJng should arrange for an aKendant by a court reporter or for other acceptable means of recording. Such arrangement will be at the sole expense of the individual requesJng the recordaJon. QuesJon about this agenda should be directed to City Hall at 707-894-2521. Video recordings are available at cloverdale.net/agendacenter The City of Cloverdale thanks you in advance for taking all precautions to prevent spreading COVID-19. 6

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124 N. Cloverdale Boulevard
Cloverdale, CA 95425
Phone: 707-894-2521
www.cloverdale.net

MINUTES - DRAFT

REGULAR MEETING OF THE CITY COUNCIL AND JOINT MEETING OF THE CLOVERDALE

COMMUNITY DEVELOPMENT SUCCESSOR AGENCY BOARD OF DIRECTORS WEDNESDAY, OCTOBER 12, 2022
6:00 PM

CLOVERDALE PERFORMING ART CENTER
209 N. CLOVERDALE BOULEVARD, CLOVERDALE, CA 95425
A. OPENING PUBLIC SESSION
Call to Order - Mayor Lands called the meeting to order at 6:00 p.m.

Pledge of Allegiance - Mayor Lands led the Pledge of Allegiance.

Roll Call - Present - Mayor Lands, Vice Mayor Wolter, Councilmembers: Cruz, Bagby, Palla Absent - None.

Conflict of Interest Declaration - Councilmember Bagby recused from Item G.1 due to proximity to the project. Councilmember Cruz recused from item E.7 due to proximity to the record.

Agenda Review - None.

B. PUBLIC COMMENTS
None.

C. COMMUNICATIONS
None.

D. PROCLAMATIONS/PRESENTATIONS
D.1 Student Liaison Report
Student Liaison Garcia reported.

D.2 Proclamation - Children's Environmental Health Day
Mayor Lands presented the proclamation.

E. CONSENT CALENDAR
Mayor Lands pulled item E.1 and E.7 from the Consent Calendar at the request of Councilmember Cruz A motion was made by Councilmember Palla, seconded by Councilmember Bagby, to waive reading of the text and adopt the Consent Calendar with the exception of item E.1 and E.7.

The motion carried by the following vote:

Ayes: 5 - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Cruz, Palla E.2 A Resolution of the City Council of the City of Cloverdale Authorizing Remote Teleconference Meetings of the City in Compliance with Assembly Bill 361 7

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Action: Resolution was adopted.

RESOLUTION NO. 095-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CLOVERDALE AUTHORIZING REMOTE TELECONFERENCE MEETINGS OF THE CITY OF CLOVERDALE OF THE CITY IN COMPLIANCE WITH ASSEMBLY BILL 361.

E.3 Resolution Approving the City of Cloverdale’s Salary Schedule effective July 1, 2022.

Action: Resolution was adopted.

RESOLUTION NO. 096-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE ADOPTING THE CITY OF CLOVERDALE’S CURRENT SALARY SCHEDULE EFFECTIVE JULY 1, 2022.

E.4 Budget Amendment for Adopted Cost of Living Adjustments and $2,000 One-time Bonus Action: Resolution was adopted.

RESOLUTION NO. 097-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE APPROVING A BUDGET AMENDMENT TO THE FY 2022-23 BUDGET IN THE AMOUNT OF $325,455 FOR SALARY AND EMPLOYEE BENEFITS EXPENSES ASSOCIATED WITH THE

APPROVAL OF MEMORANDUM OF UNDERSTANDINGS WITH THE CLOVERDALE POLICE OFFICERS

ASSOCIATION (CPOA), CLOVERDALE DISPATCH ASSOCIATION (CDA), CLOVERDALE CLASSIFIED EMPLOYEES’ ASSOCIATION (CCSEA), A COMPENSATION PLAN WITH THE UNAFFILIATED EMPLOYEES, AND, AMENDED EMPLOYMENT AGREEMENTS WITH SENIOR STAFF.

E.5 Annual Maintenance Services Agreement with Miksis Services, Inc. to Provide Sewer Maintenance and Rehabilitation
Action: Resolution was adopted.

RESOLUTION NO. 098-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CLOVERDALE APPROVING A NEW ANNUAL MAINTENANCE SERVICES AGREEMENT WITH MIKSIS SERVICES, INC. TO PROVIDE SEWER MAINTENANCE/REHABILITATION IN AN AMOUNT NOT TO EXCEED $185,662.00 AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT.

E.6 Budget Amendment to incorporate expenditures and Authorizing West Yost & Associates, Inc. to prepare a Recycled Water Feasibility Study and Planning Grant Application Action: Resolution was adopted.

RESOLUTION NO. 099-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CLOVERDALE APPROVING A BUDGET AMENDMENT APPROPRIATING FUNDING AND AUTHORIZING WEST YOST & ASSOCIATES, INC. TO PREPARE A RECYCLED WATER FEASIBILITY STUDY AND PLANNING GRANT APPLICATION.

E.1 Minutes Approval - September 28, 2022

A motion was made by Councilmember Cruz, seconded by Councilmember Palla, to adopt the September 28, 2022 Minutes as amended.

The motion carried by the following vote:

Ayes: 5 - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Cruz, Palla Councilmember Cruz left the meeting at 6:13 p.m.
8

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E.7 Purchase and Sale Agreement (PSA) with Cloverdale Unified School District for a portion of Thyme Square.

A motion was made by Councilmember Bagby, seconded by Vice Mayor Wolter, to waive reading of the text and adopt:

RESOLUTION NO. 100-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

CLOVERDALE APPROVING A PURCHASE AND SALE AGREEMENT (PSA) WITH CLOVERDALE UNIFIED SCHOOL DISTRICT, A CALIFORNIA SCHOOL DISTRICT FOR A 0.23 ACRE PORTION OF LOT “C” (SONOMA COUNTY ASSESSOR’S PARCEL NUMBER 001-440-049) ON THE THYME SQUARE FINAL MAP

FOR CONSTRUCTION OF A SCHOOL BUS LOADING AND TURNAROUND AREA AND ASSOCIATED PEDESTRIAN IMPROVEMENTS.

The motion carried by the following vote:

Ayes: 4 - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Palla Recused: 1 - Councilmember Cruz
Councilmember Cruz returned to the meeting, and Councilmember Bagby left the meeting at 6:14 p.m.

F. PUBLIC HEARINGS
None
G. NEW BUSINESS
G.1 A Resolution of the City Council of the City of Cloverdale designating the City of Cloverdale’s Priority Project and authorizing submittal of application to the Sonoma County Community Development Commission for fiscal Year 2022-23 Community Development Block Grant Funding for the City 1st street sidewalk ADA improvement project Assistant City Manager Thompson presented.

Councilmembers commented.

A motion was made by Councilmember Palla, seconded by Councilmember Cruz, to waive reading of the text and adopt:

RESOLUTION NO. 101-2022 ENTITLED: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE DESIGNATING THE CITY OF CLOVERDALE’S PRIORITY PROJECT AND AUTHORIZING

SUBMITTAL OF AN APPLICATION TO THE SONOMA COUNTY COMMUNITY DEVELOPMENT COMMISSION FOR FISCAL YEAR 2022-2023 COMMUNITY DEVELOPMENT BLOCK GRANT (“CDBG”) FUNDING FOR THE 1ST STREET SIDEWALK ADA PROJECT.

The motion carried by the following vote:

Ayes: 4 - Mayor Lands, Vice Mayor Wolter, Councilmembers: Cruz, Palla Recused: 1 - Councilmember Bagby
Councilmember Bagby returned to the meeting at 6:19 p.m.

G.2 Amendment of Title 9 of the Cloverdale Municipal Code to add chapter 9.35.

City Manager Kelley introduced the item and Chief Ferguson presented.

Staff responded to Councilmember inquiries and comments. 9

Page 4 of 4 ends

A motion was made by Councilmember Bagby, Seconded by Councilmember Palla, to waive first reading of the text and adopt:

ORDINANCE NO. 749-2022 ENTITLED: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE AMENDING TITLE 9 OF THE CLOVERDALE MUNICIPAL CODE TO REPEAL CHAPTER

9.34, “HUMAN HABITATION OF VEHICLES AND CAMPERS,” ADD CHAPTER 9.35, “PROTECTION OF CRITICAL INFRASTRUCTURE AND WILDFIRE RISK AREAS”.

The motion passed by the following vote:

Ayes: 4 - Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Palla Noes: 1 - Councilmember Cruz
Staff received direction from Council regarding the accompanying resolution for the second reading of the ordinance.

H. SUBCOMMITTEE REPORTS
City Clerk Maloney reported.

I. COUNCIL REPORTS
No verbal reports
J. LEGISLATIVE REPORTS, LETTERS OF SUPPORT/OPPOSITION
City Manager Kelley reported and Councilmembers commented.

K. CITY MANAGER/CITY ATTORNEY REPORT(S)
City Manager Kelley reported and responded to Councilmember inquiries.

City Attorney Sanchez reported.

L. STATUS UPDATES
CURRENT IMPACTS TO WATER SUPPLY - None.

COVID-19 EMERGENCY - None.

M. COUNCIL DIRECTION ON FUTURE AGENDA ITEMS
None.

N. ADJOURNMENT
Mayor Lands adjourned the meeting at 7:29 p.m. to the Special Closed Session Meeting scheduled for October 14, 2022
Approved On: October 26, 2022
_________________________
Mike Maloney, City Clerk
10 City Council/Successor Agency
Agenda Item Summary Agenda Item:

Meeting Date:

F.2
October 26, 2022
Agenda Section:

Consent
Staff Contact:

Kevin Thompson, Assistant City Manager/Comm. Dev. Director Agenda Item Title:

Reappointment of Eric Sanders to the Planning Commission as a regular member with a term expiration of July 30, 2024 and appointment of Craig Carni as an alternate commissioner with a term expiration of October 26, 2024.
________________________________________________________________________________________ Recommended Council Action(s):

By motion, approve Mayor Lands proposed reappointment Eric Sanders as a regular member of the Planning Commission for a term to expire on July 30 2023 and appointment of Craig Carni as an alternate commissioner with a term expiration of October 26, 2024.
________________________________________________________________________________________ Background/Summary:

Mayor Lands is proposing the reappointment of commissioner Eric Sanders to a regular member position on the Cloverdale Planning Commission. Mr. Sanders submitted a letter of resignation on August 28, 2022, due to a potential change in employment. Since then, he has informed staff his employment status has not changed, and he wishes to continue his service on the Planning Commission. Based on Mr. Sandersrespective backgrounds, qualifications, and previous experience on the Planning Commission Mayor Lands believes he is best fit for the position. If approved, Mr. Sanders will finish out his original appointment ending July 30, 2024. Mr. Carni has also applied for the alternate position, which Mayor Lands has approved.

City Staff continues to solicit applications from potential candidates to fill the remaining alternate vacancy on the Planning Commission. To date, we have not received applications. According to Cloverdale Municipal Code (CMC) Section 2.36.010, the Planning commission shall consist of five regular members, not officials of the city, to be appointed by the Mayor with the approval of the City Council. Additionally, Section 2.36.060 of the Municipal Code states that in addition to the five regular members, the mayor, with the approval of the City Council, shall appoint two resident alternate commissioners for a term of two years, who shall have all of the powers and duties of a regular commissioner except his or her right to vote shall be allowed and have legal effect only when seated as an acting commissioner in the absence of one of the regular commissioners. The position of acting commissioner shall be rotated between the alternate commissioners.

Pursuant to Cloverdale Municipal Code Section 2.36.020, an alternate member’s terms shall be two years.

Table 1 – City of Cloverdale Planning Commission Current Membership Name of
Commissioner
Membership Date Appointed Term
Expires
Status
Chad Asay Regular July 8, 2020 July 30, 2024 Active
Eric Sanders Proposed
Reappointment
July 8, 2020 July 30, 2024 Seeking
reappointment
William Wagy Regular April 10, 2019 April 10, 2023 Active Sandra Hoevertsz Regular December 11, 2019 October 9,
2023
Active
Melissa Spingler Regular April 2021 April 2023 Active
Cory Cadle Alternate July 27, 2022 July 27, 2024 Active Craig Carni Alternate October 26, 2022 October 26,
2024
Seeking
appointment
11 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. A.1

Page 2 of 2 ends

________________________________________________________________________________________ Alternative Options:

1. Provide additional direction to Staff
________________________________________________________________________________________ Subcommittee Recommendation:

N/A
________________________________________________________________________________________ Budget/Financial Impact:

N/A
________________________________________________________________________________________ Attachments:

1. Eric Sanders Application

2. Craig Carni Application
12 13
14 15
16 City Council/Successor Agency
Agenda Item Summary Agenda Item: A.3
Meeting Date: October 26, 2022
Agenda Section:

Consent
Staff Contact:

Kevin Thompson, Assistant City Manager, Community Dev. Director Agenda Item Title:

Award of the Cloverdale City Park Basketball Project to Rege Construction, Inc. in the amount of $352,845. _____________________________________________________________________________________ Recommended Council Action(s):

Adopt resolution entitled, “A Resolution of the City Council of the City of Cloverdale Awarding Cloverdale 2nd Street Park Basketball Project to Rege Construction, Inc. in the amount of $352,845, authorize and approve an overall project budget of $388,129 (includes 10% Contingency) and authorize the City Manager to execute a contract with Rege Construction, Inc.”
________________________________________________________________________________________ Background:

Construction documents for the public infrastructure improvements for the 2nd Street Park Basketball Court project were prepared. The project was advertised for bids in accordance with the requirements of the California Public Contract Code, and applicable requirements of Chapter 3.12 of the Cloverdale Municipal Code.

On July 28, 2022, bids were opened. Per the bid documents, the award of the contract is to be based on the lowest responsive and responsible bid received. At the bid opening seven (7) bids were received. The Top three (3) are as follows:
• Rege Construction, Inc. $352,846
• Cupples Excavating $397,938
• Argonaut Construction $424,211
An engineer’s estimate for this project was $350,000
________________________________________________________________________________________ Summary:

The City’s consultant, MOE Engineering, Inc. examined the bids submitted and found Rege Construction, Inc. to be in conformance with the requirements of the bid documents and the lowest responsible bidder. A total of 7 bids were received. Based on the bid received and in accordance with Public Contract Code requirements, staff is recommending that Council authorize award of 2nd Street Park Basketball Court Project to Rege Construction, Inc., based on their low bid price of $352,845 and request that the City Manager be authorized to execute a contract with Rege Construction, Inc.

City Staff also request that the City Council authorize a project budget of $352,846 plus a 10% contingency of $388,129 for a total budget of $388,129.
________________________________________________________________________________________ Options:

1. Deny Resolution and reject all bids.

2. Provide alternative direction to Staff.
________________________________________________________________________________________ 17 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. A.3

Page 2 of 2 ends

Subcommittee Recommendation:

This project was previously reviewed and recommended by the Public Works Subcommittee and subsequently approved by the City Council.
________________________________________________________________________________________ Budget/Financial Impact:

Project in budgeted in the current Fiscal Year 2022-2023 budget in the amount of $460,000, expenditures include: Moe Engineering $53,086, (approved in previous resolution) Rege Construction $352,845, and 10% contingency $35,284 for a total of $441,215.

Funding sources include Per Capita Grant Funding of $183,610, and Park Impact Fee $276,390 ________________________________________________________________________________________ Attachments:

1. Resolution

2. Bid Results
18 CITY OF CLOVERDALE

CITY COUNCIL
RESOLUTION NO. XX- 2023
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE AWARDING CLOVERDALE 2nd STREET PARK BASKETBALL PROJECT TO REGE CONSTRUCTION, INC. IN THE AMOUNT OF $352,846, AUTHORIZE AND APPROVE AN OVERALL PROJECT BUDGET $388,129 AND AUTHORIZE THE CITY MANAGER TO EXECUTE A CONTRACT WITH REGE CONSTRUCTION, INC.

WHEREAS, the City of Cloverdale intends to construct two basketball courts at Cloverdale’s 2nd Street Park; and
WHEREAS, the City advertised for bid the Cloverdale Plaza Park Restroom Project; and WHEREAS, The City's consultant, MOE Engineering and City Staff reviewed all bids received, and identified Rege Construction, Inc. as the lowest responsive bidder with a bid amount of $352,845; and WHEREAS, Rege Construction, Inc. is qualified to perform the Cloverdale 2nd Street Park Basketball Court Project; and
WHEREAS, the City of Cloverdale has prepared a funding plan sufficient to complete the project plus contingency costs up to $35,284 (10% of bid) for a total budget of $388,129; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cloverdale hereby

1. Awards the Cloverdale 2nd Street Park Basketball Court Project to Rege Construction, Inc.,

2. Approves an overall project budget of $388,129

3. Authorizes the City Manager to execute a construction contract with Rege Construction on behalf of the City.

The foregoing Resolution No. XX-2022 was duly introduced and adopted by the City Council of the City of Cloverdale at its regular meeting held on the 26th of October 2022 by the following roll call vote:

AYES: (5) Mayor Lands, Vice Mayor Wolter, and Councilmembers: Bagby, Cruz, Palla NOES: (0)
ABSTAIN: (0)
ABSENT: (0)
APPROVED ATTEST:
___________________ _______________________
Todd Lands, Mayor Michael Maloney, City Clerk
19 BASKETBALL BID TABULATION, 10/11/22
2nd STREET BASKETBALL COURT IMPROVEMENTS 2022

ITEM UNIT QTY UNIT COST ITEM COST UNIT COST ITEM COST UNIT COST ITEM COST UNIT COST ITEM COST UNIT COST ITEM COST UNIT COST ITEM COST UNIT COST ITEM COST Mobilization (10-1) LS 1 $25,000.00 $25,000.00 $20,000.00 $20,000.00 $34,225.00 $34,225.00 $21,250.00 $21,250.00 $15,615.00 $15,615.00 $55,000.00 $55,000.00 $33,720.00 $33,720.00 Site Preparation (10-2) LS 1 $4,888.00 $4,888.00 $10,000.00 $10,000.00 $14,500.00 $14,500.00 $27,400.00 $27,400.00 $17,085.00 $17,085.00 $28,000.00 $28,000.00 $12,900.00 $12,900.00 Concrete and Asphalt Concrete Demolition (10-3) LS 1 $10,104.00 $10,104.00 $10,000.00 $10,000.00 $28,000.00 $28,000.00 $18,000.00 $18,000.00 $21,155.00 $21,155.00 $21,000.00 $21,000.00 $22,018.00 $22,018.00 Remove and Replace Storm Drain (10-4) LF 150 $94.00 $14,100.00 $53.33 $7,999.50 $143.00 $21,450.00 $150.00 $22,500.00 $178.00 $26,700.00 $129.00 $19,350.00 $169.31 $25,396.50 24"x24" catch basin (10-4) EA 4 $3,037.00 $12,148.00 $2,200.00 $8,800.00 $2,300.00 $9,200.00 $3,850.00 $15,400.00 $2,855.00 $11,420.00 $3,700.00 $14,800.00 $3,438.50 $13,754.00 Trench Drain System (10-5) LF 112 $215.40 $24,124.80 $101.78 $11,399.36 $243.00 $27,216.00 $207.00 $23,184.00 $258.00 $28,896.00 $280.00 $31,360.00 $299.82 $33,579.84 Earthwork (10-6) LS 1 $18,267.00 $18,267.00 $11,000.00 $11,000.00 $30,000.00 $30,000.00 $20,000.00 $20,000.00 $49,105.00 $49,105.00 $34,500.00 $34,500.00 $8,506.00 $8,506.00 Minor Concrete, Curb (10-8) LF 420 $72.00 $30,240.00 $67.10 $28,182.00 $64.00 $26,880.00 $60.00 $25,200.00 $71.90 $30,198.00 $71.00 $29,820.00 $85.72 $36,002.40 AC Court Surface 3" thick (10-7) SF 10,600 $3.50 $37,100.00 $5.50 $58,300.00 $4.00 $42,400.00 $4.70 $49,820.00 $3.25 $34,450.00 $3.60 $38,160.00 $8.40 $89,040.00 6" Class 2 Aggregate Base (10-6) SF 10,600 $2.20 $23,320.00 $3.27 $34,662.00 $2.25 $23,850.00 $2.60 $27,560.00 $3.00 $31,800.00 $2.39 $25,334.00 $2.48 $26,288.00 3” thick AC Paving outside the court (10-7) SF 3,000 $4.00 $12,000.00 $8.76 $26,280.00 $3.83 $11,490.00 $4.60 $13,800.00 $7.00 $21,000.00 $4.38 $13,140.00 $8.40 $25,200.00 6" Class 2 Aggregate Base outside the court (10-6) SF 3,000 $3.00 $9,000.00 $3.27 $9,810.00 $2.40 $7,200.00 $3.20 $9,600.00 $5.85 $17,550.00 $3.69 $11,070.00 $2.48 $7,440.00 Chain Link Fencing with person and vehicle gates (10-9) LF 430 $168.40 $72,412.00 $170.06 $73,125.80 $200.00 $86,000.00 $150.00 $64,500.00 $205.00 $88,150.00 $155.00 $66,650.00 $185.53 $79,777.90 Basketball Equipment (10-10) LS 1 $24,076.00 $24,076.00 $48,510.00 $48,510.00 $19,000.00 $19,000.00 $38,000.00 $38,000.00 $18,900.00 $18,900.00 $27,980.00 $27,980.00 $52,920.00 $52,920.00 Surfacing, Coloring, Sealing & Striping (10-11) LS 1 $29,667.00 $29,667.00 $30,470.00 $30,470.00 $25,600.00 $25,600.00 $36,000.00 $36,000.00 $31,985.00 $31,985.00 $27,700.00 $27,700.00 $33,240.00 $33,240.00 Electrical system (10-12) LF 200 $32.00 $6,400.00 $47.00 $9,400.00 $86.00 $17,200.00 $82.00 $16,400.00 $83.50 $16,700.00 $92.00 $18,400.00 $88.11 $17,622.00 ESTIMATED CONSTRUCTION COST $352,846.80 $397,938.66 $424,211.00 $428,614.00 $460,709.00 $462,264.00 $517,404.64 w/10% contingency
Amount listed on
bid: $379,978.00
Amount listed on
bid: $517,447.00

DESIGN AND ADVERTIZING

CONSTRUCTION MANAGEMENT

ESTIMATED PROJECT COST
$15,000.00
$413,090.00
Oak Grove Maggori & Ghilotti Diamond D Construction
$331,900.00
$365,090.00
$33,000.00
Rege Construction Cupples Excavating Argonaut Constructors F. Loduca 20 City Council/Successor Agency
Agenda Item Summary Agenda Item:

Meeting Date:

F.4
October 26, 2022
Agenda Section
Consent
Staff Contact
Vanessa Apodaca, Interim City Engineer/Public Works Director Agenda Item Title:

Accepting Public Improvements for the Cherry Creek Village Project and authorizing City Manager to release the Performance Bond and the Payment Bond.

Recommended Council Action:

On October 1, 2019 the City of Cloverdale Planning Commission conditionally approved the Major Design Review for the Cherry Creek Village Project located at 520 South Cloverdale Boulevard (APN 001-310-041 & - 042) and subsequently entered into a Disposition and Development Agreement with Cherry Creek Village L.P. to install and complete public improvements associated with the Project. Cherry Creek Village L.P. has completed the public improvements, and City Staff have determined that all work has been completed in conformance with City Standards and the Disposition and Development Agreement.

Alternative Options:

1. Reject recommended resolution

2. Provide alternative direction to staff.

Budget/Financial Impact:

Approval of the Resolution will authorize the release of undisputed Performance and Payment bonds. The City will assume maintenance responsibility of the public improvements.

Subcommittee Recommendation:

This item has not been presented to the Public Works & Facilities Subcommittee.

Attachments:

1. Resolution
21 CITY OF CLOVERDALE

CITY COUNCIL
RESOLUTION NO. 0XX-2022

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE ACCEPTING PUBLIC IMPROVEMENTS CONSTRUCTED AT 520 SOUTH CLOVERDALE BOULEVARD

AND AUTHORIZING THE CITY MANAGER TO RELEASE UNDISPUTED

PERFORMANCE BOND AND PAYMENT BOND
WHEREAS, On October 1, 2019 the City of Cloverdale Planning Commission conditionally approved the Major Design Review for the Cherry Creek Village Project located at 520 South Cloverdale Boulevard (APN 001-310-041 & -042); and
WHEREAS, The City entered into a Disposition and Development Agreement with Cherry Creek Village L.P. to install and complete public improvements associated with the Project; and WHEREAS, Cherry Creek Village L.P has completed the public improvements, and City Staff have determined that all work has been completed in conformance with City Standards and the Disposition and Development Agreement.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF CLOVERDALE AS FOLLOWS:

1. The City Council of the City of Cloverdale hereby accepts the public improvements.

2. The City Council of the City of Cloverdale authorizes the City Manager to release the undisputed performance bond and payment bond obtained by the developer for the construction of the public improvements.

It is hereby certified that the foregoing Resolution No. 0XX-2022 was duly introduced and duly adopted by the City Council of the City of Cloverdale at its regular meeting held on the 26th day of October, 2022 by the following vote:

AYES:

NOES:

ABSTAIN:

ABSENT:

APPROVED ATTEST:
_________________________________ _____________________________ Todd Lands, Mayor Michael Maloney, City Clerk
22 City Council/Successor Agency
Agenda Item Summary
Agenda Item: F.5
Meeting Date: October 26, 2022
Agenda Section:

Consent
Staff Contact:

David Kelley, City Manager
Agenda Item Title:

Minor Construction Agreement with PumpMan Norcal for maintenance/repairservices at the City of Cloverdale Wastewater Treatment Plant
Recommended Council Action(s):

A repair is needed for the effluent pump located at the City’s Wastewater Treatment Plant. The existing pump and motor are about 35-40 years old. The last time a major repair or work was done on the pump/motor was 1996.

The effluent pump is used to pump water from a wet well to the percolation /evaporation ponds when needed.

The effluent pump needs new parts including new bearings/seals/main shaft to new fittings that have worn out. In addition, it is necessary to have the motor overhauled with a rewind and new bearings while the pump is out of the 12 foot wet well. The pump and motor work will be done by Pumpman/Bartley pump.

Summary:

PumpMan Norcal has previously provided repair services at the City’s Wastewater Treatment Plant (WWTP) and has an in-depth knowledge of the equipment at the City’s WWTP. PumpMan Norcal provided a scope of work (outlined below) for the replacement of the existing electrical service panel.

Scope of work:

1. Purchase of Pump and motor Replacement Parts - $18,158 + $1,543 sales tax

2. Labor to Disassemble and reassemble Pump/Bowl, reinstall pump and overhaul pump motor - $17,128.86
The cost proposal for the electrical panel replacement is in the amount of $36,830.29 Options:

1. Deny Resolution; or.

2. Provide alternative direction to Staff.

Subcommittee Recommendation:

This project was not presented to the Public Works & Facilities Subcommittee for a recommendation.

Budget/Financial Impact:

The project is proposed to be funded by the City’s FY 2022-2023 budget. Fund 630 Wastewater Operations budget has sufficient budget to cover the expense of the proposed work.

Attachments:

1. Resolution

2. PumpMan Norcal Proposal
23 CITY OF CLOVERDALE

CITY COUNCIL
RESOLUTION NO. ____ –2022

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE APPROVING A MAINTENACE AGREEMENT WITH PUMPMAN NORCAL IN THE AMOUNT OF $36,830.29, A PROJECT BUDGET OF $38,671.80 AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE MAINTENANCE AGREEMENT WHEREAS, the City of Cloverdale maintains and operates a Wastewater Treatment Plant (WWTP) on Asti Road; and
WHEREAS, PumpMan Norcal is uniquely qualified to perform the pump maintenance and repair work at the City’s WWTP; and
WHEREAS, the City requested a cost proposal from PumpMan Norcal for the pump maintenance and repair work at the City’s WWTP; and
WHEREAS, PumpMan Norcal provided a cost proposal for pump maintenance and repair work at the City’s WWTP attached hereto as Exhibit A in the amount of $36,820.00; and WHEREAS, the City of Cloverdale has identified sufficient funding in the Wastewater Budget (Fund 630) in the City’s adopted Fiscal Year 2022-23 budget sufficient to complete the project.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cloverdale hereby:

1. Approve an agreement with PumpMan Norcal in the amount of $36,830.29; and

2. Establishment of a 5% Project Contingency with a Total Project Budget of $38,671.80

3. Authorizes the City Manager to sign a minor construction management agreement and any nececessary changes orders with PumpMan Norcal in a form approved by the City Attorney.

The foregoing Resolution No. ____-2022 was duly introduced and adopted by the City Council of the City of Cloverdale at its regular meeting held on the 9th day of February 9, 2022, by the following roll call vote:

Ayes: (_)d Mayor Bagby
Noes: (_) None

Absent: (_)
Abstaining: (_) None
APPROVED: ATTEST:
______________________________ ____________________________________ Todd Lands, Mayor Mike Maloney, City Clerk
Exhibit A – Pumpman Norcal Proposal
24 Quote
REMIT TO:

Bartley Pump PM LLC
4000 S. Moorland Ave.

Santa Rosa, CA 95407
T 707-584-9191
F 707-584-9198
www.pumpmannorcal.com
DIR# 1000054366
Customer:

RE:

JOBSITE:

NOTE: Please find our quote below

QUANT ITEM DESCRIPTION TAXABLE TOTAL
1 EA Head Nut 1-7/16" $ 113.40
1 EA Head Shaft SS 1-7/16" $ 725.20
1 EA Stretch Bearing Assy. 1-7/16" $ 834.40
1 EA Stretch Assy. Tube 2-1/2" $ 210.00
1 EA T&S 2-1/2"x 1-7/16"x 10' $ 1,283.80
1 EA Ditch Pump Elbow 12" $ 5,080.60
9 FT Base Plate D.P. 1" x 1 Sq Ft $ 1,386.00
1 EA Ditch Pump Flanged Spool 12" $ 2,514.40
1 EA Ditch Pump Reducing Spool 12" x 10' $ 4,155.20
1 EA 1-7/16" SS Bowl Shaft $ 333.20
1 EA Jump L.S. Tee Bearing 2-1/2" Tub $ 569.80
2 EA Suct/Disch Brz Bearing 1-7/16" $ 462.00
1 EA SS Grease Line $ 490.00
Total for materials $ 18,158.00
Sales Tax $ 1,543.43
Freight $ -

LABOR DESCRIPTION
Labor to Disassemble Pump $ 750.00
Labor to Disassemble Bowl $ 450.00
Minor Propeller Repair $ 2,438.75
Labor Machine Shop $ 750.00
Labor to Assemble Bowl $ 450.00
Labor to Assemble Pump $ 1,200.00
Labor to Sandblast & Epoxy Coat $ 3,886.25
Pick up and delivery $ 750.00
Labor to overhaul motor with rewind, new bearings, clean, test, and paint $ 4,533.86 Labor to Reinstall pump $ 1,920.00
TOTAL $ 36,830.29
Sincerely,
Jason Smith
General Manager
License No. 1033562: Class A General Engineering & C-57 Drilling Contractor C-10 Electrical Contractor & C-55 Water Treatment & C-16 Fire Protection & C61/D21 Pumps and Machines Monday, October 3, 2022
124 N. Cloverdale Blvd.

Cloverdale, CA 95425
City of Cloverdale
Pump Repair and Installation
490 East First Street Cloverdale,CA 95425
25 City Council/Successor Agency
Agenda Item Summary Agenda Item:

Meeting Date:

F.6
October 26, 2022
Agenda Section:

Consent
Staff Contact:

Jason Ferguson, Chief of Police
Agenda Item Title:

Adoption of Ordinance amending Title 9 of the Cloverdale Municipal Code to repeal Chapter 9.34, “Human Habitation of Vehicles and Campers”, and add Chapter 9.35, “Protection of Critical Infrastructure and Wildfire Risk Areas”.
_______________________________________________________________________________________ Recommended Council Action(s):

At their October 12, 2022, meeting, the City Council held a public hearing and introduced for First Reading an Ordinance of the City of Cloverdale amending Title 9 of the Cloverdale Municipal Code to repeal Chapter

9.34, “Human Habitation of Vehicles and Campers”, and add Chapter 9.35, “Protection of Critical Infrastructure and Wildfire Risk Areas”.

A principal threat to the public health, safety, and welfare is the potential destruction of, damage to, or interference with, infrastructure that is critical to the delivery of public services such as law enforcement, fire prevention, public works, parks and recreation, and utilities including communication, water, and waste disposal. Often, the destruction of, damage to, or interference with, critical infrastructure is caused by fire and contamination both of which, impede safe access for pedestrians and vehicles.

For several years the City of Cloverdale and its police department have regularly contacted individuals in the River Park area whose sole purpose is to construct encampments and occupy the city-owned public lands without lawful permits. The prolonged camping in the River Park area not permitted for such purposes has created unsanitary, unhealthy, disorderly, detrimental, and dangerous conditions that have affected the health and safety of the individuals as well as the general public. In most cases, the city-owned property is particularly sensitive to the conditions and impacts caused by public camping, particularly, in situations where an encampment is significantly large, ongoing, and situated in dense brush and vegetation.

The purpose of Chapter 9.35 is to mitigate the threat of fire or other potential causes of destruction and damage to and interference with critical infrastructure, in order to protect the health, safety, and welfare of the public, by authorizing the removal of persons and their personal property in, on or near critical infrastructure and wildfire risk areas, and as necessary to keep public rights of way clean and available for public use in a manner that preserves the dignity and safety of all residents. Violations of Chapter 9.35 can be punished criminally or with administrative fines, and the City is authorized to abate violations. 26 City Council Agenda Item Summary
October 26, 2022

Page 2 of 2 ends

Under the Ordinance, the City Council has the authority to identify Critical Infrastructure by Resolution. At the second reading of the proposed Ordinance, the City Council is recommended to concurrently adopt a resolution providing a list of Critical Infrastructure. The attached Resolution identifies critical infrastructure including government buildings, such as fire stations, police stations, jails, or courthouses; hospitals; public utilities, and water sources. The Council retains the authority to modify the edit the list at any time.

This agenda item is the second reading of the Ordinance that will adopt the repeal of Chapter 9.34, “Human Habitation of Vehicles and Campers”, and add Chapter 9.35, “Protection of Critical Infrastructure and Wildfire Risk Areas”. This action represents the final approval of the ordinance. ________________________________________________________________________________________ Alternative Options:

1. Modify the Ordinance and reschedule the second reading; or

2. Reject the Ordinance; or

3. Provide alternative direction to City Staff.
________________________________________________________________________________________ Subcommittee Recommendation:

N/A
________________________________________________________________________________________ Budget/Financial Impact:

None
________________________________________________________________________________________ Attachments:

1. Ordinance

2. Exhibit A – Protection of Critical Infrastructure and Wildfire Risk Areas

3. Resolution
27 CITY OF CLOVERDALE
ORDINANCE NO. ______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE AMENDING TITLE 9 OF THE CLOVERDALE MUNICIPAL CODE TO REPEAL CHAPTER 9.34, “HUMAN HABITATION OF VEHICLES AND CAMPERS,” ADD CHAPTER 9.35, “PROTECTION OF CRITICAL INFRASTRUCTURE AND WILDFIRE RISK AREAS”
WHEREAS, a principal threat to the public health, safety, and welfare is the potential destruction of, damage to, or interference with, infrastructure that is critical to the delivery of public services such as law enforcement, fire prevention, public works, parks and recreation, and utilities including communication, water, and waste disposal; and
WHEREAS, destruction of, damage to, or interference with, critical infrastructure is caused by fire, contamination, impeding safe access for pedestrians and vehicles, or other causes; and WHEREAS, destruction of, damage to, or interference with, critical infrastructure is frequently caused by persons whose activities are not permitted or authorized in, on, or near critical infrastructure; and WHEREAS, existing camping laws, contained in Chapter 9.34 of the Cloverdale Municipal Code, are not consistent with Martin v. Boise; and
WHEREAS, Martin v. Boise did not grant individuals an unconditional right to sit, lie, or sleep on the streets at any time or at any place, or prevent the City from adopting specific time, place, and manner restrictions on such activities; and
WHEREAS, Title 9 is being amended to repeal Chapter 9.34 and add Chapter 9.35 to provide for the protection of critical infrastructure and wildfire risk areas; and WHEREAS, the purpose of Chapter 9.35 is to mitigate the threat of fire or other potential causes of destruction and damage to and interference with critical infrastructure, in order to protect the health, safety and welfare of the public, by authorizing the removal of persons and their personal property in, on or near critical infrastructure and wildfire risk areas, and as necessary to keep public rights of way clean and available for public use; and
WHEREAS, the City Council desires to adopt this Ordinance to achieve this purpose in a manner that preserves the dignity and safety of all residents.

NOW, THEREFORE, the City Council of the City of Cloverdale does ordain as follows:

Section 1. RECITALS
The City Council of the City of Cloverdale finds that all of the above Recitals, in addition to those within this Ordinance, are true and correct and incorporated herein by reference. 28 Ordinance No. ____

Page 2 ends

Section 2. FINDINGS
The City Council hereby finds that a principal threat to the public health, safety, and welfare is: (1) the potential destruction of, damage to, or interference with, infrastructure that is critical to the provision of public services; (2) the potential interference with public services such as law enforcement, fire prevention, transportation, and utilities including communication, water, and waste disposal; and (3) the potential destruction of, damage to, or interference with the natural habitat. The City Council further finds that the risk of such destruction, damage, or interference is caused by fire, contamination, impeding safe access for pedestrians and vehicles, or other causes.

Section 3. REPEAL OF CHAPTER 9.34.

The City Council hereby repeals Chapter 9.34, Human Habitation of Vehicles and Campers, of the Cloverdale Municipal Code in its entirety.

Section 4. ADDITION OF CHAPTER 9.35
The City Council hereby adds Chapter 9.35, Protection of Critical Infrastructure and Wildfire Risk Areas, to Title 9 (Public Peace, Moral, and Welfare) of the Cloverdale Municipal Code to read as shown and incorporated here in Exhibit A to this Ordinance.

Section 5. SEVERABILITY
If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable, or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability, or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application any other person or circumstance. The City Council or the City of Cloverdale hereby declares that it would have adopted each section, sentence, clause, or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses, or phrases of this Ordinance be declared invalid, unenforceable or unconstitutional.

Section 6. CEQA
The Cloverdale City Council finds that this Ordinance is exempt from the requirements of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Section 15061(b)(3) of Title 14 of the California Environmental Code of Regulations because it can be seen with certainty that there is no possibility that this ordinance will have a significant negative effect on the environment.

Section 7. EFFECTIVE DATE AND PUBLICATION
This Ordinance shall take effect thirty (30) days after the date of its adoption. Before expiration of fifteen (15) days after its passage, this Ordinance or a summary thereof as provided in California Government Code section 36933, shall be published at least once in a newspaper of general circulation published and circulated in the City of Cloverdale along with the names of the City Council Members voting for and against its passage.
29 Ordinance No. ____

Page 3 ends

INTRODUCED by the City Council of the City of Cloverdale on the 10th day of October, 2022, and passed and adopted on October 26, 2022 by the following roll call vote:

Ayes: (_)m, Councilmember Cruz, Councilmember Turner, Vice Mayor Wolter and Mayor Bagby Noes: (_) None

Absent: (_)
Abstaining: (_) None
SO ORDERED: ATTEST:
________________________________ ________________________________ Todd Lands, Mayor Michael Maloney, City Clerk
Date: ___________________________
Exhibit A – Critical Infrastructure and Wildfire Risk Areas 5195755.2
30 Chapter 9.35 is hereby added to the Cloverdale Municipal Code to read as follows:

Chapter 9.35 PROTECTION OF CRITICAL INFRASTRUCTURE AND WILDFIRE RISK AREAS

9.35.010 Findings and Purpose.

The City Council finds as follows:
(1) A principal threat to the public health, safety, and welfare is the potential destruction of, damage to, or interference with infrastructure that is critical to the delivery of public services such as law enforcement, fire prevention, public works, parks and recreation, and utilities including communication, water, stormwater, and waste disposal;
(2) destruction of, damage to, or interference with, critical infrastructure is caused by fire, contamination, impeding safe access for pedestrians and vehicles, or other causes; and (3) destruction of, damage to, or interference with, critical infrastructure is frequently caused by persons whose activities are not permitted or authorized in, on, or near wildfire risk areas and critical infrastructure.

The purpose of this Chapter is to mitigate the threat of fire and other potential causes of destruction and damage to and interference with critical infrastructure in order to protect the health, safety, and welfare of the public, by authorizing the removal of persons and their personal property in, on, or near designated wildfire risk areas and critical infrastructure, and as necessary to keep public rights of way clean and available for public use.

9.35.020 Definitions.

When used in this Chapter, the following words and phrases have the following meanings:
“Camp” means to reside in the outdoors for living accommodations purposes, including sleeping or making preparation to sleep (such as laying down bedding for the purpose of sleeping), storing personal belongings (including but not limited to clothing, sleeping bags, bedrolls, blankets, luggage, backpacks, kitchen utensils, cookware, and similar items), or erecting a tent or other temporary shelter. “Critical infrastructure” means real property or a facility, whether privately or publicly owned, as designated by resolution of the City Council, that the City Council designates as being so vital and integral to the operation or functioning of the City that its damage, incapacity, disruption, or destruction would have a debilitating impact on the public health, safety, or welfare. “Debris” means building and construction materials, garbage, refuse, wreckage, spoiled or ruined household goods, and similar material.
“Facility” means a building, structure, equipment, system, or asset. “Fire prevention official” means the Fire Chief, a deputy fire chief, the Fire Marshal, or a fire prevention officer with jurisdiction over the City.
31 “Garbage” means household and kitchen waste; animal, vegetable, and putrescible waste associated with the preparation, consumption, handling, or storage of edible materials; and any non-putrescible material mixed in the same container with or contaminated by putrescible waste. Garbage does not include source-separated recyclables or yard waste.
“Hazardous waste” has the same meaning as in California Public Resources Code section 40141. “Infectious waste” has the same meaning as in California Code of Regulations, Title 14, section 17225.36.
“Waters of the State” has the same meaning as in subdivision (e) of California Water Code section 13050.
“Wildfire risk area” means land that is covered with grass, grain, brush, or forest, whether privately or publicly owned, which is so situated or is of such inaccessible location that a fire originating upon it would present an abnormally difficult job of suppression or would result in great or unusual damage through fire or such areas designated by a fire code official, as defined in California Code of Regulations, Title 24, Part 9, Section 202, and approved by resolution of the City Council.

9.35.030 Prohibited Activities.

A. It is unlawful and a public nuisance for any person to camp at the following locations:

1. Critical infrastructure;

2. within fifty (50) feet of critical infrastructure;

3. within fifty (50) feet of a vehicular or pedestrian entrance or exit of critical infrastructure;

4. wildfire risk area;

5. within one hundred and fifty (150) feet of the high water mark of the waters of the state; and

6. within five hundred (500) feet of a well site.

B. No person shall camp or obstruct a street, sidewalk, or other public rights-of-way by camping, sitting, lying, or sleeping, or by storing, using, maintaining, or placing personal property:

1. In a manner that impedes pedestrian passage on any sidewalk or walkway;

2. within ten (10) feet of any driveway or loading dock; or

3. within ten (10) feet of any building entrance or exit.

C. No person shall occupy or use an area greater than ten (10) feet by ten (10) feet for storage of unattended personal property on any City-owned parcel.
32 D. No person shall dump gray water, which includes wastewater from baths, sinks, washing machines, and other kitchen appliances, or black water, including sewage water, onto sidewalks, streets, parks, open spaces, storm drains, waterways, or any other facilities not intended for gray water or black water disposal.

E. No person shall obstruct any portion of any street or other public right-of-way open to use by motor vehicles, or any portion of a bike lane, bike path, or other public rights-of-way open to use by bicycles, by camping, sitting, lying, or sleeping, or by storing, using, maintaining, or placing personal property, anywhere within the street, bike lane, bike path, or other public rights-of-way, as specified.

F. This Section does not prohibit camping on private residential property with the consent of the property owner.

G. Nothing in this Chapter is intended to prohibit or make unlawful the activities of an owner of private property or other lawful users of private property that are normally associated with and incidental to the lawful and authorized use of private property for residential or other purposes; and nothing is intended to prohibit or make unlawful the activities of a property owner or other lawful user if such activities are expressly authorized by the Planning and Development Code or other laws, ordinances, and regulations.

9.35.040 Summary Abatement.

A. Any violation of Section 9.35.030 occurring on City-owned property may be abated by the City upon seventy-two (72) hours of prior notice posted at the location of the violation, or may be abated immediately by the City without prior notice, if the violation poses an imminent threat to public health or safety.

B. Abatement by the City pursuant to Subsection A may include, but is not limited to, removal of personal property, garbage, hazardous waste, infectious waste, junk, or debris; and securing the perimeter of the property with fencing, gates, or barricades to prevent further occurrences of the nuisance activity.

C. Any violation of Section 9.35.030 occurring on private property may be abated by the City in accordance with Chapter 1.15 or Chapter 1.20.

D. Regardless of the City’s authority to conduct abatement pursuant to this Section, every owner, occupant, or lessee of real property, and every holder of any interest in real property, is required to maintain the property in compliance with local, state, and federal law; and is liable for violations thereof.

E. The cost of abatement, including all administrative costs of any action taken hereunder, may be assessed against the subject premises as a lien, made a personal obligation of the owner, or both, in accordance with procedures in Chapter 1.14 of the Cloverdale Municipal Code. 33 9.35.050 Interference with Summary Abatement.

No person shall willfully prevent, delay, resist, obstruct, or otherwise interfere with a City official, employee, contractor, or volunteer in their execution of abatement pursuant to this Chapter.

9.35.060 Violation—Penalty.

A. Violations of this Chapter shall be punishable as a misdemeanor.

B. In addition to any other remedy allowed by law, any person who violates a provision of this Chapter is subject to criminal sanctions, civil actions, and administrative penalties pursuant to Cloverdale Municipal Code Chapters 1.12, 1.14, and 1.18.

C. All remedies prescribed under this Chapter are cumulative, and the election of one or more remedies does not bar the City from the pursuit of any other remedy to enforce this Chapter. 5195689.1
5195689.2
34 CITY OF CLOVERDALE
RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE IDENTIFYING CRITICAL INFRASTRUCTURE FOR THE PURPOSE OF IMPLEMENTING CHAPTER 9.35, “PROTECTION OF CRITICAL INFRASTRUCTURE AND WILDFIRE RISK AREAS” OF THE CLOVERDALE MUNICIPAL CODE WHEREAS, a principal threat to the public health, safety and welfare is the potential destruction of, damage to, or interference with, infrastructure that is critical to the delivery of public services such as law enforcement, fire prevention, public works, parks and recreation, and utilities including communication, water, and waste disposal; and
WHEREAS, destruction of, damage to, or interference with, critical infrastructure is caused by fire, contamination, impeding safe access for pedestrians and vehicles, or other causes; and WHEREAS, destruction of, damage to, or interference with, critical infrastructure is frequently caused by persons whose activities are not permitted or authorized in, on or near critical infrastructure; and WHEREAS, existing camping laws, contained in Chapter 9.34 of the Cloverdale Municipal Code, are not consistent with Martin v. Boise; and
WHEREAS, Martin v. Boise did not grant individuals an unconditional right to sit, lie or sleep on the streets at any time or at any place, or prevent the City from adopting specific time, place and manner restrictions on such activities; and
WHEREAS, between January 1, 2020, and August 20, 2022, there have been one hundred, and thirty-one (131) reported fire-related responses to the River Park area where homeless encampments were established; and
WHEREAS, the purpose of Chapter 9.35 of the Cloverdale Municipal Code is to mitigate the threat of fire or other potential causes of destruction and damage to and interference with, critical infrastructure, in order to protect the health, safety and welfare of the public, by authorizing the removal of persons and their personal property in, on or near critical infrastructure and wildfire risk areas, and as necessary to keep public rights of way clean and available for public use; and WHEREAS, Critical Infrastructure is defined as real property or a facility, whether privately or publicly owned, that is so vital and integral to the operation or functioning of the City that its damage, incapacity, disruption, or destruction would have a debilitating impact on the public health, safety, or welfare.

WHEREAS, Under Chapter 9.35 of the Cloverdale Municipal Code Ordinance, the City Council has the authority to identify Critical Infrastructure by Resolution.

WHEREAS, the City Council has determined that the areas identified in Exhibit A to this Resolution, attached hereto and incorporated herein, are critical infrastructure which are necessary to protect for the health and safety of the City of Cloverdale and its residents; and WHEREAS, the City Council retains the authority to edit the list of critical Infrastructure at any time. 35 Resolution No. ____

Page 2 ends

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CLOVERDALE AS FOLLOWS:

Section 1. The above recitals are true and correct and incorporated into this Resolution.

Section 2. The City Council hereby designates the areas identified on Exhibit A, attached hereto and incorporated by reference, as Critical Infrastructure pursuant to Chapter 9.35 of the Cloverdale Municipal Code.

Section 3. Effective Date. This Resolution shall become effective thirty (30) days after adoption.

The foregoing Resolution No._______ was duly introduced and adopted by the City Council of the City of Cloverdale at its regular meeting held on the _______day of October 2022, by the following roll call vote:

Ayes: (_)m, Councilmember Cruz, Councilmember Turner, Vice Mayor Wolter and Mayor Bagby Noes: (_) None

Absent: (_)
Abstaining: (_) None
SO ORDERED: ATTEST:
________________________________ ________________________________ Todd Lands, Mayor Mike Maloney, City Clerk
Date: ___________________________
Attachments:

Exhibit A – List of Critical Infrastructure
36 Exhibit A
List of Critical Infrastructure
Adopted Pursuant to Chapter 9.35 of the Municipal Code

1. All government buildings including but not limited the Cloverdale Fire station, Cloverdale Police Station, Cloverdale City Hall, Cloverdale Senior Center, Cloverdale Library, Cloverdale Water Treatment Plant; and Cloverdale Wastewater Treatment Plant;

2. All Public and Private K-12 schools including the Cloverdale High School, Washington School, and Jefferson Elementary;

3. Day Care Centers (as defined by Health and Safety Code section 1596.76);

4. All jails and courthouses;

5. Hospitals, health clinics and medical centers;

6. Drainage and storm water facilities or levees;

7. River Park;

8. Water sources and water storage facilities (wells, pipelines pumps, reservoirs and associated treatment and conveyance equipment).
37 Exhibit A
List of Critical Infrastructure
Adopted Pursuant to Chapter 9.35 of the Municipal Code

2. All Public and Private K-12 schools including the Cloverdale High School, Washington School, and Jefferson Elementary;

3. Day Care Centers (as defined by Health and Safety Code section 1596.76);

4. All jails and courthouses;

5. Hospitals, health clinics and medical centers;

6. Drainage and storm water facilities or levees;

7. River Park;

8. Water sources and water storage facilities (wells, pipelines pumps, reservoirs and associated treatment and conveyance equipment).
38 City Council/Successor Agency
Agenda Item Summary Agenda Item: G.1
Meeting Date: October 26, 2022
Agenda Section:

Public Hearing
Staff Contact:

David Kelley, City Manager
Kevin Thompson, Assistant City Manager / Comm. Dev. Dir.

Agenda Item Title: Financing Plan for City’s participation in PG&E Turnkey Program. ________________________________________________________________________________________ Recommended Council Action(s):

Hold a Public Hearing, consider all findings, hear public comment, and adopt Resolutions entitled:

Sustainable Solutions Turnkey (SST) Program offered by PG&E for municipalities is intended to provide a turnkey, comprehensive approach towards designing, building, managing, commissioning, monitoring, and validating energy savings and water conservation projects. Projects are funded from energy cost savings over a multi-year term that matches the energy cost savings. No upfront payments are required. The program allows for a streamlined solution to implementing energy conservation projects with the goal of implementing energy saving projects at City facilities and using the money saved from reduced energy use and operational maintenance costs to pay the debt service for the design and construction of the project.

The project scope also includes the installation of AMI water meters to be installed throughout the city.

The City has been participating in the program over the past two years. On February 23, 2022, staff presented to the City Council a Preliminary Feasibility Assessment (PFA), produced by Centrica. This study provided a way to optimize and upgrade energy systems in a manner that is budget-neutral to agencies and businesses, per California Government Code §4217. Based on the findings in the PFA, on May 26, 2022, the Council approved a resolution authorizing Centrica to perform an Investment Grade Audit (IGA) of the City.

On August 10, 2022, the Council received an update on the findings of the Investment Grade Audit and directed staff to return with a financing plan. The financing plan is the topic of this agenda item.

Improvements to be Financed
The total cost of all energy and utility improvements estimated by PGE is $7,884,824. Of this amount, $4,150,113 is the installed cost of 3,407 new water meters, $3,003,257 for a Solar PV Ground Mount Install at the City’s Wastewater Treatment Plant and another $831,454 for various HVAC and energy saving upgrades for various City facilities.
39 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. G.1

Page 2 of 8 ends

The City intends to use $980,000 of ARPA grant funds as a cash contribution toward the total project cost of $7,884,824, thereby reducing the amount of improvements to be financed to $6,904,824.

Project costs estimates were provided by PGE and its subcontractor Centrica as part of their Investment Grade Audit, pursuant to their “Master Service Agreement” with the City.

Allocation of Debt Service to Water and Wastewater Enterprises and General Fund Annual debt service on the financing will be internally funded by the net revenues of the Water and Wastewater Enterprises and a small part by the City’s General Fund, which is subject to change depending on the allocation of the ARPA funding toward projects. The percentage allocation of debt payable was computed by determining the percentage of the total project costs of $7,884,824 attributable to Water, Wastewater and the General Fund for projects benefiting City facilities other than water and wastewater facilities.

The estimated project costs for water, wastewater and General Fund improvements are:
1-Water Enterprise-------------------------$5,676,183
2-Wastewater Enterprise-----------------$1,584,724
3-City General Fund Improvements----- $623,918
Total $7,884,824
The percentage of debt service to be paid on the financing is allocated as follows:
-Water Enterprise------------71.99%*
-Wastewater Enterprise----20.10%*
-City General Funds--------- 7.91%*
Total 100%
* Subject to change depending on the final allocation of the ARPA funding toward particular projects.

Recommended Financing Structure-Equipment Lease Purchase Agreement Based on input from the City’s financing team the most cost-effective method of financing is to use an equipment lease purchase agreement for a term of 15 years with funding provided by a commercial bank.

Attached is a Memo dated 9/20/22, from Brandis Tallman, a Division of Oppenheimer & Co., Inc. (OCO) that lists rate and terms input from seven (7) commercial banks that specialize in equipment leasing for CA local government agencies. Based on this Memo, the lender with best rate and terms is Bank of America. Staff recommends Bank of America will be selected as lender, in accordance with the accompanying term sheet.

Per the attached Memo and based on experience by OCO staff with equipment lease financing, Bank of America in recent months has had the best rate and terms for equipment lease financing for energy savings and utility improvements. Bank of America will offer a fixed rate for 15 years that would facilitate the rapid payoff of the financing, saving on interest expense that would be associated with a term of 20 years. 40 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. G.1

Page 3 of 8 ends

Bank of America will permit a special one-time prepayment of an equipment lease purchase agreement financing using grant funds with NO prepayment premium up to $2 million dollars. Prepayment must occur within three (3) years from closing, estimated to occur on 11/17/22.

This means the City would have up until 11/27/25 to prepay the financing with DWR grant funds in the amount of $1,648,000. If the City has not been fully reimbursed with grant funds by 11/27/25, Bank of America would be receptive to extending three (3) year prepayment period.

The City’s Municipal Advisor has recommended the use of a 15-year term as this will save on interest expense vs. a 20 yr. term and enable the City to pay off the financing debt sooner. In addition, a 20 yr. term financing would carry with it a higher borrowing rates vs. the rate on a 15 yr. term that would also increase annual debt service.

Credit Analysis-Water and Wastewater Enterprises and General Fund Since the City’s water and wastewater enterprises will pay for 92.09% of the annual debt service on the equipment lease financing, the City’s Placement Agent (OCO) and its Municipal Advisor prepared net water and wastewater net revenue debt service calculations to confirm that subject enterprises would still have adequate debt service coverage considering the estimated annual debt service cost on the planned equipment lease financing.

As previously stated, the City’s Water Enterprise will pay 71.99% of debt service and the City’s Wastewater System will pay 20.01% on the planned equipment lease financing.

The data used to prepare projected net revenue debt service coverage tables was reviewed by Mark Hildebrand of Hildebrand Consulting LLC, the City’s Water and Wastewater rate consultant, who completed in 2021 a Water and Wastewater Rate study for the City. The City Council in 2021 adopted the recommended water and wastewater rates recommended in the 2021 Rate Study.

Hildebrand Consulting also provided a water enterprise pro-forma analysis with forecasts from FY 2022 through FY 2031 that were used in the projections of net water revenue debt service coverage from FY 2022 through FY 2026. Given the above, staff and its Municipal Advisor and Placement Agent have a high degree of confidence in the projections.

Projected net water enterprise revenue debt service coverage considers estimated debt service on the planned equipment lease financing and other water enterprise debt consisting of a 1993/1994 Safe Water Drinking Loan and a 2014 Water Installment Sale Agreement.

Projected net water revenue debt service coverage from FYE 2023 thru FYE 2026 is considered “strong” ranging from 3.71x in FYE 2023 to 3.60x in FYE 2026. This level of net revenue debt service coverage would qualify for an “A” level Standard & Poor’s rating with debt service coverage in the 1.40x to 1.60x coverage range.
41 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. G.1

Page 4 of 8 ends

Projected net wastewater revenue debt service coverage from FYE 2023 thru FYE 2026 is also considered “strong” ranging from 2.96x in FYE 2024 to 6.11x in FYE 2026. This level of net revenue debt service coverage would qualify for an “A” level Standard & Poor’s rating that requires coverage of 1.40x to 1.60x.

Given the “strong” projected net revenue debt service coverage, considering the estimated debt service on the equipment lease financing for both Water and Wastewater, there will be ample net revenues available to pay their respective shares of future debt service that would not start until FYE 2024.

Furthermore, the City will not have to make debt service payments on the equipment lease financing until FYE 2024 as debt service would be “built into” the financing amount. This is prudent as it allows the improvements to be built out within approx. 1 year and then energy savings would begin flowing to the City upon completion and available to pay annual debt service when due.

General Fund-7.91% Share of Total Debt Service-Equipment Lease Financing It is estimated that the City’s General Funds, per OCO’s 9/29/22 “Savings Analysis”, presented to the Finance Subcommittee on 10/3/22, will have negative savings each year until the debt is fully paid off in 2037.

Annual negative savings to the City General Fund will gradually trend downward thru maturity in 2037 from a “high water mark” negative savings in FYE 2024 of ($31,108).

The estimated General Fund debt service obligation @7.91% of annual debt service is manageable and does not pose a risk to the funding of other important obligations of the General Fund in the future.

Future Major Reduction in Annual Debt Service After Planned Prepayment with CA DWR Grant Funds Staff anticipates that grant funds from a DWR Drought Funding Grant will be received by the City no later than the beginning of 2026 in the amount of $1,647,750. The City intends to use subject grant funds to prepay the Equipment Lease Financing by a like amount.

After prepayment with $1,648,000 of grant funds, annual debt service on the equipment lease financing will decline by $65,300 per year through maturity in 2037. Average Annual debt service would drop to $590,330 from $655,600. Total debt service decreases by $2.4M from the $1,648,000 payoff. This assumes a special prepayment occurs by 11/17/25 (three years from closing date of 11/17/22).

Estimated Gross Net Savings Considering Est. Debt Service Payment Thru Maturity in 2037 PGE / Centrica have estimated total Energy Savings of $12,694,052 thru 2043 vs. est. total annual debt service thru maturity in 2037 of $9,510,057. Annual savings will dramatically increase once the equipment lease purchase financing is paid off in 2037 (15-year term).

Total savings from all Projects, net of all debt service is $3,183,995 through Fiscal Year 2042-43. The projects to be funded are a good long-term investment by the City in its infrastructure. 42 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. G.1

Page 5 of 8 ends

The projected savings will increase once the above referenced DWR Drought Funding Grant funds are used to pay down equipment lease purchase debt estimated to occur in 2025 or before. The DWR grant is a reimbursable grant so once the City completes the project with funding provided by the planned financing, it should be able to receive DWR grant funds soon thereafter Water Enterprise savings consist primarily of a reduction in Operating and Maintenance costs of $146,458 per year and capture of water sold savings to the tune of $156,031 per year as calculated by PGE / Centrica.

Installation of new water meters is estimated to result in decreasing water loss in distribution by approximately 8.9% that should result in an approximate 11.1% increase in current water sold.

City staff is comfortable with the estimated savings calculated by PGE / Centrica regarding electricity, water, and natural gas usage. PGE / Centrica will guarantee an agreed amount of savings after the first year that all improvements have been installed and operational. Thereafter, the City can purchase annual savings guarantees from PGE, if desired.

Costs of Issuance
Listed below, is a summary of the estimated costs of issuance for the proposed financing. All the estimated costs of issuance are payable contingent on closing and out of financing proceeds. There is NO financial downside for the City should the equipment lease financing not close for any reason that is not anticipated.

The costs of issuance for 2022 Equipment Lease financing are estimated at $140,000 consisting of:
o Bond Counsel ($47,500) (includes $2,500 for expenses), (Jones Hall), o Municipal Advisor ($45,000) (includes $2,500 for expenses), W. J. Fawell Co., Public Finance o Placement Agent ($40,000-“All In”), (Oppenheimer & Co., Brandis Tallman Division) o CA Debt and Investment Advisory Commission (CDIAC) Fee ($1,800) o Other Miscellaneous Expenses-Credit info. research, City rate consultant, escrow and paying agent services, etc. ($5,700)
Financing Team Members and Roles
Bill Fawell of W. J. Fawell Co., Public Finance, would serve as Municipal Advisor to the City and oversee the proposed equipment lease purchase equipment financing from start through closing, working directly with City staff, consultants, and financing team members to complete the proposed financing and ensure the City’s financing goals were accomplished. He will ensure that all financing costs are appropriate and will review the proposed financing rate and terms from prospective lenders and advise the City on financing structuring. As Municipal Advisor, W. J. Fawell Co., Public Finance has a fiduciary duty to the City. W. J. Fawell Co. acted as Municipal Advisor the City’s Successor Agency on refunding its outstanding bonds in 2015 and 2020.

Oppenheimer & Co. Inc. (OCO), as Placement Agent, will be responsible for obtaining rate and term indications of interest from lenders and will assist with evaluating which lender offered the best rate and terms. OCO will run all refunding numbers, provide required calculations, assist with obtaining lender credit 43 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. G.1

Page 6 of 8 ends

approval, and will be the primary contact with the funding lender. OCO investment banking staff working on this financing are Rick Brandis, Managing Director and Dan Shaw, Director.

Jones Hall, the City’s longtime bond counsel firm, would serve as Bond Counsel. As Bond Counsel, Jones Hall will review and comment on all financing documents, ensure that the financing complies with State and Federal law that governs municipal finance and prepare as needed closing documents. Jones Hall will render required tax opinions and oversee financing closing.

James Wawrzyniak, Jr. and David Fama, bond lawyers with Jones Hall have extensive experience on similar financings, will oversee the provision of legal services.

Analysis and Required Findings
The plan of finance is for the City to enter into an equipment lease purchase financing agreement with a commercial bank that specialize in this type of financing with a fixed rate for 15 yrs.

In accordance with Government Code Section 5852.1, the following information, based on good-faith estimates provided by the City’s placement agent have been obtained and disclosed to the City Council prior to the completion of the financing: (i) the estimated true interest cost of the financing is 3.95% (ii) the estimated finance charge of the financing (being the sum of all fees and charges paid to third parties, is $150,176 (iii) the estimated proceeds of the financing expected to be received, net of proceeds for finance charges in (ii) above to paid from the principal amount of the financing is $6,904,824, and (iv) the estimated total payment amount of the financing (being the sum of debt service to be paid to final maturity, plus any financing costs not paid from proceeds of the financing) is $9,510,057.

Financing Schedule
The financing process is projected to close on or before as summarized in the financing schedule below, although this is dependent on market conditions, timing of necessary approvals, and other factors:

Oct. 26, 2022 • City Council Meeting to Adopt Resolution Approving Financing Plan, including Financing Team Engagement Agreements and Draft Legal Documents Nov. 2, 2022 • Conference Call to Review Schedule and Tasks to be Completed for Closing Nov. 8, 2022 • Obtain Final Lender Credit Approval.

Nov. 10, 2022 • Conf. Call with Staff to Review Final Draft of Financing Documents to include Lender Term Sheet.

Nov. 11, 2022 • Finance Team Provides Comments on Draft Final Financing Documents.

Nov. 17, 2022 • Closing
44 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. G.1

Page 7 of 8 ends

________________________________________________________________________________________ Summary:

Due to the level of deferred maintenance that has accumulated within the City's facilities, this program represents an important opportunity for the City to make a significant impact on the physical condition of the facilities as well as reduce energy costs while lowering greenhouse gas emissions. Under the general authority of the State of California 4217 Code Program, energy conservation efforts that reduce demand have been exempted from the normal process of development of bid specifications and engineering plans and may directly be implemented. As shown in the previous section, the proposed program would result in $12M in energy and maintenance savings over the 20-year life of the project.

The proposed equipment lease purchase financing will provide funding for energy cost savings improvements to City facilities and to its water and wastewater enterprises resulting in long term energy savings. The installation of new water meters throughout the City will significantly reduce Operating and Maintenance costs of the City/s Water Enterprise and will reduce water distribution loss due to current water meter inaccuracies thereby increasing to some extent water sold volume. Installation of new water meters will also aid in encouraging water conservation by customers.

Once DWR drought grant funds of $1,647,750 DWR Drought grants are received by the City, estimated to occur in 2025 or before, these funds can be used to pay down the equipment lease purchase financing, reducing the amount of debt, significantly reducing annual debt service, and thereby increasing annual energy savings.

Assuming City Council approval of the financing plan and related agreements on 10/26/22, PGE has estimated all improvements will be completed by 10/27/23. For most of the energy savings improvements, energy savings will commence upon installation. Water distribution loss will be reduced, and water revenue recovered as new water meters are installed that will occur between 4/14/23 and 10/3/23 (installation completed).
_______________________________________________________________________________________ Options:

1. Approve Resolutions as is or with modifications; or

2. Reject Resolutions; or

3. Provide Alternative Direction to City staff
_______________________________________________________________________________________ Budget/Financial Impact:

Project financing costs offset by savings from installation of energy improvements, newly captured water revenue from installation of new water meters and related operation and maintenance (O & M) savings.

Annual Energy savings (electricity and natural gas) and reduction in O&M costs to the City’s Water Enterprise and increase in volume of water sold due to installation of new water meters will not be fully realized until project completion estimated to occur by 10/27/23. There will not be any significant immediate budget or financial impact until the project is fully completed and operational.

Debt service payments on the financing will not be due for 18 months from the closing date of financing since interest payment during this time will be “built” into the principal amount of the financing. This allows time 45 City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. G.1

Page 8 of 8 ends

for the project to be completed with savings generated thereafter to offset annual debt service payments on the financing.

PGE/Centrica have estimated total savings of $12,694,052 through 2043 vs. less current estimated total debt service of $9,510,057 through 2037 (assumes 15 yr. term financing) yielding estimated Net Savings through 2043 of $3,158,174 ($12,694,052 less $9,535,878=$3,158,174). ________________________________________________________________________________________ Attachments:

1. Presentation

2. Resolution approving the PG&E Investment Grade Audit (“IGA”) and Sustainable Solutions Turnkey Implementation Work Order

3. Exhibit A – Investment Grade Audit Results

4. Exhibit B - Sustainable Solutions Turnkey Implementation Work Order

5. Resolution approving an equipment lease purchase agreement with Bank of America and related documents

6. Exhibit A – Form of Equipment Lease/Purchase Agreement

7. Exhibit B – Form of Escrow and Account Control Agreement

8. Exhibit C – Agreement with Jones Hall to Serve as Special Legal Counsel

9. Exhibit D – Agreement with W.J. Fawell Co. for Municipal Advisor Services

10. Exhibit E – Placement agent Agreement with Oppenheimer & Co. Inc.

11. Oppenheimer Memo Soliciting Indicative Rates and Terms from Prospective Lenders

12. Banc of America Public Capital Corp. Non-Bank Qualified Tax-Exempt Financing proposal and Summary of Terms and Conditions
46 CITY OF CLOVERDALE

EQUIPMENT LEASE FINANCING

ENERGY & UTILITY PROJECTS
CITY COUNCIL MEETING – OCTOBER 26, 2022
47 TABLE OF CONTENTS
Section I - Financing Team
Section II - Scope of the Projects
Section II - Financing Plan
Section III - Estimated Savings
Section IV - Overview of Financing Documents
Section V - Costs of Issuance
Section VI - Next Steps
Section VII - Questions
2 48
3 FINANCING TEAM
W.J. Fawell Co.

Municipal Advisor
Oppenheimer & Co. Inc.

Placement Agent
Jones Hall
Bond Counsel
Pacific Gas & Electric
General Contractor
Centrica Business Solutions
Subcontractor to PG&E
49 4

SCOPE OF THE PROJECT
Lighting, Reduced HVAC, Water Meters & Solar PV
Indoor/Outdoor Lighting: $ 130,160
Streetlighting: $ 33,425
HVAC Replacement at City Hall, Police Station, Public Library, Senior Center, Corporate Yard, WWTF, WTP: $ 567,869
3,407 Water Meters + AMI w/ WaterSmart: $ 4,150,113
909 kW Solar PV at WWTF: $ 3,003,257
Total: $7,884,824
First Year Energy\Water\O&M Savings: $ 540,448
Simple Payback: 14.6 years
Energy Savings: 1,619021 kWh (electricity), 539 therms (gas), 93.84 kW (demand) Annually:
1,265 tons CO2e GHG reduction
Equivalent to the electricity used in 223 homes
Equivalent to carbon sequestered by 1,358 acres of U.S. Forests 50 5

FINANCING PLAN
• In order to finance the Project, the City will enter into an Equipment Lease Purchase Agreement. The Agreement is privately placed with an accredited investor. Benefits of a private placement include:
• Lower costs of issuance
• Less staff time
• Streamlined financing process
• Interst rate can be locked earlier in the financing process • No debt service reserve fund required
• City plans to use $980,000 of ARPA grant funds as a cash contribution towards the Project, bring the financed Project cost from $7,774,824, down to $6,904,824.
• Debt service on the Equipment Lease Purchase Agreement is payable form any lawfully available funds. The City intends to allocate the debt service among the City’s:
• Water Enterprise (71.99%)
• Wastewater Enterprise (20.10%
• General Fund (7.91%)
51 6

FINANCING PLAN CONTINUED
• Debt Service Coverage Calculation performed by Oppenheimer showed that the City’s Water Enterprise and Wastewater Enterprise have sufficient net revenues to cover the debt service payments.
• Oppenheimer reached out to seven private placement lenders that specialize in equipment leasing. Bank of America provided the most favorable terms.

Bank of America provided a term sheet that offered:
• 3.963% rate for a 15-year term (rate locked through December 13th) • Prepayment option on any payment date at a prepayment premium of 102% of the outstanding principal
• One-time special prepayment from grant proceeds with no prepayment premium
• Up to $2 million
• Must occur within 3 years of financing (closing est. 11/17/22) 52 7

ESTIMATED SAVINGS
Savings Provided New Projects
Fiscal Year Electric Savings (1)
Natural Gas
Savings (2) Water Savings (3) O&M Savings (4) Solar Degredation Total Savings Debt Service Net Savings /
(Costs)
2023
2024 230,532 749 156,031 153,136 540,448 655,958 -115,510 2025 238,601 775 161,492 156,199 (1,111) 555,956 655,858 -99,902 2026 246,952 802 167,144 159,323 (2,295) 571,926 655,263 -83,338 2027 255,595 830 172,994 162,509 (3,553) 588,376 656,035 -67,659 2028 264,541 859 179,049 165,759 (4,891) 605,318 655,153 -49,835 2029 273,800 890 185,316 169,075 (6,312) 622,768 655,636 -32,868 2030 283,383 921 191,802 172,456 (7,820) 640,741 655,367 -14,625 2031 293,301 953 198,515 175,905 (9,420) 659,254 655,404 3,850 2032 303,567 986 205,463 179,423 (11,114) 678,325 655,668 22,657 2033 314,191 1,021 212,654 183,012 (12,909) 697,969 656,120 41,849 2034 325,188 1,057 220,097 186,672 (14,809) 718,205 655,739 62,465 2035 336,570 1,094 227,801 190,405 (16,818) 739,051 655,547 83,504 2036 348,350 1,132 235,774 (18,942) 566,313 655,442 -89,129 2037 360,542 1,171 244,026 (21,186) 584,553 655,427 -70,874 2038 373,161 1,212 252,567 (23,556) 603,384 331,440 271,944 2039 386,222 1,255 261,406 (26,057) 622,826 622,826
2040 399,739 1,299 270,556 (28,696) 642,898 642,898
2041 413,730 1,344 280,025 (31,479) 663,620 663,620
2042 428,211 1,391 289,826 (34,412) 685,016 685,016
2043 443,198 1,440 299,970 (37,502) 707,106 707,106
Total 6,519,372 21,181 4,412,507 2,053,874 (312,882) 12,694,052 9,510,057 3,183,995 • If the City makes a special prepayment of $1,648,000 from grant proceeds, debt service decreases by $65,300 per year. Total debt service decreases by $2.4 million. 53 8 OVERVIEW OF FINANCING DOCUMENTS
• Resolution No. _____ approving Equipment Lease Purchase Agreement and Related Documents and actions
• Resolution No. ____ approving the PG&E Investment Grade Audit and Sustainable Solutions Turnkey Implementation Work Order for the Project • Professional Services contracts with:
• W.J. Fawell Co. (Municipal Advisor)
• Oppenheimer & Co. Inc. (Placement Agent)
• Jones Hall (Bond Counsel)
54 9

COSTS OF ISSUANCE
Description Firm Est. Fees
Bond Counsel Fee Jones Hall $45,000
Bond Counsel Expenses Jones Hall $2,500
Municipal Advisor Fee W. J. Fawell Co. $42,500
Mpl. Advisor Expenses W. J. Fawell Co. $2,500
Placement Agent Oppenheimer & Co. Inc. $40,000
CDIAC Fees CDIAC Fees $1,800
Miscellaneous $5,700
TOTAL ESTIMATE $140,000
55 10

NEXT STEPS
• Assuming Council adopts Resolution No. _____, next steps would be:
• Finalize financing numbers
• Finalize the Equipment Lease Purchase Agreement with final terms and numbers
• Close of the Equipment Lease Purchase Agreement (funding of the Project) – Estimated November 17, 2022
56 11
QUESTIONS?
57 CITY OF CLOVERDALE
RESOLUTION NO. ___-2022

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE APPROVING THE PG&E INVESTMENT GRADE AUDIT (“IGA”) AND SUSTAINABLE SOLUTIONS TURNKEY IMPLEMENTATION PROJECT WORK ORDER FOR VARIOUS ENERGY AND RETROFIT PROJECTS (“PROJECT”) FOLLOWING THE TERMS OF THE PG&E MASER

SERVICE AGREEMENT AND AUTHORIZING THE CITY MANAGER TO SUBMIT DOCUMENTATION AND EXECUTE

ANY ASSOCIATED AGREEMENTS AND APPLICATIONS TO IMPLEMENT THE PROJECT WHEREAS, the City owns and maintains several facilities include water and wastewater treatment plants, City Hall, the Senior Center, all of which have equipment that is near the end of its useful life and not energy efficient; and
WHEREAS, The City previously selected PG&E for a Preliminary Feasibility Assessment (PFA) at no cost that demonstrated a budget neutral energy savings project is possible but warrants further clarification; and WHEREAS, to proceed with a budget neutral energy savings project, it is necessary to complete an Investment Grade Audit to determine the expected savings and costs for improvements at City facilities; and WHEREAS, PG&E shall furnish all labor, materials, and equipment and perform all work required for the completion of an Investment Grade Audit to identify energy saving measures and equipment replacement at City of Cloverdale Facilities. The IGA shall be conducted at NO COST to the City; and WHEREAS, California Government Code Sections 4217.10 to 4217.18 allow the City to forgo standard procurement processes for energy service contracts and for energy financing contracts if it finds it best serves the City's interest; and that the anticipated cost to the City/Council for thermal or electrical energy or conservation services provided by PG&E under the contract will be less than the anticipated marginal cost to the City of thermal, electrical, other energy, and other costs that are directly system related, that would have been consumed by the City/County in absent of those purchases or the implementation of the improvements; and
WHEREAS, based on the anticipated cost and payback period on the investment, and the long term benefit to the City in reduced energy use and costs, it is in the City's best interest to participate in the Turnkey Program with PG&E; and
WHEREAS, On December 21, 2021, the Council’s Planning & Sustainability Subcommittee reviewed the results of preliminary assessment conducted by PG&E that included a condition assessment, utility analysis, list of measures evaluated (lighting, HVAC replacement, street lights, solar photovoltaics, EV charging stations), project financial and next steps; and
WHEREAS, the Council’s Planning & Sustainability Subcommittee recommended finalizing PG&E analysis and presenting the assessment results to the City Council; and WHEREAS, On June 23, 2022, the City Council adopted Resolution 059-2021 authorizing the use of California Government Code Section 4217.12 allowing the City to forgo its standard low-bid public procurement process to complete the program and authorizing the City Manager to enter into a Master Service Agreement and Work Order required to start the Investment Grade Assessment (IGA) and complete the project r and authorizing the City Manager to execute any associated agreement and applications; and 58 WHEREAS, As part of the Investment Grade Assessment, an evaluation of the City’s water meter system was conducted. PG&E’s Turnkey Project Team conducted a preliminary evaluation associated with replacing 3,329 meters with new high accuracy meters utilizing either AMR or AMI technology; and WHEREAS, on February 23, 2022, THE City Council received a Preliminary Feasibility Assessment Presentation and by motion authorized the City Manager to execute of Change Order #01 to the Investment Grade Audit Work Order to enable completing water meter testing and acknowledgement of the cost and payment terms of the meter testing process; and
WHEREAS, on August 10, 2022, the City Council receive a presentation on PG&E’s Investment Grade Audit Results, reviewed four options for the Sustainable Solutions Turnkey (SST) Program, provided direction on the preferred option and directed staff to return with a financing plan; and WHEREAS, on August 10th the City Council expresses their support for Option 3 and recommends the final Investment Grade Audit Findings based on his option; and WHEREAS, public notice of this City Council meeting item was published in a newspaper with general circulation within the City of Cloverdale at least two weeks before the public hearing.

NOW, THEREFORE, BE IT RESOLVED, that the City Council:

1. Approves PG&E’s Investment Grade Audit Findings attached hereto as Exhibit A and Implementation Work Order attached hereto as Exhibit B following the terms of the approved PG&E Master Service Agreement and IGA Work Order; and

2. Approves submittal of funding and Incentive documentation as required for the Turnkey Program during the IGA; and

3. Authorizes the City Manager to execute any associated agreements and applications in a form approved by the City Attorney to implement the Turnkey Program.

The foregoing Resolution No. ____-2022 was duly introduced and adopted by the City Council of the City of Cloverdale at its regular meeting held on the 26thday of October 2022 by the following roll call vote:

Ayes:

Noes:

Absent:

Abstaining: None
APPROVED: ATTEST:
______________________________ ____________________________________ Todd Lands, Mayor Mike Maloney, City Clerk
Attachments:

Exhibit A – Investment Grade Audit Results
Exhibit B – PG&E Implementation Work Order
59 Internal
Lighting, Reduced HVAC, Water Meters & Solar PV
Indoor/Outdoor Lighting: $ 130,160
Streetlighting: $ 33,425
HVAC Replacement at City Hall, Police Station, Public Library, Senior Center, Corporate Yard, WWTF, WTP: $ 567,869
3,329 Water Meters + AMI w/ WaterSmart: $ 4,150,113909 kW Solar PV at WWTF: $ 3,003,257 Total: $7,884,824
First Year Energy\Water\O&M Savings: $ 540,448
Simple Payback: 14.6 years
Energy Savings: 1,619021 kWh (electricity), 539 therms (gas), 93.84 kW (demand) Annually:1,265 tons CO2e GHG reduction
Equivalent to the electricity used in 223 homes
Equivalent to carbon sequestered by 1,358 acres of U.S. Forests Selected Project
60 FIM # Include in
Project? Facility Name FIM Description
Year 1 Electric
Savings
$/yr
Year 1 Natural Gas
Savings $/yr
Year 1 Water
Savings
$/yr
Year 1 O&M
Savings
$/yr
Total Annual Cost
Savings ($/yr)
Electricity
Savings
(kWh/yr)
Greenhouse Gas
Emissions Avoided
Tons CO2
Total FIM Cost ($) Simple Payback
(years)
1A1 Yes City Hall Interior/Exterior Upgrades $735 $0 $0 $66 $801 4,374 3.4 $19,233 24.0 1A2 Yes Police Station Interior/Exterior Upgrades $4,539 $0 $0 $310 $4,849 35,354 27.6 $48,412 10.0 1A5 Yes Senior Center Interior/Exterior Upgrades $0 $0 $0 $200 $200 0 0.0 $6,436 32.1 1A8 Yes Water Treatment Plant Interior/Exterior Upgrades $608 $0 $0 $72 $681 4,251 3.3 $27,913 41.0 1A7 Yes Wastewater Treatment Plant Interior/Exterior Upgrades $492 $0 $0 $40 $532 4,266 3.3 $12,318 23.2 1A6 Yes Public Corp Yard Interior/Exterior Upgrades $1,884 $0 $0 $83 $1,967 11,777 9.2 $15,848 8.1 2A11 Yes City of Cloverdale Streetlighting Upgrades $5,759 $0 $0 $678 $6,437 24,720 19.3 $33,425 5.2 3A1 Yes City Hall Turnkey HVAC and T-Stat Upgrades $427 $144 $0 $712 $1,283 2,542 2.0 $77,220 60.2 3A2 Yes Police Station Turnkey HVAC and T-Stat Upgrades $590 $195 $0 $905 $1,690 4,597 3.6 $99,147 58.7 3A4 Yes Public Library Turnkey HVAC and T-Stat Upgrades $0 $0 $0 $1,088 $1,088 0 0.0 $117,971 108.4 3A5 Yes Senior Center Turnkey HVAC and T-Stat Upgrades $0 $0 $0 $1,373 $1,373 0 0.0 $148,808 108.4 3A6 Yes Public Corp Yard Turnkey HVAC and T-Stat Upgrades $558 $0 $0 $530 $1,088 3,487 2.7 $57,418 52.8 3A7 Yes Wastewater Treatment Plant Turnkey HVAC and T-Stat Upgrades $174 $0 $0 $97 $271 1,508 1.2 $10,712 39.6 3A8 Yes Water Treatment Plant Turnkey HVAC and T-Stat Upgrades $35 $410 $0 $522 $967 245 0.2 $56,593 58.5 4A7 No Wastewater Treatment Plant GridBee systems at WWTP w/ CMU Building $0 $0 $0 $0 $0 0 0.0 $0 0.0 4B7 No Wastewater Treatment Plant GridBee systems at WWTP w/ Steel Building $0 $0 $0 $0 $0 0 0.0 $0 0.0 4C7 No Wastewater Treatment Plant GridBee systems at WWTP w/ Equipment Pad $0 $0 $0 $0 $0 0 0.0 $0 0.0 5A11 Yes City of Cloverdale 3,329 water meters throughout city $0 $0 $156,031 $146,458 $302,489 0 0.0 $4,150,113 13.7 6A11 Yes City of Cloverdale Solar PV Ground-mount install $214,731 $0 $0 $0 $214,731 1,521,900 1,188.6 $3,003,257 14.0 TOTAL $230,532 $749 $156,031 $153,136 $540,448 1,619,021 1,264 $7,884,824 14.6 PrProject Fund % of Project Fund
$14,492 $339 $0 $5,947 $20,778 $623,918 7.91%
$103,714 $410 $156,031 $147,052 $407,208 $5,676,183 71.99% $112,326 $0 $0 $137 $112,463 $1,584,724 20.10%
Total Attributed to General Fund
Total Attributed to Water Enterprise (Includes 48% of Solar) Total Attributed to Wastewater Enterprise (Includes 52% of Solar) 61 City of Cloverdale
2022 Equipment Lease Purchase Agreement
Savings Analysis
Fiscal Year
Electric
Savings (1)
Natural Gas
Savings (2)
Water
Savings (3)
O&M Savings
(4)
Solar
Degredation Total Savings Debt Service
Net Savings
/ (Costs)
2023
2024 230,532 749 156,031 153,136 540,448 657,758 -117,310 2025 238,601 775 161,492 156,199 (1,111) 555,956 657,420 -101,464 2026 246,952 802 167,144 159,323 (2,295) 571,926 656,720 -84,794 2027 255,595 830 172,994 162,509 (3,553) 588,376 657,380 -69,004 2028 264,541 859 179,049 165,759 (4,891) 605,318 657,380 -52,062 2029 273,800 890 185,316 169,075 (6,312) 622,768 656,700 -33,932 2030 283,383 921 191,802 172,456 (7,820) 640,741 657,300 -16,559 2031 293,301 953 198,515 175,905 (9,420) 659,254 657,160 2,094 2032 303,567 986 205,463 179,423 (11,114) 678,325 657,220 21,105 2033 314,191 1,021 212,654 183,012 (12,909) 697,969 656,520 41,449 2034 325,188 1,057 220,097 186,672 (14,809) 718,205 656,980 61,225 2035 336,570 1,094 227,801 190,405 (16,818) 739,051 656,560 82,491 2036 348,350 1,132 235,774 (18,942) 566,313 657,220 -90,907 2037 360,542 1,171 244,026 (21,186) 584,553 656,960 -72,407 2038 373,161 1,212 252,567 (23,556) 603,384 336,600 266,784 2039 386,222 1,255 261,406 (26,057) 622,826 622,826
2040 399,739 1,299 270,556 (28,696) 642,898 642,898
2041 413,730 1,344 280,025 (31,479) 663,620 663,620
2042 428,211 1,391 289,826 (34,412) 685,016 685,016
2043 443,198 1,440 299,970 (37,502) 707,106 707,106
Total 6,519,372 21,181 4,412,507 2,053,874 (312,882) 12,694,052 9,535,878 3,158,174 (1) Projected to increase by 3.5%
(2) Projected to increase by 3.5%
(3) Projected to increase by 3.5%
(4) Projected to increase by 2.0%. Savings duration of 12 years.

September 29, 2022
Savings Provided New Projects
62 City of Cloverdale
2022 Equipment Lease Purchase Agreement
General Fund Component
Savings Analysis
Fiscal Year
Electric
Savings (1)
Natural Gas
Savings (2)
Water
Savings (3)
O&M Savings
(4)
Solar
Degredation Total Savings Debt Service
Net Savings
/ (Costs)
2023
2024 14,492 339 5,947 20,778 52,029 -31,251
2025 14,999 351 6,066 21,416 52,002 -30,586
2026 15,524 363 6,187 22,075 51,947 -29,872
2027 16,068 376 6,311 22,754 51,999 -29,244
2028 16,630 389 6,437 23,456 51,999 -28,543
2029 17,212 403 6,566 24,181 51,945 -27,764
2030 17,814 417 6,697 24,928 51,992 -27,064
2031 18,438 431 6,831 25,700 51,981 -26,281
2032 19,083 446 6,968 26,497 51,986 -25,489
2033 19,751 462 7,107 27,320 51,931 -24,610
2034 20,442 478 7,249 28,170 51,967 -23,797
2035 21,158 495 7,394 29,047 51,934 -22,887
2036 21,898 512 22,411 51,986 -29,575
2037 22,665 530 23,195 51,966 -28,771
2038 23,458 549 24,007 26,625 -2,618
2039 24,279 568 24,847 24,847
2040 25,129 588 25,717 25,717
2041 26,008 608 26,617 26,617
2042 26,919 630 27,548 27,548
2043 27,861 652 28,513 28,513
Total 409,829 9,587 0 79,762 0 499,178 754,288 -255,110 (1) Projected to increase by 3.5%
(2) Projected to increase by 3.5%
(3) Projected to increase by 3.5%
(4) Projected to increase by 2.0%. Savings duration of 12 years.

September 29, 2022
Savings Provided New Projects
63 City of Cloverdale
2022 Equipment Lease Purchase Agreement
Water Enterprise Component
Savings Analysis
Fiscal Year
Electric
Savings (1)
Natural Gas
Savings (2)
Water
Savings (3)
O&M Savings
(4)
Solar
Degredation Total Savings Debt Service
Net Savings
/ (Costs)
2023
2024 103,714 410 156,031 147,052 407,207 473,520 -66,313 2025 107,344 424 161,492 149,993 (533) 418,720 473,277 -54,556 2026 111,101 439 167,144 152,993 (1,102) 430,576 472,773 -42,197 2027 114,990 455 172,994 156,053 (1,705) 442,786 473,248 -30,462 2028 119,014 470 179,049 159,174 (2,348) 455,360 473,248 -17,888 2029 123,180 487 185,316 162,357 (3,030) 468,310 472,758 -4,448 2030 127,491 504 191,802 165,604 (3,754) 481,648 473,190 8,457 2031 131,953 522 198,515 168,917 (4,522) 495,385 473,089 22,295 2032 136,572 540 205,463 172,295 (5,335) 509,535 473,133 36,402 2033 141,352 559 212,654 175,741 (6,196) 524,109 472,629 51,480 2034 146,299 578 220,097 179,256 (7,108) 539,122 472,960 66,162 2035 151,419 599 227,801 182,841 (8,073) 554,586 472,658 81,929 2036 156,719 620 235,774 (9,092) 384,020 473,133 -89,113 2037 162,204 641 244,026 (10,169) 396,702 472,946 -76,244 2038 167,881 664 252,567 (11,307) 409,805 242,318 167,486 2039 173,757 687 261,406 (12,507) 423,343 423,343
2040 179,839 711 270,556 (13,774) 437,331 437,331
2041 186,133 736 280,025 (15,110) 451,784 451,784
2042 192,648 762 289,826 (16,518) 466,717 466,717
2043 199,390 788 299,970 (18,001) 482,147 482,147
Total 2,932,999 11,595 4,412,507 1,972,275 (150,184) 9,179,192 6,864,878 2,314,313 (1) Projected to increase by 3.5%
(2) Projected to increase by 3.5%
(3) Projected to increase by 3.5%
(4) Projected to increase by 2.0%. Savings duration of 12 years.

September 29, 2022
Savings Provided New Projects
64 City of Cloverdale
2022 Equipment Lease Purchase Agreement
Wastewater Enterprise Component
Savings Analysis
Fiscal Year
Electric
Savings (1)
Natural Gas
Savings (2)
Water
Savings (3)
O&M Savings
(4)
Solar
Degredation Total Savings Debt Service
Net Savings
/ (Costs)
2023
2024 112,326 137 112,463 132,209 -19,746
2025 116,257 140 (578) 115,819 132,141 -16,322
2026 120,326 143 (1,194) 119,275 132,001 -12,725
2027 124,538 145 (1,848) 122,836 132,133 -9,298
2028 128,897 148 (2,543) 126,502 132,133 -5,632
2029 133,408 151 (3,282) 130,277 131,997 -1,720
2030 138,077 154 (4,066) 134,165 132,117 2,048
2031 142,910 157 (4,898) 138,169 132,089 6,080
2032 147,912 161 (5,779) 142,293 132,101 10,192
2033 153,089 164 (6,713) 146,540 131,961 14,579
2034 158,447 167 (7,701) 150,913 132,053 18,860
2035 163,993 170 (8,745) 155,418 131,969 23,449
2036 169,732 (9,850) 159,882 132,101 27,781
2037 175,673 (11,017) 164,656 132,049 32,607
2038 181,821 (12,249) 169,572 67,657 101,916
2039 188,185 (13,550) 174,636 174,636
2040 194,772 (14,922) 179,850 179,850
2041 201,589 (16,369) 185,220 185,220
2042 208,644 (17,894) 190,750 190,750
2043 215,947 (19,501) 196,446 196,446
Total 3,176,544 0 0 1,837 (162,699) 3,015,682 1,916,711 1,098,971 (1) Projected to increase by 3.5%
(2) Projected to increase by 3.5%
(3) Projected to increase by 3.5%
(4) Projected to increase by 2.0%. Savings duration of 12 years.

September 29, 2022
Savings Provided New Projects
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CITY OF CLOVERDALE

SUSTAINABLE SOLUTIONS TURNKEY IMPLEMENTATION PROJECT

WORK ORDER
This WORK ORDER (“Work Order”), effective upon the date of the last signature executing this agreement (“Work Order Effective Date”) is made and entered into by and between by the City of Cloverdale (“Customer”) and Pacific Gas and Electric Company (“PG&E”). This Work Order is subject to the terms and conditions of the Master Service Agreement between Customer and PG&E, dated September 16, 2021 (“Service Agreement”). Customer and PG&E are referred to collectively as the “Parties.” In accordance with the provisions of the Services Agreement, the Customer wishes to engage PG&E to provide the Implementation Work on the following Project:

PROJECT NAME: City of Cloverdale – Implementation
PROJECT SITE: Various (see Exhibit A)
AMOUNT OF WORK ORDER: $7,884,824

1. SCOPE OF WORK

1.1. PG&E will procure equipment for, construct, implement and deliver to Customer those measures described in the Scope of Work (“SOW”) at various Customer facilities as identified in the SOW (the “Sites”). The SOW is attached hereto as Exhibit A and incorporated by reference herein. The services to be performed under this Work Order shall be referred to hereinafter as the “Implementation Work”.

PG&E shall have no obligations to perform any Implementation Work under this Work Order unless and until PG&E and Customer have signed this Work Order and the Customer has secured sufficient internal funding and project financing to cover the cost of the Implementation Work. The issuance of this Work Order does not commit PG&E to perform any future work for Customer.

1.2. Subcontractors. PG&E reserves the right to engage third party subcontractors (“Subcontractors”) to perform some or a portion of the Implementation Work. PG&E agrees that, as between PG&E and Customer, PG&E shall be solely responsible for the Subcontractors performance of the Implementation Work under this Work Order. In addition, unless otherwise set forth in this Work Order, the fees and costs billed to Customer shall be inclusive of any, and all, fees and compensation due to any Subcontractors. PG&E shall be responsible for the payment of any compensation, monies, wages or other payment due or allegedly due Subcontractors. For purposes of this Agreement, PG&E and its Subcontractors shall be collectively referred to as “PG&E”.

1.3. Term of Work Order. This Work Order shall commence upon the Work Order Effective Date and shall continue until March 31, 2024; unless sooner terminated or extended as permitted under the Services Agreement (the “Work Order Term”). Contractor shall complete the Implementation Work 66

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in accordance with the milestone dates described in the project schedule attached hereto as Exhibit B and incorporated by reference herein.

2. PERFORMANCE OF THE IMPLEMENTATION WORK
• Project Construction

2.1.1. PG&E’s Responsibilities.

2.1.1.1. Upon execution of this Work Order by Customer, PG&E shall commence and complete construction and implementation of the Project in accordance with the Services Agreement, this Work Order, the attached SOW and any applicable Work Order modifications. PG&E will provide all professional and other services, labor, materials, equipment, tools, transportation, and other services necessary for the proper performance and completion of the Implementation Work. PG&E will be responsible for the means, methods, techniques, sequences, and procedures to implement the Project, and shall oversee Project construction.

2.1.1.2. PG&E will use commercially reasonable efforts to minimize disruption to Customer’s use and operations at the Sites. PG&E will provide at least ten (10) calendar days written notice to Customer of any planned power or other utilities outages that will be necessary for the Implementation Work. Customer will cooperate with PG&E in scheduling such outages, and Customer agrees to provide its reasonable approval of any scheduled outage.

2.1.2. Customer's Responsibilities.

2.1.2.1. Customer will take reasonable measures to provide PG&E, its personnel and Subcontractors with site access, suitable office space and other reasonable accommodations and facilities necessary to permit PG&E personnel and its Subcontractors to perform the Implementation Work on this Project. While working on the Sites, if requested by Customer, the PG&E Project team personnel will be located in an area adjacent to Customer's subject matter experts and technical personnel, and all necessary security badges and clearance will be provided for access to this area, all in accordance with Customer’s vendor policies.

Additionally, upon request Customer will provide to PG&E and its Subcontractors relevant site information or documents necessary to perform the Implementation Work, including but not limited to a copy of this Work Order, all Work Order modifications, the Services Agreement, a copy of relevant drawings, specifications, operation, and maintenance manuals for equipment at the Sites, and other pertinent documents.

2.1.2.2. Customer will arrange for a temporary staging area for the storage and assembly of equipment for completion of the Implementation Work, if needed. 67

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2.1.2.3. Customer will coordinate the Implementation Work to be performed by PG&E with the Customer’s operations and other activities and with any other construction project that is ongoing at or around the Sites.
• Training and Commissioning Services. PG&E shall provide training to Customer on equipment installed as described in the SOW. PG&E shall perform commissioning services in accordance with the equipment manufacturers’ startup and commissioning recommendations and the Project Schedule.
• Certificate of Substantial Completion. Promptly upon substantial completion of each Project measure, PG&E will submit a Certificate of Substantial Completion to Customer for such measure.

Upon receipt of such certificate, Customer may inspect the Implementation Work and meet with PG&E’s Project Manager to determine if the Project measure has achieved substantial completion.

Customer shall, within ten (10) business days of receipt of the Certificate of Substantial Completion, inform PG&E if Customer agrees that the Project measure has achieved substantial completion. If Customer disagrees that the Project measure has achieved substantial completion, Customer will specify in detail and in writing the deficiencies requiring correction in order to achieve substantial completion. When substantial completion has been achieved, Customer will execute and return the Certificate of Substantial Completion to PG&E stating that: (i) the Project measure has achieved substantial completion and the date on which it did so, and (ii) that on and after that date Customer will assume responsibility for the Project measure’s operation, maintenance, and repair, for damage to or destruction of the Project measure, and for the Project measure’s security and insurance coverage. Title to the Project measure materials and equipment installed pursuant to this Work Order shall pass to Customer on the date of substantial completion together with equipment warranties. • Close-Out Documentation. Within forty-five (45) days after each Certificate of Substantial Completion has been executed by Customer and received by PG&E, PG&E shall provide Customer with (a) any applicable governmental approvals, permits, and sign-offs, (b) all equipment specifications and ratings, (c) any applicable test data and reports, (d) final as-built and shop drawings, (e) operating instructions, operations and maintenance manuals and schedules, recommended spare parts lists, and all other written information relating to the Project measure, and (f) equipment warranties.
• Final Completion. Promptly after PG&E reasonably believes that Final Completion has occurred, PG&E shall issue to Customer a Notice of Final Completion (defined below in Section 2.5.1).

Thereafter, Customer shall, within fourteen (14) business days, deliver its acknowledgment that Final Completion has been achieved. The date of Final Completion shall be the date of Customer’s written acceptance of PG&E’s Notice of Final Completion. Customer’s failure to respond within the fourteen (14) day notice period shall be deemed acceptance that Final Completion has occurred. 68

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2.5.1. For purposes of this Work Order, the term “Final Completion” means the date when all of the following have been accomplished: (a) each Project measure has achieved Substantial Completion, (b) all “punch list” items have been completed, (c) all Close-out documentation has been delivered to Customer, (d) PG&E has delivered to Customer: (i) a release of all lien rights, (ii) certification that all claims for payment for labor and equipment for which PG&E is responsible have been paid or satisfied, (iii) copies of waivers/releases of lien rights by Subcontractors that have furnished more than twenty-five thousand dollars ($25,000) of goods, services or both for the Project, (iv) notice of all outstanding claims of PG&E, any Subcontractor or equipment or materials supplier or distributor that may affect Customer, PG&E or the Project, (v) a letter of indemnification regarding claims not addressed by waivers/releases, and (vi) removal of all of PG&E and Subcontractors’ personnel, supplies, equipment, waste materials, rubbish, and temporary facilities from the Sites. • PG&E shall not be liable for any claims, liabilities, or losses arising out of, resulting from, or in any way connected with, Customer’s: (a) neglect, misuse, or abuse of the equipment; (b) use of unauthorized parts, or removal of any parts; (c) repair, modification or alteration of equipment by anyone other than authorized representatives as described in the warranties covering the equipment; (d) relocation of the equipment.

3. ORDER OF PRECEDENCE
In the event of a conflict between the provisions of the Work Order, any modification to the Work Order, and the Services Agreement, the following order of precedence shall apply (in descending order): (a) any modification to this Work Order, (b) the Work Order, and (c) the Services Agreement.

4. MODIFICATIONS
If a modification to this Work Order is necessary, the Parties agree to follow the modification process set forth in Section B.5 of the Services Agreement.

5. AUTHORIZATION
Upon receipt of the Work Order, Customer shall review the Work Order and verify that the terms of the Work Order are acceptable to Customer. Customer’s execution of this Work Order shall (i) indicate its acceptance of the terms and conditions set forth herein, and (ii) indicate Customer’s confirmation that it has secured sufficient internal funding and project financing to cover the cost of the Implementation Work.

6. PAYMENT

6.1 Customer will pay PG&E an estimated total amount of $7,884,824.00 (seven-million, eight-hundredeighty-four-thousand, eight-hundred-twenty-four dollars) in return for the Implementation Work. 69

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PG&E will submit monthly invoices to Customer based upon an agreed upon percentage completion of each task line item in the Schedule of Values attached hereto as Exhibit C and incorporated by reference herein.

6.2 Each PG&E invoice will reference this Work Order and be submitted to Customer’s billing address indicated below. Customer shall render, or instruct its financial institution to render, all payments to PG&E within thirty (30) days from the invoice date. Each payment made by Customer, or its thirdparty designee, must reference this Work Order and invoice number. Attached as Exhibit D is the form to enroll in payments by Automated Clearing House (“ACH”). Customer shall enroll in the ACH payment program and shall make all payments for services under this Agreement by ACH.

6.3 Payment Disputes. If a payment dispute arises under this Work Order that is not settled promptly in the ordinary course of business, the dispute shall be resolved in accordance with Section J of the Services Agreement. Notwithstanding anything to the contrary in the Services Agreement or this Work Order, pending the resolution of the issues(s), PG&E may temporarily suspend its performance of the Implementation Work until such dispute has been resolved. 7 NOTIFICATIONS AND INTERFACE
Both Parties shall contact and/or deliver written notices (email is allowed) to the business contacts below in the normal course of business, and in the event of any problems which may significantly affect the performance of the Implementation Work under this Work Order.

CUSTOMER REPRESENTATIVE PG&E REPRESENTATIVE
Name David Kelley Name John Garnett
Title City Manager Title Principal Product Manager
Address 124 North Cloverdale Boulevard Address 245 Market Street, Mail Code N10D Cloverdale, CA 95425 San Francisco, CA 94105
Telephone (559) 935-1533 Telephone 415-672-1746
Email [email protected] Email [email protected]

CUSTOMER BILLING CONTACT
Name
Title
Address
Telephone
Email
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8 OWNERSHIP OF EQUIPMENT

8.1 Ownership and title to any equipment purchased by PG&E on Customer’s behalf pursuant to this Work Order will be transferred to Customer upon Customer’s payment for the particular equipment and no further agreement will be necessary to transfer ownership to the Customer.

8.2 PG&E shall not be liable for any claims, liabilities, or losses arising out of, resulting from or in any way connected with Customer’s use of the equipment.
9 AUTHORITY
Each Party represents and warrants that the individual signing below, as well as any Work Order Modifications and approvals hereunder, has and shall have all requisite power and legal authority to bind the Party on whose behalf he/she is signing to that Party’s obligations hereunder.

IN WITNESS THEREOF, the parties agree to be bound by this Work Order as of the date first set forth above.

STATE OF CALIFORNIA, DEPARTMENT

OF GENERAL SERVICES, OFFICE OF

SUSTAINABILITY

PACIFIC GAS AND ELECTRIC COMPANY
Signature: Signature:

Print Name: Print Name:

Title: Title:

Date: Date:
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EXHIBIT A

SCOPE OF WORK
Scope of Work Overview
Contractor will provide implementation services for the ECMs described generally below, and more specifically in the Cloverdale Investment Grade Audit (“IGA Report”). The IGA Report is attached hereto as Attachment 1, and is incorporated herein:

ECM # ECM Name
1 Lighting Upgrades
2 Streetlighting Upgrades
3 HVAC Upgrades
4 Water Meter Replacements
5 Solar PV Installation
ECM # 1 – Lighting Upgrades
This ECM will be completed in the following facilities:
• City Hall
• Police Station
• Senior Center
• Water Treatment Plant
• Wastewater Treatment Facility
• Corp Yard
The complete lighting upgrade includes:
• 301 LED fixture upgrades
• 8 LED lamp upgrades
• 80 new wireless sensors installed
• 60 new switches/relays installed
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Table 1, below, provides a summary of the Lighting Fixtures Upgrades:

Table 1: Summary of Lighting Fixtures Upgrades
ECM # 2 – Streetlighting Upgrades
This ECM will be completed at locations across the city.

The complete lighting upgrade includes:
• 54 LED fixture upgrades
• 32 LED lamp upgrades
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ECM # 3 – HVAC Upgrades
This ECM will be completed at the following locations with equipment sizes as noted:
• City Hall
o Replace three 4-ton rooftop package units with new high efficiency units o Replace three thermostats with new thermostats meeting the requirements of the California Energy Commission Building Energy Efficiency Standards • Police Station
o Replace two 3-ton split systems with new high efficiency units o Replace one 3-ton package unit with a new high efficiency unit o Replace three thermostats with new thermostats meeting the requirements of the California Energy Commission Building Energy Efficiency Standards • Public Library
o Replace two 4-ton rooftop package units with new high efficiency units o Replace one 7.5-ton rooftop package unit with a new high efficiency unit o Replace three thermostats with new thermostats meeting the requirements of the California Energy Commission Building Energy Efficiency Standards • Senior Center
o Replace one 3-ton split system with a new high efficiency unit o Replace three 5-ton split systems with new high efficiency units o Replace four thermostats with new thermostats meeting the requirements of the California Energy Commission Building Energy Efficiency Standards • Water Treatment Plant
o Replace one 1-ton window mounted AC unit with a 2-ton ductless mini split system o Replace two 125 kbtuh unit heaters with high efficiency units • Wastewater Treatment Facility
o Replace three 3 kW electric unit heaters with new units • Corp Yard
o Replace two 3-ton wall mounted heat pumps with high efficiency units o Replace three thermostats with new thermostats meeting the requirements of the California Energy Commission Building Energy Efficiency Standards 74

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ECM # 4 – Water Meter Replacements
This ECM will be completed at water meter locations throughout the city. Equipment list will be as follows:

In addition to the list of equipment above, the water meter project will include Vertex-One – WaterSmart setup and integration.

ECM # 5 – Solar PV Installation
Contractor will install one Solar PV ground mount system at the Wastewater Treatment Facility. The turnkey scope of work is as follows:
• Installation of Tier I solar modules totaling 909.6 kW (DC). • Provide Smart Grid interactive inverters with web-based monitoring. • Provide the necessary AC/DC wiring and system disconnects. • Provide electrical and structural stamped drawings for all PV systems electrical and mechanical equipment.
• Complete the required Pacific Gas and Electric (PG&E) interconnection application and gain system approval from the utility for all PV systems.
• Complete the required building and electrical permit application. • Provide for system commissioning, startup and As-built drawings.

Provide a total of 4-hours of safety training and general system operational procedures to City staff personnel on the new solar PV systems operation.
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ATTACHMENT 1 TO EXHIBIT A

INVESTMENT GRADE AUDIT REPORT
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EXHIBIT B

ESTIMATED PROJECT SCHEDULE
Estimated time frame for the Scope of Work is as follows (with the numbered ECMs running in parallel):

Milestone Duration
(Work Days) Start Finish Duration (Calendar Days)
Total Project Construction 264 Days 11/14/22 12/8/23 389 Days Mobilization 21 Days 11/14/22 12/15/22 31 Days

1. Lighting Upgrades 78 Days 11/14/22 2/24/23 108 Days
Design & Submittal 10 days 11/14/22 11/28/22 14 days
Material Order/Delivery 30 days 11/28/22 1/9/23 42 days Installation 17 days 1/9/23 1/26/23 23 days
Closeout 21 days 1/26/23 2/24/23 29 days

2. Streetlighting Upgrades 86 Days 11/14/22 3/9/23 115 Days Design & Submittal 10 days 11/14/22 11/28/22 14 days
Material Order/Delivery 30 days 11/28/22 1/9/23 42 days Installation 25 days 1/9/23 2/8/23 30 days
Closeout 21 days 2/8/23 3/9/23 29 days

3. HVAC Upgrades 262 Days 11/14/22 12/6/23 387 Days
Design & Submittal 65 days 11/14/22 2/21/23 99 days
Material Order/Delivery 132 days 2/21/23 8/30/23 190 days Installation 45 days 8/30/23 11/3/23 65 days
Closeout 20 days 11/3/23 12/6/23 33 days

4. Water Meter Replacements 242 Days 11/14/22 11/3/23 354 Days Design & Submittal 14 days 11/14/22 12/6/22 22 days
Material Order/Delivery 88 days 12/6/22 4/14/23 129 days Installation 118 days 4/14/23 10/3/23 172 days
Closeout 22 days 10/3/23 11/3/23 31 days

5. Solar PV Installation 264 Days 11/14/22 4/30/20 389 Days Design & Submittal 73 days 11/14/22 3/3/23 109 days
Material Order/Delivery 95 days 2/6/23 6/23/23 137 days Installation 87 days 6/23/23 10/27/23 126 days
Closeout 17 days 11/13/23 12/8/23 25 days
A detailed schedule describing the scope of work, areas included, and time frame will be provided following the kick-off meeting.
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EXHIBIT C

SCHEDULE OF VALUES
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EXHIBIT D

ACH ENROLLMENT FORM
To remit payments via ACH, please contact your Financial Institution for their business-to-business payment product. The enrollment details and contact information in the tables below will allow your financial institution to correctly direct payments to PG&E for your Non-Energy invoice. In order to ensure timely posting of your non-energy invoice, please send your remittance information within the payment itself as shown below:

Bank Name: CITIBANK N.A.

Bank Address: 399 PARK AVE, NEW YORK, NEW YORK, 10043
ABA: 021000089
Bank Phone Number (302) 323-3600
Beneficiary: Pacific Gas and Electric Company
Beneficiary Address: 77 Beale Street, San Francisco, CA 94105 Account Name: PG&E Depository
Account Type: Checking
Account Number: 31020901

ACH SEC
Format:
(CCD+)
The Invoice Number is required to process a payment. Please include the entire number with your payment exactly as displayed on your Non-Energy Invoice: (ex. 0001234567-8)
PG&E requests that non-energy invoice payments be submitted only in the CCD+ ACH SEC format, using a single payment to pay for a single invoice.

PG&E Electronic Funds Transfer Enrollment Contact:

Contact: Anna Enriquez
Telephone: (916) 375-5054 Email Address: [email protected] Miscellaneous Information about PG&E:

FEIN: 94-0742640 Cage/NCage Code 5AA71
Vendor Number: 1010629 Duns Number 556299980
Thank you for your request to remit payments via
ACH. This payment method is for Non-Energy
Invoices only, where the top of the statement has this
identifier:

Please see enrollment details, contact, and banking
information below.
79 CITY OF CLOVERDALE
RESOLUTION NO. ___-2022

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE APPROVING AN EQUIPMENT LEASE

PURCHASE AGREEMENT WITH BANC OF AMERICA PUBLIC CAPITAL CORP (OR ONE OF ITS AFFILIATES)

AND RELATED DOCUMENTS AND ACTIONS INCLUDING PROFESSIONAL SERVICES AGREEMENTS WITH W.J. FAWELL CO. (MUNICIPAL ADVISOR) AND JONES HALL (BOND COUNSEL), AND A PLACEMENT AGENT AGREEMENT WITH OPPENHEIMER & CO., INC.

WHEREAS, the City of Cloverdale (the “City”), a municipal corporation and general law city organized and existing under the laws of the State of California, is authorized by the laws of the State of California to acquire, finance and lease personal property for the benefit of the City and its inhabitants and to enter into contracts with respect thereto; and
WHEREAS, the City desires to acquire, finance and lease certain equipment with a cost not to exceed $7.9 million constituting personal property necessary for the City to perform essential governmental functions (the “Equipment”); and
WHEREAS, in order to acquire such Equipment, the City proposes to enter into that certain Equipment Lease/Purchase Agreement (the “Agreement”) with Banc of America Public Capital Corp (or one of its affiliates), as lessor (the “Lessor”), the form of which has been presented to the City Council of the City at this meeting attached hereto and incorporated herein as Exhibit A and ; and WHEREAS, the City Council of the City deems it for the benefit of the City and for the efficient and effective administration thereof to enter into the Agreement and the other documentation relating to the acquisition, financing and leasing of the Equipment to be therein described on the terms and conditions therein and herein provided; and
WHEREAS, the information required to be obtained and disclosed by the City Council pursuant to Section 5852.1 of the California Government Code with respect to the financing of the Equipment is set forth in the staff report accompanying this Resolution; and
NOW, THEREFORE, Be It And It Is Hereby Resolved by the City Council of the City as follows:

SECTION 1. FINDINGS AND DETERMINATIONs. It is hereby found and determined that the terms of the Agreement, in the form presented to the governing body of City at this meeting, are in the best interests of the City for the acquisition, financing and leasing of the Equipment.

SECTION 2 . APPROVAL OF DOCUMENTs. The Agreement and the related Escrow and Account Control Agreement (the “Escrow Agreement”) attached hereto and incorporated herein as Exhibit B are hereby approved in substantially the forms presented at this meeting, with such insertions, omissions and changes as shall be approved by the City Attorney, working with special legal counsel Jones Hall, to put the Agreement and the Escrow Agreement in final form, the execution and delivery of such documents by the City being conclusive evidence of such approval; provided, that the par amount of the Agreement shall not exceed $7,100,000 and the interest rate shall not exceed 3.963%. Subject to the foregoing, the City 80 Manager of the City is hereby authorized and directed to execute (in writing or electronically), and the City Clerk of the City is hereby authorized and directed to attest, the Agreement, the Escrow and Account Control Agreement and any other related Exhibits attached thereto and to deliver the Agreement, the Escrow Agreement (including such other Exhibits) to the respective parties thereto, and the City Clerk of the City is hereby authorized to affix the seal of the City to such documents, to the extent deemed necessary.

Section 3. Other Actions Authorized. The officers and employees of the City shall take all action necessary or reasonably required by the parties to the Agreement to carry out, give effect to and consummate the transactions contemplated thereby (including the execution (in writing or electronically) and delivery of a Final Acceptance Certificate, the Escrow Agreement, Disbursement Requests and any tax certificate and agreement, as contemplated in the Agreement) and to take all action necessary in conformity therewith, including, without limitation, the execution (in writing or electronically) delivery of any closing and other documents required to be delivered in connection with the Agreement.

Section 4. No General Liability. Nothing contained in this Resolution, the Agreement, the Escrow Agreement nor any other instrument shall be construed with respect to the City as incurring a pecuniary liability or charge upon the general credit of the City or against its taxing power, nor shall the breach of any agreement contained in this Resolution, the Agreement, the Escrow Agreement or any other instrument or document executed in connection therewith impose any pecuniary liability upon the City or any charge upon its general credit or against its taxing power, except to the extent that the Rental Payments payable under the Agreement are limited obligations of the City, subject to annual appropriation, as provided in the Agreement.

SECTION 5. APPOINTMENT OF AUTHORIZED CITY REPRESENTATIVES. The City Manager, Assistant City Manager, and Finance Director of the City are each hereby designated to act as authorized representatives of the City for purposes of the Agreement and the Escrow Agreement until such time as the governing body of the City shall designate any other or different authorized representative for purposes of the Agreement or the Escrow Agreement. Whenever in this Resolution any officer of the City is authorized to execute or attest to any document or take any other action, such execution, attestation, or other action may be taken on behalf of such officer by any person designated by such officer to act on his or her behalf in the case such officer is absent or unavailable.

Section 6. Appointment of Financing Team. In connection with the transactions described in this Resolution, the City Council hereby authorizes, ratifies and confirms the appointment of W.J. Fawell Co., Public Finance to serve as municipal advisor, Jones Hall, A Professional Law Corporation, to serve as special legal counsel, and Oppenheimer & Co., Inc., to serve as placement agent, with the fees and expenses of each such firm payable from the proceeds of the financing. The City Manager is authorized to execute professional services agreements or a placement agent agreement, as applicable, with each such firm in a final form approved by the City Attorney. Said agreements are attached hereto and incorporated herein as Exhibits C, D and E.

Section 7. Severability. If any section, paragraph, clause or provision of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution. 81 Section 8. Repealer. All bylaws, orders and resolutions or parts thereof, inconsistent herewith, are hereby repealed to the extent only of such inconsistency with respect to this Resolution. This repealer shall not be construed as reviving any bylaw, order, resolution or ordinance or part thereof.

Section 9.Effective Date. This Resolution shall be effective immediately upon its approval and adoption.

Ayes:

Noes:

Absent:

Abstaining: None
APPROVED: ATTEST:
______________________________ ____________________________________ Todd Lands, Mayor Mike Maloney, City Clerk
Exhibits:

Exhibit A - Equipment Lease/Purchase Agreement
Exhibit B - Escrow and Account Control Agreement
Exhibit C – Agreement with Jones Hall to Serve as Special Legal Counsel Exhibit D – Agreement with W.J. Fawell co for Municipal Advisor Services Exhibit E – Placement agent Agreement with Oppenheimer & Co. Inc. 82 Attachment 6 - Exhibit A - Cloverdale Equipment Lease Purchase Agreement (CA Annual Appropriation)

EQUIPMENT LEASE/PURCHASE AGREEMENT
(ESCROW ACCOUNT)
This Equipment Lease/Purchase Agreement (this “Agreement”) dated as of November [17], 2022, and entered into by and between Banc of America Public Capital Corp, a Kansas corporation (together with its successors, assigns and transferees, and as more particularly defined herein, “Lessor”), and City of Cloverdale, a general law city existing under the laws of the State of California (“Lessee”).

WITNESSETH:

WHEREAS, Lessee desires to lease and acquire from Lessor certain Equipment (as such term is defined herein), subject to the terms and conditions hereof; and, WHEREAS, Lessee is authorized under the constitution and laws of the State (as such term is defined herein) to enter into this Agreement for the purposes set forth herein; NOW, THEREFORE, for good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, and in consideration of the premises hereinafter contained, the parties hereby agree as follows:

ARTICLE I
Section 1.01. Definitions. The following terms will have the meanings indicated below unless the context clearly requires otherwise:
“Acquisition Amount” means $[________________]. The Acquisition Amount is the amount represented by Lessee to be sufficient, together with other funds of Lessee (if any) that are legally available for the purpose of acquiring and installing the Equipment. “Acquisition Period” means the period ending five (5) business days prior to ______________________.
“Agreement” means this Equipment Lease/Purchase Agreement, including the exhibits hereto, together with any amendments and modifications to this Agreement pursuant to Section 13.04.
“[Centrica/PG&E] Contract” means [certain ______________ dated as of _______, 2022, between Lessee and [Centrica/PG&E], as modified by that certain Memorandum of Understanding dated as of _______________, 2022, among Lessee, Lessor and [Centrica/PG&E]]. “Code” means the Internal Revenue Code of 1986, as amended. Each reference to a Section of the Code herein shall be deemed to include the relevant United States Treasury Regulations proposed or in effect thereunder.
83 -2-
“Collateral” has the meaning set forth in Section 6.02. “Commencement Date” means the date when Lessee’s obligation to pay rent commences hereunder, which shall be the date on which the Acquisition Amount is deposited with the Escrow Agent.
“Contract Rate” means the rate identified as such in the Payment Schedule. “Disbursement Request” means the disbursement request attached to the Escrow Agreement as Schedule 1 and made a part thereof.
“Equipment” means the equipment, fixtures and other goods and property listed in the Equipment Schedule and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Article V or Section 8.01. Whenever reference is made in this Agreement to Equipment, such reference shall be deemed to include all such replacements, repairs, restorations, modifications and improvements of or to such Equipment. “Equipment Costs” means the total cost of the Equipment, including related soft costs such as freight, installation and taxes and other capitalizable costs, and other costs incurred in connection with the acquisition, installation and/or financing of the Equipment. “Equipment Schedule” means the Equipment Schedule attached hereto as Exhibit A and made a part hereof (including any duly authorized and executed amendments thereto). “Escrow Account” means the account established and held by the Escrow Agent pursuant to the Escrow Agreement.
“Escrow Agent” means the Escrow Agent identified in the Escrow Agreement, and its successors and assigns.
“Escrow Agreement” means the Escrow and Account Control Agreement in form and substance acceptable to and executed by Lessee, Lessor and the Escrow Agent, pursuant to which the Escrow Account is established and administered.
“Event of Default” means an Event of Default described in Section 12.01. “Event of Non-appropriation” means the failure of Lessee’s governing body to appropriate or otherwise make available funds to pay Rental Payments under this Agreement following the Original Term or then current Renewal Term sufficient for the continued performance of this Agreement by Lessee.
“Lease Term” means the Original Term and all Renewal Terms. “Lessee” means the entity referred to as Lessee in the first paragraph of this Agreement. 84 -3-
“Lessor” means (a) the entity referred to as Lessor in the first paragraph of this Agreement and its successors or (b) any assignee or transferee of any right, title or interest of Lessor in and to this Agreement pursuant to Section 11.01 hereof, including the right, title and interest of Lessor in and to the Equipment, the Rental Payments and other amounts due hereunder, the Escrow Agreement and Escrow Account and other Collateral, but does not include any entity solely by reason of that entity retaining or assuming any obligation of Lessor to perform hereunder. “Lien” means any lien (statutory or otherwise), security interest, mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, preference, priority or other security or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction). “Material Adverse Change” means any change in Lessee’s creditworthiness that could have a material adverse effect on (i) the financial condition or operations of Lessee, or (ii) Lessee’s ability to perform its obligations under this Agreement. “Original Term” means the period from the Commencement Date until the end of the fiscal year of Lessee in effect at such Commencement Date.
“Outstanding Balance” means the amount that is shown for each Rental Payment Date under the column titled “Outstanding Balance” on the Payment Schedule. “Payment Schedule” means the Payment Schedule attached hereto as Exhibit B and made a part hereof.
“Prepayment Price” means the amount that is shown for each Rental Payment Date under the column titled “Prepayment Price” on the Payment Schedule. “Principal Portion” means the amount that is shown for each Rental Payment Date under the column titled “Principal Portion” on the Payment Schedule. “Related Documents” means this Agreement and the Escrow Agreement, each as may be amended and supplemented.
“Renewal Terms” means the consecutive renewal terms of this Agreement, the first of which commences immediately after the end of the Original Term and each having a duration and a term coextensive with each successive fiscal year of Lessee; provided that the final such Renewal Term shall commence on the first day of the last such fiscal year and end on the first business day after the last scheduled Rental Payment Date.
“Rental Payment Date” means each date on which Lessee is required to make a Rental Payment under this Agreement as specified in the Payment Schedule. 85 -4-
“Rental Payments” means the basic rental payments payable by Lessee on the Rental Payment Dates and in the amounts as specified in the Payment Schedule, consisting of a principal component and an interest component, and in all cases sufficient to repay such principal component and interest thereon at the applicable Contract Rate (or Taxable Rate if then in effect). “Scheduled Term” means the Original Term and all scheduled Renewal Terms, with a final Renewal Term ending on ____________, 20__, as set forth in Exhibit B attached hereto. “SEC” means the U.S. Securities and Exchange Commission. “Special Counsel” means Jones Hall, A Professional Law Corporation. “State” means the State of California.
“Taxable Rate” means, for each day that the interest component of Rental Payments is taxable for Federal income tax purposes, an interest rate equal to the Contract Rate plus a rate sufficient such that the total interest to be paid on any Rental Payment Date would, after such interest was reduced by the amount of any Federal, state or local income tax (including any interest, penalties or additions to tax) actually imposed thereon, equal the amount of interest otherwise due to Lessor.
“Vendor” means the manufacturer, installer or supplier of the Equipment or any other person as well as the agents or dealers of the manufacturer, installer or supplier with whom Lessee arranged Lessee’s acquisition, installation, maintenance and/or servicing of the Equipment, and includes, without limitation, [Centrica/PG&E] (“[Centrica/PG&E]”). “Vendor Agreement” means any contract entered into by Lessee and any Vendor for the acquisition, installation, maintenance and/or servicing of the Equipment, and includes, without limitation, the [Centrica/PG&E] Contract.

ARTICLE II
Section 2.01. Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof as follows:
(a) Lessee is a political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State, with full power and authority to enter into the Related Documents and the transactions contemplated thereby and to perform all of its obligations thereunder. (b) Lessee has duly authorized the execution and delivery of the Related Documents by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of the Related Documents. 86 -5-
(c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. No Event of Non-appropriation has occurred or is threatened with respect to this Agreement. (d) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a city of the State. (e) Lessee has complied with such procurement and public bidding requirements as may be applicable to the Related Documents and the acquisition and installation by Lessee of the Equipment.
(f) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder. (g) Lessee has kept, and throughout the Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows, and (4) footnotes, schedules and attachments to the financial statements) within two hundred seventy (270) days after the end of its fiscal year, (ii) such other financial statements and information as Lessor may reasonably request, and (iii) upon Lessor’s request, its annual budget for any prior or current fiscal year or for the following fiscal year when approved but not later than thirty (30) days prior to the end of its current fiscal year. The financial statements described in this subsection (g)(i) shall be accompanied by an unqualified opinion of Lessee’s independent auditor. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (h) Lessee has an immediate need for the Equipment and expects to make immediate use of the Equipment. Lessee’s need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Scheduled Term.
(i) The payment of the Rental Payments or any portion thereof is not (under the terms of this Agreement or any underlying arrangement) directly or indirectly (x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Acquisition Amount will be used, directly or indirectly, to make or 87 -6-
finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (j) There is no pending litigation, tax claim, proceeding or dispute that may adversely affect Lessee’s financial condition or impairs its ability to perform its obligations under the Related Documents. Lessee will, at its expense, maintain its legal existence and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Lessor’s first priority security interest in the Equipment and the Escrow Account and Lessor’s rights and benefits under the Related Documents.
(k) Lessee is the fee owner of the real estate where the Equipment is and will be located (the “Real Property”) and has good and marketable title thereto, and there exists no mortgage, pledge, encumbrance, security interest, charge or other Lien of any nature whatsoever on or with respect to such Real Property. In the event any lien, encumbrance, restriction, asserted encumbrance, claim, dispute or other issue exists or arises with respect to the Lessee’s legal title to or valid and marketable, beneficial use and enjoyment of the Real Property or impairs or adversely impacts Lessor’s right, title or interest in the Equipment or any of Lessor’s rights or remedies under this Agreement with respect to the Equipment (each of the foregoing referred to as a “Real Property Issue”), Lessee will take all steps necessary to promptly quiet, resolve and/or eliminate such Real Property Issue to the satisfaction of Lessor and ensure that Lessee and Lessor have adequate access to and use of (including beneficial use and enjoyment of) the Real Property for all purposes of the Equipment contemplated herein and Lessee shall ensure that its fee interest in the Real Property and Lessor’s right, title or interest in the Equipment and rights or remedies under this Agreement with respect to the Equipment remain free and clear of Real Property Issues.
(l) No lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to which Lessee has been a party at any time has been terminated by Lessee as a result of insufficient funds being appropriated in any fiscal year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation which Lessee has issued during the past ten (10) years. (m) Lessee represents to Lessor that that it has adopted a debt policy in compliance with SB 1029 and Section 8855 of the Government Code of California et seq. and covenants that it shall comply with Section 8855 of the Government Code of California et seq. as amended (the “CDIAC Act”) throughout the Lease Term, including (i) preparing, submitting and filing the report of the proposed debt issuance relating to this Agreement by the method required by the California Debt and Investment Advisory Commission (“CDIAC”), (ii) preparing, submitting and filing the report of final sale (and accompanying documents) relating to this Agreement by the method required by CDIAC, (iii) submitting an annual report relating to the report of final sale for this Agreement by the method required by CDIAC, and (iv) paying all fees charged by CDIAC or the CDIAC Act relating to this Agreement, including, but not limited to the fee in an amount equal to one-fortieth of one percent of the Acquisition Amount or as otherwise prescribed by the CDIAC Act. 88 -7-
(n) As of the date of execution and delivery of this Agreement, Lessee has not granted any Lien on the Collateral that would be senior in priority to, or pari passu with, the first priority Lien on the Collateral granted to Lessor under Section 6.02 of this Agreement.
(o) The street addresses and legal descriptions affixed to the UCC-1 financing statements and fixture filings filed and recorded pursuant to Section 3.04(vi), Section 6.01 and/or Section 6.02 hereof are true, accurate and complete street addresses and legal descriptions of all the properties on which the Equipment is located or to be installed. In the event any street address, legal description, other information, UCC-1 financing statement or fixture filing (or continuations or amendments thereof) filed or recorded with respect to the Lessor’s interests in the Equipment or any of the real property on which the Equipment is located or to be installed reflects any incorrect or incomplete real property legal description, equipment description or other information, Lessee shall take all steps necessary (with the Lessor’s prior written approval) to promptly correct any errors or deficiencies with respect to such legal descriptions, street address, other information, UCC-1 financing statements and/or fixture filings and to protect Lessor’s interests in the Equipment.
(p) All financial statements and other information delivered to Lessor by the Lessee is correct as of the date thereof. Since June 30, 2021, no material adverse change has occurred in the Lessee’s financial condition that would adversely affect the Lessee’s ability to perform its obligations hereunder.
(q) Lessee will pay all Equipment Costs and costs of issuance in excess of the Acquisition Amount available therefor out of its own funds. Lessor shall not have any responsibility to pay amounts for any Equipment Costs or costs of issuance with respect to the Related Documents or the Equipment that individually or collectively exceed the Acquisition Amount.
(r) Lessee has complied with California Government Code Section 4217.10 et seq. and other applicable State law, as and to the extent applicable, with respect to the authorization of this Agreement and the financing and acquisition by the Lessee of the Equipment.
(s) To the extent applicable, as determined by Lessee in its sole discretion, Lessee has complied with the requirements of California Government Code Section 5852.1 et seq. in connection with this Agreement and the Equipment. (t) In connection with the Lessee’s compliance with any continuing disclosure undertakings (each, a “Continuing Disclosure Agreement”) entered into by the Lessee pursuant to SEC Rule 15c2-12 promulgated pursuant to the Securities and Exchange Act of 1934, as amended (the “Rule”), the Lessee may be required to file with the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access system, or its successor (“EMMA”), notice of its incurrence of its obligations under the Related Documents and notice of any accommodation, waiver, amendment, modification of terms 89 -8-
or other similar events reflecting financial difficulties in connection with the Related Documents, in each case including posting a full copy thereof or a description of the material terms thereof (each such posting, an “EMMA Posting”). Except to the extent required by applicable law, including the Rule, the Lessee shall not file or submit or permit the filing or submission of any EMMA Posting that includes the following unredacted confidential information about the Lessor or its affiliates and the Escrow Agent in any portion of such EMMA Posting: address, account information and logos of the Lessor or its affiliates and the Escrow Agent; e-mail addresses, telephone numbers, fax numbers, names and signatures of officers, employees and signatories of the Lessor or its affiliates and the Escrow Agent; and the form of Disbursement Request that is attached to the Escrow Agreement.

The Lessee acknowledges and agrees that the Lessor and its affiliates are not responsible for the Lessee’s or any other entity’s (including, but not limited to, any broker-dealer’s) compliance or noncompliance (or any claims, losses or liabilities arising therefrom) with the Rule, any Continuing Disclosure Agreement or any applicable securities or other laws, including but not limited to those relating to the Rule. (u) Tax Covenants.
(A) Private Activity Bond Limitation. Lessee will assure that the proceeds of the Agreement are not so used as to cause the obligations of Lessee under the Agreement to satisfy the private business tests of section 141(b) of the Code or the private loan financing test of section 141(c) of the Code. (B) Federal Guarantee Prohibition. Lessee will not take any action or permit or suffer any action to be taken if the result of such action would be to cause any of the obligations of Lessee under the Agreement to be “federally guaranteed” within the meaning of section 149(b) of the Code.
(C) Rebate Requirement. Lessee will take any and all actions necessary to assure compliance with section 148(f) of the Code, relating to the rebate of excess investment earnings, if any, to the federal government, to the extent that such section is applicable to the Agreement.
(D) No Arbitrage. Lessee will not take, or permit or suffer to be taken, any action with respect to the proceeds of the Agreement which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of delivery of the Agreement would have caused any of the obligations of Lessee under the Agreement to be “arbitrage bonds” within the meaning of section 148 of the Code.
(E) Maintenance of Tax-Exemption. Lessee will take all actions necessary to assure the exclusion of interest with respect to the Agreement from the gross income of the owner of the Agreement to the same extent as such interest is 90 -9-
permitted to be excluded from gross income under the Code as in effect on the date of delivery of the Agreement.
(F) Record Retention. Lessee will retain its records of all accounting and monitoring it carries out with respect to the Agreement for at least 3 years after the Agreement matures or is prepaid (whichever is earlier); provided, that if Lessee’s Rental Payments under the Agreement are prepaid and refunded, Lessee will retain its records of accounting and monitoring at least 3 years after the earlier of the maturity or prepayment of the obligations that refunded the Agreement. (G) Compliance with Tax Documents. Lessee will comply with the provisions of the tax certificate and use of proceeds certificate with respect to the Agreement, which are incorporated herein as if fully set forth herein.

The representations, warranties and covenants of this clause (u) will survive payment in full of the Agreement.

ARTICLE III
Section 3.01. Lease of Equipment. Subject to the terms and conditions of this Agreement, Lessor agrees to provide the Acquisition Amount to acquire the Equipment. Lessor hereby demises, leases and transfers to Lessee, and Lessee hereby acquires, rents and leases from Lessor, the Equipment. The Lease Term may be continued, solely at the option of Lessee, at the end of the Original Term or any Renewal Term for the next succeeding Renewal Term up to the maximum Scheduled Term as set forth in the Payment Schedule. At the end of the Original Term and at the end of each Renewal Term until the maximum Scheduled Term has been completed, Lessee shall be deemed to have exercised its option to continue this Agreement for the next Renewal Term unless Lessee shall have terminated this Agreement pursuant to Section 3.03 or Section 10.01 of this Agreement. The terms and conditions during any Renewal Term shall be the same as the terms and conditions during the Original Term, except that the Rental Payments shall be as provided in the Payment Schedule.

Section 3.02. Continuation of Lease Term. Lessee intends, subject to Section 3.03 hereof, to continue the Lease Term through the Original Term and all Renewal Terms and to pay the Rental Payments due hereunder. Lessee affirms that sufficient funds are legally available to pay all Rental Payments when due during the current fiscal year, and Lessee reasonably believes that an amount sufficient to make all Rental Payments during the entire Scheduled Term can be obtained from legally available funds of Lessee. Lessee further intends to do all things lawfully within its power to obtain and maintain funds sufficient and available to discharge its obligation to make Rental Payments due hereunder, including making provision for such payments to the extent necessary in each budget or appropriation request submitted and adopted in accordance with applicable provisions of law. Notwithstanding the foregoing, the decision whether or not to budget and appropriate funds or to extend the Lease Term for any Renewal Term is within the sole discretion of the governing body of Lessee.
91 -10-
Section 3.03. Non-appropriation. Lessee is obligated only to pay such Rental Payments as may lawfully be made during Lessee’s then current fiscal year from funds budgeted and appropriated for that purpose. Should Lessee fail to budget, appropriate or otherwise make available funds to pay Rental Payments following the then current Original Term or Renewal Term, this Agreement shall be deemed terminated at the end of the then current Original Term or Renewal Term. Lessee agrees to deliver notice to Lessor of such termination promptly after any decision to non-appropriate is made, but failure to give such notice shall not extend the term beyond such Original Term or Renewal Term. If this Agreement is terminated in accordance with this Section 3.03, Lessee agrees to cease use of the Equipment and peaceably remove and deliver to Lessor, at Lessee’s sole expense (from legally available funds), the Equipment to Lessor at the location(s) to be specified by Lessor.

Section 3.04. Conditions to Lessor’s Performance. (a) As a prerequisite to the performance by Lessor of any of its obligations under this Agreement, Lessee shall deliver to Lessor, in form and substance satisfactory to Lessor, the following:
(i) An Escrow Agreement substantially in the form attached hereto as Exhibit I, satisfactory to Lessor and executed by Lessee and the Escrow Agent and a Vendor Agreement satisfactory to Lessor and executed by Lessee and the Vendor; (ii) A certified copy of a resolution, ordinance or other official action of Lessee’s governing body, substantially in the form attached hereto as Exhibit C-1, authorizing the execution and delivery of this Agreement and the Escrow Agreement and performance by Lessee of its obligations under this Agreement and the Escrow Agreement; (iii) A Certificate completed and executed by the Clerk or Secretary or other comparable officer of Lessee, substantially in the form attached hereto as Exhibit C-2, completed to the satisfaction of Lessor;
(iv) Opinions of general counsel to Lessee and Special Counsel, which in the aggregate opine on the matters set forth in the form attached hereto as Exhibit D-1 and Exhibit D-2, respectively, and which are otherwise satisfactory to Lessor; (v) Evidence of insurance as required by Section 7.02 hereof; (vi) All documents, including financing statements, affidavits, notices and similar instruments which Lessor deems necessary or appropriate at that time pursuant to Section 6.02 hereof;
(vii) A waiver or waivers of interest in the Equipment from any mortgagee or any other party having an interest in the real estate on which the Equipment will be located and/or landlord of the real estate on which the Equipment will be located and amendments and agreements releasing liens and encumbrances, if any, on the real property where the Equipment is and will be located;
(viii) Reserved;
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(ix) A copy of the Form 8038-G, fully completed by Special Counsel as paid preparer and executed by Lessee;
(x) In the event that Lessee is to be reimbursed for expenditures that it has paid more than sixty (60) days prior to the Commencement Date, evidence of the adoption of a reimbursement resolution or other official action covering the reimbursement from tax-exempt proceeds of expenditures incurred not more than sixty (60) days prior to the date of such resolution;
(xi) Copies of invoices (and proofs of payment of such invoices, if Lessee seeks reimbursement) and bills of sale (if title to Equipment has passed to Lessee), to the extent required by Section 5.01(b) hereof;
(xii) Wire instructions for payments to be made to Vendors and Form W-9 from each such Vendor;
(xiii) A certified copy of any Surety Bond satisfying the conditions set forth in Section 7.04 hereof, or, at Lessor’s sole discretion, such Surety Bonds may be provided after the Commencement Date, provided however, that no “Disbursement Request” pursuant to the Escrow Agreement shall be authorized by Lessor until such Surety Bonds satisfying the conditions set forth in Section 7.04 have been delivered to Lessor; and (xiv) Such other items reasonably required by Lessor.
(b) In addition to satisfaction of the conditions set forth in subsection (a) of this Section 3.04, the performance by Lessor of any of its obligations under the Related Documents shall be subject to: (i) no Material Adverse Change having occurred since the date of this Agreement, (ii) no Event of Default having occurred and then be continuing and (iii) no Event of Non-appropriation having occurred or being threatened with respect to this Agreement. (c) Subject to satisfaction of the foregoing, Lessor will deposit the Acquisition Amount with the Escrow Agent to be held and disbursed pursuant to the Escrow Agreement.

Section 3.05. Evidence of Filing Form 8038-G. As soon as it is available, Lessee shall provide to Lessor evidence that it, or its paid preparer, has filed the Form 8038-G for this Agreement with the Internal Revenue Service by delivering to Lessor proof of mailing such Form 8038-G. Notwithstanding anything to the contrary in this Agreement, it shall not be an Event of Default hereunder if Lessee does not provide to Lessor evidence that it (or its paid preparer) filed the Form 8038-G for this Agreement with the Internal Revenue Service.

ARTICLE IV
Section 4.01. Rental Payments. Subject to Section 3.03 of this Agreement, Lessee shall promptly pay Rental Payments, in lawful money of the United States of America, to Lessor on the Rental Payment Dates and in such amounts as provided in the Payment Schedule. If any Rental Payment or other amount payable hereunder is not paid within ten (10) days of its due date, Lessee 93 -12-
shall pay an administrative late charge of five percent (5%) of the amount not timely paid or the maximum amount permitted by law, whichever is less. Rental Payments consist of principal and interest components as more fully detailed on the Payment Schedule, the interest on which begins to accrue as of the Commencement Date.

Section 4.02. Interest and Principal Components. A portion of each Rental Payment is paid as, and represents payment of, interest, and the balance of each Rental Payment is paid as, and represents payment of, principal as more fully detailed on the Payment Schedule.

Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rental Payments shall constitute a current expense of Lessee payable solely from its general fund or other funds that are legally available for that purpose and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or moneys of Lessee.

Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.03 of this Agreement, the obligations of Lessee to make Rental Payments and to perform and observe the other covenants and agreements contained in this Agreement shall be absolute and unconditional in all events without abatement, diminution, deduction, set-off or defense, for any reason, including without limitation any failure of the Equipment, disputes with the Lessor or the Vendor of any Equipment, any defects, malfunctions, breakdowns or infirmities in the Equipment or any accident, condemnation or unforeseen circumstances, or failure of any Vendor to deliver any Equipment or otherwise perform any of its obligations for whatever reason, including bankruptcy, insolvency, reorganization or any similar event with respect to any Vendor or under any Vendor Agreement or under any Vendor Agreement, or the failure or inability (for whatever reason) of Lessee to receive (or delay in receipt of) all or any portion of any refundable tax credit under Section 6417 of the Internal Revenue Code of 1986, as amended by the Inflation Reduction Act of 2022 (Pub. L. No. 117-169), or any substantially similar provision of federal, state, local or foreign tax law (including regulations or other guidance from any taxing authority).

Section 4.05. Tax Covenants. Lessee agrees that it will not take any action that would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for Federal income tax purposes, nor will it omit to take or cause to be taken, in a timely manner, any action, which omission would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for Federal income tax purposes.

Section 4.06. Event of Taxability. Upon the occurrence of an Event of Taxability, the interest component of Rental Payments and any charge on Rental Payments or other amounts payable based on the Contract Rate shall have accrued and be payable at the Taxable Rate retroactive to the date as of which the interest component is determined by the Internal Revenue Service to be includible in the gross income of the owner or owners thereof for Federal income tax purposes (which retroactive date shall be the earliest date as of which the interest component of any Rental Payment is deemed includible in the gross income of the owner or owners thereof for 94 -13-
Federal income tax purposes, which may be earlier than the date of delivery of such determination by the Internal Revenue Service), and Lessee will pay such additional amount as will result in the owner receiving the interest component at the Taxable Rate.

For purposes of this Section, “Event of Taxability” means the circumstance of the interest component of any Rental Payment paid or payable pursuant to this Agreement becoming includible for Federal income tax purposes in an owner’s gross income as a consequence of any act, omission or event whatsoever, including but not limited to the matters described in the immediately succeeding sentence, and regardless of whether the same was within or beyond the control of Lessee. An Event of Taxability shall be presumed to have occurred upon (a) the receipt by Lessor or Lessee of an original or a copy of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of Deficiency or other written correspondence which legally holds that the interest component of any Rental Payment is includable in the gross income of the owner thereof; (b) the issuance of any public or private ruling of the Internal Revenue Service that the interest component of any Rental Payment is includable in the gross income of the owner thereof; or (c) receipt by Lessor or Lessee of a written opinion of a nationally recognized firm of attorneys experienced in matters pertaining to the tax-exempt status of interest on obligations issued by states and their political subdivisions, selected by Lessor and acceptable to Lessee, to the effect that the interest component of any Rental Payment has become includable in the gross income of the owner thereof for Federal income tax purposes. For all purposes of this definition, an Event of Taxability shall be deemed to occur on the date as of which the interest component of any Rental Payment is deemed includable in the gross income of the owner thereof for Federal income tax purposes.

Section 4.07. Mandatory Prepayment. (a) Any funds not applied to Equipment Costs and remaining in the Escrow Account on the earliest of (i) the expiration of the Acquisition Period, (ii) the date on which Lessee delivers to the Lessor or the Escrow Agent the executed Disbursement Request to effect the final disbursement to pay (or reimburse) Equipment Costs from the Escrow Account or (iii) a termination of the Escrow Account as provided in the Escrow Agreement shall be applied by Lessor on each successive Rental Payment Date thereafter to pay all or a portion of the Rental Payment due and owing in the succeeding twelve (12) months and any remaining amounts (“Excess Proceeds”) shall be applied by Lessor as prepayment to the applicable unpaid Principal Portion of Rental Payments owing hereunder in the inverse order of the Rental Payment Dates at a price of 100% of such prepaid Principal Portion plus accrued interest thereon to the prepayment date.
(b) In connection with any partial prepayment of Rental Payments, Lessor shall prepare a new Payment Schedule and deliver the same to the Lessee, which shall be binding, absent manifest error.
(c) Lessee will give Lessor notice of any such prepayment in accordance with this Section 4.07 not less than 30 days in advance of the prepayment date. (d) In lieu of prepayment, Lessee may apply Excess Proceeds to the acquisition of other capital equipment that Lessee identifies and with Lessor’s prior written approval, given in Lessor’s sole and absolute discretion, and subject to such conditions as Lessor may require, including but not limited to execution of an appropriate amendment to the Equipment Schedule, the filing of 95 -14-
financing statements with respect to personal property and fixtures under Article 9 of the California Commercial Code and Lessee’s delivery to Lessor of a written opinion of a nationally recognized firm of attorneys experienced in matters pertaining to the tax-exempt status of interest on obligations issued by states and their political subdivisions, selected by Lessee and acceptable to Lessor, to the effect that Lessee’s acquisition of such other capital equipment and the taking of other actions in connection therewith will not adversely affect the tax-exempt status of interest components of Rental Payments pursuant to this Agreement.

ARTICLE V
Section 5.01. Acquisition, Delivery, Installation and Acceptance of Equipment. (a) Lessee shall order the Equipment to be acquired and financed hereunder, cause the Equipment to be delivered and installed at the location specified in the Equipment Schedule and pay any and all delivery and installation costs and other Equipment Costs in connection therewith. Lessee shall conduct such inspection and testing of the Equipment as it deems necessary and appropriate in order to determine the Equipment’s capability and functionality in order to accept such Equipment.

When the Equipment has been delivered and installed, Lessee shall promptly accept such Equipment and evidence said acceptance by executing and delivering Disbursement Requests to the Lessor or Escrow Agent pursuant to the Escrow Agreement for the purpose of effecting disbursements from the Escrow Account to pay (or reimburse) Equipment Costs for the Equipment so acquired and installed. In connection with the execution and delivery by Lessee to Lessor or Escrow Agent of the final Disbursement Request, Lessee shall deliver to Lessor a “Final Acceptance Certificate” in the form attached hereto as Exhibit E. (b) Lessee shall deliver to Lessor together with each Disbursement Request copies of invoices (and proof of payment of such invoices if Lessee seeks reimbursement for prior expenditures) and bills of sale or other evidence of title transfer to Lessee relating to each item of Equipment accepted by Lessee as evidenced by such Disbursement Request. Once approved, Lessor shall deliver such Disbursement Request to the Escrow Agent for disbursement from the Escrow Account in accordance with the Escrow Agreement.

Section 5.02. Quiet Enjoyment of Equipment. So long as no Event of Default and no Event of Non-appropriation exists hereunder, neither Lessor nor any entity claiming by, through or under Lessor, shall interfere with Lessee’s quiet use and enjoyment of the Equipment during the Lease Term.

Section 5.03. Location; Inspection. Once installed, no item of the Equipment will be moved or relocated from the location specified for it in the Equipment Schedule without Lessor’s prior written consent, which consent shall not be unreasonably withheld. Lessor shall have the right at all reasonable times during regular business hours to enter into and upon the property where the Equipment is located for the purpose of inspecting the Equipment.

Section 5.04. Use and Maintenance of the Equipment. Lessee shall not install, use, operate or maintain the Equipment (or cause the Equipment to be installed, used, operated or maintained) improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated hereby. Lessee shall provide all permits and licenses, if any, necessary for the 96 -15-
installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any legislative, executive, administrative, or judicial body, including, without limitation, all anti-money laundering laws and regulations; provided that Lessee may contest in good faith the validity or application of any such law, regulation or ruling in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest of Lessor in and to the Equipment or its interest or rights hereunder.

Lessee agrees that it shall (a) maintain, preserve, and keep the Equipment in good repair and working order, in a condition comparable to that recommended by the manufacturer; (b) proceed promptly, at its expense, to protect its rights and exercise its remedies under any warranty then in effect with respect to the Equipment; and (c) replace or rebuild any component of the Equipment that becomes permanently unfit for normal use or inoperable during the Lease Term (herein, the “Inoperable Component”) in order to keep the Equipment as a whole in good repair and working order during the Lease Term. Lessee shall promptly notify Lessor in writing when any component of the Equipment is reasonably expected within forty-five (45) days to become an Inoperable Component. Lessee shall promptly replace or rebuild the Inoperable Component with a similar component of comparable or improved make and model that has at least the equivalent value and utility of the Inoperable Component, a remaining useful life of no less than the remaining Scheduled Term and such replacement or rebuilt component shall be in good operating condition. Lessor shall have no responsibility to maintain, repair or make improvements or additions to the Equipment. In all cases, Lessee agrees to pay any costs necessary for the manufacturer to re-certify the Equipment as eligible for manufacturer’s maintenance upon the return of the Equipment to Lessor as provided for in Sections 3.03 and 12.02(b) of this Agreement.

Lessee shall not alter any item of Equipment or install any accessory, equipment or device on an item of Equipment if that would impair any applicable warranty, the originally intended function or the value of that Equipment. All repairs, parts, accessories, equipment and devices furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall thereupon become subject to the security interest of Lessor.

ARTICLE VI
Section 6.01. Title to the Equipment. During the Lease Term, so long as Lessee is not in default under Article XII hereof and an Event of Non-appropriation has not occurred, all right, title and interest in and to each item of the Equipment shall be vested in Lessee immediately upon its acceptance of each item of Equipment, subject to the terms and conditions hereof. Lessee shall at all times protect and defend, at its own cost and expense, its title, and Lessor’s first priority security interest, in and to the Equipment (and Lessor’s other Collateral as defined in Section 6.02 hereof) from and against all claims, Liens and legal processes of its creditors, and keep all Equipment (and such other Collateral) free and clear of all such claims, Liens and processes. Lessee will, at its expense, do any further act and execute, acknowledge, deliver, file, register and record any further documents the Lessor may reasonably request in order to protect Lessor’s first priority security interest in the Collateral. Upon the occurrence of an Event of Default or upon termination of this Agreement pursuant to Section 3.03 hereof, full and unencumbered legal title to the Equipment shall, at Lessor’s option, pass to Lessor, and Lessee shall have no further interest therein. In addition, upon the occurrence of such an Event of Default or such termination, Lessee shall execute 97 -16-
and deliver to Lessor such documents as Lessor may request to evidence the passage of such legal title to Lessor and the termination of Lessee’s interest therein, and upon request by Lessor shall deliver possession of the Equipment to Lessor in accordance with Section 3.03 or 12.02 of this Agreement, as applicable. Upon payment of all amounts due and owing hereunder by Lessee in accordance with Section 10.01 hereof, Lessor’s security interest or other interest in the Equipment shall terminate, and Lessor shall execute and deliver to Lessee such documents as Lessee may reasonably request to evidence the termination of Lessor’s security interest in the Equipment.

Section 6.02. Security Interest. As additional security for the payment and performance of all of Lessee’s obligations hereunder, Lessee hereby grants to Lessor a first priority security interest constituting a first lien on (a) the Equipment, (b) moneys and investments held from time to time in the Escrow Account, and (c) any and all proceeds of any and all of the foregoing, including, without limitation, insurance proceeds (collectively, the “Collateral”). Lessee authorizes Lessor to file (and Lessee agrees to execute, if applicable) such notices of assignment, chattel mortgages, financing statements and other documents, in form satisfactory to Lessor, which Lessor deems necessary or appropriate to establish and maintain Lessor’s security interest in the Collateral, including, without limitation, such financing statements with respect to personal property and fixtures under Article 9 of the California Commercial Code and treating such Article 9 as applicable to entities such as Lessee.

Section 6.03. Personal Property, No Encumbrances. Lessee agrees that, to the extent permitted by State law, the Equipment is deemed to be and will remain personal property, and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. Lessee shall not create, incur, assume or permit to exist any mortgage, pledge, encumbrance, security interest, charge or other Lien of any nature whatsoever on any of the real estate where the Equipment is or will be located or enter into any agreement to sell or assign or enter into any sale/leaseback arrangement of such real estate without the prior written consent of Lessor; provided, that if Lessor or its assigns is furnished with a waiver of interest in the Equipment acceptable to Lessor or its assigns in their respective discretion from any party taking an interest in any such real estate prior to such interest taking effect, such consent shall not be unreasonably withheld.

ARTICLE VII
Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee shall keep the Equipment free of all levies, encumbrances, and other Liens except those created by this Agreement. The parties to this Agreement contemplate that the Equipment will be used for a governmental or proprietary purpose of Lessee and that the Equipment will therefore be exempt from all property taxes. If the lease, sale, purchase, operation, use, possession or acquisition of any Equipment is nevertheless determined to be subject to taxation, Lessee shall pay when due all sales and other taxes, special assessments, governmental and other charges of any kind that are at any time lawfully assessed or levied against or with respect to the Equipment, the Rental Payments or any part of either thereof, or which become due during the Lease Term, whether assessed against Lessee or Lessor. Lessee shall pay all utility and other charges incurred in the operation, use and maintenance of the Equipment. Lessee shall pay such taxes, assessments or charges as the same 98 -17-
may become due; provided that, with respect to any such taxes, assessments or charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as accrue during the Lease Term. Lessor will not claim ownership of the Equipment under this Agreement for the purposes of any tax credits, benefits or deductions with respect to such Equipment. Lessee shall pay the fee charged by the California Debt and Investment Advisory Commission with respect to this Agreement pursuant to Section 8856 (or any successor provision) of the California Government Code.

Section 7.02. Insurance. Lessee shall during the Lease Term maintain or cause to be maintained (a) casualty insurance naming Lessor and its assigns as loss payee and insuring the Equipment against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State, and any other risks reasonably required by Lessor, in an amount at least equal to the greater of (i) the then applicable Prepayment Price of the Equipment or (ii) the replacement cost of the Equipment; (b) liability insurance naming Lessor and its assigns as additional insured that protects Lessor from liability with limits of at least $5,000,000 per occurrence for bodily injury and property damage coverage (such liability insurance coverage may be in a combination of primary general liability and/or excess liability umbrella coverage), and in all events under clauses (a) and (b) above issued in form and amount satisfactory to Lessor and by an insurance company that is authorized to do business in the State and having a financial strength rating by A.M. Best Company of “A-” or better; and (c) worker’s compensation coverage as required by the laws of the State. Notwithstanding the foregoing, Lessee may self-insure against the risks described in clauses (a) and/or (b) through a government pooling arrangement, self-funded loss reserves, risk retention program or other self-insurance program, in each case with Lessor’s prior written consent (which Lessor may grant, withhold or deny in its sole discretion) and provided that Lessee has delivered to Lessor such information as Lessor may request with respect to the adequacy of such self-insurance to cover the risks proposed to be self-insured and otherwise in form and substance acceptable to Lessor. In the event Lessee is permitted, at Lessor’s sole discretion, to self-insure as provided in this Section 7.02, Lessee shall provide to Lessor a self-insurance letter in substantially the form attached hereto as Exhibit F.

Lessee shall furnish to Lessor evidence of such insurance or self-insurance coverage throughout the Lease Term. Lessee shall not cancel or modify such insurance or self-insurance coverage in any way that would affect the interests of Lessor without first giving written notice thereof to Lessor at least thirty (30) days in advance of such cancellation or modification.

Section 7.03. Risk of Loss. Whether or not covered by insurance or self-insurance, Lessee hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any persons or property arising from the Equipment from any cause whatsoever, and no such loss of or damage to or liability arising from the Equipment shall relieve Lessee of the obligation to make the Rental Payments or to perform any other obligation under this Agreement. Whether or not covered by insurance or self-insurance, Lessee hereby agrees to reimburse Lessor (to the fullest extent permitted by applicable law, but only from legally available funds) for any and all liabilities, obligations, losses, costs, claims, taxes or damages suffered or incurred by Lessor, regardless of the cause thereof and all expenses incurred in connection therewith (including, without limitation, counsel fees and expenses, and penalties connected therewith imposed on interest received) arising out of or as a result of (a) entering into this Agreement or any of the transactions contemplated hereby (except to the extent caused by Lessor’s own gross negligence or willful misconduct), 99 -18-
(b) the ordering, acquisition, ownership use, operation, condition, purchase, delivery, acceptance, rejection, storage or return of any item of the Equipment, (c) any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, and/or (d) the breach of any covenant of Lessee under or in connection with this Agreement or any material misrepresentation provided by Lessee under or in connection with this Agreement. The provisions of this Section 7.03 shall continue in full force and effect notwithstanding the full payment of all obligations under this Agreement or the termination of the Lease Term for any reason.

Section 7.04. Surety Bonds; Lessee to Pursue Remedies Against Contractors and Sub-Contractors and Their Sureties. Lessee shall secure from each Vendor directly employed by Lessee in connection with the acquisition, construction, installation, improvement or equipping of the Equipment, a payment and performance bond (“Surety Bond”) executed by a surety company authorized to do business in the State, having a financial strength rating by A.M. Best Company of “A-” or better, and otherwise satisfactory to Lessor and naming Lessor as a co-obligee in a sum equal to the entire amount to become payable under each Vendor Agreement. Each bond shall be conditioned on the completion of the work in accordance with the plans and specifications for the Equipment and upon payment of all claims of subcontractors and suppliers. Lessee shall cause the surety company to add Lessor as a co-obligee on each Surety Bond, and shall deliver a certified copy of each Surety Bond to Lessor promptly upon receipt thereof by Lessee. Any proceeds from a Surety Bond shall be applied in accordance with such Surety Bond to the payment and performance of the Vendor’s obligations in accordance with the related Vendor Agreement and, if for whatever reason such proceeds are not so applied, first to amounts due Lessor under this Agreement, and any remaining amounts shall be payable to Lessee.

In the event of a material default by any Vendor under any Vendor Agreement in connection with the acquisition, construction, maintenance and/or servicing of the Equipment or in the event of a material breach of warranty with respect to any material workmanship or performance guaranty with respect to the Equipment, Lessee will promptly proceed to exhaust its remedies against the Vendor in default. Lessee shall advise Lessor of the steps it intends to take in connection with any such default. Any amounts received by Lessee in respect of damages, refunds, adjustments or otherwise in connection with the foregoing shall be paid to Lessor and applied against Lessee’s obligations hereunder.

Section 7.05. Advances. In the event Lessee shall fail to keep the Equipment in good repair and working order or shall fail to maintain any insurance required by Section 7.02 hereof, Lessor may, but shall be under no obligation to, maintain and repair the Equipment or obtain and maintain any such insurance coverages, as the case may be, and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the then current Original Term or Renewal Term and Lessee covenants and agrees to pay such amounts so advanced by Lessor with interest thereon from the due date until paid at a rate equal to the Contract Rate (or the Taxable Rate if then in effect) plus five percent (5%) per annum or the maximum amount permitted by law, whichever is less.
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ARTICLE VIII
Section 8.01. Damage, Destruction and Condemnation. If, prior to the termination of the Lease Term, (a) the Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental body or by any person, firm or corporation acting pursuant to governmental authority, (i) Lessee and Lessor will cause the Net Proceeds of any insurance claim or condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Equipment or such part thereof and any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee or (ii) Lessee shall exercise its option to prepay the obligations hereunder in accordance with Section 10.01(a)(ii) hereof.

If Lessee elects to replace any item of the Equipment (the “Replaced Equipment”) pursuant to this Section 8.01, the replacement equipment (the “Replacement Equipment”) shall be new or of a quality, type, utility and condition at least as good as the Replaced Equipment, shall be of equal or greater value than the Replaced Equipment and shall provide at least the same level of energy and/or operational savings expected in the aggregate from the Replaced Equipment prior to such casualty, destruction or condemnation and shall have an expected remaining useful life at least through the Scheduled Term. Lessee shall grant to Lessor a first priority security interest in any such Replacement Equipment. Lessee shall represent, warrant and covenant to Lessor that each item of Replacement Equipment is free and clear of all claims, Liens, security interests and encumbrances, excepting only those Liens created by or through Lessor, and shall provide to Lessor any and all documents as Lessor may reasonably request in connection with the replacement, including, but not limited to, documentation in form and substance satisfactory to Lessor evidencing Lessor’s security interest in the Replacement Equipment. Lessor and Lessee hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this paragraph shall constitute “Equipment” for purposes of this Agreement. Lessee shall complete the documentation of Replacement Equipment on or before the next Rental Payment Date after the occurrence of a casualty event, or be required to exercise its option to prepay the obligations hereunder with respect to the damaged Equipment in accordance with Section 10.01(a)(ii) hereof.

For purposes of this Article VIII, the term “Net Proceeds” shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys’ fees, incurred in the collection thereof.

Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 8.01, Lessee shall either (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) pay or cause to be paid to Lessor the amount of the then applicable Prepayment Price plus all other amounts then owing hereunder, and, upon such payment, the Lease Term shall terminate and Lessor’s security interest in the Equipment shall terminate as provided in Section 6.01 hereof. The amount of the Net Proceeds remaining, if any, after completing such repair, restoration, 101
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modification or improvement or after paying such Prepayment Price plus all other amounts then owing hereunder shall be retained by Lessee. If Lessee shall make any payments pursuant to this Section 8.02, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Article IV.

ARTICLE IX
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation, either express or implied, as to the value, design, condition, merchantability or fitness for particular purpose or fitness for use of any of the Equipment, or any other warranty or representation, express or implied, with respect thereto and, as to Lessor, Lessee’s acquisition of the Equipment shall be on an “as is” basis. In no event shall Lessor be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this Agreement, the Equipment or the existence, furnishing, functioning or Lessee’s use of any item, product or service provided for in this Agreement.

Section 9.02. Vendor Agreements; Warranties. Lessee covenants that it shall not in any material respect amend, modify, rescind or alter any Vendor Agreement without the prior written consent of Lessor. Lessor hereby irrevocably appoints Lessee its agent and attorney-in-fact during the Lease Term, so long as Lessee shall not be in default under this Agreement and so long as no Event of Non-appropriation has occurred, to assert from time to time whatever claims and rights (including without limitation warranties) relating to the Equipment that Lessor may have against a Vendor. Lessee’s sole remedy for the breach of such warranty, indemnification or representation shall be against the applicable Vendor of the Equipment, and not against Lessor. Any such matter shall not have any effect whatsoever on the rights and obligations of Lessor under this Agreement, including the right to receive full and timely Rental Payments and other payments hereunder.

Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties relating to any of the Equipment.

ARTICLE X
Section 10.01. Prepayment; Payment in Full.
(a) Prepayment. Lessee shall have the option to prepay or satisfy all, but not less than all, of its obligations hereunder, at the following times and upon the following terms:
(i) Optional Prepayment from Grant or Other Proceeds. For a period of three (3) years from the date of execution of this Agreement, upon not less than forty-five (45) days prior written notice, Lessee may prepay, using grant or other similar proceeds, up to $2,000,000 of the principal components of the Rental Payments due hereunder, without premium; or
(ii) Optional Prepayment (Other). From and after the date specified (if any) in the Payment Schedule (the “Prepayment Option Commencement Date”), on the Rental 102
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Payment Dates specified in the Payment Schedule, upon not less than forty-five (45) days prior written notice, and upon payment in full of the sum of all Rental Payments then due plus the then applicable Prepayment Price, which shall include a prepayment premium on the unpaid Outstanding Balance as set forth in the Payment Schedule plus all other amounts then owing hereunder; or
(iii) Casualty or Condemnation Prepayment. In the event of substantial damage to or destruction or condemnation of substantially all of the Equipment, on the day specified in Lessee’s notice to Lessor of its exercise of the prepayment option (which shall be the earlier of the next Rental Payment Date or sixty (60) days after the casualty event) upon payment in full to Lessor of (A) in the event such prepayment occurs on a Rental Payment Date, the sum of (i) all Rental Payments then due plus (ii) the then applicable Prepayment Price plus (iii) all other amounts then owing hereunder OR, (B) in the event such prepayment occurs on a date other than a Rental Payment Date, the sum of (i) the applicable Prepayment Price shown on the Payment Schedule for the Rental Payment Date immediately preceding the applicable date of such prepayment (or if the date of such prepayment occurs prior to the first Rental Payment Date, the earliest Prepayment Price shown on the Payment Schedule) plus (ii) accrued interest at the Contract Rate (or the Taxable Rate if then in effect) on the Outstanding Balance as of the Rental Payment Date immediately preceding the applicable date of such prepayment from such Rental Payment Date (or if the date of such prepayment occurs prior to the first Rental Payment Date, the Commencement Date) to the date of such prepayment plus (iii) all other amounts then owing hereunder.
(b) Payment in Full. Upon the expiration of the Scheduled Term, upon payment in full of all Rental Payments then due and all other amounts then owing hereunder to Lessor. (c) Lessor’s security interests in and to the Equipment will be terminated and Lessee will own such Equipment free and clear of Lessor’s security interest in such Equipment after either (i) payment of the applicable Prepayment Price and all other amounts then owing hereunder in accordance with either Section 10.01(a)(i) or Section 10.01(a)(ii) of this Agreement or (ii) upon the expiration of the Scheduled Term and payment in full of all Rental Payments then due and all other amounts then owing hereunder in accordance with Section 10.01(b) of this Agreement.

ARTICLE XI
Section 11.01. Assignment by Lessor. (a) Lessor’s right, title and interest in and to this Agreement, the Rental Payments and any other amounts payable by Lessee hereunder, the Escrow Agreement, its security interest in the Collateral (collectively, the “Assigned Rights”), may be assigned and reassigned by Lessor at any time, in whole or in part, to one or more assignees or sub-assignees without the necessity of obtaining the consent of Lessee; provided, that any such assignment, transfer or conveyance (i) shall be made only to investors each of whom Lessor reasonably believes is a “qualified institutional buyer” as defined in Rule 144A(a)(1) promulgated under the Securities Act of 1933, as amended, or an “accredited investor” as defined in Section 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended, and in either case is purchasing the Assigned Rights (or any interest therein) for its 103
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own account with no present intention to resell or distribute such Assigned Rights (or interest therein), subject to each investor’s right at any time to dispose of the Assigned Rights (or any interest therein) as it determines to be in its best interests, (ii) shall not result in more than 35 owners of the Assigned Rights or the creation of any interest in the Assigned Rights in an aggregate principal component that is less than $100,000 and (iii) shall not require Lessee to make Rental Payments, to send notices or otherwise to deal with respect to matters arising hereunder or under the Escrow Agreement with or to more than one Lease Servicer (as such term is defined below), and any trust agreement, participation agreement or custodial agreement under which multiple ownership interests in the Assigned Rights are created shall provide the method by which the owners of such interests shall establish the rights and duties of a single entity, trustee, owner, servicer or other fiduciary or agent acting on behalf of all of the assignees (herein referred to as the “Lease Servicer”) to act on their behalf with respect to the Assigned Rights, including with respect to the exercise of rights and remedies of Lessor on behalf of such owners upon the occurrence of an Event of Default or an Event of Non-appropriation under this Agreement. Lessor and Lessee hereby acknowledge and agree that the restrictions and limitations on transfer as provided in this Section 11.01 shall apply to the first and subsequent assignees and sub-assignees of any of the Assigned Rights (or any interest therein). (b) Unless to an affiliate controlling, controlled by or under common control with Lessor, no assignment, transfer or conveyance permitted by this Section 11.01 shall be effective as against Lessee until Lessee shall have received a written notice of assignment that discloses the name and address of each such assignee; provided, that if such assignment is made to a bank or trust company as trustee or paying agent for owners of certificates of participation, participation interests, trust certificates or partnership interests with respect to the Rental Payments payable under this Agreement, it shall thereafter be sufficient that Lessee receives notice of the name and address of the bank, trust company or other entity that acts as the Lease Servicer. Notices of assignment provided pursuant to this Section 11.01(b) shall contain a confirmation of compliance with the transfer requirements imposed by Section 11.01(a) hereof. During the Lease Term, Lessee shall keep, or cause to be kept, a complete and accurate record of all such assignments in form necessary to comply with Section 149 of the Code. Lessee shall retain all such notices as a register of all assignees and shall make all payments to the assignee or assignees or Lease Servicer last designated in such register. Lessee shall not have the right to and shall not assert against any assignee any claim, counterclaim or other right Lessee may have against Lessor or the Vendor.

Assignments in part may include without limitation assignment of all of Lessor’s security interest in and to the Equipment and all rights in, to and under this Agreement related to such Equipment, and all of Lessor’s security interest in and to the Collateral, or all rights in, to and under the Escrow Agreement.
(c) If Lessor notifies Lessee of its intent to assign this Agreement, Lessee agrees that it shall execute and deliver to Lessor a Notice and Acknowledgement of Assignment substantially in the form of Exhibit H attached hereto within five (5) business days after its receipt of such request.

Section 11.02. Assignment and Subleasing by Lessee. None of Lessee’s right, title, and interest in, to and under this Agreement or any portion of the Equipment, the Escrow Agreement, the Escrow Account or the other Collateral may be assigned, encumbered or 104
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subleased by Lessee for any reason, and any purported assignment, encumbrance or sublease without Lessor’s prior written consent shall be null and void.

ARTICLE XII
Section 12.01. Events of Default Defined. Any of the following events shall constitute an “Event of Default” under this Agreement:
(a) Failure by Lessee to (i) subject to Section 3.03, pay any Rental Payment or other payment required to be paid under this Agreement within ten (10) days after the date when due as specified herein, (ii) maintain insurance as required herein, or (iii) observe and perform any covenant, condition or agreement on its part to be observed or performed under Section 6.01 or 6.02 hereof;
(b) Failure by Lessee to observe and perform any covenant, condition or agreement contained in this Agreement on its part to be observed or performed, other than as referred to in subsection (a) above, for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected;
(c) Any statement, representation or warranty made by Lessee in or pursuant to this Agreement or its execution, delivery or performance shall prove to have been false, incorrect, misleading, or breached in any material respect on the date when made; (d) Any default occurs under any other agreement for borrowing money, lease financing of property or otherwise receiving credit under which Lessee is an obligor, if such default (i) arises under any other agreement for borrowing money, lease financing of property or provision of credit provided by Lessor or any affiliate of Lessor, or (ii) arises under any obligation under which there is outstanding, owing or committed an aggregated amount in excess of $100,000.00; provided, that agreements and obligations referenced in the preceding sentence do not include bonds issued by Lessee solely as a conduit issuer and special tax or assessment bonds and other similar obligations for which Lessee is never ultimately responsible to pay from its own funds;
(e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable Federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material 105
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allegations of a petition filed against Lessee in any bankruptcy, liquidation, readjustment, reorganization, moratorium or insolvency proceeding; or (f) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator for Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed and in effect for any period of thirty (30) consecutive days.

Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps:
(a) By written notice to Lessee, Lessor may declare all Rental Payments payable by Lessee and other amounts payable by Lessee hereunder to the end of the then current Original Term or Renewal Term to be immediately due and payable; (b) With or without terminating the Lease Term, Lessor may enter the premises where the Equipment is located and retake possession of such Equipment or require Lessee at Lessee’s expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease such Equipment or, for the account of Lessee, sublease such Equipment, continuing to hold Lessee liable, but solely from legally available funds, for the difference between (i) the Rental Payments payable by Lessee and other amounts hereunder that are payable by Lessee to the end of the then current Original Term or Renewal Term, as the case may be, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies hereunder, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer’s and attorney’s fees), subject, however, to the provisions of Section 3.03 of this Agreement. The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities hereunder or with respect to the Equipment;
(c) Lessor may terminate the Escrow Agreement and apply any proceeds in the Escrow Account to the Rental Payments scheduled to be paid hereunder; and/or (d) Lessor may take whatever action at law or in equity as may appear necessary or desirable to enforce its rights under this Agreement or the Escrow Agreement or as a secured party in any or all of the Equipment or the Escrow Account.

Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor 106
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to exercise any remedy reserved to it in this Article XII it shall not be necessary to give any notice other than such notice as may be required in this Article XII.

ARTICLE XIII
Section 13.01. Notices. All notices, certificates or other communications under this Agreement shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile transmission (with electronic confirmation) to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for notices to such party) and to any assignee at its address as it appears on the registration books maintained by Lessee.

Section 13.02. Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns.

Section 13.03. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.

Section 13.04. Amendments, Changes and Modifications. This Agreement may only be amended by Lessor and Lessee in writing.

Section 13.05. Execution in Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument; provided, that only Counterpart No. 1 of this Agreement shall constitute chattel paper for purposes of the applicable Uniform Commercial Code.

Section 13.06. Applicable Law; Venue; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State. The parties hereto consent and submit to the jurisdiction of the State and venue in any state or Federal court of such State for the purposes of any suit, action or other proceeding arising in connection with this Agreement, and each party expressly waives any objections that it may have to the venue of such courts. The parties hereto expressly waive any right to trial by jury in any action brought on or with respect to this Agreement. If the waiver of jury trial contained herein is unenforceable for any reason, then the parties hereto agree that the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision.

Section 13.07. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement.

Section 13.08. No Advisory or Fiduciary Relationship. In connection with all aspects of each transaction contemplated by this Agreement (including in connection with any amendment, 107
-26-
waiver or other modification hereof or of any other related document), the Lessee acknowledges and agrees that: (a) (i) the transactions regarding this Agreement provided by the Lessor and any affiliate thereof are arm’s-length commercial transactions between the Lessee, on the one hand, and the Lessor and its affiliates, on the other hand, (ii) the Lessee has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Lessee is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement and by the other related documents; (b) (i) the Lessor and its affiliates each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for the Lessee, or any other person and (ii) neither the Lessor nor any of its affiliates has any obligation to the Lessee with respect to the transactions contemplated by this Agreement except those obligations expressly set forth herein and in the other related documents; and (c) the Lessor and its affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Lessee, and neither the Lessor nor any of its affiliates has any obligation to disclose any of such interests to the Lessee. To the fullest extent permitted by law, the Lessee, hereby waives and releases any claims that it may have against the Lessor or any of its affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated by this Agreement.

Section 13.09. Entire Agreement. The parties agree that this Agreement constitutes the final and entire agreement between the parties superseding all conflicting terms or provisions of any prior proposals, term sheets, solicitation documents, requests for proposals, award notices, approval letters or any other agreements or understandings between the parties.

Section 13.10. Electronic Signatures. The Related Documents may be executed and delivered by facsimile signature or other electronic or digital means (including, without limitation, Adobe’s Portable Document Format (“PDF”)). Any such signature shall be of the same force and effect as an original signature, it being the express intent of the parties to create a valid and legally enforceable contract between them. The exchange and delivery of the Related Documents and the related signature pages via facsimile or as an attachment to electronic mail (including in PDF) shall constitute effective execution and delivery by the parties and may be used by the parties for all purposes. Notwithstanding the foregoing, at the request of either party, the parties hereto agree to exchange inked original replacement signature pages as soon thereafter as reasonably practicable. [Remainder of Page Intentionally Left Blank]
[Signature Page Follows]
108
[Signature Page of Equipment Lease/Purchase Agreement]
IN WITNESS WHEREOF, Lessor and Lessee have caused this Equipment Lease/Purchase Agreement to be executed in their names by their duly authorized representatives as of the date first above written.

LESSOR: LESSEE:

BANC OF AMERICA PUBLIC CAPITAL CORP CITY OF CLOVERDALE
11333 McCormick Road
Hunt Valley II
M/C MD5-031-06-05
Hunt Valley, MD 21031
Attention: Contract Administration
Fax No.: (443) 541-3057
124 N. Cloverdale Boulevard
Cloverdale, CA 95425
Attention: City Manager
Telephone: (707) 894-2521
Fax No.: (707) 894-3451
By:________________________________
Name: __________________________
Title: ___________________________
By:________________________________
Name: __________________________
Title: ___________________________
ATTEST:

By:________________________________
Name: __________________________
Title: ___________________________
Counterpart No. _____ of _____ manually executed and serially numbered counterparts.

To the extent that this Agreement constitutes chattel paper (as defined in the applicable Uniform Commercial Code), no security interest or ownership herein may be created through the transfer or possession of any Counterpart other than Counterpart No. 1. 109

LIST OF EXHIBITS
EXHIBIT A — Form of Equipment Schedule
EXHIBIT B — Form of Payment Schedule
EXHIBIT C-1 — Form of Authorizing Resolution
EXHIBIT C-2 — Form of Incumbency and Authorization Certificate EXHIBIT D-1 — Form of Opinion of Lessee’s General Counsel EXHIBIT D-2 — Form of Opinion of Special Counsel to Lessee EXHIBIT E — Form of Final Acceptance Certificate
EXHIBIT F — Form of Self-Insurance Certificate
EXHIBIT G — Reserved
EXHIBIT H — Form of Notice and Acknowledgement of Assignment EXHIBIT I — Form of Escrow and Account Control Agreement 110

EXHIBIT A

EQUIPMENT SCHEDULE
Location of Equipment:

Equipment Description (Scope of Work):
111

EXHIBIT B

PAYMENT SCHEDULE
RENTAL

PAYMENT
DATE
RENTAL

PAYMENT
AMOUNT

INTEREST

PORTION

PRINCIPAL

PORTION

OUTSTANDING

BALANCE

PREPAYMENT
PRICE*
(including
prepayment
premium, if
applicable)
Contract Rate. The Contract Rate is _________% per annum. * Prepayment from Grant or Similar Proceeds. For a period of three (3) years from the date of execution of this Agreement, upon not less than forty-five (45) days prior written notice, Lessee may prepay, using grant or other similar proceeds, up to $2,000,000 of the principal components of the Rental Payments due hereunder, without premium. * Prepayment Option Commencement Date. For purposes of Section 10.01 of the Agreement, the Prepayment Option Commencement Date is _______________. 112
[Signature Page to Payment Schedule]
LESSOR: LESSEE:

BANC OF AMERICA PUBLIC CAPITAL CORP CITY OF CLOVERDALE
By:________________________________
Name: __________________________
Title: ___________________________
By:________________________________
Name: __________________________
Title: ___________________________
113
EXHIBIT C-1

FORM OF AUTHORIZING RESOLUTION

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE

APPROVING AN EQUIPMENT LEASE PURCHASE AGREEMENT WITH

BANC OF AMERICA PUBLIC CAPITAL CORP (OR ONE OF ITS

AFFILIATES) AND RELATED DOCUMENTS AND ACTIONS INCLUDING PROFESSIONAL SERVICES AGREEMENTS WITH W.J. FAWELL CO.
(MUNICIPAL ADVISOR) AND JONES HALL (BOND COUNSEL), AND A PLACEMENT AGENT AGREEMENT WITH OPPENHEIMER & CO., INC..

WHEREAS, the City of Cloverdale (the “City”), a municipal corporation and general law city organized and existing under the laws of the State of California, is authorized by the laws of the State of California to acquire, finance and lease personal property for the benefit of the City and its inhabitants and to enter into contracts with respect thereto; and WHEREAS, the City desires to acquire, finance and lease certain equipment with a cost not to exceed $7.9 million constituting personal property necessary for the City to perform essential governmental functions (the “Equipment”); and
WHEREAS, in order to acquire such Equipment, the City proposes to enter into that certain Equipment Lease/Purchase Agreement (the “Agreement”) with Banc of America Public Capital Corp (or one of its affiliates), as lessor (the “Lessor”), the form of which has been presented to the City Council of the City at this meeting; andWHEREAS, the City Council of the City deems it for the benefit of the City and for the efficient and effective administration thereof to enter into the Agreement and the other documentation relating to the acquisition, financing and leasing of the Equipment to be therein described on the terms and conditions therein and herein provided; WHEREAS, the information required to be obtained and disclosed by the City Council pursuant to Section 5852.1 of the California Government Code with respect to the financing of the Equipment is set forth in the staff report accompanying this Resolution; and NOW, THEREFORE, Be It And It Is Hereby Resolved by the City Council of the City as follows:

Section 1. Findings and Determinations. It is hereby found and determined that the terms of the Agreement, in the form presented to the governing body of City at this meeting, are in the best interests of the City for the acquisition, financing and leasing of the Equipment.

Section 2. Approval of Documents. The Agreement and the related Escrow and Account Control Agreement (the “Escrow Agreement”) are hereby approved in substantially the forms presented at this meeting, with such insertions, omissions and changes as shall be approved by the City Attorney, working with special legal counsel Jones Hall, to put the Agreement and the Escrow Agreement in final form, the execution and delivery of such documents by the City being conclusive evidence of such approval; provided, that the par amount of the Agreement shall not 114
C-1-2
exceed $7,100,000 and the interest rate shall not exceed 3.963%. Subject to the foregoing, the City Manager of the City is hereby authorized and directed to execute (in writing or electronically), and the City Clerk of the City is hereby authorized and directed to attest, the Agreement, the Escrow and Account Control Agreement and any other related Exhibits attached thereto and to deliver the Agreement, the Escrow Agreement (including such other Exhibits) to the respective parties thereto, and the City Clerk of the City is hereby authorized to affix the seal of the City to such documents, to the extent deemed necessary.

Section 3. Other Actions Authorized. The officers and employees of the City shall take all action necessary or reasonably required by the parties to the Agreement to carry out, give effect to and consummate the transactions contemplated thereby (including the execution (in writing or electronically) and delivery of a Final Acceptance Certificate, the Escrow Agreement, Disbursement Requests and any tax certificate and agreement, as contemplated in the Agreement) and to take all action necessary in conformity therewith, including, without limitation, the execution (in writing or electronically) and delivery of any closing and other documents required to be delivered in connection with the Agreement.

Section 5. Appointment of Authorized City Representatives. The City Manager, Assistant City Manger, and Finance Director of the City are each hereby designated to act as authorized representatives of the City for purposes of the Agreement and the Escrow Agreement until such time as the governing body of the City shall designate any other or different authorized representative for purposes of the Agreement or the Escrow Agreement. Whenever in this Resolution any officer of the City is authorized to execute or attest to any document or take any other action, such execution, attestation, or other action may be taken on behalf of such officer by any person designated by such officer to act on his or her behalf in the case such officer is absent or unavailable.

Section 8. Repealer. All bylaws, orders and resolutions or parts thereof, inconsistent herewith, are hereby repealed to the extent only of such inconsistency with respect to this Resolution. This repealer shall not be construed as reviving any bylaw, order, resolution or ordinance or part thereof.

Section 9. Effective Date. This Resolution shall be effective immediately upon its approval and adoption.

ADOPTED AND APPROVED by the City Council of the City this ________ day of _________.

AYES:

NOES:

ABSENT:

ABSTAIN:
_______________________________________
Mayor
ATTEST:

City Clerk
116
C-1-4
The undersigned, a duly elected or appointed and acting City Clerk of the City identified in the above Resolution No. ___ (the “Resolution”), hereby certifies that the Resolution is a full, true and correct copy of such Resolution as adopted by the governing body of the Lessee on ____________, 20__. The Resolution is in full force and effect on the date hereof and has not been amended, modified or otherwise changed by the governing body of the City since the date of adoption of the Resolution.

Dated this ____ day of ____________, 20__.
_______________________________________
Name: _________________________________
Title: __________________________________
117
EXHIBIT C-2

FORM OF INCUMBENCY AND AUTHORIZATION CERTIFICATE
The undersigned, a duly elected or appointed and acting City Clerk of the City of Cloverdale (“Lessee”) certifies as follows:

A. The following listed persons are duly elected or appointed and acting officials of Lessee (the “Officials”) in the capacity set forth opposite their respective names below and the facsimile signatures below are true and correct as of the date hereof; B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute, in writing or electronically, and deliver the Equipment Lease/Purchase Agreement dated as of ___________, 2022 by and between Lessee and Banc of America Public Capital Corp (“Lessor”), the Escrow and Account Control Agreement dated as of ___________, 2022 by and among Lessor, Lessee and U.S. Bank Trust Company, National Association, as Escrow Agent, all documents related thereto and delivered in connection therewith, and any future modification(s) or amendments thereof (collectively, the “Operative Agreements”), and the Operative Agreements each are the binding and authorized agreements of Lessee, enforceable in all respects in accordance with their respective terms.

NAME OF OFFICIAL TITLE SIGNATURE
_____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ _____________________ Dated: ___________, 2022 By:____________________________________ Name: ______________________________
Title: _______________________________
(The signer of this Certificate cannot be listed above as authorized to execute the Operative Agreements.)
118

EXHIBIT D

FORM OF OPINION OF GENERAL COUNSEL TO LESSEE
(TO BE TYPED ON LETTERHEAD OF COUNSEL)
[Closing Date]
Banc of America Public Capital Corp
11333 McCormick Road
Mail Code: MD5-031-06-05
Hunt Valley, MD 21031
Attn: Contract Administration
Re: Equipment Lease/Purchase Agreement, dated as of November [17], 2022, by and between Banc of America Public Capital Corp, as Lessor, and the City of Cloverdale, as Lessee
Ladies and Gentlemen:

As legal counsel to the City of Cloverdale (“Lessee”), I have examined (a) an executed counterpart of that certain Equipment Lease/Purchase Agreement, dated as of November [17], 2022, and Exhibits thereto by and between Banc of America Public Capital Corp (“Lessor”) and Lessee (the “Agreement”), which, among other things, provides for the lease of certain property (the “Equipment”) and a certain Escrow and Account Control Agreement dated as of November [17], 2022 by and among Lessor, Lessee, and U.S. Bank Trust Company, National Association, as Escrow Agent (the “Escrow Agreement”), (b) an executed counterpart of the ordinances or resolutions of Lessee with respect to authorization of the transaction contemplated by the Agreement, the Escrow Agreement and documents related thereto and (c) such other opinions, documents and matters of law as I have deemed necessary in connection with the following opinions. The Agreement, the Escrow Agreement, and the documents relating thereto are herein collectively referred to as the “Transaction Documents.” Based on the foregoing, I am of the following opinions:

1. Lessee is a municipal corporation and general law city, duly organized and existing under the laws of the State.

2. Lessee has the requisite power and authority to lease and acquire the Equipment and to execute and deliver the Transaction Documents and to perform its obligations under the Transaction Documents.

3. The Transaction Documents have been duly authorized, approved, executed and delivered by and on behalf of Lessee and the Transaction Documents are legal, valid and binding obligations of Lessee, enforceable against Lessee in accordance with their 119
D-2
respective terms, except to the extent limited by state and federal law affecting creditor’s remedies and by bankruptcy, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditors’ rights.

4. The authorization, approval, execution and delivery of the Transaction Documents and all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws, procurement and public bidding laws and all other applicable State or Federal laws.

5. There is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would adversely affect the transactions contemplated by the Transaction Documents or the security interest of Lessor or its assigns, as the case may be, in the Equipment, the Escrow Account or other Collateral thereunder.

All capitalized terms herein shall have the same meanings as in the Transaction Documents unless otherwise provided herein. Lessor and its successors and assigns are entitled to rely on this opinion.

Sincerely,
120
EXHIBIT D-2

FORM OF OPINION OF SPECIAL COUNSEL TO LESSEE
(TO BE TYPED ON LETTERHEAD OF COUNSEL)
City Council
City of Cloverdale
124 N Cloverdale Blvd
Cloverdale, California 95425
Banc of America Public Capital Corp,
and its successors and assigns
11333 McCormick Road
Mail Code: MD5 032 07 05
Hunt Valley, MD 21031
Attn: Contract Administration
OPINION: $________ aggregate principal amount of Rental Payment obligations of the City of Cloverdale under that certain Equipment Lease/Purchase Agreement, dated as of November [17], 2022, by and between City of Cloverdale and Banc of America Public Capital Corp
Ladies and Gentlemen:

We have acted as special counsel to the City of Cloverdale (the “City”) in connection with the delivery by the City of the Equipment Lease/Purchase Agreement, dated as of November [17], 2022 (the “Agreement”), by and between the City and Banc of America Public Capital Corp (the “Lessor”). The City is obligated under the Agreement to pay certain rental payments thereunder (the “Rental Payments”) to Lessor. This opinion is being delivered in our capacity as special counsel to the City, and not as counsel to the other addressee.

We have examined the Agreement and such other documents and matters of law as we have deemed necessary in connection with the following opinions.

As to questions of fact material to our opinion, we have relied upon representations of the City contained in the Agreement, and in certified proceedings and other certifications of public officials furnished to us, without undertaking to verify the same by independent investigation.

Based on the foregoing, we are of the opinion, under existing law, as follows:

1. The portion of the Rental Payments designated as interest and received by Lessor is excluded from gross income for federal income tax purposes and is not an item of tax 121
D-2
preference for purposes of the federal alternative minimum tax. For tax years beginning after December 31, 2022, the portion of the Rental Payments designated as interest and received by Lessor may be subject to the corporate alternative minimum tax. The opinions set forth in the preceding sentences are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986 (the “Tax Code”) that must be satisfied subsequent to the delivery of the Agreement in order that such interest be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each of such requirements. Failure to comply with certain of such requirements may cause the inclusion of such interest in gross income for federal income tax purposes to be retroactive to the date of delivery of the Agreement.

2. The portion of the Rental Payments designated as interest and received by Lessor is exempt from personal income taxation imposed by the State of California.

We express no opinion regarding other federal tax consequences arising with respect to the Agreement, the ownership, sale or disposition of any interests in the Agreement, or the amount, accrual or receipt of interest with respect to the Agreement.

This opinion is given as of the date hereof, and we assume no obligation to revise or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention, or any changes in law that may hereafter occur. Our engagement with respect to this matter has terminated as of the date hereof.

Respectfully submitted,
A Professional Law Corporation
122

EXHIBIT E

FORM OF FINAL ACCEPTANCE CERTIFICATE
Banc of America Public Capital Corp
11333 McCormick Road
Mail Code: MD5-031-06-05
Hunt Valley, MD 21031
Attn: Contract Administration
Re: Equipment Lease/Purchase Agreement, dated as of November [17], 2022, by and between Banc of America Public Capital Corp, as Lessor, and the City of Cloverdale, as Lessee
Ladies and Gentlemen:

In accordance with the above-referenced Equipment Lease/Purchase Agreement (the “Agreement”), the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:

1. All of the Equipment has been delivered, installed, is operating in a manner consistent with the manufacturer’s intended use and has been inspected and finally accepted for all purposes by Lessee and title thereto has transferred to Lessee and any security interest of Vendor therein has been released.

2. Lessee has conducted such inspection and/or testing of the Equipment as it deems necessary and appropriate in order to determine the Equipment’s capability and functionality in order to accept such Equipment and hereby acknowledges that it accepts the Equipment for all purposes.

3. Lessee is currently maintaining the insurance coverage required by Section 7.02 of the Agreement.

4. Lessee hereby reaffirms that the representations, warranties and covenants contained in the Agreement are true and correct as of the date hereof.

5. No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default exists at the date hereof.

6. No Material Adverse Change has occurred since the date of the execution and delivery of the Agreement.

7. No Event of Non-appropriation has occurred or been threatened. 123
E-2
Capitalized terms used, but not defined, in this Final Acceptance Certificate shall have the same meanings as when such terms are used in the Agreement.

Date: ____________________-
LESSEE:

CITY OF CLOVERDALE
By:____________________________________
Name: ______________________________
Title: _______________________________
124

EXHIBIT F

FORM OF SELF INSURANCE CERTIFICATE
Banc of America Public Capital Corp
11333 McCormick Road
Mail Code: MD5-031-06-05
Hunt Valley, MD 21031
Attn: Contract Administration
Re: Equipment Lease/Purchase Agreement, dated as of ___________, 2022, (the “Agreement”) by and between Banc of America Public Capital Corp, as Lessor, and the City of Cloverdale, as Lessee
In connection with the above-referenced Agreement, the City of Cloverdale (the “Lessee”) hereby warrants and represents to Banc of America Public Capital Corp the following information.

The terms capitalized herein but not defined herein shall have the meanings assigned to them in the Agreement.

1. The Lessee is self-insured for damage or destruction to the Equipment. The dollar amount limit for property damage to the Equipment under such self-insurance program is $_________________. [The Lessee maintains an umbrella insurance policy for claims in excess of Lessee’s self-insurance limits for property damage to the Equipment which policy has a dollar limit for property damage to the Equipment under such policy of $__________________.]

2. The Lessee is self-insured for liability for injury or death of any person or damage or loss of property arising out of or relating to the condition or operation of the Equipment. The dollar limit for such liability claims under the Lessee’s self-insurance program is $_________________. [The Lessee maintains an umbrella insurance policy for claims in excess of Lessee’s self-insurance limits for liability which policy has a dollar limit for liabilities for injury and death to persons as well as damage or loss of property arising out of or relating to the condition or operation of the Equipment in the amount of $_________________.]
[3]. The Lessee maintains a self-insurance fund. Monies in the self-insurance fund [are/are not] subject to annual appropriation. The total amount maintained in the self-insurance fund to cover Lessee’s self-insurance liabilities is $_________________. [Amounts paid from the Lessee’s self-insurance fund are subject to a dollar per claim of $__________________.] [3]. The Lessee does not maintain a self-insurance fund. The Lessee obtains funds to pay claims for which it has self-insured from the following sources:
_____________________________. Amounts payable for claims from such sources are limited as follows: _________________________________________
125
F-2

4. Attached hereto are copies of certificates of insurance with respect to policies maintained by Lessee.

LESSEE:

CITY OF CLOVERDALE
By:____________________________________
Name: ______________________________
Title: _______________________________
126

EXHIBIT G

RESERVED
127

EXHIBIT H

FORM OF NOTICE AND ACKNOWLEDGEMENT OF ASSIGNMENT
Dated ____________________
Banc of America Public Capital Corp (“Assignor”) hereby gives notice that it has assigned and sold to _________________________ (“Assignee”) all of Assignor’s right, title and interest in, to and under the Equipment Lease/Purchase Agreement dated as of ___________, 2022 (the “Agreement”), by and between Assignor and the City of Cloverdale (“Lessee”), together with all exhibits, schedules, addenda and attachments related thereto, and all certifications and other documents delivered in connection therewith, the Rental Payments and other amounts due under the Agreement, all of Assignor’s right, title and interest in the Equipment (as defined in the Agreement), and all of Assignor’s right, title and interest in, to and under the Escrow and Account Control Agreement dated as of ___________, 2022 (the “Escrow Agreement”) by and among Lessee, Assignor and Wilmington Trust, National Association, as Escrow Agent, together with the Escrow Account and other Collateral (collectively, the “Assigned Property”). Each capitalized term used but not defined herein has the meaning set forth in the Agreement.

1. Lessee hereby acknowledges the effect of the assignment of the Assigned Property and absolutely and unconditionally agrees to deliver to Assignee all Rental Payments and other amounts coming due under the Agreement in accordance with the terms thereof on and after the date of this Acknowledgment.

2. Lessee hereby agrees that: (i) Assignee shall have all the rights of Lessor under the Agreement and all related documents, including, but not limited to, the rights to issue or receive all notices and reports, to give all consents or agreements to modifications thereto, to receive title to the Equipment in accordance with the terms of the Agreement, to declare a default and to exercise all rights and remedies thereunder in connection with the occurrence of an Event of Non-appropriation or an Event of Default; and (ii) [except as provided in Section 3.03 of the Agreement,] the obligations of Lessee to make Rental Payments and to perform and observe the other covenants and agreements contained in the Agreement shall be absolute and unconditional in all events without abatement, diminution, deduction, set-off or defense.

3. Lessee agrees that, as of the date of this Notice and Acknowledgment of Assignment (this “Acknowledgement”), the following information about the Agreement is true, accurate and complete:

Number of Rental Payments Remaining ________________
Amount of Each Rental Payment $_______________
Total Amount of Rental Payments
Remaining $_______________
Frequency of Rental Payments ________________
Next Rental Payment Due ________________
Funds Remaining in Escrow Account $_______________
128
H-2

4. The Agreement remains in full force and effect, has not been amended, no Event of Default (or event which with the passage of time or the giving of notice or both would constitute an Event of Default) has occurred thereunder and no Event of Non-appropriation has occurred or is threatened with respect thereto.

5. Assignor hereby acknowledges the transfer restrictions imposed by Section 11.01 of the Agreement and confirms that the assignment to Assignee has been made in accordance with the provisions of that Section.

6. Any inquiries of Lessee related to the Agreement and any requests for disbursements from the Escrow Account, if applicable, and all Rental Payments and other amounts coming due pursuant to the Agreement on and after the date of this Acknowledgment should be remitted to Assignee at the following address (or such other address as provided to Lessee in writing from time to time by Assignee):
______________________________
______________________________
______________________________
ACKNOWLEDGED AND AGREED:

LESSEE: CITY OF CLOVERDALE
By:_________________________________
Name: ___________________________
Title: ____________________________
ASSIGNOR: BANC OF AMERICA PUBLIC CAPITAL CORP
By:_________________________________
Name: ___________________________
Title: ____________________________
129

EXHIBIT I

ESCROW AND ACCOUNT CONTROL AGREEMENT
See Item #[__] in Transcript
130
Attachment 7 - Exhibit B - Cloverdale Escrow Account and Control Agreement

EXHIBIT I
[FORM OF] ESCROW AND ACCOUNT CONTROL AGREEMENT
This Escrow and Account Control Agreement (this “Agreement”), dated as of November [17], 2022, by and among Banc of America Public Capital Corp, a Kansas corporation (together with its successors and assigns, hereinafter referred to as “Lessor”), City of Cloverdale, a city existing under the laws of the State of California (hereinafter referred to as “Lessee”) and U.S.

Bank Trust Company, National Association, a national banking association organized under the laws of the United States of America (hereinafter referred to as “Escrow Agent”).

Reference is made to that certain Equipment Lease/Purchase Agreement dated as of November [17], 2022 between Lessor and Lessee (hereinafter referred to as the “Lease”), covering the acquisition and lease of certain Equipment described therein (the “Equipment”). It is a requirement of the Lease that the Acquisition Amount ($__________________) be deposited into a segregated escrow account under terms satisfactory to Lessor, for the purpose of fully funding the Lease, and providing a mechanism for the application of such amounts to the purchase of and payment for the Equipment.

NOW,THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Section 1. Creation of Escrow Account. (a) There is hereby created an escrow fund to be known as the “City of Cloverdale Escrow Account” (the “Escrow Account”) to be held by the Escrow Agent for the purposes stated herein, for the benefit of Lessor and Lessee, to be held, disbursed and returned in accordance with the terms hereof. (b) Lessee may, from time to time, provide written instructions for Escrow Agent to use any available cash in the Escrow Account to purchase any money market fund or liquid deposit investment vehicle that Escrow Agent from time to time makes available to the parties hereto.

Such written instructions shall be provided via delivery to Escrow Agent of a signed and completed Escrow Account Investment Selection Form (such form available from Escrow Agent upon request). All funds invested by Escrow Agent at the direction of Lessee in such short-term investments (as more particularly described in Escrow Agent’s Escrow Account Investment Selection Form) shall be deemed to be part of the Escrow Account and subject to all the terms and conditions of this Agreement. If any cash is received for the Escrow Account after the cut-off time for the designated short-term investment vehicle, the Escrow Agent shall hold such cash uninvested until the next Business Day. “Business Day” means a day other than a Saturday, Sunday or legal holiday, on which banking institutions are not closed in Chicago, Illinois, San Francisco, California or New York, New York. In the absence of written instructions from Lessee (on Escrow Agent’s Escrow Account Investment Selection Form) designating a short-term investment of cash in the Escrow Account, cash in the Escrow Account shall remain uninvested and it shall not be collateralized. Escrow Agent shall have no obligation to pay interest on cash in respect of any period during which it remains uninvested. Lessee shall be solely responsible for ascertaining that all proposed investments and reinvestments are Qualified Investments and that 131
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they comply with federal, state and local laws, regulations and ordinances governing investment of such funds and for providing appropriate notice to the Escrow Agent for the reinvestment of any maturing investment. Accordingly, neither the Escrow Agent nor Lessor shall be responsible for any liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or related to the investment or reinvestment of all or any portion of the moneys on deposit in the Escrow Account, and Lessee agrees to and does hereby release the Escrow Agent and Lessor from any such liability, cost, expenses, loss or claim. Interest on the Escrow Account shall become part of the Escrow Account, and gains and losses on the investment of the moneys on deposit in the Escrow Account shall be borne by the Lessee. The Escrow Agent shall have no discretion whatsoever with respect to the management, disposition or investment of the Escrow Account.

The Escrow Agent shall not be responsible for any market decline in the value of the Escrow Account and has no obligation to notify Lessor and Lessee of any such decline or take any action with respect to the Escrow Account, except upon specific written instructions stated herein. For purposes of this Agreement, “Qualified Investments” means any investments which meet the requirements of California Government Code Sections 53600 et seq. (c) Unless the Escrow Account is earlier terminated in accordance with the provisions of paragraph (d) below, amounts in the Escrow Account shall be disbursed by the Escrow Agent in payment of amounts described in Section 2 hereof upon receipt of written instruction(s) from Lessor, as is more fully described in Section 2 hereof. If the amounts in the Escrow Account are insufficient to pay such amounts, Lessee shall provide any balance of the funds needed to complete the acquisition of the Equipment. Any moneys remaining in the Escrow Account on or after the earlier of (i) the expiration of the Acquisition Period or (ii) the date on which Lessee executes an Acceptance Certificate shall be applied as provided in Section 4 hereof. (d) The Escrow Account shall be terminated at the earliest of (i) the final distribution of amounts in the Escrow Account, (ii) the date on which Lessee executes a Final Acceptance Certificate or (iii) written notice given by Lessor of the occurrence of an Event of Default under the Lease or termination of the Lease due to an Event of Non-appropriation. Notwithstanding the foregoing, this Agreement shall not terminate nor shall the Escrow Account be closed until all funds deposited hereunder have been disbursed.
(e) The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any instrument nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the receipt of such moneys, instruments or other documents received by it as the Escrow Agent, and for the disposition of the same in accordance herewith.

Notwithstanding and without limiting the generality of the foregoing, concurrent with the execution of this Agreement, Lessee and Lessor, respectively, shall deliver to the Escrow Agent an authorized signers form in the form of Exhibit A-1 (Lessee) and Exhibit A-2 (Lessor) attached hereto. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the parties or by a person or persons authorized by the parties. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an authorized 132
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representative with the following caveat, to the extent permitted by law, Lessee and Lessor agree to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent’s reliance upon and compliance with instructions or directions given by written or electronic transmission given by each, respectively, provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an authorized person shall not be deemed to constitute gross negligence or willful misconduct.

In the event conflicting instructions as to the disposition of all or any portion of the Escrow Account are at any time given by Lessor and Lessee, the Escrow Agent shall abide by the instructions or entitlement orders given by Lessor without consent of the Lessee. (f) Unless the Escrow Agent is guilty of gross negligence or willful misconduct with regard to its duties hereunder, Lessee agrees to and does hereby release and indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense, fees or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement; and in connection therewith, does to the extent permitted by law indemnify the Escrow Agent against any and all expenses; including reasonable attorneys’ fees and the cost of defending any action, suit or proceeding or resisting any claim.
(g) If Lessee and Lessor shall be in disagreement about the interpretation of the Lease, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, but shall not be required to, file an appropriate civil action including an interpleader action to resolve the disagreement. The Escrow Agent shall be reimbursed by Lessee for all costs, including reasonable attorneys’ fees, in connection with such civil action, and shall be fully protected in suspending all or part of its activities under the Lease until a final judgment in such action is received.
(h) The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection with the opinion of such counsel. The Escrow Agent shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by its willful misconduct.
(i) Lessee shall reimburse the Escrow Agent for all reasonable costs and expenses, including those of the Escrow Agent’s attorneys, agents and employees incurred for non-routine administration of the Escrow Account and the performance of the Escrow Agent’s powers and duties hereunder in connection with any Event of Default under the Lease, any termination of the Lease due to an Event of Non-appropriation or in connection with any dispute between Lessor and Lessee concerning the Escrow Account.
(j) The Escrow Agent or any successor may at any time resign by giving mailed notice to Lessee and Lessor of its intention to resign and of the proposed date of resignation (the 133
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“Effective Date”), which shall be a date not less than 60 days after such notice is delivered to an express carrier, charges prepaid, unless an earlier resignation date and the appointment of a successor shall have been approved by the Lessee and Lessor. After the Effective Date, the Escrow Agent shall be under no further obligation except to hold the Escrow Account in accordance with the terms of this Agreement, pending receipt of written instructions from Lessor regarding further disposition of the Escrow Account.
(k) The Escrow Agent shall have no responsibilities, obligations or duties other than those expressly set forth in this Agreement and no implied duties responsibilities or obligations shall be read into this Agreement.

Section 2. Acquisition and Installation of Equipment.
(a) Acquisition Contracts. Lessee will arrange for, supervise and provide for, or cause to be supervised and provided for, the acquisition of the Equipment, with moneys available in the Escrow Account. Lessee represents the estimated costs of the Equipment are within the funds estimated to be available therefor, and Lessor makes no warranty or representation with respect thereto. Lessor shall have no liability under any of the acquisition or construction contracts.

Lessee shall obtain all necessary permits and approvals, if any, for the acquisition, equipping and installation of the Equipment, and the operation and maintenance thereof. Escrow Agent shall have no duty to monitor or enforce Lessee’s compliance with the foregoing covenant. (b) Authorized Escrow Account Disbursements. It is agreed as between Lessee and Lessor that disbursements from the Escrow Account shall be made for the purpose of paying (including the reimbursement to Lessee for advances from its own funds to accomplish the purposes hereinafter described) the cost of acquiring the Equipment. (c) Requisition Procedure. No disbursement from the Escrow Account shall be made unless and until Lessor has approved in writing such requisition. Prior to disbursement from the Escrow Account there shall be filed with the Escrow Agent a requisition for such payment in the form of Disbursement Request attached hereto as Schedule 1, stating each amount to be paid and the name of the person, firm or corporation to whom payment thereof is due. All disbursements shall be made by wire transfer. The Escrow Agent is authorized to obtain and rely on confirmation of such Disbursement Request and payment instructions by telephone call-back to the person or persons designated for verifying such requests on Exhibit A-2 (such person verifying the request shall be different than the person initiating the request). The Lessor and Lessee hereby confirm that any call-back performed by Escrow Agent to verify a disbursement instruction pursuant to a Disbursement Request submitted pursuant to this Section 2(c) before release, shall be made to Lessor only and Escrow Agent shall have no obligation to call-back Lessee.

Each such Disbursement Request shall be signed by an authorized representative of Lessee (an “Authorized Representative”) and by Lessor, and shall be subject to the following conditions, which Escrow Agent shall conclusively presume have been satisfied at such time as a requisition executed by Lessee and Lessor is delivered to it:
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1. Delivery to Lessor of an executed Disbursement Request in the form attached hereto as Schedule 1;

2. Delivery to Lessor of copies of invoices (and proofs of payment of such invoices, if Lessee seeks reimbursement) and bills of sale therefor or other evidence of title transfer, and release by Vendor of any security interest, therefor as required by Section 3.04 of the Lease and any additional documentation reasonably requested by Lessor; and

3. The disbursement shall occur during the Acquisition Period.

Lessee and Lessor agree that their execution of the form attached hereto as Schedule 1 and delivery of the executed form to Escrow Agent confirms that all of the requirements and conditions with respect to disbursements set forth in this Section 2 have been satisfied.

Section 3. Deposit to Escrow Account. Upon satisfaction of the conditions specified in Section 3.04 of the Lease, Lessor will cause the Acquisition Amount to be deposited in the Escrow Account. Lessee agrees to pay any costs with respect to the Equipment in excess of amounts available therefor in the Escrow Account.

Section 4. Excess Proceeds in Escrow Account. Upon receipt of written instructions from Lessor including a representation that one of the following conditions has been satisfied (upon which representation Escrow Agent shall conclusively rely), any funds remaining in the Escrow Account on or after the earliest of (a) the expiration of the Acquisition Period, (b) the date on which Lessee delivers to the Lessor the executed Final Acceptance Certificate or the executed Disbursement Request to effect the final disbursement to pay (or reimburse) Equipment Costs from the Escrow Account or (c) a termination of the Escrow Account as provided in this Agreement, shall be distributed by the Escrow Agent to the Lessor in order for the Lessor to apply such funds to amounts owed by Lessee under the Lease in accordance with Section 4.07 of the Lease.

Section 5. Security Interest. The Escrow Agent and Lessee acknowledge and agree that the Escrow Account and all proceeds thereof are being held by Escrow Agent for disbursement or return as set forth herein. Lessee hereby grants to Lessor a first priority perfected security interest in the Escrow Account, and all proceeds thereof, and all investments made with any amounts in the Escrow Account. If the Escrow Account, or any part thereof, is converted to investments as set forth in this Agreement, such investments shall be made in the name of Escrow Agent and the Escrow Agent hereby agrees to hold such investments as bailee for Lessor so that Lessor is deemed to have possession of such investments for the purpose of perfecting its security interest.

Section 6. Control of Escrow Account. In order to perfect Lessor’s security interest by means of control in (i) the Escrow Account established hereunder, (ii) all securities entitlements, investment property and other financial assets now or hereafter credited to the Escrow Account, (iii) all of Lessee’s rights in respect of the Escrow Account, such securities entitlements, investment property and other financial assets, and (iv) all products, proceeds and revenues of and from any of the foregoing personal property (collectively, the “Collateral”), Lessor, Lessee and Escrow Agent further agree as follows:
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(a) All terms used in this Section 6 which are defined in the California Commercial Code (the “Commercial Code”) but are not otherwise defined herein shall have the meanings assigned to such terms in the Commercial Code, as in effect on the date of this Agreement.
(b) Escrow Agent will comply with all entitlement orders originated by Lessor with respect to the Collateral, or any portion of the Collateral, without further consent by Lessee.
(c) Provided that account investments shall be held in the name of the Escrow Agent, Escrow Agent hereby represents and warrants (i) that the records of Escrow Agent show that Lessee is the sole owner of the Collateral, (ii) that Escrow Agent has not been served with any notice of levy or received any notice of any security interest in or other claim to the Collateral, or any portion of the Collateral, other than Lessor’s claim pursuant to this Agreement, and (iii) that Escrow Agent is not presently obligated to accept any entitlement order from any person with respect to the Collateral, except for entitlement orders that Escrow Agent is obligated to accept from Lessor under this Agreement and entitlement orders that Escrow Agent, subject to the provisions of paragraph (e) below, is obligated to accept from Lessee.
(d) Without the prior written consent of Lessor, Escrow Agent will not enter into any agreement by which Escrow Agent agrees to comply with any entitlement order of any person other than Lessor or, subject to the provisions of paragraph (e) below, Lessee, with respect to any portion or all of the Collateral. Escrow Agent shall promptly notify Lessor if any person requests Escrow Agent to enter into any such agreement or otherwise asserts or seeks to assert a Lien, encumbrance or adverse claim against any portion or all of the Collateral.
(e) Except as otherwise provided in this paragraph (e) and subject to Section 1(b) hereof, Lessee may effect sales, trades, transfers and exchanges of Collateral within the Escrow Account, but will not, without the prior written consent of Lessor, withdraw any Collateral from the Escrow Account. Escrow Agent acknowledges that Lessor reserves the right, by delivery of written notice to Escrow Agent, to prohibit Lessee from effecting any withdrawals (including withdrawals of ordinary cash dividends and interest income), sales, trades, transfers or exchanges of any Collateral held in the Escrow Account. Further, Escrow Agent hereby agrees to comply with any and all written instructions delivered by Lessor to Escrow Agent (once it has had a reasonable opportunity to comply therewith) and has no obligation to, and will not, investigate the reason for any action taken by Lessor, the amount of any obligations of Lessee to Lessor, the validity of any of Lessor’s claims against or agreements with Lessee, the existence of any defaults under such agreements, or any other matter.
(f) Lessee hereby irrevocably authorizes Escrow Agent to comply with all instructions and entitlement orders delivered by Lessor to Escrow Agent. 136
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(g) Escrow Agent will not attempt to assert control, and does not claim and will not accept any security or other interest in, any part of the Collateral, and Escrow Agent will not exercise, enforce or attempt to enforce any right of setoff against the Collateral, or otherwise charge or deduct from the Collateral any amount whatsoever. (h) Escrow Agent and Lessee hereby agree that any property held in the Escrow Account shall be treated as a financial asset under such section of the Commercial Code as corresponds with Section 8-102 of the Uniform Commercial Code, notwithstanding any contrary provision of any other agreement to which Escrow Agent may be a party. (i) Escrow Agent is hereby authorized and instructed, and hereby agrees, to send to Lessor at its address set forth in Section 8 below, concurrently with the sending thereof to Lessee, duplicate copies of any and all monthly Escrow Account statements or reports issued or sent to Lessee with respect to the Escrow Account.

Section 7. Information Required Under USA Patriot Act. The parties acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA Patriot Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to the Escrow Agent such information as it may request, from time to time, in order for the Escrow Agent to satisfy the requirements of the USA Patriot Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.

Section 8. Miscellaneous. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Lease. This Agreement may not be amended except in writing signed by all parties hereto. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument and each shall have the force and effect of an original and all of which together constitute, and shall be deemed to constitute, one and the same instrument. Notices hereunder shall be made in writing and shall be deemed to have been duly given when personally delivered or when deposited in the mail, first class postage prepaid, or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation, addressed to each party at its address below.

Notices and other communications hereunder may be delivered or furnished by electronic mail provided that any formal notice be attached to an email message in PDF format and provided further that any notice or other communication sent to an e-mail address shall be deemed received upon and only upon the sender’s receipt of affirmative acknowledgement or receipt from the intended recipient. For purposes hereof no acknowledgement of receipt generated on an automated basis shall be deemed sufficient for any purpose hereunder or admissible as evidence of receipt. 137
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If to Lessor: Banc of America Public Capital Corp
11333 McCormick Road
Mail Code: MD5-031-06-05
Hunt Valley, MD 21031
Attn: Contract Administration
Fax: (443) 541-3057
If to Lessee: City of Cloverdale
124 N. Cloverdale Boulevard
Cloverdale, CA 95425
Attention: City Manager
Telephone: (707) 894-2521
Fax No.: (707) 894-3451
If to Escrow Agent: U.S. Bank Trust Company, National Association _________________________
_________________________
Attn: ___________________
Fax: ____________________
Telephone: ________________
Email: ____________________
Section 9. Lessee and Lessor understand and agree that they are required to provide the Escrow Agent with a properly completed and signed Tax Certification (as defined below) and that the Escrow Agent may not perform its duties hereunder without having been provided with such Tax Certification. As used herein “Tax Certification” shall mean an IRS form W-9 or W-8 as described above. The Escrow Agent will comply with any U.S. tax withholding or backup withholding and reporting requirements that are required by law. With respect to earnings allocable to a foreign person, the Escrow Agent will withhold U.S. tax as required by law and report such earnings and taxes withheld, if any, for the benefit of such foreign person on IRS Form 1042-S (or any other required form), unless such earnings and withheld taxes are exempt from reporting under Treasury Regulation Section 1.1461-1(c)(2)(ii) or under other applicable law.

With respect to earnings allocable to a United States person, the Escrow Agent will report such income, if required, on IRS Form 1099 or any other form required by law. The IRS Forms 1099 and/or 1042-S shall show the Escrow Agent as payor and Lessee as payee. Escrow Agent shall recognize Lessee as the designated party for regulatory reporting purposes.

Lessee and Lessor agree that they are not relieved of their respective obligations, if any, to prepare and file information reports under Code Section 6041, and the Treasury regulations thereunder, with respect to amounts of imputed interest income, as determined pursuant to Code Sections 483 or 1272. The Escrow Agent shall not be responsible for determining or reporting such imputed interest.

Section 10. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the parties hereto consent to jurisdiction in the State of 138
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California and venue in any state or Federal court located in the State of California and venue in any state or Federal court located in the State of California, and each party expressly waives any objections that it may have to the venue of such courts. THE PARTIES HERETO EXPRESSLY

WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT. If the waiver of jury trial contained herein is unenforceable for any reason, then the parties hereto agree that the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision.

Section 11. Any bank or corporation into which the Escrow Agent may be merged or with which it may be consolidated, or any bank or corporation to whom the Escrow Agent may transfer a substantial amount of its escrow business, shall be the successor to the Escrow Agent without the execution or filing of any paper or any further act on the part of any of the parties, anything herein to the contrary notwithstanding. Any bank or corporation into which the Lessor may be merged or with which it may be consolidated, or any bank or corporation to whom the Lessor may transfer a substantial amount of its business, shall be the successor to the Lessor without the execution or filing of any paper or any further act on the part of any of the parties, anything herein to the contrary notwithstanding.

Section 12. This Agreement may be amended, modified, and/or supplemented only by an instrument in writing executed by all parties hereto.

Section 13. No party hereto shall assign its rights hereunder until its assignee has submitted to the Escrow Agent (i) Patriot Act disclosure materials and the Escrow Agent has determined that on the basis of such materials it may accept such assignee as a customer and (ii) assignee has delivered an IRS Form W-8 or W-9, as appropriate, to the Escrow Agent which the Escrow Agent has determined to have been properly signed and completed.

Section 14. Escrow Agent will treat information related to this Agreement as confidential but, unless prohibited by law, Lessee and Lessor authorize the transfer or disclosure of any information relating to the Agreement to and between the subsidiaries, officers, affiliates and other representatives and advisors of Escrow Agent and third parties selected by any of them, wherever situated, for confidential use in the ordinary course of business, and further acknowledge that Escrow Agent and any such subsidiary, officer, affiliate or third party may transfer or disclose any such information as required by any law, court, regulator or legal process.

Lessor will treat information related to this Agreement as confidential but, unless prohibited by law, Escrow Agent and Lessee authorize the transfer or disclosure of any information relating to the Agreement to and between the subsidiaries, officers, affiliates, other representatives and advisors of Lessor and debt and equity sources and third parties selected by any of them, and to their prospective assignees wherever situated, for confidential use in the ordinary course of business, and further acknowledge that Lessor and any such subsidiary, officer, affiliate, debt and equity source or third party or prospective assignee may transfer or disclose any such information as required by any law, court, regulator or legal process. 139
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Lessee will treat the terms of this Agreement as confidential except on a “need to know” basis to persons within or outside Lessee’s organization (including affiliates of such party), such as attorneys, accountants, bankers, financial advisors, auditors and other consultants of such party and its affiliates, except as required by any law, court, regulator or legal process and except pursuant to the express prior written consent of the other parties, which consent shall not be unreasonably withheld.

Section 15. The Related Documents may be executed and delivered by facsimile signature or other electronic or digital means (including, without limitation, Adobe’s Portable Document Format (“PDF”)). Any such signature shall be of the same force and effect as an original signature, it being the express intent of the parties to create a valid and legally enforceable contract between them. The exchange and delivery of the Related Documents and the related signature pages via facsimile or as an attachment to electronic mail (including in PDF) shall constitute effective execution and delivery by the parties and may be used by the parties for all purposes. Notwithstanding the foregoing, at the request of either party, the parties hereto agree to exchange inked original replacement signature pages as soon thereafter as reasonably practicable. [SIGNATURE PAGES TO FOLLOW]
140
[Signature Page to Escrow and Account Control Agreement] IN WITNESS WHEREOF, the parties have executed this Escrow and Account Control Agreement as of the date first above written.

BANC OF AMERICA PUBLIC CAPITAL CORP,
as Lessor

CITY OF CLOVERDALE,
as Lessee
By:

Name:

Title:

By:

Name:

Title:

U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Escrow Agent
By:

Name:

Title:
141
SCHEDULE 1

TO THE ESCROW AND ACCOUNT CONTROL AGREEMENT

FORM OF DISBURSEMENT REQUEST
Re: Equipment Lease/Purchase Agreement dated as of ___________, 2022 by and between Banc of America Public Capital Corp, as Lessor, and the City of Cloverdale, as Lessee (the “Lease”) (Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Lease.)
In accordance with the terms of the Escrow and Account Control Agreement, dated as of ___________, 2022 (the “Escrow and Account Control Agreement”) by and among Banc of America Public Capital Corp (“Lessor”), the City of Cloverdale (“Lessee”) and U.S. Bank Trust Company, National Association, (the “Escrow Agent”), the undersigned hereby requests the Escrow Agent pay the following persons the following amounts from the Escrow Account created under the Escrow and Account Control Agreement for the following purposes:

DISBURSEMENT AMOUNTS:

PAYEE’S NAME AND ADDRESS (IF

DISBURSEMENT VIA WIRE, MUST

INCLUDE WIRE TRANSFER

INSTRUCTIONS) INVOICE NUMBER DOLLAR AMOUNT PURPOSE
<Payee’s Name>
<Payee Address 1>
<Payee Address 2>
<Payee Address 3>
<Payee Bank Name*>
<Payee Bank ABA/Routing*>
<Payee Bank Account No*>
<Payee Account Name*>
<*Payee Address and Payee
Bank information is required.>
<invoice list OR “see
attached” with a
spreadsheet>
< invoice amount> <general description of
equipment; ex “police
cruiser”>
<Payee’s Name>
<Payee Address 1>
<Payee Address 2>
<Payee Address 3>
<Payee Bank Name*>
<Payee Bank ABA/Routing*>
<Payee Bank Account No*>
<Payee Account Name*>
<*Payee Address information is
required. Payee Bank
information only to be included
for wire/EFT.>
<invoice list OR “see
attached” with a
spreadsheet>
<invoice amount> [<general description of
equipment; ex “police
cruiser”>]
142
Schedule I-2
Lessee hereby represents, covenants and warrants for the benefit of Lessor on the date hereof as follows:
(i) Each obligation specified in the table herein titled as “Disbursement Amounts” (a) has been incurred by Lessee in the stated amount, (b) the same is a proper charge against the Escrow Account for Equipment Costs relating to the Equipment identified above and has not been paid (or has been paid by Lessee and Lessee requests reimbursement thereof), and (c) has not been paid (or has been paid by Lessee and Lessee requests reimbursement thereof), and the Equipment relating to such obligation has been delivered, installed and accepted by Lessee.
(ii) For each item of Equipment relating to an obligation specified in the table herein titled as “Disbursement Amounts” (a) Lessee has conducted such inspection and testing of the Equipment as it deems necessary and appropriate in order to determine the Equipment’s capability and functionality in order to accept such Equipment, (b) such Equipment has been delivered, installed, is operating in a manner consistent with the manufacturer’s intended use and has been inspected and finally accepted for all purposes by Lessee and title thereto has transferred to Lessee and any security interest of Vendor therein has been released and (c) the date on which Equipment acceptance occurred is __________, 20__. Attached hereto is the original invoice, and certification from Vendor as to title transfer and release by Vendor of any security interest with respect to such obligation and the related AIA forms.
(iii) The undersigned, as Authorized Representative, has no notice of any vendor’s, mechanic’s or other Liens or rights to Liens, chattel mortgages, conditional sales contracts or security interest which should be satisfied or discharged before such payment is made.
(iv) This requisition contains no item representing payment on account, or any retained percentages which Lessee is, at the date hereof, entitled to retain (except to the extent such amounts represent a reimbursement to Lessee). (v) The Equipment is insured in accordance with the Lease. (vi) No Event of Default, and no event which with notice or lapse of time, or both, would become an Event of Default, under the Lease has occurred and is continuing at the date hereof. No Event of Non-appropriation has occurred or is threatened with respect to the Lease.
(vii) The disbursement shall occur during the Acquisition Period. (viii) The representations, warranties and covenants of Lessee set forth in the Lease are true and correct as of the date hereof.
143
Schedule I-3
(ix) No Material Adverse Change has occurred since the date of the execution and delivery of the Lease.
(x) The information in this Disbursement Request regarding each Payee, including their respective name, address and wiring instructions (collectively, the “Payee Information”), is true and correct, such Payee Information has been verified and confirmed by Lessee and the Lessor can rely on Lessee’s verification and confirmation of the accuracy of such Payee Information. Lessee hereby acknowledges and agrees that any call-back performed by Lessor to verify the disbursement instructions pursuant to this Disbursement Request shall be made to Lessee only and Lessor shall have no obligation to call-back any Payee listed above.

Dated: ________________
City of Cloverdale
By: ____________________________________
Name: ______________________________
Title: _______________________________
Disbursement of funds from the Escrow
Account in accordance with the foregoing
Disbursement Request hereby is authorized

BANC OF AMERICA PUBLIC CAPITAL CORP
as Lessor under the Lease
By:

Name:

Title:
144
[AN “EXHIBIT A-1” MUST BE COMPLETED AND EXECUTED AT TIME OF EXECUTION OF THE AGREEMENT]
EXHIBIT A-1

FORM OF INCUMBENCY AND AUTHORIZATION CERTIFICATE
The undersigned, a duly elected or appointed and acting City Clerk of the City of Cloverdale (“Lessee”) certifies as follows:

NAME OF OFFICIAL TITLE SIGNATURE
________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ Dated: ___________, 2022
By:____________________________________
Name: ______________________________
Title: _______________________________
(The signer of this Certificate cannot be listed above as authorized to execute the Operative Agreements.)
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[AN “EXHIBIT A-2” MUST BE COMPLETED AND EXECUTED AT TIME OF EXECUTION OF THE AGREEMENT]
EXHIBIT A-2
ESCROW AND ACCOUNT CONTROL AGREEMENT DATED AS OF ___________, 2022 BY AND

AMONG BANC OF AMERICA PUBLIC CAPITAL CORP, AS LESSOR, THE CITY OF CLOVERDALE, AS LESSEE AND U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS ESCROW AGENT CERTIFICATE OF AUTHORIZED REPRESENTATIVES – [LESSOR]
Name: Terri Preston Name: Nancy Nusenko
Title: Authorized Agent Title: Authorized Agent
Phone: 443-541-3642 Phone: 443-541-3646
Facsimile: 443-541-3057 Facsimile: 443-541-3057
E-mail: [email protected] E-mail: [email protected] Signature: Signature:

Fund Transfer / Disbursement Authority Level: Fund Transfer / Disbursement Authority Level:

Initiate Initiate
Verify transactions initiated by others Verify transactions initiated by others Name: Nancy K. Hepner Name: Arlene Sobieck
Title: Authorized Agent Title: Authorized Agent
Phone: 443-541-3645 Phone: 443-541-3643
Facsimile: 804-553-2407 Facsimile: 443-541-3057
E-mail: [email protected] E-mail: [email protected] Signature: Signature:

Fund Transfer / Disbursement Authority Level: Fund Transfer / Disbursement Authority Level:

Initiate Initiate
Verify transactions initiated by others Verify transactions initiated by others 146
A-2-2
The Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the person or persons identified above including without limitation, to initiate and verify funds transfers as indicated.

BANC OF AMERICA PUBLIC CAPITAL CORP
By:____________________________________
Name:

Title:

Date: ___________, 2022
147

AGREEMENT FOR LEGAL SERVICES

BY AND BETWEEN

CITY OF CLOVERDALE

AND JONES HALL, A PROFESSIONAL LAW CORPORATION

FOR BOND COUNSEL LEGAL SERVICES

IN CONNECTION WITH ENERGY EFFICIENCY FINANCING
This AGREEMENT FOR LEGAL SERVICES, dated as of October 1, 2022, is between the CITY OF CLOVERDALE (the “City”), and JONES HALL, A PROFESSIONAL LAW CORPORATION, San Francisco, California (“Attorneys”); WITNESSETH:

WHEREAS, the City is proceeding to authorize the execution and delivery of an Equipment Lease-Purchase Agreement and related financing documents with Bank of America (collectively, the “Financing Agreements”) for the purpose of financing energy efficiency improvements in the City in the amount of approximately $7.8 million; and WHEREAS, in connection with the drafting of the authorizing resolution, legal agreements, and other documents required to accomplish the execution and delivery of the Financing Agreements, the City requires the advice and assistance of bond counsel; and
WHEREAS, Attorneys are qualified by training and experience to perform the services of bond counsel and are willing to provide such services under the terms set forth herein;

NOW, THEREFORE, THE PARTIES HERETO MUTUALLY AGREE AS
FOLLOWS:

SECTION 1. Identification of Client. Attorneys shall represent the City as Bond Counsel in connection with the proceedings for the execution and delivery of the Financing Agreements. Attorneys will not represent, and will owe no duties to, any other party, including but not limited to financial advisor, private placement agent, or private placement lender.

Attorneys assume that all other parties involved in the financing will retain such counsel, as they deem necessary and appropriate to represent their interests in this transaction. Attorneys further assume that all other parties understand that in this transaction Attorneys represent only the City, Attorneys are not counsel to any other party, and Attorneys are not acting as an intermediary among the parties. Attorneys’ services as bond counsel are limited to those contracted for in this Agreement; the City' s
execution of this Agreement will constitute an acknowledgment of those limitations.

Attorneys’ representation of the City will not affect, however, our responsibility to render an objective final legal opinion.

SECTION 2. Duties of Attorneys as Bond Counsel. Attorneys shall do, carry out and perform all of the following Bond Counsel services as are necessary for the execution and delivery of the Financing Agreements:
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• Preparing and/or reviewing all legal proceedings for the authorization, execution and delivery of the Financing Agreements by the City, including drafting and/or reviewing the Equipment Lease-Purchase Agreement, Escrow and Account Control Agreement, authorizing City Council Resolution, and related legal documents; preparation and/or review of all closing certificates, filings and other documents required for closing and supervising such closing; preparation of all other proceedings incidental to or in connection with the execution and delivery of the Financing Agreements.
• Negotiating with the private placement lender the prepayment provisions and the other covenants and agreements of the City set forth in the Financing Agreements, as requested by the City.
• Reviewing existing obligations of the water and wastewater system to ensure there are no prohibitions on the incurrence of liens on the equipment being financed, which will become part of the water and/or wastewater systems, as applicable.
• Working with the City to respond to any questions or concerns of private placement lender.
• Upon completion of proceedings to the satisfaction of Attorneys, providing a legal opinion, as traditionally issued by Bond Counsel and satisfactory in form and content to the private placement lender, approving in all regards the legality of all proceedings for the authorization, execution and delivery of the Financing Agreements, which opinion shall be addressed to the City and the private placement lender, as required.
• Such other and further services as are normally performed by Bond Counsel in connection with similar financings.

SECTION 3. [Reserved].

SECTION 4. Compensation.
(a) Bond Counsel Services. For the services of Attorneys listed in Section 2 in connection with Bond Counsel services rendered for the execution and delivery of the Financing Agreements, the City will pay Attorneys a flat fee equal to $45,000. (b) Expense Recovery. In addition to the foregoing fees, Attorneys will be reimbursed for direct out-of-pocket expenses for travel, messenger and delivery services, court filing fees, costs of legal publication, photocopying and preparation of official transcripts of the proceedings, in an amount not to exceed $2,500.

Payment of Attorneys’ fees and expenses will be due and payable upon the delivery of an invoice to the City following execution and delivery of the Financing 149
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Agreements and contingent on the execution and delivery of the Financing Agreements.

The fee is not set by law but is negotiable between Attorneys and the City.

SECTION 5. Responsibilities of the City. The City shall cooperate with Attorneys and shall furnish Attorneys with certified copies of all proceedings taken by the City, or other deemed necessary by Attorneys to render an opinion upon the validity of such proceedings. All costs and expenses incurred incidental to the actual execution and delivery of Financing Agreements, including the cost and expense of preparing certified copies of proceedings required by Attorneys in connection therewith, the costs of other financing team members, including counsel to the private placement lender, and any other expenses payable by the City in connection with the Financing Agreements, shall be paid by the City.

SECTION 6. Compensation in Event of Certain Events of Termination. In the event of termination of this Agreement prior to execution and delivery of the Financing Agreements, all finished and unfinished documents, exhibits, project data, reports, and evidence shall, at the option of City, becomes its property and shall be delivered to it by Attorneys. If this Agreement is terminated by the City and the Financing Agreements are subsequently executed and delivered, Attorneys shall be paid a fee for their services rendered through the date of such termination, in a pro rata amount of the total fee which would have been paid hereunder had such termination not taken place.

SECTION 7. Independent Contractor. Attorneys will act as an independent contractor in performing the services required under this Agreement, and under no circumstances shall Attorneys be considered an agent, partner, or employee of the City.

SECTION 8. Liability Insurance; Costs of Regulatory Agency Investigations.

Attorneys must maintain at their own expense at all times during the term of this Agreement policies of insurance, acceptable to the City, covering its workers’ compensation injuries, public liability and professional liability. In the event any investigation, inquiry or other action is instituted by the Securities and Exchange Commission, the Internal Revenue Service or other governmental regulatory agency into the Financing Agreements under federal securities law or federal tax law, the City and Attorneys shall meet and confer to discuss the extent to which it is appropriate for Attorneys to represent the common interests of the City and Attorneys in responding to such investigation, inquiry or other action, and the extent to which the cost thereof shall be borne by Attorneys.

SECTION 9. Assignment. Attorneys may not assign their rights or delegate their obligations under this Agreement, in whole or in part, except with the prior written consent of the City.

SECTION 10. Conflicts; Prospective Consent. Attorneys represent many political subdivisions, investment banking firms and financial advisory firms. It is possible that during the time that Attorneys are representing the City, Attorneys will also be representing, on other transactions, the investment banking firm working with the City in connection with the Financing Agreements. Attorneys do not believe such representation, if it occurs, will adversely affect Attorneys’ ability to represent the City as provided in this Agreement, either because such matters will be sufficiently different from the execution and delivery of the Financing Agreements so as to make such representations not adverse to our representation of you, or because the potential for 150
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such adversity is remote or minor and outweighed by the consideration that it is unlikely that advice given to the other City will be relevant to any aspect of the execution and delivery of the Financing Agreements. Execution of this Agreement will signify the City' s
consent to Attorneys’ representation of others consistent with the circumstances described in this paragraph.

SECTION 11. Termination of Agreement.
(a) Termination by City. This Agreement may be terminated at any time by the City with or without cause upon written notice to Attorneys. (b) Termination by Attorneys. This Agreement may be terminated by Attorneys upon 15 days' written notice to City if City fails to follow written legal advice given by Attorneys.
(c) Termination Upon Closing. This Agreement shall terminate upon the execution and delivery of the Financing Agreements.
(d) Consequences of Termination. In the event of termination, all finished and unfinished documents shall at the option of the City become its property and shall be delivered to the City by Attorneys.

IN WITNESS WHEREOF, the City and Attorneys have executed this Agreement as of the date first above written.

CITY OF CLOVERDALE
By:

David J. Kelley
City Manager

JONES HALL,

A PROFESSIONAL LAW CORPORATION
By:

James A. Wawrzyniak, Jr.

Vice President
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4826-1295-8409v6/200721-0005

PLACEMENT AGENT AGREEMENT
November 1, 2022
124 No. Cloverdale Blvd.

Cloverdale, CA 95425
Attention: David Kelley, City Manager
The undersigned, Oppenheimer & Co. Inc. (the “Placement Agent”), offers to enter into the following agreement (this “Agreement”) with the City of Cloverdale (the “Issuer”), which, upon acceptance by the Issuer, will be binding upon the Issuer and the Placement Agent.

The Issuer acknowledges and agrees that (i) the placement of the 2022 Equipment Lease Purchase Agreement (the “Obligation”) pursuant to this Placement Agent Agreement is an arm’slength commercial transaction between the Issuer and the Placement Agent, (ii) in connection therewith and with the discussion, undertakings and procedures leading up to the consummation of such transaction, the Placement Agent is not acting as a fiduciary of or a financial advisor to the Issuer, (iii) the Placement Agent has not assumed an advisory or fiduciary responsibility in favor of the Issuer with respect to (a) the offering of the Obligations or the process leading thereto (whether or not the Placement Agent has advised or is currently advising the Issuer on other matters) or (b) any other obligation to the Issuer except the obligations expressly set forth in this Placement Agent Agreement, and (iv) the Issuer has consulted with its own legal and other professional advisors to the extent it deemed appropriate in connection with the offering of the Obligation.

The Obligation shall be issued under and pursuant to the Equipment Lease Purchase Agreement, dated as of _November 1, 2022 (the “Issuing Document”), by and between the Issuer and Bank of America (the “Purchaser”).

Upon the terms and conditions and upon the basis of the representations, warranties and agreements set forth herein, the Placement Agent and the Issuer hereby agree as follows:

1. Appointment of Placement Agent; Placement of Obligations; Closing. (a) The Issuer hereby appoints the Placement Agent to act, and the Placement Agent hereby agrees to act, as the exclusive placement agent for the Issuer in connection with the private sale and issuance of its Obligations, and the Placement Agent hereby accepts such appointment.

As compensation for its services hereunder, the Placement Agent shall charge a fee not in excess of $40,000 for the Obligation. At the closing of any such sale, the Issuer shall pay or cause to be paid such fee to the Placement Agent by wire transfer or immediately available funds. The above fee does not include any services the Placement Agent may render in the future to the Issuer with respect to any offering or placement of municipal securities other than the Obligation. (b) The Issuer understands that the Placement Agent will be acting as the agent of the Issuer in the offering and sale of the Obligations and agrees that, in connection therewith, the Placement Agent will use its “best efforts” to place the Obligations. The Placement Agent agrees that, 157
2 4826-1295-8409v6/200721-0005
in furtherance of its obligations hereunder, it shall provide substantially accurate and complete information to potential purchasers of the Obligations to the extent that it is able. (c) The Issuer expressly agrees that nothing in this Agreement evidences or creates any expressed or implied commitment by the Placement Agent to purchase or place any of the Obligations.
(d) On the closing date, the Issuer will cause to be delivered (a) a final approving opinion of Jones Hall, as Bond Counsel to the Issuer (“Bond Counsel”), dated the closing date, addressed to or with a reliance letter to the Placement Agent, in a form acceptable to the Placement Agent, to the effect that the Obligation constitutes valid and legally binding obligations of the Issuer payable from any legally available funds as set forth in the Issuing Document and that the interest on the Obligation is exempt from federal and State of California income taxes under existing laws, regulations, rulings and judicial decisions, (b) one or more certificates in form and tenor satisfactory to the Placement Agent evidencing the proper execution and delivery of the Obligation and receipt of payment therefor, including statements of the Issuer, dated as of the date of such delivery, to the effect that there is no litigation pending or, to the knowledge of the signer or signers thereof, threatened relating to the issuance, sale and delivery of the Obligations, (c) a letter or certificate of the Purchaser, addressed to the Placement Agent, in form and content acceptable to the Placement Agent.

2. Reliance. The Issuer recognizes that, in providing services under this Agreement, the Placement Agent will rely upon and assume the accuracy and completeness of the financial, accounting, tax and other information discussed with or reviewed by the Placement Agent for such purpose, and the Placement Agent does not assume responsibility for the accuracy and completeness thereof. The Placement Agent will have no obligation to conduct any independent evaluation or appraisal of the assets or the liabilities of the Issuer or any other party or to advise or opine on related solvency issues. Nothing in this Agreement is intended to confer upon any other person (including creditors, employees or other constituencies of the Issuer) any rights or remedies hereunder or by reason hereof.

3. Termination. The Placement Agent’s authorization to carry out its duties hereunder may be terminated by the Issuer or the Placement Agent at any time with or without cause, effective upon receipt of written notice to that effect by the other party. Notwithstanding the foregoing, in the event the Issuer terminates this Agreement and within twelve (12) months after the Issuer sells the Obligations to an investor identified by the Placement Agent prior to such termination, the amounts payable under Section 1(a) shall be immediately due and payable to the Placement Agent by the Issuer.

4. Notices. Any notice or other communication to be given to any of the parties to this Agreement may be given by delivering the same in writing as follows: to the Issuer at 124 No.

Cloverdale Blvd., Cloverdale, CA 95425 Attention: City Manager, and to the Placement Agent at 580 California Street, Suite 2300, San Francisco, California 94104, Attention: Municipal Capital Markets Group.

5. Survival of Representations, Warranties and Agreements. This Agreement is made solely for the benefit of the Issuer and the Placement Agent, and no other person shall acquire or have any right hereunder or by virtue hereof. All of the representations, warranties and agreements of the Issuer contained in this Agreement shall remain operative and in full force and effect regardless of delivery of any payment for the Obligation.
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6. Counterparts. The Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

7. Effectiveness. This Agreement shall become effective upon the execution of the acceptance hereof by duly authorized signatory of the Issuer, which acceptance hereof shall be indicated on the signature page hereof, and shall be valid and enforceable as of the time of such acceptance. This Agreement may be executed by facsimile transmission and in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document.

8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.

Very truly yours,
OPPENHEIMER & CO. INC.

By:

Managing Director

CITY OF CLOVERDALE
By:

Authorized Officer
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160
Transacts Business on All Principal Exchange, Member SIPC

City of Cloverdale September 20, 2022
2022 Equipment Lease-Purchase Agreement
Feedback from Private Placement Lenders
Background
The City of Cloverdale (the “City”) and its municipal advisor have determined to use the private placement method of sale for the financing of its water meters and energy related projects. The financing will be structured as the 2022 Equipment Lease-Purchase Agreement. The financing team asked Oppenheimer & Co. to begin discussing this financing with their pool of private placement lenders. The goal of these conversations was to gauge interest levels of the banks, learn the current length of term banks were offering for this type of equipment, gather indicative interest rates, and determine if there is any benefit to distributing a lender request for proposal.

Oppenheimer targeted banks currently offering the most competitive rates, and banks that are active in solar and equipment leasing.

Results

1. Bank of America – They are a leader in solar leasing, often times offering the lowest rates for solar and energy efficiency financings. Bank of America was interested in the financing.

They believe they can purchase a 15-year term, but they likely would not be able to provide a 20-year option due to the small size of the City’s population.

Bank of America provided an indicative 15-year rate of 3.55%.

2. California Bank & Trust – The bank is active in the equipment leasing space. California Bank & Trust cannot offer term lengths longer than 15 years, no matter the credit. They have interest in this financing with a 15-year term.

California Bank & Trust provided an indicative 15-year rate of 4.43%.

3. First Foundation – First Foundation Bank has been one of the more aggressive lenders in 2022. They were not interested in the financing since they currently do not have an appetite for solar or energy efficiency financings.

4. Key Bank – Key Bank is another bank that is active in equipment lease financings. They would be interested in the financing, however they currently cannot offer terms beyond 10 years.

Oppenheimer & Co. Inc.
580 California Street, Suite 2300
San Francisco, CA 94104
(415) 438-2977
161
Transacts Business on All Principal Exchange, Member SIPC Key Bank provided an indicative 10-year rate of 3.90%.

5. Municipal Finance Corporation – Municipal Finance Corporation often provides a term length of 15-years and longer. They would need to perform a more thorough credit review before determining if they can purchase the financing.

If it were to pass through their credit committee, Municipal Finance Corporation provided an indicative 15-year rate of 3.95% and a 20-year rate of 4.15%.

6. Pinnacle Public Financing – Pinnacle is another bank that is very active in equipment leasing. At initial glance, Pinnacle was worried the City’s population could be an issue.

They would need to do a deeper credit review to determine if they could purchase the financing.

If it were to pass through their credit committee, Pinnacle provided an indicative 15-year rate of 4.10% and a 20-year rate of 4.30%.

7. Webster Bank – Webster Bank has been very aggressive in 2022, often finishing first or second when we bid out for a lender. The size of the population could be an issue for Webster. They have a strict rule not to lend to cities below 8,000, and the City cuts it close with its population of 9,000. Webster would need to perform a full credit review before knowing for certain if they could purchase the financing. If they could, they would be capped at a 15-year term.

If it were to pass through their credit committee, Webster Bank provided an indicative 15-year rate of 3.70%.
162
Michael C. Brunsman
Senior Vice President
Senior Leasing Sales Specialist – West Region
Global Leasing - Energy Services
312 Walnut Street, Suite 2200
Cincinnati, OH 45202
T 513.929.5102 M 513.484-0049
[email protected]
October 13, 2022

VIA ELECTRONIC MAIL
City of Cloverdale
124 N Cloverdale Blvd
Cloverdale, CA 95425
Cc: Dan Shaw, Brandis Tallman
Rick Brandis, Brandis Tallman
Brad Koster, BofA Global Leasing – Energy Services
Re: City of Cloverdale, approximately $7,055,000 total project cost, Non-Bank Qualified TaxExempt Equipment Financing, Annual Appropriations Structure Banc of America Public Capital Corp and its affiliates (“BAPCC") is pleased to submit to City of Cloverdale (the “City”) the Non-Bank Qualified Tax-Exempt Financing proposal (the “Proposed Transaction”) as described in the attached Summary of Terms and Conditions (the "Term Sheet").

Please review the Term Sheet and contact me if you have any questions.

This letter and the Term Sheet (collectively, the “Proposal” or the “Proposal Letter”) include only a brief description of the principal terms of the Proposed Transaction, and are intended for discussion purposes only. Please understand that this Proposal is not a commitment or offer to purchase, and does not create any obligation for BAPCC. BAPCC will not be responsible or liable for any damages, consequential or otherwise, that may be incurred or alleged by any person or entity as a result of this Proposal Letter. BAPCC will notify you in writing of its decision to proceed with the Proposed Transaction after completing its review and analysis.

This Proposal must be accepted on or before October 26, 2022 in order for the BAPCC to proceed with its consideration of the Proposed Transaction. To accept this Proposal, please sign the enclosed copy of this Proposal Letter and return it to my attention at the following email address:
[email protected].

Thank you for allowing us the opportunity to prepare this Proposal for City of Cloverdale. 163
Sincerely yours,
Banc of America Public Capital Corp
Michael C. Brunsman
By: Michael C. Brunsman
Title: Senior Vice President
The undersigned, by its authorized representative below, accepts the Proposal contingent upon proper approval at a meeting of its Governing Board. The undersigned agrees to furnish BAPCC, its successors and assigns, any information relating to the business or financial condition of the City or its affiliates, and authorizes the BAPCC, Bank of America, N.A. and their affiliates to disclose to, discuss with and distribute such information (and any information they may already have) to any other affiliates or proposed assignees or successors of BAPCC.

City of Cloverdale
By: _____
Title: _____
Date: _____
“Bank of America” is the marketing name used by certain Global Banking and Global Markets businesses of Bank of America Corporation. Lending, leasing, equipment finance and other commercial banking activities, and trading in certain financial instruments are performed globally by banking affiliates of Bank of America Corporation, including Bank of America, N.A., Member FDIC. Banc of America Public Capital Corp, a wholly-owned subsidiary of Bank of America, National Association, is not a municipal advisor and is not subject to the fiduciary duty established in Section 15B(c)(1) of the Securities Exchange Act of 1934, as amended, with respect to any municipal financial product or issuance of municipal securities. The information provided in this document is not intended to be and should not be construed as “advice” with the meaning Section 15B of the Securities Exchange Act of 1934 and the municipal advisor rules of the SEC.© 2019 Bank of America Corporation. All rights reserved. 164
October 13, 2022
City of Cloverdale
124 N Cloverdale Blvd
Cloverdale, CA 95425
Cc: Dan Shaw, Brandis Tallman
Rick Brandis, Brandis Tallman
Brad Koster, BofA Global Leasing – Energy Services
RE: City of Cloverdale Financing Proposal
Banc of America Public Capital Corp is pleased to submit the following financing proposal for the City of Cloverdale solar and water meter replacement project with Centrica/PG&E. No municipal financial products or municipal securities have been included in the following proposal.

I. Lessee City of Cloverdale
II. Lessor Information
Lessor Name: Banc of America Public Capital Corp (“BAPCC”) Address: 312 Walnut Street, Suite 2200
Cincinnati, OH 45202
Contact: Michael Brunsman
Telephone: 513-929-5102
Email: [email protected]
Background: BAPCC offers unique financing features and qualifications that can be leveraged on behalf of the City to complete this private placement transaction at a low interest cost and in a smooth and efficient manner. These features and qualifications include:

1. Taxable & Tax-Exempt Private Placement Experience: BAPCC is a leading provider of private placement capital to the state government, municipal local government, K-12, housing authority, and higher education tax-exempt markets. Our teams are highly experienced in documenting and closing tax-exempt and taxable private placement transactions in California, such as the subject of this bid.

2. Energy Services Focus: BAPCC’s Energy Services group is a leading provider of financial solutions for energy efficiency, renewable energy, and energy generation equipment and assets; and as such we have experience in working with energy services companies. Bank of America is committed to improving the environment and has increased its current Environmental Business Initiative to $1 trillion. Since 2007, the Bank’s Environmental 165
Business Initiative has deployed more than $158 billion in financing to low-carbon and sustainable business activities across the globe.

3. Financial Strength: Information regarding Bank of America’s financial condition can be found in the Annual Report on our website, www.bankofamerica.com.

III. Lease Structure
Purpose Finance the Energy Conservation Measures designed and installed by Centrica/PG&E under a performance contract with City of Cloverdale (the “City” or “Lessee”).

Structure This transaction will be structured as a Non-Bank Qualified Tax-Exempt Equipment Lease/Purchase Agreement (the “Agreement”) between the Lessee and the Lessor.

The obligation to make Rental Payments under the Agreement shall be an annual appropriation obligation of the Lessee payable from any lawfully available funds.

Regardless of the status of installation or performance of the Equipment, the Lessee’s obligation to make payments commence on that certain date as set forth in the Agreement. Legal title to the Equipment shall be vested in the Lessee. The Agreement will be a net financial contract of the Lessee, and all expenses (including, but not limited to, insurance, maintenance, and taxes) will be for the account of the Lessee.

Security Lessor’s security interest in the Equipment will be evidenced by filing a UCC-1 Financing Statement (Personal Property) with respect to Equipment. Prior to closing, Lessee will be required to provide legal descriptions (as applicable) for the property locations at which the Equipment will be installed in order to enable the Lessor to record fixture filings in the appropriate recording offices.

Proceeds Approximately $7,055,000
Term Approximately 15 years
Payments Payments similar to those shown on the attached amortization schedules.

Prepayment On any Payment Date after the Commencement Date and continuing through maturity, upon 45 days written notice the City will have the option to prepay its obligations under the Agreement in whole only with a prepayment premium of 102% of the outstanding principal balance plus any accrued interest and fees. 166
Lessee may have a one-time prepayment of up to $2,000,000 at par from Grant or other similar proceeds within 3 Years from closing.

Termination The financing will be subject to annual appropriations (see Structure section above).

Interest Rate Approximately 15 years) 3.963%, locked through December 13, 2022 The calculation for the Interest Rate for each option above is:
9-Year Bloomberg Treasury SWAP Rate* X 79% + Applicable Spread Below:

Average Schedule Indicative
Life Swap Index Interest
Term Rate* x 79% Spread Rate
9 3.96% 3.13% 0.837% 3.963%
Rates as of October 13, 2022
LIBOR-Based Swap Succession: In the event the Libor-based swap index ceases (a) to be determined and made available through the Bloomberg Terminal, (b) to be a representative index for approximating movements in Lender’s costs of funding fixed-rate transactions, or (c) to be the generally accepted swap index in the marketplace, Lender may in its discretion use a replacement swap index applicable to U.S. Dollar collateralized funding that is generally accepted in the interbank credit marketplace as a comparable substitute for the LIBOR-based swap.

Rate Expiry If this Proposal is signed and returned to Lender on or prior to October 26, 2022, Lessor will hold the Interest Rate through December 13, 2022.

If closing of the transaction occurs after such rate lock expiration, the respective Interest Rate for the transaction is subject to repricing at the discretion of Lessor seven (7) business days prior to the scheduled closing date in accordance with the selected option formula above. In no event will the Bloomberg Treasury Swap Rate used to reset the Interest Rate be below the Swap Rate in each respective pricing grid above.

PLEASE NOTE THAT THE PRICING AND RATE ABOVE ARE BASED ON THE AVERAGE LIFE OF THE ATTACHED DRAFT AMORTIZATION SCHEDULES. TO THE EXTEXT THAT

THE AVERAGE LIFE OF THE FINAL SELECTED AMORTIZATION SCHEDULE CHANGES 167

FROM THE ATTACHED, THE RESPECTIVE RATE ABOVE IS SUBJECT TO

MODIFCATION BY LENDER TO ACCOUNT FOR ANY LENGTHENING OF THE AVERAGE LIFE OF THE FINAL SCHEDULE.

Closing Costs Lessor does not charge any closing costs or fees. The Lessee will be responsible for paying its costs, including delivery of a validity and tax opinion from the Lessee’s Bond Counsel and any CDIAC Reporting Fee.

Escrow Account
Terms
At closing, proceeds from the Agreement will be deposited into an Escrow Account established pursuant to an Escrow and Account Control Agreement (the “Escrow”) by and among the City, the Lessor and the Escrow Agent. The Escrow Agent will be selected by the City, subject to the Lessor’s approval. The Lessor has an arrangement with Wilmington Trust, under which escrow agent services for these types of transactions are provided at no charge to City. During the installation period, the City will requisition funds in the manner outlined in the Escrow. No funds will be disbursed without the written approval of the City and approval of the Lessor. The City will direct the investments in the Escrow Account and all interest earnings will accrue to the City’s benefit.

Documents Documents shall be prepared by the Lessor’s Counsel and will include all documents, certificates and opinions as are reasonably necessary to evidence and carry out the transaction. All documents must be acceptable to all parties.

Payment &
Performance
Bonds
The Lessor requires to be listed as dual obligee on the payment and performance bonds provided by Centrica/PG&E. No draws from Escrow will be permitted until such bonds are in place.

Credit Approval This proposal is an indication of interest in the transaction, and not a commitment to provide financing by the Lessor. Consummation of this transaction is subject to credit approval by the Lessor and execution and delivery of documentation acceptable to all parties. All fundings are subject to no material adverse change in the financial condition of the City from the time of credit approval.

Closing Date On or before December 13, 2022. Sample amortizations utilize a closing date of November 17, 2022.

Assignment The Lessor shall be entitled to assign its right, title and interest or any part thereof in the Agreement and Equipment, on a private placement basis to qualified purchasers. In addition, the Lessor shall be entitled to assign its right, title and interest or any part thereof in the Agreement to a trustee for the purpose of 168
issuing certificates of participation or other forms of certificates evidencing an undivided interest in such Agreement, provided such certificates are sold only on a private placement basis (and not pursuant to any “public offering”) to a purchaser(s) who represent that (I) such purchaser has sufficient knowledge and experience in financial and business matters to be able to evaluate the risks and merits of the investment (ii) such purchaser understands neither the Agreement or certificates will be registered under the Securities Act of 1933, (iii) such purchaser is either an “accredited investor” within the meaning of Regulation D under the Securities Act of 1933, or a qualified institutional buyer within the meaning of Rule 144A, and (iv) that it is the intention of such purchaser to acquire such certificates (A) for investment for its own account or (B) for resale in a transaction exempt from registration under the Securities Act of 1933. At any time, the Lessor may sell, assign or encumber all or any part of its right title and interest in the Agreement; however, in no event shall the Lessor assign this Agreement as a public offer of participation. The City consents to a private placement transaction within the meaning of applicable federal securities laws.

City’s
Responsibilities
All responsibilities imposed by the ownership or possession of the Equipment including, but not limited to, taxes, insurance and equipment maintenance, shall be borne by the City.

USA Patriot Act
Compliance
All financial institutions are required by Federal Law to obtain, verify and record information that identifies each customer who opens an account with us. When you open an account with us, we will ask you for your name, address and other information that will allow us to identify you, such as documents evidencing legal status and formation, taxpayer identification number and date of birth (if applicable).

Market
Disruption
Notwithstanding anything contained herein to the contrary, in the event any material change shall occur in the financial markets after the date of this Proposal Letter, including but not limited to any governmental action or other event which materially adversely affects the extension of credit by banks, leasing companies or other lending institutions, the Lessor may modify the indicative pricing described above.

III. Other Information
Capitalized terms used but not defined herein shall have the meaning given such terms in the transaction documents (i.e. the Agreement, Facility Lease, Site Lease, the Escrow). 169
This proposal letter and the Term Sheet include only a brief description of the principal terms of the Proposed Transaction and do not purport to summarize all of the conditions, covenants, representations, warranties and other provisions that would be contained in definitive documentation for the transaction contemplated hereby. The Lessor will not be responsible or liable for any damages, consequential or otherwise, that may be incurred or alleged by any person or entity, including the City or Centrica/PG&E as a result of this Proposal Letter.

Thank you for the opportunity to provide this proposal. If you have any questions or would like to discuss this proposal in further detail, please let us know.

Sincerely yours,
Banc of America Public Capital Corp
Michael C. Brunsman
By: Michael C. Brunsman
Title: Senior Vice President

STANDARD DISCLOSURES AND DISCLAIMERS
The transaction described in this document is an arm’s length, commercial transaction between you and Banc of America Public Capital Corp (“BAPCC”) in which: (i) BAPCC is acting solely as a principal (i.e., as a lender or assignee) and for its own interest; (ii) BAPCC is not acting as a municipal advisor or financial advisor to you; (iii) BAPCC has no fiduciary duty pursuant to Section 15B of the Securities Exchange Act of 1934 to you with respect to this transaction and the discussions, undertakings and procedures leading thereto (irrespective of whether BAPCC or any of its affiliates has provided other services or is currently providing other services to you on other matters); (iv) the only obligations BAPCC has to you with respect to this transaction are set forth in the definitive transaction agreements between us; and (v) BAPCC is not recommending that you take an action with respect to the transaction described in this document, and before taking any action with respect to the this transaction, you should discuss the information contained herein with your own legal, accounting, tax, financial and other advisors, as you deem appropriate. If you would like a municipal advisor in this transaction that has legal fiduciary duties to you, you are free to engage a municipal advisor to serve in that capacity.

STATEMENT FOR PROPOSALS SUBMITTED UNDER RFPS
This proposal is submitted in response to your Request for Proposal. The contents of this proposal and any subsequent discussions between us, including any and all information, recommendations, opinions, indicative pricing, quotations and analysis with respect to any municipal financial product or issuance of municipal securities, are provided to you in reliance upon the exemption provided for responses to requests for proposals or qualifications under the municipal advisor rules (the “Rules”) of the Securities and Exchange Commission (240 CFR 15Ba1-1 et seq.).

The Staff of the SEC’s Office of Municipal Securities has issued guidance which provides that, in order for a request for proposals to be consistent with this exemption, it must (a) identify a particular objective, (b) be open for not more than 170
a reasonable period of time (up to six months being generally considered as reasonable), and (c) involve a competitive process (such as by being provided to at least three reasonably competitive market participants) or by being publicly posted to your official website. In submitting this proposal, we have relied upon your compliance with this guidance.

In submitting this proposal, we are not undertaking to act as a “municipal advisor” to you or any other person within the meaning of the Rules. In connection with this proposal and the transactions described herein, we are not subject to, and we hereby disclaim, any fiduciary duty to you or to any other person. We understand that you will consult with and rely on the advice of your own municipal, financial, tax, legal and other advisors as and to the extent you deem necessary in connection with your evaluation of this proposal and the transactions described herein. 171
City Council/Successor Agency
Agenda Item Summary Agenda Item: H.1
Meeting Date: October 26, 2022
Agenda Section:

New Business
Staff Contact:

Kevin Thompson, Assistant City Manager/Community Dev. Dir.

Agenda Item Title: Seed to Soul Payment Plan for local cannabis permitting fees.

Recommended Council Action(s): Adopt a resolution authorizing the City Manager to enter into an agreement with Patrick King, part owner of Seed to Soul cannabis business establishing a payment plan for past due permit fees.
________________________________________________________________________________________ Background/Summary: Patrick King, part owner of Seed to Soul cannabis business, has requested a payment plan for past due permit fees. The current amount due reflects nearly three years of non-payment for a total of $31,293. The City issued a permit for the Seed to Soul on January 2, 2019, at the time a full payment was made, since then no payments have been received. Below is a summary of the past due payments.

The timeframe from January 2, 2020, to January 2, 2021. $12,518 The timeframe from January 2, 2021, to January 2, 2022. $12,518* The timeframe from January 2, 2022, to January 2, 2023. $6,257 TOTAL $31,293
*Includes audit fee
An additional $6,257 will be due January 2, 2023
The Police, Finance and Administration Subcommittee, on October 3rd considered the request for a payment plan. They recommended $2,000 per month, which the applicant agreed to at the time. Mr. King has since requested a payment of $1,500 per month. Staff suggests a 2% interest rate and a revocation of permit for non-payment be included in the agreement. If approved, staff enter into an agreement with Mr. King for a payment plan.
________________________________________________________________________________________ Options: Provide direction
_______________________________________________________________________________________ Subcommittee Recommendation: Bring forward for Council consideration. _______________________________________________________________________________________ Budget/Financial Impact: Delayed revenue
______________________________________________________________________________________ Attachments:

Resolution
172
City of Cloverdale
City Council
Resolution No. XX-2022

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CLOVERDALE AUTHORIZING THE CITY

MANAGER TO ENTER INTO AN AGREEMENT WITH PATRICK KING, PART OWNER OF SEED TO SOUL CANNABIS BUSINESS ESTABLISHING A PAYMENT PLAN FOR PAST DUE PERMITTING FEES.

WHEREAS, Patrick King, part owner of the Cannabis Business Seed to Soul was issued a local cannabis permit on January 2, 2019; and
WHEREAS, per the City of Cloverdale cannabis ordinance 730-2020, all local cannabis permit holders must renew their permits on an annual basis; and
WHEREAS, Seed to Soul has not renewed their local cannabis permit since the initial issuance on January 2, 2019; and
WHEREAS, the current and past-due amount Patrick King owes for local their cannabis permit is $31,293; and WHEREAS, Mr. King has requested a payment plan for the past due amounts of $31,293; and WHEREAS, the Police, Administration and Finance Subcommittee reviewed the request for a payment plan at their October 4, 2022 meeting and recommended Council provide a payment plan for Seed to Soul with a low interest rate; and
NOW, THEREFORE, BE IT RESOLVED that the Cloverdale City Council does authorizes the City Manager to enter into an agreement in a form approved by the City Attorney with the Patrick King for the establishment payment plan for past due permitting fee related to Seed to Soul cannabis business.

The foregoing Resolution was duly introduced and adopted by the City Council of the City of Cloverdale at its regular meeting held on the 26th day of October 2022 by the following roll call vote:

AYES: (5) Mayor Lands, Vice Mayor Wolter, Councilmembers: Bagby, Cruz, Palla NOES: (0)
ABSTAIN:(0)
ABSENT: (0)
APPROVED: ATTEST:
______________________________ ____________________________________ Todd Lands, Mayor Mike Maloney, City Clerk
173
City Council/Successor Agency
Agenda Item Summary Agenda Item: H.2
Meeting Date: October 26, 2022
Agenda Section:

New Business
Staff Contact:

David Kelley, City Manager
Kevin Thompson, Assistant City Manager / Comm. Dev. Dir.

Agenda Item Title:

Discussion on RHNA transfer agreement MOU between the County of Sonoma and City of Cloverdale _______________________________________________________________________________________ Recommended Council Action(s):

The Association of Bay Area Governments (ABAG) adopted the final RHNA for the 2023-2031 housing element cycle (known as the “6th Cycle”). The current adopted RHNA allocation for the 2023-2031 planning cycle is 278 units. Subsequent to adoption of the RHNA allocation by ABAG, the City of Cloverdale embarked on preparation of the Housing Element update based on the approved RHNA allocation. During the preparation of the Housing Element, the City of Cloverdale was recently requested by Sonoma County to enter into a Transfer Agreement to transfer 57 housing units from the County’s Reginal Housing Needs Allocation (RHNA) to the City of Cloverdale. The proposed transfer would have a net increase on the City’s RHNA allocation of 150 from 278 units to 335 (Attachment 1). City Staff was able to negotiate with the County to reduce the transfer allocation from 150 units to 57 units including the elimination of all moderate units. Staff believes this is an equitable transfer and recommends supporting the MOU. The current draft Housing Element is able to accommodate the increase in RHNA allocations without requiring any rezoning.

The basis of the request is the recent annexation of the Baumgardner and Bi' Du Khaale Senior Housing projects. Outlined in Attachment 1 is a table reflecting the proposed transfer of RHNA units.

Analysis:

Government Code Section 65584.07(d) states where “annexation of unincorporated land to a city occurs” after the RHNA allocation, the “city and county may reach a mutually acceptable agreement for transfer of a portion of the county’s allocation to the city.” However, if the city and county cannot reach a mutually acceptable agreement “then either party may submit a written request to the council of governments, subregional entity, or to the department for areas with no council of governments, to consider the facts, data, and methodology presented by both parties and determine the number of units, by income category, that should be transferred from the county’s allocation to the city.” Essentially this means that the City either needs to come to a mutually agreeable reallocation with the County, or the County can petition ABAG and ABAG will determine the appropriate reallocation.

The idea behind the reallocation is that if affordable housing is built in an area where the County could have met some of its RHNA numbers, but that area is then annexed into the City, then both the RHNA responsibility and the RHNA credits go to the City. If the area was in the County, then, theoretically at least, when ABAG did the RHNA allocations, they should have counted the potential for affordable housing in that location against the County. So, if the development had occurred in the unincorporated County, the County would then get the RHNA credit.
174
City Council/Successor Agency Agenda Item Summary
Meeting Date: October 26, 2022
Item No. H.2

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Cloverdale City CouncilOctober 26, 2022

Cloverdale City Council
October 26, 2022