5. If the amount of the request is higher than the previous year, provide a detailed explanation of the need for the increase:
6. Describe the benefit to the Town derived from funding your organization:
Jobs for Youth is seeking additional funding to reach our goal of providing 20 higher education scholarships through the Al Teglia Scholarship program. We initially requested $4,000 from our longstanding community partner, the City of Burlingame. Unfortunately, the City was able to provide only $940, which is 24% of our original request. To achieve our fund raising goal and effectively support our youth, we are now requesting the Town of Colma to contribute towards funding three higher education scholarships ($2,000 each).
This amount represents an increase of $2,000 over last year's request. Your support will be essential in helping deserving individuals achieve their educational and career aspirations.
The Town of Colma's 2023-25 strategic plan includes a focus on community, with planned programs to expose and develop lifelong skills for youth. By partnering with Jobs for Youth, the Town of Colma will be supported in achieving these goals. Jobs for Youth offers various workshops that help youth develop interpersonal skills, technical skills, and job preparedness skills. Town of Colma youth who take one of our workshops not only become eligible for the scholarship, but also receive other exclusive benefits which include 1:1 mentoring, access to our youth focused job board, a monthly newsletter that highlights development opportunities, eligibility for the JFY Summer Internship program in various departments throughout the County of San Mateo, and membership with the Jobs for Youth Alumni Association. Jobs for Youth values its partnership with the Town of Colma and actively participates as a vendor in all Colma Community Fairs to support the community. JFY is dedicated to fostering a positive impact within the Colma community.
7. Describe the following:
A. Number of Colma residents or businesses (or both) served by the organization in the years prior to the grant application;
B. The location(s) where Colma residents or businesses may receive the recipient
C. The nature and extent of the efforts of the recipient organization to reach out to Colma residents and businesses.
8. Provide a detailed account of how the FY 2023-24 contribution was used:
organization's services or programs; and
A. In the 2023-24 fiscal year, 299 students from the Jefferson Union High School District and the South San Francisco Unified High School District attended JFY workshops and became JFY members. Of these students, 123 live in Colma's zip codes of 94014 & 94080.
B. Most youth attend workshops on the campus of their schools during the regular school day. JFY went to all the high schools in the Jefferson Union High School District and the South San Francisco Unified High School District. Some of our members attend virtual public workshops or workshops hosted by local libraries and local community organizations throughout the County.
C. JFY works closely with partners in schools and community organizations, including teachers and administrators at Jefferson Union High School District and the South San Francisco Unified High School District, to schedule workshops and advertise our Scholarship program to Colma students, parents, and staff. We also send JFY Members a monthly newsletter which features scholarship information, upcoming workshops, new job and volunteer opportunities, career development tips, and community resources and events.
The generous $4,000 contribution from the Town of Colma funded two scholarships to youth in need. Janelle Deguzman and Gia Yen Ta were each awarded $2,000 to help them achieve their higher education dreams! Janelle is a senior at Westmoor High school and dreams of becoming a registered nurse in the ICU. "I am going into this field because I lost my dad to cancer, and all I want to do is help people." Janelle has already completed a course at Skyline College and is looking forward to attending a 4-year university. Gia is a South San Francisco High School graduate, and currently attends Skyline College. She dreams of becoming a registered nurse specializing in neonatal care and will be the first in her family to attend college. "I am passionate about volunteering at my local hospital and advocating for immigrant rights to raise awareness on healthcare disparities." Both scholars have two years to fully claim their scholarships.
9. List contributions requested and received from other cities in FY 2023-24 and requested or expected in FY 2024-25:
10. Did the organization participate in or intervene in any political campaign (including the publication or distribution of statements) on behalf of (or in opposition to) any candidate for public office within the past 36 months (please select one)?
Yes __________ No ______________
If yes, please provide details.
In the 2022-23 fiscal year, Jobs for Youth received the following contributions from the San Mateo County cities:
$4,000 Town of Coma
$4,000 City of Menlo Park
$1,100 City of Burlingame
This fiscal year, Jobs for Youth is requesting the following amounts:
$6,000 Town of Coma
$6,000 City of Menlo Park
* Jobs for Youth submitted a grant request to the City of Burlingame for $4,000. The City of Burligame provided $940 as their contriubution.
0
11. Charitable Trust # or EIN #
Please attach a copy of the following:
Roster of current governing board
Current Year Annual Operating Budget
exempt status
Optional Attachments
□
□
□ Proof of organization's tax
l'I Roster of governing board
94-6000532
Operating budget l'I Proof of tax exemption
COUNTY OF SAN MATEO JOBS FOR YOUTH
2023 24 GRANT APPLICATION ATTACHMENTS
202ll Board of Supervisors
Jobs for Youth has a number of stakeholders who provide direct and indirect oversight of our program . These stakeholders include the County of San Mateo Board of Supervisors, the HR Director of the County of San Mateo Human Resources Department, and a core group of dedicated volunteers who make up our Jobs for Youth Workgroup. 2024 Board of Supervisors
District 1
Dave Pine
District 2
Noelia Corzo
District 3
Ray Mueller
District 4
warren Slocum
Pres ident
District 5
David canepa
Vice President
HUMAN RESOURCES DEPARTMENT LEADERSHIP TEAM
Jobs for Youth is part of the Organizational Development and Communications division of the County of San Mateo Human Resources Department. The Manager of the Organizational Development and Communications division is Conrad Fernandes . Jobs for Youth also receives oversight from Acting Deputy Director Lisa Yapching and Director Rocio Kiryczun .
Human Resources Department
April 2024
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'i.M' COUNTYor SAN MATEO
COUNTY oF SAN MATEO rrn-11 HUMAN REsouRcEs DEPARTMENT
COUNTY OF SAN MATEO JOBS FOR YOUTH
2023 24 GRANT APPLICATION ATTACHMENTS
JFY Workgroup
JOBS FOR YOUTH WORKGROUP
Jobs for Youth has a special core group of dedicated
volunteers who make up our Jobs for Youth Workgroup .
Ra<>hVI Alcantara Cind~ Dominguez
ErikaDuga .y Hal .Kataoka Molly Lai
La&lieLOwa: Ruble Macaraeg Dana Reynolds Faatau l
Sylwfa Yah •Kataol<a
JOBS FOR YOUTH WORKGROUP MEMBERS
Name
Rachyl Alcantara
Cherie Colin
Cindy Dominguez
Erika Dugay
Hal Kataoka
Leslie Lowe
Molly Lai
Rubie Macaraeg
Dana Faataui
Sylvia Yeh Kataoka
Affiliation
Bright Horizons
Skyline College
San Mateo County Office of Education
Youth Leadership Institute
Career Valor
County of San Mateo EDD
Genentech Inc.
San Mateo County Office of Education
Roblox
Career Valor
Title
Executive Director
Dir. of Community Relations
Academic Counseling Coord.
Program Manager
Founder 8 Director
Retired
Research Associate
Community Partnerships Coord.
Sr. LSD Business Partner
Assistant Director
COUNTY OF SAN MATEO JOBS FOR YOUTH
2024 25 GRANT APPLICATION ATTACHMENTS
CURRENT YEAR ANNUAL OPERATING BUDGET
Jobs for Youth has two financial accounts, an Operating Budget account and a Scholarship Trust Fund account. The monies In these two accounts remain completely separate. with 100% of the Scholarship Trust Fund account being used exclusively for Scholarships.
Please see the 2024-25 JFY Operating Budget below:
JFY OPERATING BUDGET
County of San Mateo - Human Resources Dept.
Jobs for Youth Program
FY 2024- 25 Budget
Salaries 199,537 .55
Benefits 64,371.65
-
Salaries & Benef its 263,909 .20
Outside Print ing & Copy Svc 950.00
General Office Supplies 100.00
Advert ising & Publicity Expense (Market ing Init iatives) 400.00 Softwa re License/Ma int. Expense (JFY App & Database} 4,650.00 Office Furnitu re & Equipment -
Employee M ileage Reimbu rseme nt 1,700.00
Meeti ngs & Confe rence Expense 100.00
Fingerprin ting & Criminology 100.00
Special Dept Exps 10,000.00
Program Activit ies Expense 20,000 .00
Services & Supp lies 38.,000.00
l Total Expenditu res 301,9.09.20
2023-24 Town of Colma Community Grant Report Requirements 2023-24 Final Report
Jobs for Youth Al Teglia ScholarshipJOBS FOR YOUTH Town of Colma Grant Report (i) Describes the results of the program or project funded by the grant;
In the 2023-24 fiscal year, the Jobs for Youth program traveled all throughout the county to provide career development
workshops to youth. At the end of the fiscal year, we have hosted 149 workshops and served over 1,620 youth. All youth who registered and attended one of the JFY job preparedness workshops became eligible to apply for the JFY Al Teglia Scholarship.
The JFY Al Teglia Scholarship program helps our San Mateo County youth go after their career and educational dreams while inspiring a future of equity and inclusion in higher education. The scholarship program aims to increase postsecondary educational attainment among low-income youth, with the expectation that higher levels of education and training lead to socioeconomic gain. Our goal was to fully fund 20 scholars with $2,000 scholarships, and thanks to the Town of Colma, JFY was able to achieve that goal. The Town of Colma’s $4,000 grant sponsored two of these scholars, who are now able to go after their higher education dreams. (ii) Evaluates the results of the program or project funded by the grant; and
We measure the success of our Scholarship program using a mix of quantitative and qualitative data. Our Scholars are required to submit proof of enrollment to receive the first half of their scholarship funds and proof of course completion to receive the second half. This allows us to monitor the achievement of short and intermediate outcome goals—specifically, Scholar enrollment in postsecondary courses and Scholar completion of those courses. Additionally, we collect longitudinal qualitative data from our Scholars in the form of mandatory progress updates. The content of these updates allows us to better understand the impact of our scholarship on student motivation, as well as longer-term impacts on Scholar progress toward graduation and career goals. Other metrics of success for the scholarship center on quantitative operational goals for fundraising, scholarship marketing, and internal process improvements.
Our shared success is measured in the lives we enrich through higher education and economic growth for a brighter future. To date, 345 scholarships have been awarded, providing a total of $468,000 to deserving youth.
(iii) Provides an accounting of the use of the grant funds.
The JFY Al Teglia Scholarship program is sustained by grants, and annual fundraising efforts led by the JFY staff and a volunteer workgroup. All funds are held in a trust fund account, which is kept 100% separate from the JFY operating budget. The Town of Colma’s $4,000 grant funds two $2,000 higher education scholarships for two marginalized youth. Please see the attached financial documentation of the 2023-24 scholarship budget, and how each fund was used.
Applicant Organization:
Project/Program Name:
Funding Period:
Requested Amount:
Category
Amount
Budgeted for
Entire Project
Amount
Budgeted
Specifically
for Town of
Colma Description/Explanation
Project Staff $0 $0
Rent/Utilities $0 $0
Supplies/Materials $0 $0
Technology/Equipment $0 $0
Publicity/Outreach $0 $0
Travel $0 $0
Events $0 $0
Other: $40,000 $4,000
Two higher education scholarships
Other:
Other:
TOTAL 40,000.00$ 4,000.00$
Source of Income
Amount Received
The Town of Colma 4,000.00$
The City of Menlo Park 4,000.00$
The City of Burlingame 1,100.00$
Woodlawn Foundation 10,000.00$
Sares Regis Foundation 4,000.00$
Pacific Gas & Electric Co. 8,000.00$
Annual Breakfast Fundraiser 7,000.00$
Individual and business donations 5,900.00$
TOTAL 40,000.00$
Prepared By:
Name: Jordy Pascual
Title: Program Manager
Date: 6/18/2024
Explanatory Notes (use the Description/Explanation column above to provide any explanations for a particular Expenditure Category or Revenue Source. Use this space, if needed, to provide any explanation related to the overall financial health of the program seeking funding) Our annual budget for the Scholarship totals $40,000. All grant money received directly fund Scholarships for the year in which they were received.
In the form below, please provide Expenditure and Revenue Source information for the proposed program.
Town of Colma
PROGRAM BUDGET
County of San Mateo Jobs for Youth
Revenues
Please list the Revenue Sources for the program, including the requested the Town of Colma Grant. Other possible Revenue Sources include other grants, donations from individuals, business support, events, fees for service, etc.
Expenditures
Provide budget information for all Expenditure Categories. You may add additional lines as needed. Please provide by category both the amount budgeted for the entire program as well as
the amount budgeted for the Town of Colma. (If it is not possible to provide a breakdown by category, at minimum show the Total Budget for the Town of Colma.) In the Description/Explanation section, provide specific details about the expenditures.
Jobs for Youth Al Teglia Scholarship
2023-24
$4,000
The Jobs for Youth Operating Budget is fully sustained
by the County of San Mateo; this budget fully covers all administrative costs for the Scholarship program. The
Scholarship funds are kept in a separate trust fund
account and 100% of all donations received go directly
to Scholarships.
2024 JFY Al Teglia Scholars Overview
The 2024 Town of Colma Sponsored Scholars
2023-24 Final Report
The Jobs for Youth Scholarship Committee, composed of staff and volunteers, selected 20 inspiring youth to receive the 2024 JFY Al Teglia Scholarships. The 2024 INTO THE BEYOND Scholars have continuously shown resiliency and hope. Receiving the Jobs for Youth Al Teglia Scholarship is just one stellar accomplishment these youth will achive on their journey. The Town of Colma's $4,000 grant sponsors two of these Scholars: Janelle Deguzman & Gia Yen Ta. We are pleased to share the bios and thank you notes from each Scholar.
Jobs for Youth Al Teglia ScholarshipJOBS FOR YOUTH
18 high school
students
Town of Colma Grant Report
in Scholarship funds awarded
$40,00020
total
Scholars
2 college
students
Dear Town of Colma,
I hope this letter finds you well. I am writing to express my sincere gratitude to the Town of Colma for sponsoring my JFY scholarship. Your generosity of support has made a significant impact on my academic journey and future aspirations.
Receiving this scholarship has not only altered financial burdens but has also provided me with the opportunity to focus more on my studies and extracurricular activities. Your investment in my education is greatly appreciated and will undoubtedly contribute to my personal and professional growth.
I am truly honored to be chosen as a recipient of the JFY scholarship, and I am committed to making the most of this opportunity. Your belief in my potential encourages me to strive for excellence in all my endeavors.
One again, thank you for your generosity and support. I am proud to represent the Town of Colma as a scholarship recipient, and I will continue to work hard to make you proud.
Sincerely,
Janelle Deguzman
Currently a Junior at Westmoor High School, Janelle is an inspiring member of the 2024 JFY Scholar cohort. Having experienced the loss of a parent early in her high school career and navigating school with a learning disability, Janelle hasn’t let any adversity hold her back from excelling both on the track as well as in the classroom. Passionate about helping others, Janelle aspires to one day become a pediatric nurse. We are honored to be a small part of her interstellar journey! I'm grateful for the opportunity you've given me to chase my dreams. I am deeply thankful for being chosen as a recipient of the 2024 Job For Youth scholarship. Your generosity has made it possible for me to pursue my dream of becoming a nurse. By my dedication and hard work, I got accepted to attend nursing school in the upcoming Fall 2024.
Thank you Town of Colma!
Sincerely,
Gia Yen Ta
Dear Town of Colma,
2023-24 Final Report
Jobs for Youth Al Teglia Scholarship
Town of Colma Grant ReportJOBS FOR YOUTH
Born in Vietnam, Gia immigrated to the United States in 2019, shortly before the global COVID-19 pandemic. Upon arrival to the US, Gia attended South San Francisco High School and is currently studying nursing at Skyline College. Gia is committed to pursuing her dream of becoming a Registered Nurse to provide all patients with high quality care, regardless of their background or socioeconomic status. We are so proud to welcome Gia as a 2024 JFY Scholar and support her on her journey through the cosmos!
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• JI.• 4 II
Town of Colma
Non-Profit Funding Request Form
FY 2024-25
Name of Organization:
Contact Person:
Address:
Street Address City State Zip Code
Phone Number: Email Address: __________________
1. Mission Statement:
2. Amount of Request: $________________
a. Total Agency Annual Budget: $_______________
b. Number of Agency Employees: _______________
c. Payroll is ________% of the A Annual Budget.
3. Please identify a public purpose for the requested funding by identifying one of the following categories:
A. Provide shelter, food, or clothing to persons in need of the Necessities of Life; B. Provide physical or mental health services to persons with special needs, or Integrated Care Services;
C. Educate and engage residents;
D. Promote Economic Development or support businesses located or doing business in the Town; or Provide, support, or enhance a Complementary Service, e.g., a service that the Town could provide to its residents or businesses.
Please do NOT write ''see attached" as a response to any of the questions. You must submit all answers on this form. You may submit additional attachments, but they will not replace any of the responses.
Silicon Valley Bicycle Coalition
Deanna Chevas
PO Box 1927, San Jose, CA 95109
408-287-7259 deanna@bikesiliconvalley .org
To build healthier and more just communities by making bicycling safe and accessible for everyone.
We envision a community that values, includes, and encourages bicycling for all purposes for all people. Our overarching goal is to increase the number and the diversity of people using bicycles for everyday transportation. □
□
Ill
□
63 5,000
2,000,000
20 gency's total
3a. Describe how the funding will support the selected category:
4. Describe reason for request and how funds will be used:
Bike Month in May and Bike to Work/Wherever Days (BTWD) on May 16-18, 2025 are part of a national effort to encourage people to bike to work, parks, schools, libraries, and shops (in conjunction with public transit) with goals of reducing carbon emissions, improving local air quality and stimulating community health.
Locally, Silicon Valley Bicycle Coalition (SVBC) coordinates and oversees a variety of activities in this effort to increase active transportation. Funds received from Colma would go toward:
Free bicycling classes to all residents and employees in San Mateo and Santa Clara county. Workshops to educate the public about using a bicycle to commute or replace car trips, including bicycling safety, overcoming barriers to riding, and using bicycles in conjunction with public transportation like BART and SamTrans.
Outreach to Colma-based companies and organizations to help promote employee bicycle commuting and a local partner for hosting an Energizer Station during Bike to Wherever Days.
This is possible with cooperation and collaboration with the city or other local groups to help communicate the details of the Bicycling 101 Workshops and Bike Month activities to the local Colma community.
The program works to encourage bicycling because it is fun, creates a sense of community, and normalizes bicycling. People realize that they don't have to be an elite athlete, wear special clothing, or have an expensive bike to be a bike commuter.
We believe participating in BTWD and encouraging bicycle commuting is a way for the Town of Colma to improve quality of life, reduce greenhouse emissions, and promote the use of public transit. Funding will go towards running a successful BTWD program during the month of May and continue to strengthen bicycle infrastructure and culture throughout the region.
5. If the amount of the request is higher than the previous year, provide a detailed explanation of the need for the increase:
6. Describe the benefit to the Town derived from funding your organization:
estaff pay increases across the board
ewe are scaling our reach, offerings, and engagement for BTWD, specifically for Colma and San Mateo County
eHost more Energizer Stations in Colma and SMC
e1ncrease programmatic offerings in Colma, such as Bike Ed, tabling opportunities, etc leading up to/supporting BTWD
Bike to Wherever Day (BTWD) & Bike Month is our signature event designed to encourage folks to give bicycling anywhere a try. A positive experience on BTWD inspires new cyclists to continue the habit year-round. In 2025, we'll continue to organize in-person and virtual events (e.g. classes, rides, webinars) to further spread bicycling love and awareness. Typical participation: 40,000 people per year.
BTWD is a free and fun event that gives people of diverse backgrounds, ages, and ability the opportunity to experience and engage with Colma in a new and more meaningful way from the slower-paced saddle of their bike. People who travel by bike gain a greater understanding of community assets and an appreciation for the many resources the city has to offer.
BTWD builds community by bringing together citizens, businesses, government offices, and other entities to celebrate alternative modes of transportation that improve quality of life by reducing traffic congestion and greenhouse emissions while increasing physical and emotional health.
Marketing Opportunity: BTWD offers sponsors the opportunity to have their logo on bags, t-shirts, bike jerseys, posters, and other items distributed to cyclists and the general public. Sponsors are also gratefully acknowledged on our website, in emails, in press releases, and via social media channels.
7. Describe the following:
A. Number of Colma residents or businesses (or both) served by the organization in the years prior to the grant application;
B. The location(s) where Colma residents or businesses may receive the recipient
C. The nature and extent of the efforts of the recipient organization to reach out to Colma residents and businesses.
8. Provide a detailed account of how the FY 2023-24 contribution was used:
organization's services or programs; and
A) SVBC is expanding its reach in San Mateo County. In 2022, the Town of Colma hosted one energizer station at the Town Hall, and one resident officially registered to pledge to ride. In 2023, 4,718 people pledged to ride during BTWD across SVBC's 127 energizer stations. In 2024, the ridership (manual counts) totaled 5,290, 12.1 % higher than last year. We had 3,849 people pledged to ride (registered on line) during BTWD across SVBC's 113 energizer stations. In San Mateo County, we saw an increase to 1012 pledges - 9.05% more than last year's 928 pledges.
Our staff equipped 10 Energizer Stations on May 16th at strategic locations to assist participants from the Town of Colma in commuting to neighboring cities. The Energizer Station at South San Francisco BART drew a significant number of riders during its operating hours. Hillside Boulevard continues to be one of the busiest bike corridors in Colma and North San Mateo County. The actual number of Colma residents or employees among the Energizer Station visitors who received bags is unclear since our pledge data does not indicate Colma residency. This can also mean that visitors to the energizer station are likely employees (non-Colma residents) or residents of nearby jurisdictions that pledged to ride. In 2025, we'll continue to reach out to all the residents of the Town of Colma to increase registered participation.
B) SVBC will continue to work with the City of Colma to identify high pedestrian and bike traffic to host an energizer station for the residents.
C) BTWD marketing campaigns prior to and during the month of May. Promotional materials will be shared on social media, websites, press releases, and newsletters to corporations and the general public.
Generous funding from the Town of Colma ($3,500) went towards enabling the Silicon Valley Bicycle Coalition (SVBC) to run a successful Bike to Wherever Days (BTWD) Program during the month of May 2024. This year Bike to Wherever Days spanned three days, May 16th-18th, with Bike to Work Day on May 16th. Further, SVBC staff organized a month-long series of additional in-person and virtual events (e.g. classes, rides, webinars) free to all residents and employees in San Mateo and Santa Clara Counties. Bike Month festivities were capped with a celebratory Bike Bash on May 18th at Cognition Cyclery in San Mateo. There we celebrated our 2024 Bike Champions of the year. The Town of Colma was the only San Mateo County jurisdiction that granted funds to the Program. This enabled SVBC to maintain outreach and support to individual residents, encouraging them and others in the county to participate as Energizer Station hosts or riders.
At each of the various Energizer Stations each table was equipped with a full Energizer Station Kit- a box containing:
eBTWD Bags with ways to connect with SVBC, an SVBC sticker, flashlight, and other swag from Commute.org. e2 Free T-Shirts
ecowbell for cheering people on as they bike
eEnergizer Station Posters
eExtra SVBC flyers
The grant funds from Colma ($3,500) enabled SVBC to cover our staff time to deliver Bike Month and Bike to Wherever Day activities also detailed within the 2024 Colma Grant Report Bike Month Calendar of Events: https://bikesiliconvalley.org/events/bike-month Bike Champions of the Year:https://bayareabiketowork.com/event-information/bike-champion-of-the-year https://bikesiliconvalley.org/news/2024/5/meet-the-2024-bike-champions-of-the-year
9. List contributions requested and received from other cities in FY 2023-24 and requested or expected in FY 2024-25:
10. Did the organization participate in or intervene in any political campaign (including the publication or distribution of statements) on behalf of (or in opposition to) any candidate for public office within the past 36 months (please select one)?
Yes __________ No ______________
If yes, please provide details.
Received in 2023-24 - $3k Town of Los Gatos; $5k City of San Jose We hope these funders will be able to support this work in 2024-25. We will also seek funding from the City of South San Francisco.
0
11. Charitable Trust # or EIN #
Please attach a copy of the following:
Roster of current governing board
Current Year Annual Operating Budget
exempt status
Completed IRS 990 form (filed for 2023 or 2022)
Optional Attachments
□
□
□ Proof of organization's tax
□
II Roster of governing board
fli Operating budget
77-0338658
Proof of tax exemption
Completed IRS 990
Clarrissa Cabansagan
Amie Ashton (Chair of the Board), Consultant, Self-Employed, and Director of Palo Alto Forward
Gary Brustin, Private Practice Lawyer
Jennifer Fierman, Commute Operations Lead, Apple Inc. AICP Poncho Guevara, Executive Director, Sacred Heart
Andrew Hsu, Consultant, Self-Employed
James Lucas, Teacher, Campbell Unified School District
Josh Mello, Executive Officer, Planning and Development, SAMTRANS Ed Morimoto, Managing Partner, Morimoto Properties
Jim Parker (Vice Chair), Retired
Alyssa Plicka (Treasurer), Retired
Hong Quan, Serial founder and Startup Dad
Christina Salvatier (Secretary), Chief Financial Officer, Valley Medical Center Foundation As of 7/30/24
Executive Director
•
Board Members
•
•
•
•
•
•
•
•
•
•
•
•
Building healthier and more just communities by making
155 S 11th Street, San Jose, CA 95112 I bikesiliconvalley.org I 408-287-7259 Silicon Valley Bicycle Coalition - July 2024 to June 2025 Budget CoreSVBC RBTWD-FSP combined
Mar 23-Feb 24 Proposed FY 24- Mar 23-Feb 24 Proposed FY 24- Actuals 25Budget variance Actuals 25Budget Total
Revenue
41110 Board Donations 19,067 20,000 933 20,000
41120 Bequests 250 (250)
41190 Other Individual Giving 303,823 326,000 22,177 326,000 41200 Foundation & Corporate Contributions 187,238 215,000 27,762 215,000 41300 Employer Matching Contributions 44,278 45,000 722 45,000 41500 Government Grants 3,500 60,000 56,500 60,000
45100 Special Event Sponsorships 265,930 277,250 11 ,320 97,500 35,000 312,250 45200 Special Events Tickets Sales 35,223 36,000 777 36,000 46300 Public Contract 427,816 441,000 13,184 315,000 353,000 794,000 46400 Contract Income 81 ,958 125,000 43,043 125,000
46500 Program Administration Revenue/Expense 41 ,370 36,670 (4,700) (31 ,500) (35,300) 1,370 48400 Miscellaneous Income 5,095 5,100 5 78 5,100
48900 Taxable Sales 4,298 4,888 590 71,028 57,000 61,888 Total Revenue 1,419,845 1,591,908 172,063 452,105 409,700 2,001,608 Expenditures
60100 Salaries 1,318,038 1,141,942 (176,096) 1,141 ,942 60200 Payroll Taxes 107,243 97,065 (10,178) 97,065
60400 Payroll Processing Fee 14,265 7,740 (6,525) 7,740 60310 Health Insurance 53,125 66,099 12,974 66,099
60320 401k Maleh 10,703 10,031 (672) 10,031
60340 Worker's Comp Insurance 3,884 5,204 1,320 5,204
60380 Staff Devalopment & Training 5,018 12,250 7,232 12,250 61100Accounting Fees 24,361 23,200 (1 ,161) 23,200
61200 Legal Fees 495 2,640 2,145 2,640
61300 Info Systems & Tech Consultants 7,687 10,700 3,013 10,700 61900 Professional Fees- Other 600 13,080 12,480 52,500 52,500 65,580 63000 Independent Contractors/Program Consultants 63,561 61 ,350 (2,211) 170,000 170,000 231 ,350 61225 Marketing & Publicity 2,613 6,750 4,137 6,750
62310 Special Event Venue 876 11 ,400 10,524 11 ,400
62320 Special Event Food & Nonalcoholic 17,905 17,310 (595) 17,310 62325 Special Event Alcohol 1,000 1,000 1,000
62330 Special Event Equipment 3,409 3,600 191 3,600
62340 Special Event Misc. Supplles 31 ,089 32,050 961 32,050 65100 Occupancy-Rent 1,910 60,000 58,090 60,000
65110 Bank Fees- Other 10,618 11,358 740 11 ,358
65120 Dues & subscriptions 1,619 1,260 (359) 1,260
65170 Food/Business Meals 4,558 11 ,800 7,242 11 ,800
65180 General Liability Insurance 10,674 7,680 (2,994) 7,680 65190 Licenses & Fees 2,220 5,910 3,690 5,910
65200 Maintenance & Repairs 10,271 3,600 (6,671) 3,600
65310 Office Equipment & Furniture-Other 5,935 3,200 (2,735) 3,200 65330 Outreach Materials 17,902 22,900 4,998 57,000 60,000 82,900 65340 Postage & Shipping 1,533 1,845 312 1,845
65350 Printing & Copying 10,111 10,510 399 228 250 10,760 65360 Office Supplies 3,435 1,980 (1 ,455) 150 150 2,130 81145 Program Supplies-Non Food 9,947 10,678 731 10,678 65370 T elecommunlcatlons 6,393 6,010 (383) 6,010
65380 Transportation 4,039 5,530 1,491 5,530
65390 Volunteer Expenses 6,161 8,670 2,509 8,670
65410 Web and email services 13,629 15,033 1,404 276 290 15,323 65900 Miscellaneous Expenses 1 400 399 400
65155 Utilities 10,027 6,000 (4,027) 6,000
Total Expenditures 1,795,854 1,717,775 (78,079) 280,154 283,190 2,000,965 Net Op-Ing Revenue (376,008) (125,867) 171,951 126,510 643
13.SFTE
17.SFTE PY
Town of Colma I Grant Report FY 2023-24
Silicon Valley Bicycle Coalition
Program Summary & Results
Generous funding from the Town of Colma ($3,500) went towards enabling the Silicon Valley Bicycle Coalition (SVBC) to run a successful Bike to Wherever Days (BTWD) Program during the month of May 2024. This year Bike to Wherever Days spanned three days, May 16th-18th, with Bike to Work Day on May 16th. This event is part of a national effort to encourage residents to bike to all types of destinations : work, school, parks, libraries and shops.
Further, SVBC staff organized a month-long series of additional in-person and virtual events (e.g. classes, rides, webinars) free to all residents and employees in San Mateo and Santa Clara Counties .1 Bike Month festivities were capped with a celebratory Bike Bash on May 18th at Cognition Cyclery in San Mateo. There we celebrated our 2024 Bike Champions of the year.2 The Town of Colma was the only San Mateo County jurisdiction that granted funds to the Program. This enabled SVBC to mantaind outreach and support to individual residents, encouraging them and others in the county to participate as Energizer Station hosts or riders.
At each of the various Energizer Stations each table was equipped with a full Energizer Station Kit- a box containing:
• BTWD Bags with ways to connect with SVBC, an SVBC sticker, flashlight, and other swag from Commute.org.
• 2 Free T-Shirts
• Cowbell for cheering people on as they bike
• Energizer Station Posters
• Extra SVBC flyers
Energizer station hosts were also encouraged to attend 1 of 3 Energizer Station Trainings held on April 29th, 30th, and May 2nd .
1 Bike Month Calendar of Events: https:UbikesmconvaUey.orq/events/bjke-month 2 Bike Champions of the Year:https-//bayareabjketowork com/event-jnformatjon/bike-champjon-of-the-year https ://bikesiliconvalley .orq/news/2024/5/meet-the-2024-bike-champions-of-the-year The Town of Colma was recognized on the official BTWD t-shirts, canvas messenger bags, the SVBC website, BTWD posters and all emails sent to bi-weekly to our mailing list of over 25,000 individuals. Marketing of the program was further pushed to all of our social media platforms (Facebook, Twitter, lnstagram) and detailed information is on the Program web page.3 Since the Town of Colma is covered by our North San Mateo County Team4, in the months leading up to Bike Month, we sought to recruit our local team members as bike ambassadors to help staff and/or visit the Colma energizer station . One of the local team leaders volunteered to manage an energizer station near the Colma and South San Francisco border, engaging with bicyclists from both communities.
Additionally, our Town of Colma contact received communications via email with bike festivities and other information to share with Town Staff such as the Media toolkit. 5 Evaluating Program Results
We have been able to build on last year's momentum and improve on Bike Month and Bike to Wherever Days, including in the Town of Colma. This year the ridership (manual counts) totaled 5,290, 12.1% higher than last year. We had 3,849 people pledged to ride (registered online) during BTWD across SVBC's 113 energizer stations. In San Mateo County, we saw an increase to 1012 pledges - 9.05% more than last year's 928 pledges .
Our staff equipped 10 Energizer Stations on May 16th at strategic locations to assist participants from the Town of Colma in commuting to neighboring cities. The Energizer Station at South San Francisco BART drew a significant number of riders during its operating hours. Hillside Boulevard continues to be one of the busiest bike corridors in Colma and North San Mateo County. The actual number of Colma residents or employees among the Energizer Station visitors who received bags is unclear since our pledge data does not indicate Colma residency. This can also mean that visitors to the energizer station are likely employees (non-Colma residents) or residents of nearby jurisdictions that pledged to ride.
SVBC recognizes the importance of the Hillside Boulevard corridor as a crucial connector for residents from various neighboring jurisdictions such as Daly City, South San Francisco, San Bruno, Millbrae, Brisbane, and others . It is worth noting that the Town of Colma's investments in bike infrastructure not only benefit its own residents and employees, but also contribute to reducing car traffic and greenhouse gas emissions from trips originating outside the town borders. Given the close proximity between these jurisdictions, North San Mateo County residents move between them seamlessly. SVBC maintains regular communication in the form of 3 BTWD Webpage: https:Ubikesjjjconvalle¼orq/events/btwd 4 The team covers Brisbane, Colma, Daly City, South San Francisco and San Bruno. 5 BTWD Media Tool-kit bttps·//bjkesjjjconyaHeyorg/eyents/btwd/medja-kjt 2 our e-bulletin with 180 individuals in the cities covered by our North San Mateo County local team.
Because of these trends, SVBC sees significant potential for increasing participation in the Town by hosting the Bike Month festivities each year. As residents and commuters become more familiar with this community bike program, there is an opportunity to attract more participants. We also have been working at the regional level to get a better handle on counting employees whose place of residence may be different from their place of employment.
This is SVBC staff's third year managing energizer stations in San Mateo County and we continue to actively build upon the efforts of the local team. We are interested in brainstorming better methods for Colma to log consistent pledges to ride year over year. This year are expanding collaboration at the regional level launching the Bay Area Bike Challenge 6 that will continue to grow.
Our organization is confident that the local team's energy and enthusiasm will continue to facilitate collaboration with the Town of Colma's planners, particularly on the Bicycle & Pedestrian Master Plan. These ongoing interactions throughout the year can serve as touchpoints to encourage further progress, building upon the successes achieved so far and setting the stage for an even more successful Bike Month next year.
San Mateo County Results
Across San Mateo County, we are seeing the bump in biking during the pandemic continue to taper down while surpassing 2023 engagement. This means more and continued encouragement is needed to ensure residents remain interested in biking as a form of travel, exercise, and recreation .
Bike commuting continues to increase. We surpassed last year and we're back to pre-pandemic levels: 10,422 2019 and 10,381 2024 - numbers back to pre-pandemic.
Energizer Stations. The number of energizer stations in San Mateo County has fluctuated over the years. We saw a the energizers stations are stable compared to last year. 2018: 50
2019: 49
2020 : 19
2021: 26
2022:63
2023:38
2024: 39
6 Bay Area Bike Challenge:https·//bayareabjketowork com/event-jnformatjon/bjke-challeoge 3 Accounting of Grant Funds
Grant funds from Colma ($3,500) enabled SVBC to cover our staff time to deliver Bike Month and Bike to Wherever Day activities detailed within this grant report.
Bike to Wherever Days SVBC Budget for Personnel Time:
Actual expenses: $60,000
4
Town of Colma
Non-Profit Funding Request Form
FY 2024-25
Name of Organization:
Contact Person:
Address:
Street Address City State Zip Code
Phone Number: Email Address: __________________
1. Mission Statement:
2. Amount of Request: $________________
a. Total Agency Annual Budget: $_______________
b. Number of Agency Employees: _______________
c. Payroll is ________% of the A Annual Budget.
3. Please identify a public purpose for the requested funding by identifying one of the following categories:
A. Provide shelter, food, or clothing to persons in need of the Necessities of Life; B. Provide physical or mental health services to persons with special needs, or Integrated Care Services;
C. Educate and engage residents;
D. Promote Economic Development or support businesses located or doing business in the Town; or Provide, support, or enhance a Complementary Service, e.g., a service that the Town could provide to its residents or businesses.
Please do NOT write ''see attached" as a response to any of the questions. You must submit all answers on this form. You may submit additional attachments, but they will not replace any of the responses.
Sitike Counseling Center
Keri Kirby
306 Spruce Ave, First Floor, South San Francisco CA 94080 650-589-9305 [email protected]
Our mission is to provide community-based counseling and education in a safe and healing environment that embraces the cultural and emotional needs of every client and to help people find hope, resiliency and life-affirming change. □
Ill
Ill
□
82 8,000.00
1,198,790
16 gency's total
3a. Describe how the funding will support the selected category:
4. Describe reason for request and how funds will be used:
Sitike Counseling Center ("Sitike") opened its doors in 1988- born of a passionate commitment to offer hope and healing to people whose lives are affected by addiction, violence, and mental illness.
Sitike's mission is to provide community-based counseling and education in a safe and healing environment that embraces the cultural and emotional needs of every client and to help people find hope, resiliency, and life-affirming change. Our vision is a community where diversity, compassion, healing, and growth are encouraged, valued, and celebrated. The devastating effects of substance abuse, mental illness and violence are diminished. Relationships, families, and children thrive.
Located in South San Francisco and registered as a 501(c)(3), Sitike has thirty-four years of experience contracting with Behavioral Health and Recovery Services, six years of experience contracting with the Probation Department and twenty-four years of experience contracting with Human Services Agency.
Our multi-disciplinary staff team provides a wide array of services (provided in English and Spanish).
Each of our program's adults challenged by trauma, co-occurring mental health and substance use disorders and other debilitating situations (i.e., legal problems, homelessness, food insecurity, intimate partner violence, etc.). Though counseling and education, our programs aim to:
I.Offer evidence-based, safe and affordable treatments with demonstrated results;
2.Address the needs of the whole person, including relational, educational, social, legal, and vocational needs;
3.Support clients in establishing and maintaining their sobriety;
4.Reduce the frequency and severity of mental health symptoms;
5.lnterrupt the cycle of violence and end intimate partner abuse;
6.Educate clients about addiction, triggers, relapse cycles, and the development of support networks;
7.Provide education to family members and loved ones, so they can health themselves and support their family member in recovery; a.Support clients in improving overall wellness and quality of life, while reducing recidivism and the strain on the public healthcare system.
Many of the clients served by Sitike are people living with co-occurring substance abuse and mental health disorders.
These burdensome conditions have significant physical, emotional, functional, social, and economic consequences for people who live with these disorders and their loved ones. Society as a whole is also affected by the prevalence of co-occurring disorders. Co-occurring disorders has been associated with an increased morbidity and mortality from cardiovascular conditions; injuries and motor vehicle crashes; sexually transmitted and blood-borne illnesses, including HIV/AIDS and hepatitis Band C, resulting from risky sexual behaviors and/or injection drug use; pregnancy complications and neonatal abstinence syndrome (NAS); and drug overdoses.
Over the past two decades, the behavioral health field's knowledge of the outcomes, service needs, and treatment approaches for individual with co-occurring disorders has expanded considerably. Co-occurring disorders are complex and bidirectional. They can wax and wane over time.
Co-occurring disorders are strongly associated with socioeconomic and health factors that can challenge recovery such as unemployment, homelessness, incarceration/criminal justice system involvement, and suicide. According to the Substance Abuse and Mental Health Services Administration (SAMHSA):
1.29% of people with co-occurring disorders were unemployed and 50% were not in the labor force;
2.Of people 12 and older with co-occurring disorders, 8% experience homelessness;
3.Of people incarcerated in the U.S. state prisons, about 48% have a history of mental illness, 26% have a history of substance abuse disorder, and 49% have a history of co-occurring mental illness and substance use disorder;
4.46% of individuals in the United States who died by suicide had a known mental condition, and 28% misused substances.
Grant funds would be used to ensure that all clients needing our services are able to access them, regardless of their ability to pay. These funds would be used to ensure the uninsured and underinsured have equitable access to care.
5. If the amount of the request is higher than the previous year, provide a detailed explanation of the need for the increase:
6. Describe the benefit to the Town derived from funding your organization:
We were not a grant recipient last year.
However, we believe this request is justified. An $8,000.00 grant would ensure we our agency cou Id deliver 250 hours of counseling services.
In the past year, the cost of doing business has increased significantly and inflation, cost of living in the bay area, and a state-wide lack of qualified counselors has had significant impacts on our operations. Now, more than ever, we need to partner with local government to tackle these complex problems. This will allow us to ensure we can offer market rate salary and benefits and invest in our greatest asset, our staff team.
Substance use, mental illness, and domestic violence directly affect millions of Americans every year, causing motor vehicle crashes, crimes, injuries, reduced quality of life, impaired health, and far too many deaths. Folks with co-occurring disorders have unique biopsychosocial needs that must be addressed if their treatment is to be successful. The medical, social, emotional, and financial consequences and costs of these disorders to individuals, families and communities is enormous.
Because co-occurring disorders can compromise every aspect of a person's life, such as their physical health and well-being, emotional state, spirituality, and more, treatment approaches should also be dynamic and integrative. As a person heals from the inside out, it is crucial that maladaptive behaviors be rectified, and healthier coping mechanisms are implemented. Teaching positive strategies for coping in lieu of substance abuse will be an essential part of the recovery process. Similarly, it is necessary for a folks to heal and process any underlying psychological trauma that may have contributed to the development of co-occurring disorders. This will also be an integral and necessary part of treatment and recovery.
Through public partnerships and by embedding our programs and services into the larger community we can reduce the burden on the larger health care and governmental system while also increasing access to care, improving the quality of services provided, and saving lives. Additional benefits to the Town of Colma include a reduction of substance use, intimate partner violence, and calls to emergency services (Fire, Police, Child Protection Services, etc.) in the general population.
Sitike can also provide confidential services to Town of Colma employees through EAP benefits/private pay sliding-scale services.
7. Describe the following:
A. Number of Colma residents or businesses (or both) served by the organization in the years prior to the grant application;
B. The location(s) where Colma residents or businesses may receive the recipient
C. The nature and extent of the efforts of the recipient organization to reach out to Colma residents and businesses.
8. Provide a detailed account of how the FY 2023-24 contribution was used:
organization's services or programs; and
Sitike was not a grant recipient in FY23-24. In FY23-24, Sitike served 14 residents from the Town of Colma, as well as other residents that report being unhoused.
Located in North San Mateo County, Sitike is in a prime, accessible location. Our programs and services are accessible to Town of Colma residences because: we offer flexible services (in-person, telehealth, telephone, in the community), our offer quality programs with demonstrated results, and we work diligently to meet the cultural needs of our constituents.
We often host free, informational and educational workshops that residents of the Town of Colma would benefit from including Mental Health First Aid, Recovery Happens, Domestic Violence Awareness Month, Mental Health Awareness Month, etc.
Our services are listed county wide and are listed in all directories. We have a following on social medical and offer a quarterly newsletter in an effort to increase our visibility and accessibility in the community. We are also listed in all state level directories including Atlas, CAD PT, and others.
N/A- Sitike was not a grant recipient in FY23-24.
9. List contributions requested and received from other cities in FY 2023-24 and requested or expected in FY 2024-25:
10. Did the organization participate in or intervene in any political campaign (including the publication or distribution of statements) on behalf of (or in opposition to) any candidate for public office within the past 36 months (please select one)? Yes __________ No ______________
If yes, please provide details.
In FY24-25, we are applying for funds with:
1. Measure K – we requested 100,000. We were notified after submitting the Town of Colma grant that we were not selected.
2. District 2 - Supervisor Noelia Corzo – Requested 100,000.00
3. Matthew Perry Foundation – Committed 25,000
4. Sares Regis Foundation – Requested 10,000
5. Mental Health Services Act Funds – Requested 8,000
Sitike was not a grant recipient in FY23-24.
In FY24-25, we are applying for funds with:
1. Measure K
2. District 2 - Supervisor Noelia Corzo
3. Matthew Perry Foundation
4. Sares Regis Foundation
5. Mental Health Services Act Funds
0
11. Charitable Trust # or EIN #
Please attach a copy of the following:
Roster of current governing board
Current Year Annual Operating Budget
exempt status
Completed IRS 990 form (filed for 2023 or 2022)
Optional Attachments
□
□
□ Proof of organization's tax
□
II Roster of governing board
fli Operating budget
94-3065810
Proof of tax exemption
Completed IRS 990
Sitike Board of Directors Revised 8.5.24
Name Contact Information Occupation Board Position Committee Assignment Elected Elected as
Officer Term Expires
Rod Walton
5118 164th St. SW, Unit D4
Edmonds, WA 98199
[email protected]
Senior Director, Outreach
and Learning Center,
Hamlin Robinson School
President Executive,
Advancement 05/31/2016 11/29/22 05/31/2024
Anil Awasti
5333 Park Highlands Blvd. #27
Concord, Ca 94521
(415) 846-7129
[email protected]
Chief Human Resources
Officer, Global Fund for
Women
Director
Emeritus Executive
Elizabeth
Fricke
3960 Chatham Court
SSF, CA 94080
(650) -784-9003
[email protected]
Commercial Underwriter,
Beazley Insurance
Services
Treasurer Finance 10/1/2020 11/29/22 10/1/2024
Peggy Wong
111 Rimmon Road
Woodbridge, CT 06525
(909) 238-8668
[email protected]
Graduate Student, Yale
School of Nursing Secretary Finance 5/19/2020 11/29/22 5/19/2024 Kristin
Ditlevsen
PO Box 608
Santa Cruz, CA 95061
(650) 888-0067
[email protected]
Senior Vice President,
Relationship Manager,
Beacon Business Bank
Vice President Finance 1/28/2020 11/29/22 1/28/2024
Shalom Tzvi
Shore
102 Canada Street
Hamilton, ON L8P 1P3
(443) 467-5130
[email protected]
Chief of Staff Product
Manager & UX Strategist,
Jewish Content Network
Founder Navya
Hypnosis
Member 7/28/2023
Kevin
Reamy
115 Marietta Drive
San Francisco, CA 94127
(650) 248-3870
[email protected]
Retired, Formerly at
NerdWallet, LinkedIn Member 7/28/2023
Susan
Joyner
138 S B St. Apt. 2
San Mateo, CA 94401
(864) 561-7039
[email protected]
Psychotherapist and Yoga
Instructor Member 7/30/2024
I I I
Budget FY24-25
Agency
Total DMC ODS Perinatal Anger
Management
Domestic
Violcence La Casa DEJ FOP CPS Private Fund Admin
Salaries 757,864 202,857 36,183 6,686 48,462 45,441 15,670 351,165 11,658 5,337 32,580 1,825 Health Benefits 139,342 26,683 179 1,052 9,557 9,215 2,883 67,127 2,096 903 4,008 15,639 Payroll Tax 60,777 16,268 2,902 536 3,886 3,644 1,257 28,161 935 428 2,612 148 Workers Comp 5,684 1,521 271 50 363 341 118 2,634 87 40 244 15 Total Personnel 963,667 247,329 39,535 8,324 62,268 58,641 19,928 449,087 14,776 6,708 39,444 17,627
BUILDING
Rent--306 Spruce 74,585 31,325 5,966 1,491 3,729 1,491 1,491 26,104 1,491 1,491 0 6 Rent-Parking & Meetings 4,800 960 0 96 96 96 96 3,360 48 48 0 0 Utilities 500 400 0 16 40 16 16 280 16 16 0 0
Website 300 150 0 6 15 6 6 105 6 6 0 0
Maintenance 6,000 3,000 0 120 300 120 120 2,100 120 120 0 0 OFFICE
Postage 1,300 533 0 13 65 13 26 533 26 13 65 13
Equipment Purchase 1,000 410 0 10 50 10 20 410 20 10 50 10 Printing & Photocopying 5,500 2,255 0 55 275 55 110 2,255 110 55 275 55 Telephone 10,000 4,100 0 100 500 100 200 4,100 200 100 500 100
PROGRAM
Supplies 15,000 5,700 3,750 150 150 150 150 4,500 150 150 150 0 Food 3,000 1,800 0 0 0 0 0 0 0 0 0 1,200
Medical Doctor 0 0 0 0 0 0 0 0 0 0 0 0
Drug Testing other 5,000 2,750 0 0 0 0 750 0 750 750 0 0 Drug test contracts 11,666 0 0 0 0 0 0 0 11,666 0 0 0
0 0 0 0 0 0 0 0 0 0 0 0
TRANSPORTATION
Mileage reimbursement 500 200 0 15 15 15 15 200 15 15 10 0 Client transportation 0 0 0 0 0 0 0 0 0 0 0 0
ADMINISTRATIVE
Accounting/audit 30,000 12,000 0 600 600 600 600 12,000 600 600 1,500 900 Contractors: Counseling 7,200 5,976 0 144 144 144 360 144 144 144 0 0 Contractors: Admin 0 0 0 0 0 0 0 0 0 0 0 0
Legal 1,000 500 10 10 10 10 10 400 10 10 30 0
Board Expense 1,000 400 0 20 20 10 180 200 5 5 150 10
Staff Recognition 5,000 2,000 0 100 100 100 100 2,250 150 150 0 50 State License 2,000 1,000 0 0 0 0 0 1,000 0 0 0 0
License & fees 25,000 10,000 500 1,250 1,250 1,250 1,250 8,500 500 500 0 0 Staff Training 3,000 1,500 60 30 60 30 60 1,200 30 30 0 0 PR Expense 0 0 0 0 0 0 0 0 0 0 0 0
Monitoring Fee--County 0 0 0 0 0 0 0 0 0 0 0 0
Insurance 15,000 6,000 300 750 750 750 750 5,250 150 150 150 0 Monitoring Fee--State 0 0 0 0 0 0 0 0 0 0 0 0
Total Operating 228,351 92,959 10,586 4,976 8,169 4,966 6,310 74,891 16,207 4,363 2,880 2,344 Total Expense 1,192,018 340,288 50,121 13,300 70,437 63,607 26,238 523,978 30,983 11,071 42,324 19,971 Contracts BHRS 300,000 300,000 0 0 0 0 0 0 0 0 0 0
Contracts Other 32,200 0 0 0 0 0 0 0 32,200 0 0 0
Client Fees 819,590 0 50,140 15,000 85,000 74,450 25,000 560,000 0 10,000 0 0 Fundraising 40,000 0 0 0 0 0 0 0 0 0 40,000 0
Misc Income 7,000 0 0 0 0 0 0 0 0 0 0 7,000
Reserve
Total Income 1,198,790 300,000 50,140 15,000 85,000 74,450 25,000 560,000 32,200 10,000 40,000 7,000 SURPLUS/DEFICIT 6,772 -40,288 19 1,700 14,563 10,843 -1,238 36,022 1,217 -1,071 -2,324 -12,971
I I I I I I I I I I I I
I I I I I I I I I I I I I
I I I I I I I I
i l i l i l i l
SITIKE
COUNSELING CENTER
Si·ti·ke n. [apache] a group of non-blood kin who are present in a time of crisis Our mission is to provide community-based counseling and education in a safe and healing environment that embraces the cultural and emotional needs of every client and to help people find hope, resiliency and life-affirming change . •
Evidence Based Treatment Supportive Environment
Since 1988, our
counselors have provided
an array of evidence
based, research
supported interventions.
Our agency is a true place
of hope and healing
where you will be
respected and supported
like a member of your own
family.
Successful Outcomes
For over three decades,
we have proudly and
passionately helped
thousands of individuals
recover and heal.
306 Spruce Avenue, South San Francisco, CA 94080
i [email protected] • (650) 589-9305
WHATOUR
CLIENTS SAY
111 was very scared about being
judged and that did not happen. I
was scared about being treated
badly and that did not happen. I
expected to not be understood and
that did not happen. What
happened is that I got my life and
my family back." -George, Pacifica
"I'm a recovering addict. A miracle of
Sitike. Recovery gave me myself
back ... gave me integrity, dignity and
courage ... taught me how to be a
mother, a woman, a friend ... and how
to live life clean and sober, one day at
a time." - Lisa, San Mateo County
Resident
OUR PROGRAMS
Anger Management
This 16-week program focuses on stress
management, appropriate expression of anger,
coping and communication skill development.
Domestic Violence
This 52-week program teaches non-violent
behavior, healthy communication, and
accountability.
Discover Recovery
This three-to 12-month outpatient program serves
adults with substance use, and co-occurring mental
health/substance use disorders. Services include
assessment, individualized treatment plans,
individual and group counseling and drug and
alcohol testing.
Women's Intensive Outpatient Program
This three-to 12-month gender specific program
supports pregnant and/or parenting women who
are chemically dependent and have often
experienced trauma. Participants attend the
program four hours a day, three to five days per
week.
First Offender DUI Program
Sitike's DUI programs comply with local court, state
system, and OMV mandates. Services include
individual and group counseling and education.
Drug & Alcohol Testing
We offer Drug & Alcohol Testing services for:
Deferred Entry of Judgment, Proposition 36, Drug
Court and Child Protective Services clients.
All services are available in English and
Spanish.
www.sitike.org
I
- -
- -
• JI.• 4 II
Town of Colma
Non-Profit Funding Request Form
(Exempt Organizations Only)
FY 2024-25
Name of Organization:
Contact Person:
Address:
Street Address City State Zip Code
Phone Number: Email Address: _______________________
1. Mission Statement:
2. Amount of Request: $________________
a. Total Agency Annual Budget: $_______________
b. Number of Agency Employees: _______________
c. Payroll is ________% of the A Annual Budget.
3. Please identify a public purpose for the requested funding by identifying one of the following categories:
A. Provide shelter, food, or clothing to persons in need of the Necessities of Life; B. Provide physical or mental health services to persons with special needs, or Integrated Care Services;
C. Educate and engage residents;
D. Promote Economic Development or support businesses located or doing business in the Town; or Provide, support, or enhance a Complementary Service, e.g., a service that the Town could provide to its residents or businesses.
Please do NOT write ''see attached" as a response to any of the questions. You must submit all answers on this form. You may submit additional attachments, but they will not replace any of the responses.
Skyline College
Cherie Colin & Theresa Tentes
3300 College Drive San Bruno, Ca 94066
650-738-4346 [email protected]
To empower and transform a global community of learners. □
□
Ill
□
5,000
83.5 $ 81,518,955
341
gency's total
3a. Describe how the funding will support the selected category:
4. Describe reason for request and how funds will be used:
The President's Innovation Fund (PIF) is an initiative designed to support creativity and innovation at Skyline College. Faculty, Staff, Students and Administrators are encouraged to "Dream Out Loud" and propose ideas that will support the college's Mission - Vision - Values.
The primary provider of the funds is the President's Council, a group of dedicated community members committed to actively supporting Skyline College. The President's Council raises financial support for the President's Innovation Fund by hosting the President's Breakfast every spring. These funds will go toward the funds raised at the breakfast in 2025 for granting to projects in the 25-26 academic year.
The funds will be used to create a mini-grant process to fund innovative ideas from Faculty, Staff, Students and Administrators.
Examples of grants funded are:
Critical Global Citizenship Education
Current global education prepares students to thrive in the market economy but does not interrogate colonialism and capitalism as root causes of global inequities. This project aims to address that gap while connecting with our college's mission, Citizenship Student Learning Outcomes, and the Civic Mindset portion of the People's College Initiative. We will implement programs that complement the curriculum, foster dialogue and engagement across disciplines, and bring the campus community together in a shared experience. Programs will include talks, film screenings, and art projects around topics such as belongingness, humanization of current historical events, social and ecological justice, and critical citizenship.
Digital Textbook Loan Program
The high cost of textbooks is an equity issue and barrier to student enrollment and success. Although the Skyline College Library offers short loans of print textbooks and the Center for Transformative Teaching and Learning is at the forefront of promoting Open Education Resources, barriers persist. Now, new software will help the Library lift those barriers by making digital copies or chapters of textbooks available to students.
Called Alma-Digital, this software can integrate these digital assets into our catalog where they will be available for registered students to download for free regardless of location. This simple solution will reduce costs, increase enrollment, and contribute to academic success for our students.
5. If the amount of the request is higher than the previous year, provide a detailed explanation of the need for the increase:
6. Describe the benefit to the Town derived from funding your organization:
The amount requested is the same request as last year.
The percentage of students that reside in Daly City/Colma comprise 22.6% of the student body. The innovative programs directly support students from The Town of Colma.
7. Describe the following:
A. Number of Colma residents or businesses (or both) served by the organization in the years prior to the grant application;
B. The location(s) where Colma residents or businesses may receive the recipient
C. The nature and extent of the efforts of the recipient organization to reach out to Colma residents and businesses.
8. Provide a detailed account of how the FY 2023-24 contribution was used:
organization's services or programs; and
Each year about 22.6% of the 15,000 students list Colma/Daly City as their residence.
They receive services at Skyline College located at 3300 College Drive, San Bruno, CA.
Skyline College does extensive outreach and community engagement by outreaching to High Schools, participating in community events, and digital advertising. Skyline College uses social media to connect with residents in the region.
We used the 23-24 funds from Colma and combined them with the breakfast proceeds (total of $90,000) to support ten innovative projects on campus including:
1. The Fall Musical
2. Teach Palestine Speaker Series
3. Barbering, Cosmetology & Esthetics Enrichment Symposium
4. Digitize Student Newspaper
5. Sustainability is for Everyone
6. Digital Textbook Loan Program
7. Critical Global Citizenship Education
8. Cultural Immersion Program
9. RIDE Conference
10. Black and Brown Scholars
We believe these projects will make a significant positive impact on campus life and student success.
9. List contributions requested and received from other cities in FY 2023-24 and requested or expected in FY 2024-25:
10. Did the organization participate in or intervene in any political campaign (including the publication or distribution of statements) on behalf of (or in opposition to) any candidate for public office within the past 36 months (please select one)?
Yes __________ No ______________
If yes, please provide details.
Town of Colma - $4,000 (received in 23-24)
City of Daly City - $5,000 (received in 23-24)
Town of Colma - $5,000 (requested here)
City of Daly City- $5,000 (will request this year)
0
11. Charitable Trust # or EIN #
Please attach a copy of the following:
Roster of current governing board
Current Year Annual Operating Budget
exempt status
Optional Attachments
□
□
□ Proof of organization's tax
l'I Roster of governing board
94-3084147
Operating budget l'I Proof of tax exemption
8/14/24, 12:41 PM Board Members I Board of Trustees I San Mateo County Community College District Change Site ..,,
SAN MATEO COUNTY
COMMUNITY
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SMCCCD Home > Departments > Board of Trustees > Board
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https:/twww.smccd .edu/boardo ftrustees/mem bers.php 1/5 8/14/24, 12:41 PM Board Members I Board of Trustees I San Mateo County Community College District Dr. Lisa Petrides
Trustee
Term: 2020-2024
Area 1
Atherton, Belmont*, Coast: Pacifica to Pescadero, La Honda, Menlo Park*, Portola Valley, San Carlos, Woodside
petridesl@smccd .edu
Bio [El
Mike Guingona
Vice President
Term: 2022-2026
Area 2
Brisbane, Colma, Daly City, South San Francisco
[email protected]
Bio
https:/twww.smccd .edu/boardo ftrustees/mem bers.php 2/5 8/14/24, 12:41 PM Board Members I Board of Trustees I San Mateo County Community College District Wayne Lee
Trustee
Term: 2020-2024
Area3
Burlingame, Hillsborough, Millbrae, San Bruno
[email protected]
Bio [fl
Richard Holober
Trustee
Term: 2022-2026
Area4
Belmont*, Foster City, San Mateo,
holober@smccd .edu
Bio [fl
https:/twww.smccd .edu/boardo ftrustees/mem bers.php 3/5 8/14/24, 12:41 PM Board Members I Board of Trustees I San Mateo County Community College District John Pimente l
President
Term: 2020- 2024
Area 5
East Palo Alto, Emerald Hills, Menlo Park*, North Fair Oaks, Redwood City
pimentelj@smccd .edu
Bio [El
Chloe Johnson
Student Trustee
Term: 2024-2025
johnsonchloe@smccd .edu
Bio [El
* Shared city representation
https:/twww.smccd .edu/boardo ftrustees/mem bers.php 4/5 8/14/24, 12:41 PM Board Members I Board of Trustees I San Mateo County Community College District San Mateo County Community College District
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103
SMCCCD Budget vs. Actual FY 2022-23
Fund 1
Revenue-Local
Property Taxes
Base Revenue
Redevelopment Agency
Student Fees
Enrollment Fees ($46)
Out-of State Non-Resident
International Non-Resident
Interest
GASB Entries (Unrealized Gain/loss)
Transfers In/ Other Sources
Other
Tota/Local Revenue
Revenue-State
Proposition 55 {EPA)
Lottery
F/T Faculty
P/T Faculty Parity
P/T Faculty Office Hours/ Medical
Apprenticeship
Mandated Costs
Tata/ State Revenue
STRS On-Behalf
GASB Entries (Unrealized Gain/loss) Net
TOTAL REVENUE
Salaries
Full-Time Faculty Salaries
FT Faculty Total
Summer School Salaries
Summer School Total
Part-Time Faculty Salaries/ Overload
PT Faculty I Overload Total
Classified Staff Salaries
Classified Total
Administration Salaries
Administration Total
Hourly Salaries/ Overtime
Benefits
Summer School
Students and Other Hourly Total
TOTAL SALARIES
Part-Time Faculty Health Ins. Reimbursements
Non-Hourly Personnel Benefits
Hourly Personnel Statutory Benefits
STRS On-Behalf
TOTAL BENEFITS
TOTAL SALARIES AND BENEFITS
Operating Expenses
Supplies and Materials
Other Operating Expenses and Services
Capital Outlay
Total Operating Expenses
Other Outgo I Transfers Out
TOTAL EXPENSES
NET
Adopted Budget Revised Budget
186,873,741 188,403,476
14,699,049 17,088,561
7,916,079 8,715,877
2,076,765 1,548,137
4,196,590 4,485,081
2,000,000 5,853,525
- -
- 9,849,038
226,097 1,748,574
217,988,321 237,692,269
1,299,004 1,307,818
2,259,400 3,023,906
3,476,591 3,476,591
287,293 337,356
688,578 757,662
638,661 620,893
407,755 447,172
9,057,282 9,971,398
6,180,422 5,076,032
- -
233,226,025 252,739,699
49,767,195 40,814,930
49,767,195 40,814,930
4,225,341 4,453,318
4,225,341 4,453,318
18,102,377 22,066,838
18,102,377 22,066,838
51,711,530 46,389,708
51,711,530 46,389,708
12,606,686 12,521,268
12,606,686 12,521,268
3,469,292 4,284,157
3,469,292 4,284,157
139,882,421 130,530,219
113,000 741,890
350,000 330,619
47,253,214 45,931,686
470,309 2,779,022
6,180,422 5,076,032
54,366,945 54,859,250
194,249,365 185,389,469
5,244,257 2,569,425
43,180,457 29,577,385
957,279 702,625
49,381,994 32,849,435
14,734,168 59,640,296
258,365,527 277,879,200
(25,139,502) (25,139,502)
Variance Variance
(Adopted to (Revised to
Actual 2022-23 Actual) Actual)
188,403,476 (1,529,735) -
17,088,561 (2,389,512) -
8,715,877 {799,798) -
1,548,137 528,629 -
4,485,081 {288,491) -
5,853,525 {3,853,525) -
(288,632) 288,632 288,632
9,849,038 (9,849,038) -
1,748,574 {1,522,477) -
237,403,636 {19,415,315} 288,632
- -
1,307,818 (8,814) -
3,023,906 (764,506) -
3,476,591 - -
337,356 {50,063) -
757,662 (69,084) -
620,893 17,768 -
447,172 (39,417) -
9,971,398 {914,116} -
5,076,032 1,104,390 -
{187,241} 187,241 187,241
252,263,825 {19,037,800} 475,873
40,547,261 9,219,934 267,669
40,547,261 9 ,219,934 267,669
4,453,318 (227,977) -
4,453,318 (227,977} -
20,581,098 (2,478,721) 1,485,741
20,581,098 (2,478,721} 1,485,741
46,389,708 5,321,823 -
46,389,708 5,321,823 -
12,521,268 85,418 -
12,521,268 85,418 -
3,984,733 {515,442) 299,424
3,984,733 {515,442} 299,424
128,477,385 11,405,036 2,052,834
741,890 (628,890) -
330,619 19,381 -
45,820,564 1,432,650 111,122
2,779,022 (2,308,713) -
5,076,032 1,104,390 -
54,748,128 (381,183} 111,122
183,225,513 11,023,852 2,163,956
-
2,268,651 2,975,605 300,773
18,905,637 24,274,821 10,671,749
361,234 596,045 341,390
21,535,522 27,846,471 11,313,912
59,480,983 {44,746,816} 159,313
264,242,019 {5,876,492} 13,637,181
(11,978,194) (13,161,308) (13,161,308)
Report to the
Town of Colma
President’s Innovation Fund Projects
The $4,000 grant from the Town of Colma was put toward our President’s Innovation Fund (PIF) projects. The PIF is an initiative designed to support creativity and innovation at Skyline College. Faculty, Classified Professionals and Administrators are encouraged to “Dream Out Loud” and propose ideas that will support the college’s Mission - Vision – Values as well as our most recent Education Master Plan. The primary provider of the funds is the President’s Council, a group of dedicated community members committed to actively supporting Skyline College. The President’s Council raises financial support for the President's Innovation Fund by hosting the President’s Breakfast every spring. This year, a total of $90,000 was raised in support which includes the $4,000 from the Town of Colma. Projects funded for the 2024-2025 academic year include the following:
• Black and Brown Scholars - Supporting Men of Color Experiences Educational systems were not designed with our Black and Brown Scholars in mind so to systematically strip their culture and authenticity for the sake of assimilating into “college culture” disrupts their ability to see themselves worthy in academic environments. Our Black and Brown Scholars bring so many assets to school: leadership, tenacity, strong relationship building, networking, entrepreneurship, community, and family. This project is rooted and aligned with Skyline College's commitment to diversity, equity, inclusion, and access in creating conditions that honors our Black and Brown Scholars. This transformative approach to building communities allows the opportunity for equitable change, not only in the lives of the students, but also the lives of their future families and communities.
• The Black Educators Mentorship and Support (BEAMS) Program At Skyline College, we believe in the importance of diversity and inclusion in education. Unfortunately, the lack of Black representation in our faculty can make it challenging for our Black students to feel fully supported and connected to our college community. This is why we are excited to propose the Black Educators Mentorship and Support (BEAMS) Program, a unique opportunity to address the dearth of Black educators at Skyline College and achieve equity goals outlined in the college’s equity and master plans. Through mentorship, networking, and training, BEAMS aims to create a pathway for Black graduate students to become successful community college educators and leaders, deepening the relationships between Skyline College and our local four-year colleges and universities and creating a pool of skilled Black educators who are prepared for teaching positions at Skyline College. It also gives faculty mentors an opportunity to share their expertise, enhance their leadership skills, and make a meaningful impact on education's future.
Report to theTown of Colma
• Critical Global Citizenship Education
Current global education prepares students to thrive in the market economy but does not interrogate the root causes of global inequities. This project aims to address that gap while connecting with our college's mission, Community Engagement Student Learning Outcomes, and Strategic Goal 4 of the Educational Master Plan - to cultivate civic-mindedness to empower self and strengthen society. We will implement programs that complement the curriculum, foster dialogue and engagement across disciplines, and bring the campus community together in a shared experience. Programs will include the Human Library, a film screening, a poetry event, an art workshop, and a student competition around topics such as belongingness, global stories, and sustainability.
• Cultural Immersion Program
The International Student Program (ISP) will continue the cultural immersion program designed for all international students on campus so that they can continue to socialize and maintain the community/support system that has been developed. Students appreciate the opportunity to bond outside of class time while participating in activities synonymous with American culture such as college tours, mini-golf, and baseball games. The continued engagement of international students through campus activities and who have bonded with faculty and staff members will ensure that persistence rates for international students continue to remain high.
• Digital Textbook Loan Program
The high cost of textbooks is an equity issue and barrier to student success. The Skyline College Library's Digital Textbook Loan Program makes digital copies of high- demand textbooks available to students in a copyright-safe manner. From fall 2022 to the present, we've provided 885 students with free access to more than 90 digitized textbooks. We plan to expand this service to include all electronically-available textbooks in one central location, resulting in increased access and reduced costs for students, and thereby contributing to their overall academic success.
• Fall Musical Project
We would like to expand our musical theater offerings through a Fall Musical Project, providing Skyline College students with a fall semester musical theater production focused on contemporary social issues. We plan to collaborate with related campus clubs/programs/services to raise awareness through special forums and/or benefit performances. This project is part of our post-pandemic enrollment recovery effort to help rebuild our in-person performing arts enrollment. Performances will take place in our Theater and strive for professional production values to attract students to our Music and Dance programs.
• RIDE Conference
Skyline College recently held the 2nd Annual R.I.D.E. Conference, a place-based Lowrider studies conference. The event’s focus was education through the lens of lowriding culture. Employing multiple modalities, disciplines, and topics the conference ~ Skyline College
Report to theTown of Colma
was very successful in the service of Black, Indigenous, and People of Color (BIPOC) communities and community engagement. The conference successfully served its purpose, and the planning for the 2025 event has begun. Looking to the future of the program, the planning indicates that there is demand and necessity to move from the half-day model to a full day of conference programming.
• Teach Palestine Speaker Series
The Teach Palestine Speaker Series highlights the history and experiences of SWANA (South West Asia North Africa) communities within the United States and in a global context. The series will consist of lectures, workshops, film screenings, poetry/cultural events by scholars and community-activist guest speakers who will engage students in global discussions and cross-cultural dialogue. The series will fill a gap in Skyline College’s educational programming, professional development, and interracial coalition- building towards social justice, which currently lacks the presence of SWANA and Palestinian students, despite the Bay Area being home to the second largest Palestinian community in the United States.
~ Skyline College
Town of Colma
Non-Profit Funding Request Form
FY 2024-25
Please do NOT write “see attached” as a response to any of the questions. You must submit all answers on this form. You may submit additional attachments, but they will not replace any of the responses.
Name of Organization: South San Francisco Education Foundation Contact Person: Lauren Kitchen
Address: P .O. Box 5418 SSF CA 94080
Street Address City State Zip Code
Phone Number: (650)-260-5578 Email Address: [email protected]__
1. Mission Statement:
Our mission is to support and enhance public education in the South San Francisco Unified School District in a way that prioritizes students, equity and transparency. Our goal is for all students to receive the education and resources they need to achieve their highest potential.
2. Amount of Request: $20,000
a. T otal Agency Annual Budget: $___$97,386.00_______
b. Number of Agency Employees: __1 - 0.25% time contractor_____ c. Payroll is ___25_____% of the Agency’s total Annual Budget.
3. Please identify a public purpose for the requested funding by identifying one of the following categories:
A. Provide shelter, food, or clothing to persons in need of the Necessities of Life;
B. Provide physical or mental health services to persons with special needs, or Integrated Care Services;
C. Educate and engage residents;
D. Promote Economic Development or support businesses located or doing business in the T own; or Provide, support, or enhance a Complementary Service, e.g., a service that the T own could provide to its residents or businesses.
3a. Describe how the funding will support the selected category:
Our values are student success, equity, community, and integrity. We work in partnership with parents, teachers, PTA’s, advocacy groups and school administrators to determine what initiatives and areas of funding are most needed. Our funding request will support the following two categories:
Category A: Providing shelter, food, or clothing to persons in need of the necessities of life: our programs provide funding to children who are newcomers(recent immigrants) or extremely low income so that they can thrive in the school system. This funding is provided directly to address student’s specific needs and also through supporting a new school district sponsored resource room.
Category C: Educating and engaging residents through a variety of programs described in the next section that help students and families understand the school system and develop a sense of belonging in our community.
4. Describe reason for request and how funds will be used:
We are requesting $20,000 in general operating support to fund a range of programs in the upcoming school year for example:
Public purpose category A:
Provide shelter , food, or clothing to persons in need of the Necessities of Life
Initiatives to address critical student needs: shelter/food/clothing ● Resource Fund - to provide newcomers with basic necessities such as shoes, coats, and household items directly to families in need. We supported over 80 students this year and hope to support 100 in 2024-2025. The most popular items purchased were clothing: uniform clothing, jackets, pajamas and shoes. Students cannot learn when they sleep in the same clothes they wear to school day in and day out. We also purchased bedding, pillows and even a mattress for a middle school student who was sleeping on a garage floor. SSFUSD School community liaisons work directly with the students and are able to use these funds to purchase items that will support each individual student’s needs.
● SSFUSD Community Resource Center - SSFUSD is opening a resource center to support families in need. We envision the SSF Ed Foundation supporting their efforts by funding bulk purchases of basic needs that can be distributed to students and families.
We expect to develop this project and funding priorities more as the Resource Center becomes more established this school year.
Public purpose category C: Educate and engage residents Initiatives to increase a sense of belonging and community for underrepresented students
● English language development (ELD) student soccer club - district co-ed soccer club team for English Language learners. All students participating from South San Francisco High School are part of the ELD program and are not able to play on the regular school teams. The funding provided uniforms, cleats, equipment and a coaching stipend. The purpose of this program was to provide opportunities for newcomer students to strengthen their community ties, improve attendance, and feel a sense of
accomplishment at school. We are very proud that the team won the league championship in their first year. They are excited to play again next year and we hope to fund 2 seasons.
● Baden Continuation High School field trip - provides increased access to learning outside the classroom by cultivating funds for engaging field trips and a year end celebration for Baden Continuation High School students San Mateo County Parks. In the fall Baden students will participate in a full day Ropes Course where they will focus on teamwork, leadership and accomplishing goals. This project was funded last year by a grant from the San Mateo County Parks Foundation but they have not released a grant RFP as of this application submission.
Address Literacy needs
● Inclusive reading materias/Spanish language library books- in 2024-2025 we plan to be more targeted in our spending to support schools with limited resources and provide spanish language books. If fundraising allows we will increase funding for this program to again provide books to all schools.
● Support for YEEE! (Youth Empowerment, Early education and Employment program through San Mateo County Office of Education)- The San Mateo County Office of Education held a program in the summer of 2024 that trained recent graduates and high school students in literacy instruction during summer school programs at SSFUSD. The funds supported a very small part of this program. We hope to fund a larger portion in the future.
Family Education and Community Building
● Middle School Family Education and support for Kinder Night - We are in talks with SSFUSD about planning another middle school event this year and possibly supporting the SSF Kindergarten Readiness Night by providing funding for food, speakers and school supply giveaways. We hope to have more attendees and stronger partnerships in planning with the school district in the future.
● Support for Parent Cafes (parent support/education groups at Title 1 elementary schools (including Sunshine Gardens) - SSFUSD School and community liaisons have been trained to run parent support groups in the 2023-2024 school year. The groups, called Parent Cafes, help strengthen school communities, develop leaders and provide parenting education in a supportive environment. They have been very successful and SSFUSD plans to expand the groups this school year. The Education Foundation hopes to support Parent Cafes by providing a budget for food, speakers and other incentives to encourage parents to attend.
5. If the amount of the request is higher than the previous year , provide a detailed explanation of the need for the increase:
Our initiatives line up very closely with categories A and C and for that reason we are requesting general funding that we can apply to all of our programs rather than limiting the funding to supporting one individual program or initiative of the foundation. In our first year of operation we were able to fundraise over $70,000 through the initial excitement around the organization. In our second year, our small board focused on executing our initiatives and building our volunteer network but unfortunately we were only able to fundraise about $12,000. In our third year we
hope to focus on expanding our initiatives as well as building a network of financial partners, businesses and grant funding sources now that we have shown the impact of our foundation to benefit students in need.
6. Describe the benefit to the T own derived from funding your organization:
Colma students attend SSFUSD. They and their loved ones will benefit from having their basic needs met, improved inclusiveness, sense of belongingness, literacy, engagement, and love for learning that our programs aim to foster . Quality of schools is a top priority for residents and potential future residents.
The SSF Education Foundation has the ability to reach all families in SSFUSD and many local residents without students in the district. We will publicize the T own’s support for our programs in our communications, presentations and on our website. We also included the T own’s support in our annual report which is distributed to thousands of people.
7. Describe the following:
A. Number of Colma residents or businesses (or both) served by the organization in the years prior to the grant application;
Our organization supports students who attend schools in the South San Francisco Unified School District. SSFUSD includes 9 elementary schools, 3 middle schools, 3 high schools, 1 adult school and several preschool programs. 4 of those schools are Colma schools because their boundaries include parts of the T own of Colma: Buri Buri Elementary, Sunshine Gardens Elementary, Alta Loma Middle School and El Camino High School. Also, the new housing developments on McClellan and Mission Road fall within the boundaries of SSFUSD. In 2023-2024 there were 5 students from 5 households from Colma attending SSFUSD schools.
B. The location(s) where Colma residents or businesses may receive the recipient organization’s services or programs; and
Colma residents can receive services at SSFUSD schools and the Kindergarten Readiness Fair is held at the SSF main library.
C. The nature and extent of the efforts of the recipient organization to reach out to Colma residents and businesses.
Our organization connects with all families with students in the school district through emails, flyers, presentations and tabling at school and community events. We have participated in several community resource fairs held at school sites and local community centers. This year we are launching a business fundraising drive that will provide additional options for small and large community businesses to support our efforts and be recognized as contributors.
8. Provide a detailed account of how the FY 2023-24 contribution was used:
In 2023-2024 we requested funds for a specific project: The School Library Book Project project provided over 900 new library books for all 15 schools in SSFUSD for a total cost of
$13,500: the Town of Colma grant of $5,500 and the SSF Education Foundation providing $8,000. The foundation team worked with the school librarians and administrators to pick books with languages, main characters, themes and settings representative of each school community.
Elementary Sites Status
Buri Buri Elementary 70 books totalling $996.71.
Junipero Serra
Elementary
68 books purchased for $998.01
Los Cerritos Elementary 72 books purchased for $997.85.
Martin Elementary 66 hardcover books totalling $1003.88.
Monte Verde Elementary$1000 Check delivered: New librarian hired in April, working on ordering
Ponderosa Elementary 75 books purchased for $996.96.
Skyline Elementary 73 books purchased for $996.92.
Spruce Elementary 69 books purchased for $1000.88.
Sunshine Gardens
Elementary
78 books totalling $1001.89.
Middle Sites Status
Alta Loma Middle School$800 Check delivered. 45 books purchased by Alta Loma Parkway Heights MS $800 Check delivered. 40 books purchased by Parkway Westborough MS $800 Check delivered, order pending.
High School Sites Status
El Camino HS 50 books purchased for $699.97
South San Francisco HS$700 Check delivered. 30 books purchased Baden HS 51 books purchased for $711.24. 8 addl donated
9. List contributions requested and received from other cities in FY 2023-24 and requested or expected in FY 2024-25:
As a new organization we are striving to show the community and local funders that we can meet our goals and make a positive impact for students. We hope that as we continue to have success in meeting our goals and program priorities other cities will provide opportunities for collaboration and financial support.
We have not received or requested funds from other cities.
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10. Did the organization participate in or intervene in any political campaign (including the publication or distribution of statements) on behalf of (or in opposition to) any candidate for public office within the past 36 months (please select one)? Yes __________ No ________X______
If yes, please provide details.
11. Charitable Trust # or EIN # Charitable Trust #CT0282282 EIN # 88-1191386 Please attach a copy of the following:
❑ Roster of current governing board
❑ Current Year Annual Operating Budget
❑ Proof of organization’s tax exempt status
❑ Completed IRS 990 form (filed for 2023 or 2022)
Optional Attachments
2024-2025 Board Roster
Kristy Camacho, President
[email protected]
Juanita Flores, Vice President of Community Engagement
[email protected]
Kayla Powers, Secretary
[email protected]
Lauren Kitchen, Treasurer
[email protected]
Alma Soto Ruiz, Board Director
[email protected]
Natalie Wheatfall-Lum, Board Director
[email protected]
John Baker, Board Director
[email protected]
SOUTH SAN FRANCISCO
EDUCATION FOUNDATION
SSF Education Foundation
398 B St, SSF, CA 94080
ssfedfou ndation.org
[email protected]
EIN: 88-1191386
Working Budget 2024-2025
Individual Donations $ 10,000.00
Individual: Corporate Matching $ 500.00
Business Donations $ 24,000.00 Fundraising Misc Expenses $ 100.00 $ 40,500.00
Information Technology $ 400.00
Insurance $ 350.00
Staff Training/Dues $ 1,000.00
Other Miscellaneous $ 1,036.00
Contract Employee:Marketing & Dev. Consultant $ 31,000.00 EL Liaison Fund/Resource Fund $ 10,000.00
Community Engagement/School Advocates $ 2,000.00
ELD Soccer League $ 7,000.00
Books for SSFUSD Schools/Inclusive Library $ 5,000.00
$ 5,000.00
Parent Cafes $ 5,000.00
Grant Program Expenses (Baden High School/SMC
Parks Foundation) $ 4,000.00
Ethnic Studies Class Projects* $ 10,000.00
Resource Center Direct Donation $ 5,000.00
Restorative Justice $ 5,000.00
$ 2,000.00
Family & Community Ed: Middle School and Kinder N
YEEE! San Mateo County Office of Ed Program Supp
Revenue Expenses
Total Revenue
Total Non-Program Expenses
Total Program Expenses
Totals
Fundraising Expenses
Total Fundraising Expense $ 100.00
Admin Expenses
Total Administrative Expenses $ 2,786.00
Total Compensation Expenses $ 31,000.00
Total Marketing Expenses $ 3,500.00
Program Expenses
Foundation Grants
Consultants
Marketing Expense
$ 75,000.00
$ 37,386.00
$ 60,000.00
Total Expenses $ 97,386.00
Total Revenue $ 75,000.00
Carryover from Previous Year $ 43,404.31
Ending Bal: Reserves for 2025-2026 $ 21,018.31
SOUTH SAN FRANCISCO
EDUCATION FOUNDATION
June 21, 2024
Town of Colma
1198 El Camino Real
Colma, CA 94014
RE: SSF Education Foundation Grant Report
Dear Abigail Dometita,
The South San Francisco Education Foundation is pleased to provide this grant report for the Town of Colma. We thank the Town for their generosity in providing this opportunity to benefit children and families in our community.
Grant Report
(i) Describes the results of the program or project funded by the grant; The School Library Book Project was funded jointly by the Town of Colma grant and the SSF Education Foundation. The project provided over 800 new library books for all 15 schools in SSFUSD for a total cost of $13,500: the Town of Colma grant of $5,500 and the SSF Education Foundation providing $8,000. The foundation team worked with the school librarians and administrators to pick books with languages, main characters, themes and settings representative of each school community. School libraries do not usually have a fixed budget from year to year so they rely on book fair fundraisers, donations and occasional school funds to purchase books.
(ii) Evaluates the results of the program or project funded by the grant School librarians, students and teachers were thrilled to receive new books. The Education Foundation either purchased books that the school selected and delivered them to the schools or gave the schools a check for librarians to use to purchase books through the school’s textbook suppliers. The books that were purchased were labeled and put in circulation immediately and students have been enjoying them since early spring.
Many of the schools were overjoyed to get the new books but one school stood out in particular as having a very high need for library books. Baden High School is a continuation school for students who are either expelled or are unable to stay on the path to graduation at traditional high school. The students at Baden are at high risk for homelessness, low socioeconomic status, failure to graduate high school, and a high proportion of English language learners. The
SOUTH SAN FRANCISCO
EDUCATION FOUNDATION
398 B St, SSF, CA 94080
ssfedfou ndation .org
contact@ssfef .org
EIN: 88-1191386
school does not have an official library. The books have been transformative for many students at Baden. Principal Seema Prasaad shared just one experience from a student at Baden:
“A student contacted her counselor over the weekend and was having difficulties with personal issues and was struggling. The counselor asked if she had taken a book home and she had so the counselor suggested she take her book and go to the park and "get lost in your book for a while". The student took the suggestion and texted back later in the afternoon with a picture of the book that she finished in about an hour and she felt better.
We've seen students take home books for the weekend and during school breaks and come back excited to share their thoughts with teachers and classmates. Students are also recommending books to each other and enjoy choosing books for our next order.
We have a community of readers at Baden and are so grateful for the support.” In evaluating this program we feel that all schools continue to have a need for more representative books. In the future we hope to continue to allocate funds to support literacy in schools and target our efforts towards students and families with the highest needs. ■aden
I like to read because,
it calms my mind.
Reads
I like my new book because,
it's interesting and entertaining .
Reads
l aden
I like to read because,
it's a good distraction from my phone.
Reads
(iii) Provides an accounting of the use of the grant funds.
Elementary Sites Status
Buri Buri Elementary 70 books totalling $996.71.
Junipero Serra
Elementary
68 books purchased for $998.01
Los Cerritos Elementary 72 books purchased for $997.85.
Martin Elementary 66 hardcover books totalling $1003.88.
Monte Verde Elementary $1000 Check delivered: New librarian hired in April, working on ordering
Ponderosa Elementary 75 books purchased for $996.96.
Skyline Elementary 73 books purchased for $996.92.
Spruce Elementary 69 books purchased for $1000.88.
Sunshine Gardens
Elementary
78 books totalling $1001.89.
Middle Sites Status
Alta Loma Middle School $800 Check delivered. 45 books purchased by Alta Loma Parkway Heights MS $800 Check delivered. 40 books purchased by Parkway Westborough MS $800 Check delivered, order pending.
High School Sites Status
El Camino HS 50 books purchased for $699.97
South San Francisco HS $700 Check delivered. 30 books purchased Baden HS 51 books purchased for $711.24. 8 addl donated I
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Example of book list from Parkway Heights Middle School:
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Ulte Author Quanify-40 t'ublisbm Date
AlcbriJCS. Donna 1:1.irbP. Higuera I l.cvinc Querido 2023 Amerfo:1111 B.:irn liin 6 Cr.enc l..iucn Y:mg I Fi . I Second 2(M}l Cross 1.y Hl'11rt and . eve...-Lie Nora Ousocs: & M.au Bugg ulcy I Hippo Purk 023 Don' t \Vant to [k Your Mo n k'T Dekc: foulton I Tundra Dooh 2023 Eb& low Kdly l. Ebp ttsi I Rumlom Huu;;c C b.ii.an.m's: Boo.ks: 2023 The Fi~, Tb Wa , and fag1:,i McGiml Sally J. Pl I Quill Tree Books 2(}23 Fvr Ev.:ry One Jasoo. ~ ·nolll~ I An1twm1m 2018
Fm:li:lic \Is. Tllt-c Family l'ursc Tr.a-er Badua I l'larion [-34.:iob 2022 He:~ "· o The W11tcr Monst i:r Brfan Yoong I Hc:utd rum 2023 KlN Ruo tt.,d in Hope · C11role !Bosiuo. ~lherfo-rtl I AnLb.enum 2023 Lowridefi in Space Cathy am pcr I Chmn iclc 'Book 21114 The Muny ru.s11ss:imuicms: of Sami r, Seller of Drl.'lmb Dunicl N11~t.'li I Le,•ine Querido 2023 Ma coc Chae w • 1 Tu.ci Sorell I Chari bridge 202
M ikid En E plll.ol P,edro rtin I Viol,1g Espi!!nol20B
Nigcra Jones lbiZo l:>o' I Balzer & B:ray 2023
Once Thcri:: Wa!I Kiy.:is.h Mon r:f I S imon & Schustc:r 20>23 The S:rm:11 uf Old lml)' P.:rfum • Cbudi1'1 Gu_ad11l11pe M.irtin :i: I Cinco Pllnlos: Press 2008 Sa1m:lhL11g Lili;c: Home: Andrea 13calriz Arango I Rll:□ dom Ho= C hildren's Iltmks 2023 Stam JPd (f Kids) R- c.i m, Anli (isln, i!!od Yo11) Ad.ipted by onj.i herry -P ul I Linle, Bro "ll, .ind orn:pal'I}' 20.2] li'.hi· L Y 1.1 Time Ruby Bridg I Delacort 020
.Meet M1;: HalfWII:,' Arulm Fajardo I Simon . & Sdn1ste.r for Young Re....'lders 2022 A Siknt ¼ic e Yo,;.hi101<l Oima I Kodans hi:e. Comrcq 2015 ·irhc Bridge: Homll l'adma \lcnbtrarnan I Nancy l'au l cc □ El ok!; 2019 H lo Be A( Olltl,!l) Antimcisl lbr.un X. Kendi Ni tun · I K.ukihi-023 Dreamsfrnm fa□ y River, Mnrgarile E.11g!t: I Goodwin Ilook i. 20 1.9· .Mexikid A Grnpltk Mem. ir PedroM.irtin I Dial Book fo Young .Rel!iOers .2023 Bat ~ ot Dre m~ f p Luna Aid , Dol1b I So\ll'Ce Boo fo Young Read! I Ahmed Aziz' Ep1 Year Ni.tli alilJZll I Quill Tree Bo 202l Whatbne1 Toney Ma ldonad n I Nan .y Pa11lse11 Floo,h 2019 l'iu h utcKids I Br:tly C. Tllllg I Grarphix 2023
'fbe L.aml of For~O'llen Girls Erin .Entracfa K ·Uy I Gree owilfow Boo~ 2016 A 01111:l for Horne Kurim1 Ym1 Glu;;i::r I Cla:r:i o □ Bo ks '.W 2 l,Wim ccYSe>d 1y ! ryof njusiicc Ad.imi!& h I Nortoo Yooo.g R de 2021 Tumble Celia C. Pei:ez I Kokila 2.0
'fbc Spirit Glass Roslumi Choksh i I Disney Hyperion .2023 T he I st Bf:ckccpc'r Pablo Cairtll'.}'l!I I narpci-2022 Not So Shy Noa imrodi I Kar-Ben Pub!is.'hin3 202
Roby Losi and found Christina. Li I Qoill T~Boo 2023
Wt: ii.H&lun~ Chri t ia.e· Dily I Hi::11r1drum 2023
&glcDnims N . .i,sugr.iq Ramey HO'J)SO'll I RQaritig Brook l'~cs 2023 (b) If the program or project is not completed by June 28, 2024, Grantee shall present an interim report by then describing the status of the program or project and its expected completion date.
The project is complete.
If you have any questions or would like further information, please contact me at [email protected] .
Thank you,
Laure Kitche
Lauren Kitchen
SSF Education Foundation Board Member, Treasurer
[email protected]
Town of Colma
Non-Profit Funding Request Form
FY 2024-25
Name of Organization:
Contact Person:
Address:
Street Address City State Zip Code
Phone Number: Email Address: __________________
1. Mission Statement:
2. Amount of Request: $________________
a. Total Agency Annual Budget: $_______________
b. Number of Agency Employees: _______________
c. Payroll is ________% of the A Annual Budget.
3. Please identify a public purpose for the requested funding by identifying one of the following categories:
A. Provide shelter, food, or clothing to persons in need of the Necessities of Life; B. Provide physical or mental health services to persons with special needs, or Integrated Care Services;
C. Educate and engage residents;
D. Promote Economic Development or support businesses located or doing business in the Town; or Provide, support, or enhance a Complementary Service, e.g., a service that the Town could provide to its residents or businesses.
Please do NOT write ''see attached" as a response to any of the questions. You must submit all answers on this form. You may submit additional attachments, but they will not replace any of the responses.
Sustainable San Mateo County
Sarah Hubbard
3182 Campus Drive #153, San Mateo, CA 94403
6509181992 [email protected]
Our mission is to stimulate action to make San Mateo County more sustainable on economic, environmental, and social equity issues through empowering information and advocacy.
□
□
Ill
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3000.00
82%
443,750.00
4 gency's total
3a. Describe how the funding will support the selected category:
4. Describe reason for request and how funds will be used:
Colma residents are already feeling the impacts of climate change. Sustainable San Mateo County helps your town with these core programs:
•Indicators Report - An in-depth study of one critical sustainability issue affecting San Mateo County ,Sustainability Dashboard - Tracks sustainability progress by local cities and the county ,Sustainability Ideas Bank- Shares proven solutions for accelerating sustainability with local cities and businesses The Indicators Report has been tracking key sustainability-related metrics in the county for more than 20 years, focusing each year on a specific sustainability topic of interest to local cities, including case studies, deep research, historical context and policy recommendations. For SSMC's 2024 Indicators Report, our key theme will be on EV Charging Infrastructure, which will focus on how local jurisdictions can expand access to EV chargers to accelerate the transition to clean transportation. This is one of the most-requested topics by city leaders. Providing convenient and accessible EV charging options for all residents, including renters and those in multifamily dwellings, can encourage more people to switch to electric vehicles, accelerating the transition to cleaner transportation. By enabling more people to drive EVs, cities can significantly cut down on emissions from traditional gasoline and diesel vehicles. In addition to reducing greenhouse gas emissions, clean transportation would contribute to reducing urban air pollution, leading to healthier living environments and improved public health outcomes.
The Sustainability Dashboard empowers local governments, community organizations, residents and media with comprehensive sustainability metrics for each of San Mateo County's 20 cities and unincorporated areas. These metrics are part of 11 key sustainability areas or dimensions, which touch upon all "3 E's" of sustainability: environment, economy and social equity. In conjunction with our Sustainability Ideas Bank, which provides solutions to increase sustainability, this is a useful tool for city leaders to track their own sustainability performance over time and equips them with the resources to both get access to and share effective sustainability solutions (policies, ordinances, programs, processes, contracting language and more). The Dashboard is a highly collaborative and evolving project, with a high degree of input from all the cities' sustainability managers.
SSMC's Sustainability Ideas Bank offers proven, impactful sustainability solutions to local cities and businesses that have been implemented successfully elsewhere. Each solution includes resources and contact information so people can get questions answered by those who have paved the way. When we meet with city leaders, we introduce them to some of the solutions that other cities have adopted to make sustainability progress.
Funds will support program managers who coordinate volunteer researchers, writers, graphic designers, printing and dissemination of reports. In addition, these funds will help cover the costs of launch events for these three programs. These launch events are currently offered to all residents free of charge. For some programs, such as the Dashboard, we invite city leaders and staff to special presentations that are open only to those invited.
In addition, city and county leaders have asked if we might bring sustainability managers together to discuss key issues they are working on, to enable them to collaborate on solutions. During our Dashboard meeting with Colma leaders in past years, they expressed interest in collaborating with other cities on how to speed up installation of more electric vehicle charging stations.
5. If the amount of the request is higher than the previous year, provide a detailed explanation of the need for the increase:
6. Describe the benefit to the Town derived from funding your organization:
The request we are making this year is less than the request we made last year, but it is more than what was given by the Town of Colma last year. SSMC's annual budget has increased due to the additional resources we've dedicated to supporting city staff and council members through research, data collection, reporting, consultations and fostering collaboration. We recently had a productive meeting with Colma staff members and look forward to ongoing collaboration. Last year we requested $5000 and received $1000. This year, we are requesting $3000, a contribution that is in line with similarly sized and resourced communities.
Some of the ways the Town of Colma and its residents benefit from our program goals and accomplishments include:
•Raising awareness about and engagement with residents to support the towns sustainability programs and goals
•Providing intelligence to town leaders as to their sustainability performance in key sustainability areas and identifying ways to augment sustainability efforts (via our Dashboard Project and our collection of sustainability solutions in the Sustainability Ideas Bank) •Sustainability education via our virtual Happy Hours, newsletters, biogs and videos •Continuing to partner with local government and community organizations to promote sustainable policies and practices, including zero net energy, electrification of new buildings, EV infrastructure, waste reduction, social equity, affordable housing and new transportation options •We also write letters of support for local jurisdictions when their proposals for funding or advocacy align with the values and goals of Sustainable San Mateo County. • To help accelerate sustainability, SSMC advocates for programs and policies that align with our values, and we partner with other organizations to magnify our mutual efforts. Recent efforts have included advocacy for equity in local mass transit with the Transportation Equity Allied Movement Coalition (TEAMC) and supporting electrification of buildings and electric vehicle infrastructure with the Campaign for Fossil Free Buildings in Silicon Valley.
7. Describe the following:
A. Number of Colma residents or businesses (or both) served by the organization in the years prior to the grant application;
B. The location(s) where Colma residents or businesses may receive the recipient
C. The nature and extent of the efforts of the recipient organization to reach out to Colma residents and businesses.
8. Provide a detailed account of how the FY 2023-24 contribution was used:
organization's services or programs; and
Sustainable San Mateo County's work is intended to serve the entire population of San Mateo County, including all of Colma's residents and businesses. The information our organization provides is used by residents, researchers and leaders in government, business and the nonprofit world.
We reach people in Colma through our website, our virtual Happy Hour programs on different sustainability topics, in-person programs and workshops, distribution of informational handouts, and booths at local fairs and festivals throughout the county. All of your residents are invited to our annual Awards Celebration and launch events where we introduce our yearly Indicators Report, Dashboard and Ideas Bank. Each year, more than 20,000 individuals visit our website and hundreds of people participate directly in our programs.
We have 3,100 newsletter subscribers on our mailing list, 900 lnstagram followers; the majority of these are individuals who live and/or work in San Mateo County. In addition, we consistently post on our Facebook, lnstagram and Linked In accounts and are making a deliberate effort to further develop SSMC's social media presence. Our social media followers have continued to grow over the last year and we continuously keep up our efforts to reach younger audiences.
During FY 2023-24, Colma's contribution helped support our 2023 Indicators Report, "The Well-Being of Children, Youth and Families in San Mateo County." The 158-page report was unveiled October 26, 2023 and was held at the CZI Community Space in Redwood City. This was SSMC's 27th Annual Indicators Report launch which revealed some surprising facts about pressures facing families in the county. The event showcased experts, such as County Executive Mike Callagy, discussing the challenges encountered by our youngest residents and their families, and proposing solutions to ensure a better future for them. Other speakers included Simona Vallone, SSMC's Indicators Report Program Manager; Heather Cleary, CEO of Peninsula Family Service; Dr. Kismet Baldwin-Santana, the county's new Health Officer; and Tracy Weatherby, Vice President of Strategy and Advocacy for Second Harvest of Silicon Valley. We had 121 registered attendees with about 80 actual attendees.
The report can be accessed at https:/ /bit.ly/2023IndicatorsReport.
9. List contributions requested and received from other cities in FY 2023-24 and requested or expected in FY 2024-25:
10. Did the organization participate in or intervene in any political campaign (including the publication or distribution of statements) on behalf of (or in opposition to) any candidate for public office within the past 36 months (please select one)?
Yes __________ No ______________
If yes, please provide details.
Colma's $1,000 contribution to the Indicators Program in FY 2023-24 represented less than 2 percent of our program funds for the Indicators Report, and less than 1/2 percent of the total revenue for the organization. Please note that the direct program costs include only the direct expenses of program staffing and event costs. Indirect costs such as technology (website and computers) and supplies, outreach and the Executive Director (whose Indicators program support responsibilities represent about 30 percent of her time), are listed as direct operating expenses. Program revenues raised that exceed the direct program costs support general operating expenses, as do donations and sponsorship contributions from businesses and individuals, and the proceeds from various fund raisers, including our annual auction. Compared to our other city contributors, Colma's FY 2023-24 $1,000 contribution is situated in the lower range (11 cities and the County of San Mateo contributed at higher levels, five at the $1,000 level). Currently, all but three cities/towns in San Mateo County fund the Indicators Report Program. We respectfully ask that for FY 2024- 25, the Town of Colma consider supporting us at the full amount requested, $3,000. This is the minimum amount that SSMC needs to cover the cost of providing our annual Indicators Report and ongoing policy updates to Colma.
0
11. Charitable Trust # or EIN #
Please attach a copy of the following:
Roster of current governing board
Current Year Annual Operating Budget
exempt status
Completed IRS 990 form (filed for 2023 or 2022)
Optional Attachments
□
□
□ Proof of organization's tax
□
II Roster of governing board
fli Operating budget
48-1265207
Proof of tax exemption
Completed IRS 990
Board Rosterp.1Status 7/15/24
BOARD OF DIRECTORS ROSTER
SUSTAINABLE SAN MATEO COUNTY | 3182 Campus Drive, #153, San Mateo, CA 94403 | p.650-918-1992 Status.7/25/24
CONTACT START DATE TERM EXPIRATION COMMITTEE PROFESSION
John Crowell
105 Inner Circle
Redwood City, CA 94062
C (650) 868-2875
[email protected]
Jan. 2021
Oct. 2025
Indicators
Dashboard
Program Manager, Redwood City Together
Verónica Escámez
28 Claremont Ave.
Redwood City, CA 94062
C (650) 346-8468
[email protected]
Oct. 2020
Oct. 2024
Former Teacher
Paralegal
Founder/Director:
Casa Círculo Cultural
Valerie Fox Carlos
930 Peninsula Ave. #212
San Mateo, CA 94401
C (650) 303-4242
[email protected]
Jan. 2021
Oct. 2025
Awards
Fund Development
Former Director of Marketing and Membership:
The Peninsula Regent
Kirsten Keith
322 Oak Ct.
Menlo Park, CA 94025
C (650) 796-1009
[email protected]
Feb. 2019
Oct. 2025
Lawyer
Former Mayor of Menlo Park
• • • •
Board Rosterp.2Status 7/15/24
CONTACT START DATE TERM EXPIRATION COMMITTEE PROFESSION Georgi LaBerge
1637 Carleton Court
Redwood City, CA 94061
C (650) 465-3330
[email protected]
May 2018
Oct. 2024
Fund Development
Co-Chair
Former Mayor of Redwood City
SECRETARY
Lori Low
1939 Arroyo Court
San Carlos, CA 94070
C (310) 210-4641
[email protected]
June 2023
Oct. 2025
TREASURER
Barbara McHugh
286 Chestnut Street
San Carlos, CA 94070
O (415) 975-3121
C (415) 298-2373
May 2015
Oct. 2024
Fund Development
Former Revenue Manager, Mellon Capital
Management
Russ Miller
1435 Bellevue Ave. #301
Burlingame, CA 94010
O (650) 401-8735 x301
C (650) 787-2365
[email protected]
Jan. 2022
Oct. 2024
Attorney for Campaign, Election, Lobby and
Nonprofit Law
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Board Rosterp.3Status 7/15/24
CONTACT START DATE TERM EXPIRATION COMMITTEE PROFESSION
BOARD CHAIR
Terry Nagel
2337 Poppy Drive
Burlingame, CA 94010
H (650) 347-3576
C (650) 678-7082
[email protected]
[email protected]
Mar. 2017
Oct. 2023
Fund Development
Awards Committee
Communications professional at Stanford Woods
Institute for the Environment, Stanford Law School &
others
Former Mayor of Burlingame
Mark Olbert
286 Chestnut Street
San Carlos, CA 94070
C (650) 868-3367
Apr. 2022
Oct. 2024
Biotech chief financial officer, former local elected
leader (San Carlos school board and city council, 2001
- 2020)
William Schulte
849 Vista Drive
Redwood City, CA 94062
C (650) 346-5361
[email protected]
Oct. 2006
Oct. 2024
Governance
Retired head of Consumer Services Division of
California Public Utilities Commission
• • •
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Sustainable San Mateo County
Budget Overview: Budget_FY24_P&L_ 1 - FY24 P&L
January - December 2024
JAN 2024 FEB 2024 MAR2024 APR 2024 MAY2024 JUN 2024 JUL 2024 AUG2024 SEP 2024 OCT2024 NOV 2024 DEC2024 TOTAL Revenue
41 00 Contributions 1,400.00 160.00 0.00 1,111.00 1,111.00 1,111.00 2,111.00 6,111.00 6,511 .00 6,511 .00 11 ,111.00 39,112.00 $76,360.00 4200 Gov't Grants 0.00 5,000.00 0.00 0.00 0.00 0.00 0.00 20,000.00 20,000.00 5,000.00 0.00 0.00 $50,000.00 4300 Grants 0.00 0.00 0.00 0.00 0.00 10,000.00 0.00 10,000.00 0.00 10,000.00 10,000.00 0.00 $40,000.00 4500 Awards, Net 10,000.00 4,500.00 60,500.00 51 ,000.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 $126,000.00 4700 Programs 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 5,000.00 5,000.00 0.00 0.00 $10,000.00 4800 Earned Income 0.00 0.00 0.00 0.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 $800.00 4900 Misc. Income 170.00 170.00 170.00 170.00 170.00 170.00 170.00 170.00 170.00 170.00 170.00 170.00 $2,040.00 Total Revenue $11 ,570.00 $9,830.00 $60,670.00 $52,281 .00 $1 ,381 .00 $11,381 .00 $2,381 .00 $36,381 .00 $31,781 .00 $26,781 .00 $21 ,381.00 $39,382.00 $305,200.00 GROSS PROFIT $11 ,570.00 $9,830.00 $60,670.00 $52,281 .00 $1 ,381 .00 $11,381 .00 $2,381 .00 $36,381 .00 $31,781 .00 $26,781.00 $21 ,381.00 $39,382.00 $305,200.00 Expenditures
6000 Salaries & related expenses 30,680.00 30,680.00 30,680.00 30,680.00 30,680.00 30,680.00 30,680.00 30,680.00 30,680.00 30,680.00 30,680.00 30,680.00 $368,160.00 6300 Independent Contractors 333.33 333.33 333.33 333.33 333.33 333.33 333.33 333.33 333.33 333.33 333.33 333.37 $4,000.00 6400 Professional Fees 383.33 1,383.33 2,483.33 6,383.33 783.33 783.33 2,783.33 4,383.33 1,783.33 2,783.33 4,383.33 1,383.37 $29,700.00 7000 Fundraising Expenses 250.00 250.00 250.00 250.00 250.00 250.00 250.00 250.00 250.00 250.00 250.00 250.00 $3,000.00 7100 Publicity Advertising 625.00 625.00 625.00 625.00 625.00 625.00 625.00 625.00 625.00 625.00 625.00 625.00 $7,500.00 81 00 Non personnel expenses 1,662.49 1,662.49 2,162.49 2,162.49 1,662.49 1,662.49 1,662.49 1,662.49 1,662.49 2,162.49 1,662.49 1,662.61 $21,450.00 8200 Insurance 0.00 0.00 0.00 0.00 0.00 2,000.00 0.00 0.00 0.00 0.00 0.00 2,000.00 $4,000.00 8300 Rent 145.00 145.00 145.00 145.00 145.00 145.00 145.00 145.00 145.00 2,145.00 145.00 145.00 $3,740.00 8400 Other business Expenses 16.67 16.67 16.67 16.67 16.67 16.67 16.67 16.67 16.67 16.67 16.67 16.63 $200.00 8500 Travel & Meeting Expenses 83.33 1,083.33 83.33 83.33 83.33 83.33 83.33 83.33 83.33 83.33 83.33 83.37 $2,000.00 Total Expenditures $34,179.15 $36,179.15 $36,779.15 $40,679.15 $34,579.15 $36,579.15 $36,579.15 $38,179.15 $35,579.15 $39,079.15 $38,179.15 $37,179.35 $443,750.00 NET OPERATING REVENUE $-22,609.15 $ -26,349.15 $23,890.85 $11,601.85 $-33,198.15 $-25,198.15 $-34,198.15 $ -1,798.15 $-3,798.15 $-12,298.15 $-16,798.15 $2,202.65 $ -138,550.00 Other Revenue $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.63 $5,000.00 NET OTHER REVENUE $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.67 $416.63 $5,000.00 NET REVENUE $ -22, 192.48 $ -25,932.48 $24,307.52 $12,018.52 $ -32,781.48 $ -24, 781 .48 $ -33, 781 .48 $ -1,381.48 $-3,381.48 $-11,881.48 $ -16,381.48 $2,619.28 $ -133,550.00 Tuesday, July 16, 2024 08:32 AM GMT-07:00 1/1
TOWN OF COLMA GRANT REPORT
Sustainable San Mateo County
FY 2023-24
RESULTS:
Sustainable San Mateo County (SSMC) is an independent 501(c)(3) nonprofit organization that has been engaging local residents and leaders in advancing sustainability since 1992. We are not affiliated with or funded by the county's Sustainability Department, and we depend on Colma and our other 19 local cities and towns for support, notably for funding our “Indicators for a Sustainable San Mateo County Reports” program. These in-depth reports compile information about many interdependent issues into a single source, allowing local decision makers, city leaders and residents to monitor progress toward sustainability goals. Through these Indicators Reports, as well as our other programs, events and our broad community outreach, SSMC raises awareness of local concerns grounded in facts and proposes solutions to effectively address these. We encourage you to check out our website at: www.sustainablesanmateo.org and our social media channels for more information about our organization and our positive impact on the ground.
Over the last few years, SSMC has developed - and continues to develop - a suite of highly integrated programs and services to assist Colma and the other San Mateo County cities and towns accelerate their sustainability efforts to reach their ambitious goals, while also becoming more resilient as they increasingly have to address the negative consequences of climate change. These programs include our Indicators Reports program and our Sustainability Dashboard (focus on metrics), the Sustainability Ideas Bank (focus on solutions and tools to strengthen sustainability performance), our annual Awards Celebration (focus on celebrating inspiring leaders to show what’s possible) and our advocacy efforts to promote ordinances, policies and programs in alignment with our vision of a sustainable future for everyone in San Mateo County (focus on implementation).
Our online Indicators Report demonstrates our work throughout the grant year:
● SSMC’s 2023 Indicators Report on the Well-Being of Children, Youth and Families provides an overview of many components of this support system. By examining Sustainable
San Mateo County
Economy. Equity. Environment.
historical data trends and comparing San Mateo County’s performance with state and national metrics, this report sheds light on progress made and persisting challenges. To this end, this report not only offers an analysis of various indicators but also provides real-world examples of successful initiatives and programs that have made a positive impact. These examples serve as inspiration and models for future programs. Providing children and families with a secure, healthy environment now through education, health, housing and child care programs ensures that they have the capabilities, knowledge and resilience to build and support a sustainable society in the future. When children thrive, the whole community benefits.
● For 2024, our key theme will be on EV Charging Infrastructure, which will focus on how local jurisdictions can expand access to EV chargers to accelerate the transition to clean transportation. This is one of the most-requested topics by city leaders. Providing convenient and accessible EV charging options for all residents, including renters and those in multifamily dwellings, can encourage more people to switch to electric vehicles, accelerating the transition to cleaner transportation. By enabling more people to drive EVs, cities can significantly cut down on emissions from traditional gasoline and diesel vehicles. In addition to reducing greenhouse gas emissions, clean transportation would contribute to reducing urban air pollution, leading to healthier living environments and improved public health outcomes.
As in the past, we will also examine this timely and important topic from the perspective of social equity. In-depth research, insightful data analysis and maps, as well as current and relevant content for the report on this key theme are currently being generated.
Once finalized, the information will be provided on our website and shared broadly with the general public during an in-person launch event scheduled for October 24th. ● Other past online Indicators Reports can be accessed on our website:
https://sustainablesanmateo.org/home/indicators/archive/ Recent reports can be searched using this tool: https://sustainablesanmateo.org/home/indicators-report-search/ ● In addition to the key theme, which is covered in depth, other indicators within the report remain fairly consistent year to year, and we present the most recently updated statistics on our website and/or update when necessary and feasible. ● With each update, SSMC typically produces a brief printed summary of selected highlights. Mostly, we plan to share electronic versions of these summaries. We email them to city clerks throughout San Mateo County for distribution to each city’s staff, Council Members and commissioners.
● We’d like to take the opportunity to remind you that the latest revisions to the Sustainability Dashboard are now posted on our website here. The Sustainability Dashboard empowers local governments, community organizations, residents and media with comprehensive sustainability metrics for each of San Mateo County’s 20 cities and unincorporated areas. These metrics are part of 11 key sustainability areas or dimensions, which touch upon all “3 E’s” of sustainability: environment, economy and social equity. In conjunction with our Sustainability Ideas Bank, which provides solutions to increase sustainability, this is a useful tool for city leaders to track their own sustainability performance over time and equips them with the resources to both get access to and share effective sustainability solutions (policies, ordinances, programs, processes, contracting language and more). The Dashboard is a highly collaborative and evolving project, with a high degree of input from all the cities’ sustainability managers.
Click HERE to use the new interactive sustainability Dashboard tool. ● City funding also supports our outreach, which includes digital newsletters, social media, presentations to groups and elected officials, tabling events and, since April 2020, virtual Happy Hours focusing on a different sustainability topic presented by subject matter experts. Event pictures, blogs and slides are posted on our website.
Videos from past events can be found on our YouTube channel and are shared through our email newsletters and other social media channels.
EVALUATION:
● SSMC Events: This year we have hosted several public events. On February 23, we launched our Sustainability Ideas Bank at the CZI Community Space where we met with over 40 sustainability government officials, city and county team members, nonprofit leaders and volunteers. On April 10, we held SSMC’s 25th Awards Celebration, honoring five San Mateo County sustainability champions and two green building projects. This event included a reception, dinner, live auction, and inspiring stories about local sustainability heroes. On April 30, we hosted the 2nd annual virtual Youth for Climate Policy event. On June 18, we hosted an online Happy Hour event called “E-bikes:
Transforming Our Cities For Good.”
Below are the numbers of the people who attended our recent events:
● Sustainability Ideas Bank Launch: 52 registered and 45 attendees ● 2024 Annual Awards Celebration: approximately 300 attendees ● Youth for Climate Policy event: 65 registered and 40 unique participants ● E-bikes: Transforming Our Cities for Good: 47 city and nonprofit leaders registered, 22 attended
Our 2023 Indicators Report Fall Launch event took place on October 26, 2023. This was SSMC’s 27th Annual Indicators Report launch which revealed some surprising facts about pressures facing families in the county. The event showcased experts, such as County Executive Mike Callagy, discussing the challenges encountered by our youngest residents and their families, and proposing solutions to ensure a better future for them.
Other speakers included Simona Vallone, SSMC’s Indicators Report Program Manager; Heather Cleary, CEO of Peninsula Family Service; Dr. Kismet Baldwin-Santana, the county’s new Health Officer; and Tracy Weatherby, Vice President of Strategy and Advocacy for Second Harvest of Silicon Valley. The event was held at the CZI Community Space in Redwood City. We had 121 registered attendees with about 80 actual attendees.
As a comparison, these numbers are in line with previous numbers and the target we were looking to reach (100 attendees). In 2022, we had 68 attendees with 90 registered. ----
In 2019, we had 110 attendees (we ended up being above full room capacity) and in 2018 we had about 100 attendees. Launches were held virtually for 2020 and 2021.
In addition to our own events, we continue to seek opportunities for mutually beneficial partnerships, as evidenced by our lining up five cosponsors, all like-minded organizations, for our Youth for Climate Policy event and for tabling at community events. We are happy to be part of our cities’ and towns’ green festivals and events when time and resources permit and encourage Colma to let us know if and when our presence might be requested.
Please note that we do not currently collect address information from event attendees and so are not able to gauge the participation from any one jurisdiction, though we continuously look for ways to widely promote these events, notably by campaigns via social media (Facebook, Nextdoor, Instagram, etc.), both paid and unpaid, and press releases and advertisements in the online press (The Patch and the Daily Journal), as well as cross-advertising with other nonprofits with a similar mission, and many cities publish our announcements in their newsletters. We regularly perform post-event evaluations to gauge how well the speakers and information presented were received, as well as whether actionable insights were gained and suggestions for future events.
Our staff reviews the responses to continuously improve the report and events. ● Website and Online Communications: In addition to posting our Indicators Reports on our website, we share them through our email newsletters and social media channels. We have over 3,100 email subscribers representing over 2,600 households on our mailing list and close to 900 Instagram followers; the majority of these are individuals who live and/or work in San Mateo County. In addition, we consistently post on our Facebook, Instagram and LinkedIn accounts and are making a deliberate effort to further develop SSMC’s social media presence. Our social media followers have continued to grow over the last year and we continuously keep up our efforts to reach younger audiences.
● Printed Summaries: Executive summary reports of the Indicators Report were extensively distributed electronically to all our local governments, including Colma, as well as links to the full report listed on our website. Our social media outreach was very robust and we also distributed our links to our key partners (Thrive, Acterra, the Citizens Environmental Council, Chambers of Commerce, etc.). Contacts at several cities have informed us that their staff eagerly review the materials, and many report recipients have remarked on the quality of the content and design.
● Presentations and Community Outreach: SSMC’s Indicators Report is also featured in all of our community outreach and public presentations. For 2023, in addition to the full report, the executive summary report was created as a vehicle to communicate key findings rapidly and easily. All of these documents are available to all for free on our website. We offer presentations to community groups upon request and we describe all our key programs, including the Indicators Report, while speaking at City Council meetings on matters related to sustainability.
We also have been historically sharing Indicators Report summaries and information at events such as our annual Awards Dinners, at community fairs (such as Earth Day events and sustainability job fairs at local colleges and universities) and sustainability events with partner organizations. Additionally, SSMC regularly participates in several collaborative efforts which help inform our Indicators work, including, but not limited to the Fossil Free Buildings in Silicon Valley campaign (led by local nonprofit Menlo Spark) and C/CAG’s Resource Management and Climate Protection Committee (RMCP).
FUNDING:
Colma’s $1,000 contribution to the Indicators Program in FY 2023-24 represented less than 2 percent of our program funds for the Indicators Report, and less than 1/2 percent of the total revenue for the organization. Please note that the direct program costs include only the direct expenses of program staffing and event costs. Indirect costs such as technology (website and computers) and supplies, outreach and the Executive Director (whose Indicators program support responsibilities represent about 30 percent of her time), are listed as direct operating expenses. Program revenues raised that exceed the direct program costs support general operating expenses, as do donations and sponsorship contributions from businesses and individuals, and the proceeds from various fundraisers, including our annual auction.
Compared to our other city contributors, Colma’s FY 2023-24 $1,000 contribution is situated in the lower range (11 cities and the County of San Mateo contributed at higher levels, five at the $1,000 level). Currently, all but three cities/towns in San Mateo County fund the Indicators Report Program.
Program Budget FY 2023-24
Revenue FY 2023-24
Local governments $56,734
Foundations & Corporations / Event
Sponsors *
$1,765
Individuals * $0
Total $58,499
Direct Expenses FY 2023-24 (effective)
Program Staff $30,000
ED oversight: ** $30,000
Website Content and Upgrade $3,000
PR material for event $1,100
Event (Venue rental, food & drink) $350
Total $64,450
Indirect Expenses *** $15,000
*The 2023 Indicators Report was introduced at a Live Event in October 2023. **Executive Director’s direct program’s oversight (approx. 30% of time) includes:
research/content to IR; report editing; event organization; staff management; report distribution & promotion.
***Indirect Expenses cover Administrative Assistant’s time, insurance, payroll processing, general office material and outreach.
We would like to take the opportunity to express our appreciation to the Town of Colma for its steady support of our programs over the past few years. We deeply appreciate Colma’s ongoing and long-time support, which allows us to work toward fulfilling our vision of a sustainable future for everyone in San Mateo County. We rely upon your support to allow us to broaden and deepen our programs and give sustainability the voice and attention it truly deserves. As we all continue to experience firsthand the increased negative impacts of climate change, it’s important that we act now. We respectfully ask that for FY 2024-25, the Town of Colma consider supporting us at the full amount requested, $3,000. This is the minimum amount that SSMC needs to cover the cost of providing our annual Indicators Report and ongoing policy updates to Colma.
We look forward to your renewed, important support for the next fiscal year and to partnering with Colma on future events.
Thank you again.
Sincerely yours,
Sarah Hubbard
Executive Director, Sustainable San Mateo
County
Terry Nagel
Chair, Board of Directors, Sustainable San
Mateo County
From: Roderic Walton
To: City Manager
Subject: Public Comment Submission for 9.11.24 Council Meeting Date: Friday, September 6, 2024 8:01:14 AM
Attachments: image002.png
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image004.png
Hello City Clerk’s Office,
My name is Rod Walton. I am the President of the Board of Directors for Sitike Counseling Center in South City. I have enclosed a public comment of thanks to the city council and the town of Colma for their generous grant to the agency to be shared at next week’s council meeting. Thank you for your time in this matter.
Dear Colma City Council,
On behalf of Sitike Counseling Center, I would like to express our deepest gratitude for your continued and generous support as we work to provide critical resources for our neighbors facing the difficult challenges of mental health and addiction. Your unwavering commitment to the well-being of our community has allowed us to expand our services, strengthen our outreach, and offer life-changing programs to those who need it most. From providing counseling and therapy to delivering educational and preventative services, the impact we are making in preserving and improving lives would not be possible without the steadfast backing of the town of Colma.
Your support is not only an investment in the health and recovery of individuals but also in the overall strength and resilience of our community. We are truly grateful for your belief in our mission and your dedication to ensuring that everyone has access to the help and hope they deserve. As we continue to grow and adapt to meet the increasing needs of the community, we look forward to maintaining this strong partnership, knowing that together, we are making a lasting difference.
Sincerely,
Rod Walton
President, Board of Directors
Sitike Counseling Center
Roderic Walton
Director of Outreach and Learning Center
PUBLIC COMMENT
RECEIVED PRIOR TO
AGENDA PUBLISHING
P: 206.763.1167 Ext. 1123 | W: www.hamlinrobinson.org
1701 20th Avenue S. Seattle, WA 98144
Hamlin
Robinson
School
oeo
Staff Report Solar Power Purchase Agreement Page 1 of 5
STAFF REPORT
TO: Mayor
and Members of the City Council
FROM: Farhad Mortazavi, City Planner
Kathleen Gallagher, Sustainability Manager
VIA: Dan Barros, City Manager
MEETING DATE: September 11, 2024
SUBJECT: Solar Power Purchase Agreement for Town Hall
RECOMMENDATION
Staff recommends that the City Council:
1, Select either Option A or B below for the solar array system:
A. The 50-kilowatt (kW) option which is rooftop only
B. The 69-kilowatt (kW) option which is rooftop and a small carport on the far west side of the parking lot (Staff’s Recommendation)
2. Adopt the following:
RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE
SOLAR POWER PURCHASE AGREEMENT (PPA) FOR THE SELECTED SOLAR ARRAY AT TOWN HALL PURSUANT TO CEQA GUIDELINES 15301 AND 15303
COUNCIL ADOPTED VALUES
The adoption of the Resolution is consistent with the Council value of vision and responsibility because it enables the Town to reduce greenhouse gas emissions, generate clean, local renewable energy, meet one of the Town’s Climate Action Plan 2030 programs and save over $400,000 over the PPA term.
BACKGROUND
On April 24, 2024, City Council heard a presentation regarding solar installations at Town Hall and the Police Department which detailed cost savings, the power purchase agreement (PPA) for both projects, and suggestions for minimizing solar array visual impact at Town Hall. City Council approved the PPA for the Police Department and directed staff to further reduce the solar system size and visual impact for solar at Town Hall. Staff collaborated with Peninsula Clean Energy (PCE) and their engineer McMillan Electric Company to meet the direction provided by City Council to reduce visibility of solar arrays and selected two effective alternatives which eliminate all solar carports in front of Town Hall. Both alternatives meet the ITEM 4
Staff Report Solar Power Purchase Agreement Page 2 of 5 objectives of providing clean, local renewable energy, saving the Town over $400,000 with no upfront costs, meeting one of the Town’s Climate Action Plan 2030 programs. Staff will be presenting both alternatives for City Council and providing a recommendation.
ANALYSIS
Staff, PCE and McMillan discussed solar array alternatives to meet City Council direction as well as researched Town Hall energy usage to isolate Town Hall energy usage, excluding EV Go to be offset by solar. This analysis was completed with the intent that EV Go energy usage would eventually be removed from Town Hall’s meter and allowed smaller solar array alternatives.
Staff focused on alternatives that eliminated the need for solar carports in front of Town Hall in response to City Council’s direction and focused on two alternatives where the smaller solar array alternative does not include a solar carport and uses rooftop solar only, the second alternative includes a combination of a small carport on the far west side of the parking lot and rooftop solar. As discussed in previous council meetings, electricity to meet facility electrical loads is purchased in units of kilowatt-hours (kWh). The Town receives a PPA rate “at cost” by PCE to cover equipment, installation, maintenance, and administration cost, and this PPA rate is fixed for the 20-year term with no annual escalation rate. The Town currently pays a higher energy rate than the PPA rate which results in associated cost savings for the Town. Cost savings are expected to increase over time due to the avoided price increases in PG&E utility costs which are expected to rise 5% or more per year according to PG&E proposals submitted to the California Public Utilities Commission. The 50kW system size offsets building energy usage by 45% and the 69kW system size offsets building energy usage by 65% per building energy data. The following table provides a comparison of the two alternatives.
Solar array
system size
Solar PPA
rate
Current Town
Energy rate
Town Cost Savings
PPA term
Array details
50kW 0.234/kWh 0.40/kWh $418,000 No carport, rooftop
only
69kW 0.245/kWh 0.40kWh $415,000 In far west parking
lot, small carport,
rooftop
The following provides a visual of the two solar alternatives: 50 kW is rooftop only, 69kW is rooftop and a small carport on the far west side of the parking lot
Staff Report Solar Power Purchase Agreement Page 3 of 5 Rendering of rooftop solar on Town Hall as seen from El Camino Real (applicable to both 50 kW and 69kW system sizes)
Rendering of rooftop solar and carport with the 69kW alternative
Staff Report Solar Power Purchase Agreement Page 4 of 5 Renderings of rooftop solar and carport with the 69kW alternative
REASON FOR RECOMMENDED ACTION
Staff recommends the City Council approve and authorize the City Manager to execute the solar power purchase agreement (PPA) for the selected solar array, and staff further recommends that the larger (69kW) array be the selected alternative to enable the Town to maximize the value of solar, save an estimated $415,000, and meet one of the Town’s Climate Action Plan program objectives to generate clean, local, greenhouse gas free electricity. Additional reasons for this recommendation include the Town reducing the need for staff resources to manage a solar procurement process, design the solar array system, complete solar installation, operation, and system maintenance and allow the Town to benefit from the significant economies of scale and competitive pricing through PCE’s regional solar procurement program.
Staff Report Solar Power Purchase Agreement Page 5 of 5
SUSTAINABILITY IMPACT
Resolution adoption will improve the Town’s sustainability by generating clean, local renewable energy at Town Hall and assist the Town in meeting one of the Climate Action Plan 2030 programs to reduce greenhouse gas emissions.
FISCAL IMPACT
Cost savings of over $400,000 over the 20-year PPA term. Estimated $10,000 for solar installation construction management oversight, inspection, and administration.
ENVIRONMENTAL
The City Council’s action in authorizing the PPA is exempt from environmental review pursuant to the California Environmental Quality Act (CEQA) Guidelines 15301 and 15303. With regard to 15301, the addition of solar panels and solar carports would be considered a minor alteration of an existing public facility involving negligible or no expansion of use as the panels and carport would be installed at existing government buildings in Town and it would not change the use of the building. With regard to 15303, the addition of solar panels and carports would also be considered exempt as the installation of small structures are exempt under that guideline.
ALTERNATIVES
Alternatives could include that City Council approve and authorize the City Manager to execute the solar power purchase agreement (PPA) for the smaller (50kW) solar array but staff is not recommending this option because it would result is offsetting less building energy usage, which is 45% building energy offset instead of 65% building energy offset by the recommended 69kW array, and reduce the value and benefit of solar to the Town by generating less clean, local, greenhouse gas free electricity.
CONCLUSION
In conclusion, staff recommends City Council approve and authorize the City Manager to execute the solar power purchase agreement (PPA) for the 69kW array to enable the Town to maximize the value of solar, save an estimated $415,000, and meet one of the Town’s Climate Action Plan program objectives to generate clean, local, greenhouse gas free electricity.
ATTACHMENTS
A. Resolution
B. Power Purchase Agreement for 69kW solar array
C. Power Purchase Agreement for 50kW solar array
Res 2024-__, Solar Power Purchase Agreement Town Hall Page 1 of 2 RESOLUTION 2024-__
OF THE CITY COUNCIL OF THE TOWN OF COLMA
RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A
SOLAR POWER PURCHASE AGREEMENT (PPA) FOR THE SELECTED SOLAR ARRAY AT TOWN HALL PURSUANT TO CEQA GUIDELINES 15301 AND 15303
1. Background.
(a) The Town of Colma has demonstrated its commitment to a sustainable and resilient future through adoption of its Climate Action Plan 2030 and original Climate Action Plan in 2013 and has implemented some energy efficiency, renewable energy, and water conservation programs. The Town needs to continue implementation of sustainable programs that include adding solar installations to generate renewable energy to meet aggressive greenhouse gas reductions targets in the Town’s Climate Action Plan 2030. (b) The Town has worked collaboratively with Peninsula Clean Energy (PCE) by participating in regional programs that assist the Town in meeting greenhouse gas reduction targets. (c) The Town has participated in the previous solar collaborative procurement process for solar installation at the Colma Community Center and Police Department to generate renewable energy and implement one of its CAP 2030 programs to increase local renewable generation and reduce energy costs.
(d) A Community Choice Aggregation program such as Peninsula Clean Energy (PCE) is a mechanism by which local governments assume responsibility for providing electrical power for residential and commercial customers in their jurisdiction in partnership with local commercial energy purveyors and owners of transmission and distribution facilities, which in the case of San Mateo County is Pacific Gas & Electric Co.
(e) The Town heard a presentation on April 24, 2024, and requested staff return with alternatives for a smaller and reduced solar array at Town Hall at a subsequent meeting. (f) The Town reviewed the solar array alternatives and details, the Power Purchase Agreement (PPA) for solar installation at the Town Hall and will participate in the program because of the benefits of cost savings, meeting one of its CAP 2030 programs to generate local renewable energy, and to provide the Town protection against rising energy rates.
2. Order
(a) The City Council hereby approves and authorizes the City Manager to execute the Solar Power Purchase Agreement for the Town Hall.
Certification of Adoption
I certify that the foregoing Resolution No. 2024-__ was duly adopted at a regular meeting of said City Council held on September 11, 2024, by the following vote:
Name Voting Present, Not Voting Absent
Aye No Abstain No t Participating
ATTACHMENT A
I I
Res 2024-__, Solar Power Purchase Agreement Town Hall Page 2 of 2 John Irish Goodwin, Mayor
Ken Gonzalez, Vice Mayor
Helen Fisicaro, Councilmember
Joanne F. del Rosario,
Councilmember
Carrie Slaughter,
Councilmember
Voting Tally
Dated ______________________ ___________________________________ John Irish Goodwin, Mayor
Attest: ____________________________
Michelle Estabillo, City Clerk
Solar Power Purchase Agreement
This Solar Power Purchase Agreement (this “Agreement”) is entered into by the parties listed below (each a “ Party” and collectively the “Parties”) as of _______________________, 2024 (the “Effective Date”).
Purchaser: Seller:
Name
and
Address
Town of Colma
1198 El Camino Real
Colma, CA 94014
Attention: Daniel Barros, City Manager
Name
and
Address
Peninsula Clean Energy Authority
2075 Woodside Rd.
Redwood City, CA 94061
Attention: Rafael Reyes, Director
of Programs
Phone (650) 997-8300 Phone (650) 260-0087
E-mail [email protected] E-mail [email protected] Premises
Ownership Purchaser owns the Premises.
Tax Status System Owner
Project Name Colma Town Hall
This Agr
eement sets forth the terms and conditions of the purchase and sale of solar generated electricity from the solar panel system described in Exhibit 2 (the “System”) and installed on the real property comprising Purchaser’s premises described or depicted in Schedule A to Exhibit 2 (the “Premises”), including any buildings and other improvements on the Premises other than the System (the “Improvements”).
The System shall initially be owned by Seller. “System Owner” means Seller or a subsequent owner of the System in the event that Seller transfers title to the System.
The exhibits listed below are incorporated by reference and made part of this Agreement.
Exhibit
1 Pricing
Exhibit 2 System Description, Delivery Point and Premises Exhibit 3 General Terms and Conditions
Exhibit 4 Performance Guaranty
Purchaser: Town of Colma Seller: Peninsula Clean Energy Authority Signature: Signature:
Printed Name: Printed Name: Shawn Marshall
Title: Title: Chief Executive Officer
Date: Date:
ATTACHMENT B
Exh. 1, p. 1
Exhibit 1
Pricing
1. Initial Term: Twenty (20) years, beginning on the date that Commercial Operation is achieved (such date, the “ Commercial Operation Date” and such term, the “Initial Term”). “Commercial Operation” means that the System is mechanically complete, commences regular, daily operation, complies with all applicable law, has undergone successful system testing, is providing electricity to the Delivery Point at the System Size specified in Exhibit 2 and has obtained all necessary Approvals (as defined in Section 5(b) of Exhibit 3), including permission to operate from the Utility and Seller.
2. Additional Terms: Upon mutual written agreement, the Parties may extend the Initial Term for up to two (2) additional terms of up to five (5) years each beginning on the expiration of the Initial Term or on the expiration of the first Additional Term, as applicable (each, an “Additional Term”).
3. Contract Price: $0.274 per kilowatt-hour (“kWh”) AC at the Delivery Point specified in Exhibit 2.
4. Contract Price Assumptions. The Contract Price is based on the following assumptions:
a. Statutory prevailing wage rates (e.g., Davis-Bacon) do apply.
b. A Performance Guaranty is being provided.
5. Contract Price Exclusions. Unless Seller and Purchaser have agreed otherwise in writing, and except as otherwise provided in Section 2(c) of Exhibit 3, the Contract Price excludes the following:
a. Groundwork (including excavation and circumvention of underground obstacles) that is unforeseen despite reasonable efforts to assess existing site conditions. Upgrades or repair to Purchaser or Utility electrical infrastructure (including Purchaser or Utility service, transformers, substations, poles, breakers, reclosers, and disconnects). “Utility” means the electric distribution utility serving Purchaser.
b. Tree removal, tree trimming, mowing and any landscape improvements.
c. Decorative fencing and/or any visual screening materials, decorative enhancements to solar support structures (including painting, paint matching, masonry/stone work, and any lighting not required to meet the minimum code compliance).
d. Removal of existing lighting, light poles, or concrete light post bases.
e. Roof membrane maintenance or reroofing work.
f. Structural upgrades to the Improvements, including Americans with Disabilities Act (“ADA”) upgrades.
g. Installation of public information screen or kiosk (including accompanying Internet connection, power supply, technical support and ADA access).
h. Changes in System design caused by any inaccuracy in information provided by Purchaser, including information regarding Purchaser’s energy use, the Premises and the Improvements, including building plans and specifications.
If such excluded costs will result in an increase to the Contract Price, Seller shall deliver notice to Purchaser of such increase to the Contract Price not less than sixty (60) days prior to commencement of the installation of the System (“ Commencement of Installation” and such notice, the “ Excluded Costs Notice”). If excluded costs will result in an increase to the Contract Price such that the revised Contract Price would increase by no more than five percent (5%), Purchaser shall be responsible for such increased Contract Price and the Contract Price shall be amended to reflect the new Contract Price included in the Excluded Costs Notice. If such excluded costs will result in an increase to the Contract Price, such that the revised Contract Price would increase by more than five percent (5%), Purchaser shall have a right to terminate this Agreement without penalty by providing notice of such termination within thirty (30) days of delivery of the Excluded Costs Notice.
Exh. 1, p. 2
6. Termination Payment Schedule:
Contract Year Termination Payment
($)
1 $392,651
2 $376,368
3 $360,122
4 $343,915
5 $327,748
6 $311,622
7 $295,539
8 $279,499
9 $263,504
10 $247,556
11 $231,655
12 $215,804
13 $200,003
14 $184,254
15 $168,559
16 $152,919
17 $137,337
18 $121,813
19 $106,349
20 $90,948
“Contract Year” means the year commencing on the Commercial Operation Date and each subsequent year commencing on the anniversary of the Commercial Operation Date.
Exhibit 2
System Description, Delivery Point and Premises
1. System Location: 1198 El Camino Real, Colma, CA 94014
2. System Size (DC kW): 69.4 (AC kW): 50.0
3. System Description (Expected Structure, etc.): Roof-Mount and Carport
4. Delivery Point and Premises: Schedule A to this Exhibit 2 contains one or more drawings or images depicting:
a. Premises, including the Improvements (as applicable);
b. Proposed System location at the Premises;
c. Delivery point for electricity generated by the System (the “Delivery Point”);
d. Access points needed for Seller to cause the System to be installed and serviced (building access, electrical room, stairs, etc.); and
e. Construction assumptions (if any).
Schedule A
1. Physical building address: 1198 El Camino Real, Colma, CA 94014
2. Number of Stories: 1 story with a basement
3. Total Square Footage: 14,000
4. Year Built: Original building 1941; an addition was constructed and completed in 2018
5. Year of any mechanical/electrical updates: No updates
6. Type of Construction, (example; wood frame, masonry, steel): Wood, Steel and concrete
7. Description/ Type of roof structure/system: Terra cotta tile
8. Confirm whether the building is sprinklered: Yes
9. Describe any additional security measures, (example: video surveillance, etc.): Burglar alarm, video surveillance, and access control
A Site Plan and Single Line Diagram are attached at the end of this Schedule A labeled “Attachment 1 to Schedule A of Exhibit 2”.
Attachment 1 to Schedule A of Exhibit 2
[attachment follows]
Exhibit 3
General Terms and Conditions
Exhibit 3 Table of Contents
1. PURCHASE AND SALE OF ELECTRICITY .................................................................................................................. 1
2. TERM AND TERMINATION ............................................................................................................................................ 1
3. BILLING AND PAYMENT; TAXES ................................................................................................................................. 1
4. RECS AND INCENTIVES .................................................................................................................................................. 2
5. PROJECT COMPLETION ................................................................................................................................................. 3
6. INSTALLATION, OPERATION AND MAINTENANCE ............................................................................................... 4
7. MISCELLANEOUS RIGHTS AND OBLIGATIONS OF THE PARTIES .................................................................... 5
8. RELOCATION OF SYSTEM ............................................................................................................................................. 6
9. REMOVAL OF SYSTEM UPON TERMINATION OR EXPIRATION ........................................................................ 6
10. MEASUREMENT ................................................................................................................................................................ 7
11. DEFAULT, REMEDIES AND DAMAGES ....................................................................................................................... 7
12. REPRESENTATIONS AND WARRANTIES ................................................................................................................. 10
13. INSURANCE ...................................................................................................................................................................... 11
14. OWNERSHIP; OPTION TO PURCHASE ...................................................................................................................... 11
15. INDEMNIFICATION AND LIMITATIONS OF LIABILITY ...................................................................................... 12
16. CHANGE IN LAW ............................................................................................................................................................. 14
17. ASSIGNMENT AND FINANCING .................................................................................................................................. 14
18. CONFIDENTIALITY ........................................................................................................................................................ 15
19. GENERAL PROVISIONS ................................................................................................................................................. 16
Exh. 3, p. 1
Exhibit 3
General Terms and Conditions
1. Purchase and Sale of Electricity. Subject to the terms and conditions of this Agreement, Purchaser shall purchase from Seller, and Seller shall sell to Purchaser, all of the electricity generated by the System during the Term (as defined in Section 2(a)).
Electricity generated by the System shall be delivered to Purchaser at the Delivery Point. Title to and risk of loss for the electricity generated by the System passes to Purchaser from Seller at the Delivery Point. Seller warrants that it will deliver the electricity to Purchaser at the Delivery Point free and clear of all liens, security interests, claims, and other encumbrances.
2. Term and Termination.
a. Effective Date; Term. This Agreement is effective as of the Effective Date. The electricity supply period under this Agreement commences on the Commercial Operation Date (as defined in Section 1 of Exhibit 1) and continues for the duration of the Initial Term and any Additional Terms, unless earlier terminated as provided for in this Agreement (collectively, the “Term”).
b. Additional Terms. The Parties may agree in writing to extend this Agreement for up to two (2) Additional Terms at a Contract Price to be negotiated by the Parties prior to the expiration of the Initial Term or the first Additional Term, as applicable.
c. Termination Due to Contract Price Adjustments or Lack of Project Viability . If, at any time after the Effective Date and prior to Commencement of Installation, (i) Purchaser terminates this Agreement pursuant to Section 5 of Exhibit 1, or (ii) Seller determines that the installation of the System will not be viable for any reason, then either Party may terminate this Agreement by providing ten (10) days’ prior written notice to the other Party. Neither Party shall be liable for any damages in connection with such termination. After Commencement of Installation, the Contract Price shall not be subject to further adjustment pursuant to Section 5 of Exhibit 1 or otherwise.
d. Termination by Purchaser for Delay. If Commencement of Installation has not occurred within three hundred and sixty-five (365) days after the Effective Date, Purchaser may terminate this Agreement by providing thirty (30) days’ prior written notice to Seller; provided that this Agreement will not terminate pursuant to this Section 2(d) if Seller causes to be achieved Commencement of Installation on or before the end of such thirty (30) day notice period or if Commencement of Installation is delayed due to a Force Majeure Event. Purchaser shall not be liable for any damages in connection with such termination. For the avoidance of doubt, such event shall not be deemed a Default Event by Seller and Purchaser’s only remedy shall be the reimbursement by Seller of direct costs reasonably incurred by Purchaser by reason of the termination.
3. Billing and Payment; Taxes.
a. Monthly Charges. Purchaser shall pay Seller monthly for the electricity generated by the System and delivered to the Delivery Point at the $/kWh rate shown in Exhibit 1 as adjusted by Section 5 of Exhibit 1, if applicable (the “Contract Price”). The monthly payment for such energy will be equal to the applicable $/kWh rate multiplied by the number of kWh of electricity generated during the applicable month, as measured by the Meter (as defined in Section 10).
Additional costs for items differing from the assumptions in Exhibit 1, Section 4 are Purchaser’s responsibility.
b. Monthly Invoices. Seller shall invoice Purchaser monthly for amounts owed by Purchaser hereunder. Such monthly invoices shall state (i) the amount of electricity produced by the System and delivered to the Delivery Point, (ii) the rates applicable to, and charges incurred by, Purchaser under this Agreement, and (iii) the total amount due from Purchaser.
c. Payment Terms. All amounts due under this Agreement are due and payable within thirty (30) days following receipt of invoice. Any undisputed portion of the invoice amount not paid within such thirty (30) day period shall accrue interest at the annual rate of two and one-half percent (2.5%) above the Prime Rate (but not to exceed the maximum rate permitted by law). All payments shall be made in U.S. dollars. “Prime Rate” shall mean the annual prime rate of interest published in the Wall Street Journal for the applicable period during which interest is incurred pursuant to the terms of the Agreement.
Exh. 3, p. 2
d. Taxes.
i. Purchaser’s Taxes. Purchaser is responsible for: ( A) payment of, or reimbursement of Seller for , all taxes assessed on the generation, sale, delivery or consumption of electricity produced by the System or the interconnection of the System to the Utility’s electricity distribution system; (B) real property taxes; and (C) any sales or use taxes as a result of exercising the options to purchase the System in Section 14(b).
ii. Seller’s Taxes. Seller is responsible for: ( A) payment of income taxes or similar taxes imposed on Seller’s revenues due to the sale of electricity under this Agreement; and ( B) personal property taxes imposed on the System (“Seller’s Taxes”).
e. Budgeting for Contract Price. Upon execution of this Agreement and prior to the commencement of each subsequent budgetary cycle of Purchaser during the Initial Term (and Additional Term, if any), Purchaser shall take all necessary action to obtain all necessary budgetary approvals and certifications for payment of all of its obligations under this Agreement for such budgetary cycle, including, but not limited to including the maximum amount of its annual payment obligations under this Agreement in its budget submitted to Purchaser’s City Council for each year of that budget cycle.
4. RECs and Incentives.
a. Definitions.
“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority having jurisdiction or effective control over a Party.
“Incentives” means (i) a payment paid by a utility or state or local Governmental Authority based in whole or in part on the cost or size of the System such as a rebate, (ii) a performance -based incentive paid as a stream of periodic payments by a utility, state or G overnmental Authority based on the production of the System, (iii) investment tax credits, production tax credits, and similar tax credits, grants or other tax benefits under federal, state or local law, including, but not limited to, the election to receive a payment with respect to investment tax credits or production tax credits pursuant to Code Section 6417, and (iv) any other attributes, commodity, revenue stream or payment in connection with the System (such as ancillary or capacity revenue), in each case of (i) through (iv) relating to the construction, ownership, use or production of energy from the System, provided that Incentives shall not include RECs.
“REC” means a renewable energy credit or certificate under any state renewable portfolio, standard or federal renewable energy standard, voluntary renewable energy credit certified by a non-governmental organization, pollution allowance, carbon credit and any similar environmental allowance or credit and green tag or other reporting right under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program, in each case relating to the construction, ownership, use or production of energy from the System, provided that RECs shall not include Incentives.
b. RECs. The Parties hereby agree that Seller is entitled to the benefit of, and will retain all ownership interests in , the RECs. Seller shall not sell, assign or otherwise transfer the RECs to a third party. If necessary, Purchaser shall cooperate with Seller in obtaining, securing and transferring any and all RECs. Purchaser is not obligated to incur any out -of- pocket costs or expenses in connection with such actions unless reimbursed by Seller. Purchaser shall not make any filing or statements inconsistent with Seller’s ownership interests in the RECs, nor shall Purchaser attempt to sell, assign or transfer such RECs. If any RECs are delivered directly to Purchaser, Purchaser shall immediately deliver such items or amounts to Seller.
c. Incentives. The Parties hereby agree that Seller or a subsequent System Owner, if applicable, and not Purchaser, is entitled to the benefit of, and will retain all ownership interests in, the Incentives. If necessary, Purchaser shall cooperate with Seller and any such third -party System Owner in obtaining, securing and transferring any and all Incentives , including cooperating, as requested by Seller, with respect to any challenges as to Seller obtaining any portion or amount of the Incentives. Without limiting the foregoing, Purchaser acknowledges that Seller intends to qualify for the elective payment incentive (the “Elective Pay Incentive ”) and make the elective payment election in Section 6417 of the Internal Revenue Code of 1986, as amended (the “ Code”) with respect to the federal income tax credits (the “Applicable Credits”) under either Code Sections 45 or 48. Purchaser agrees to cooperate with Seller to the extent requested by Seller, so that Seller can (i) qualify for the Applicable Credits in the context of the Elective Pay Incentive, (ii) make the elective payment election and obtain a payment of applicable proceeds with respect to the Elective Pay Incentive, (iii) avoid a disallowance, recapture, or reduction of the proceeds with respect to the Elective Pay Incentive, Exh. 3, p. 3
and (iv) prevent an excessive payment as set forth in Code Section 6417(d)(6). Purchaser is not obligated to incur any out-of-pocket costs or expenses in connection with such actions unless reimbursed by Seller or any such System Owner.
Purchaser shall not make any filing or statements inconsistent with Seller’s or System Owner’s ownership interests in the Incentives, nor shall Purchaser attempt to sell, assign or transfer such Incentives. If any Incentives are delivered directly to Purchaser, Purchaser shall immediately deliver such items or amounts to Seller.
5. Project Completion
.
a. Project Development. Seller shall use reasonable efforts to pursue or cause to be pursued the development and installation of the System, subject to Section 2(c) and the remaining provisions of this Section 5.
b. Permits and Approvals. Seller shall use reasonable efforts to cause to be obtained the following at its sole cost and expense (each, an “Approval”):
i. any zoning, land use and building permits required for Seller to cause the System to be constructed, installed and operated; and
ii. any agreements and approvals from the Utility necessary in order to interconnect the System to the Utility’s electric distribution system.
Purchaser shall reasonably cooperate with Seller’s reasonable requests to assist Seller in expeditiously obtaining such Approvals, including, without limitation, the execution of documents required to be provided by Purchaser to the Utility. The Parties acknowledge and agree that Purchaser does not have authority or jurisdiction over any other public agency’s ability to grant Approvals or ability to impose limitations that may affect the System, provided, that such acknowledgment and agreement does not apply to joint powers authorities or related agencies over which Purchaser asserts authority.
c. Force Majeure.
i. Force Majeure Event . If either Party is unable to timely perform any of its obligations (other than payment obligations) under this Agreement in whole or in part due to a Force Majeure Event, that Party will be excused from performing such obligations for the duration of the time that such Party remains affected by the Force Majeure Event; provided, that such Party uses reasonable efforts to mitigate the impact of the Force Majeure Event and resumes performance of its affected obligations as soon as reasonably practical. The Party affected by the Force Majeure Event shall notify the other Party as soon as reasonably practical after the affected Party becomes aware that it is or will be affected by a Force Majeure Event. If the Force Majeure Event occurs during the Term and impacts the ability of the System to deliver electricity to the Delivery Point, the Term will be extended day for day for each day delivery is suspended due to the Force Majeure Event , up to a maximum of two (2) years.
ii. Extended Force Majeure. If a Force Majeure Event notified by either Party under paragraph (i) above continues for a consecutive period of three hundred sixty -five (365) days or more, then either Party may elect to terminate this Agreement without either Party having further liability under this Agreement except: (A) liabilities accrued prior to termination, (B) Seller’s obligation to cause the System to be removed as required under Section 9 (but Purchaser shall reimburse Seller for Seller’s removal costs if the Force Majeure Event affects Purchaser and Purchaser elects to terminate the Agreement) and (C) if Purchaser elects to terminate the Agreement in accordance with this Section, Purchaser shall pay Seller a termination payment equal to the amount set forth in Section 6 of Exhibit 1 . Notwithstanding the foregoing, if the Force Majeure Event can be corrected through repair or restoration of the System or other actions by Seller and, prior to expiration of the three hundred sixty -five (365) day period, Seller provides written evidence to Purchaser that it is diligently pursuing such actions, then Purchaser shall not have the right to terminate this Agreement so long as Seller continues to diligently pursue such actions.
iii. Definition of “ Force Majeure Event .” “Force Majeure Event” means any event or circumstance beyond the reasonable control of and without the fault or negligence of Seller or Purchaser, including, without limitation: an act of God; war (declared or undeclared); sabotage; piracy; riot; insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction, tariff or embargo; civil strike, work stoppage, slow- down, or lock-out; explosion; fire; earthquake; tsunami; storm; tornado; blizzard; heatwave; hurricane; flood; lightning; hail; wind; drought; animals; epidemic; pandemic; action or the failure to act by a Governmental Authority or the Utility, including, but not limited to, a moratorium on any activities related to this Agreement or the delay or a lack of a final Approval based on the California Environmental Quality Act (“ CEQA”) or other applicable law, provided that the delay in decision-making is not attributable to the Party claiming a Force Majeure Event and that Exh. 3, p. 4
such Party has exercised its reasonable efforts to cause such Approval to be obtained ; delays in interconnection, provided that the delay in obtaining interconnection is not attributable to the Party claiming a Force Majeure Event or its agents; unavailability of electricity from the Utility grid; and failure or unavailability of equipment, supplies or products outside of Seller’s control or due to a Force Majeure Event. For purposes of the definition of “Force Majeure Event,” a Party shall not be considered a Governmental Authority if such Party is claiming the presence of a Force Majeure Event as an excuse for its failure to timely perform its obligations under this Agreement.
d. Extension of Time. If Seller is delayed in causing the achievement of Commencement of Installation due to a Force Majeure Event, the time for achievement of Commencement of Installation will be automatically extended to account for the impact of the delay.
e. Commercial Operation. Seller shall notify Purchaser in writing at least one week prior to the Commercial Operation Date. Upon Purchaser’s reasonable request, Seller shall provide Purchaser with the “Final Completion Certificate” as executed by the contractor to Seller responsible for installing the System and the “Final Completion Notification” as executed by Seller to evidence that the System is ready to begin Commercial Operation. Purchaser may not turn on, electrify or otherwise operate the System in the absence of prior, written permission from Seller.
6. Installation, Operation and Maintenance.
a. Seller’s General Obligations Regarding the System. Subject to the terms and conditions of this Agreement, Seller shall use reasonable efforts to cause the System to be designed, engineered, installed, commissioned, monitored, operated and maintained, in each case in a good and workmanlike manner and in accordance with applicable law and prudent solar industry practices in the State of California. T he Seller shall ensure that the System compl ies with all applicable law, rules, regulations and local building codes. In furtherance of the foregoing, Seller shall use reasonable efforts to enforce all of its rights under its agreement or agreements with the installer of the System and with the entity engaged to operate and maintain the System; provided , that Seller shall maintain full discretion with respect to any determinations regarding the nature of such enforcement actions and Seller shall not be obligated pursuant to this Agreement to initiate litigation or other legal process.
b. System Design Approval . Seller has provided Purchaser with a copy of the System design, and Purchaser has approved such design. Should any subsequent changes to the System design be made prior to C ommencement of Installation, Purchaser shall be provided with a copy of any such revised System design and any resulting changes to the Contract Price, Section 6 of Exhibit 1, any of the data on Exhibit 2 and/or Table 1.A of Exhibit 4, and Purchaser shall have ten (10) business days after receipt to approve or disapprove the revised design and any such resulting changes in writing, such approval not to be unreasonably withheld. Failure by Purchaser to respond within such ten (10) business day period shall be deemed approval of the revised System design and any such resulting changes . If Purchaser disapproves the revised System design and/or any such resulting changes , Seller may either (i) cause the design to be reverted to the original design approved by Purchaser or (ii) terminate this Agreement and such termination shall be without further liability to Purchaser. If changes to the System design or other changes, including new information regarding Purchaser’s electricity needs or Seller’s selection of equipment for the System, will result in a change to any of the data on Exhibit 2 (including, but not limited to the System Size), the Contract Price, Section 6 of Exhibit 1, any of the data on Exhibit 2 and/or Table 1.A of Exhibit 4, such sections and/or table of this Agreement may be revised if any such changes are approved by both Parties in writing. If changes to the System design are reasonably expected to lower the costs to Seller of engineering, constructing, installing, interconnecting, operating, maintaining, repairing and/or removing the System, Seller may, in its sole discretion, decrease the Contract Price and provide such updated Contract Price to Purchaser in an addendum to this Agreement.
c. System Repair and Maintenance. Seller may cause the suspension of delivery of electricity from the System to the Delivery Point for the purpose of causing the maintenance to and repairs of the System; provided that Seller shall use reasonable efforts to minimize any interruption in service to the Purchaser and shall provide at least thirty (30) business days’ advance notice to Purchaser of any scheduled maintenance and repairs. Emergency maintenance and repairs may be performed in the absence of such notice if necessary to prevent harm to persons or property. Scheduled and unscheduled maintenance and repairs shall be undertaken at Seller’s sole cost and expense, except that Purchaser shall reimburse Seller for the reasonable cost of any repairs or maintenance resulting from damage caused by Purchaser, its agents, employees or contractors.
d. System Outage Allowance. Upon Purchaser’s written request, Seller shall cause the System to be taken off-line for a total of forty-eight (48) daylight hours (as defined by the United States National Weather Service in the area where the System is located) during each Contract Year (each event an “Outage ” and the forty- eight (48) hour period the “Outage Allowance”). The Outage Allowance includes all Outage hours undertaken by Seller for maintenance or Exh. 3, p. 5
repairs for which Purchaser is responsible pursuant to Section 6(c) or requested by Purchaser under this Section 6(d) (other than due to the fault or negligence of Seller). Purchaser’s request shall be delivered at least forty- eight (48) hours in advance. Purchaser is not obligated to accept or pay for electricity that could have been delivered by the System but for an Outage up to the annual Outage Allowance. If the aggregate hours for Outages, including, but not limited to Outages resulting from a tempora ry disconnection or removal pursuant to Section 6(f) , exceed the Outage Allowance in a given Contract Year and Purchaser has opted out of receiving retail electric generation service from Seller, Seller shall reasonably estimate the amount of electricity that would have been delivered to Purchaser during such excess Outages and Purchaser shall pay Seller for such amount in accordance with this Agreement.
e. Maintenance of Premises. Purchaser shall, at its sole cost and expense, maintain the Premises and Improvements in good condition and repair. Purchaser, to the extent within its reasonable control, (i) shall ensure that the Premises remains interconnected to the local Utility grid at all times; and (ii) shall not permit cessation of delivery of electric service to the Premises from the local Utility . Purchaser is fully responsible for, and shall properly maintain in full working order and good repair, the electrical infrastructure on the Purchaser’s side of the Delivery Point, including all of Purchaser’s equipment that utilizes the System’s outputs. Purchaser shall use reasonable efforts to cooperate with Seller to comply with any technical standard of the Utility providing electrical power to the Purchaser.
f. Alteration or Repairs to Premises . Not less than ninety (90) days prior to making any alterations or repairs to the Premises (except for emergency repairs) or any Improvement which may adversely affect the operation and maintenance of the System, Purchaser shall inform Seller in writing and, thereafter, shall use reasonable efforts to conduct such repairs, alterations or Improvements in compliance with any reasonable request made by Seller within ten (10) days after having received such written request to m itigate any adverse effect. If any repair, alteration or Improvement result in a permanent and material adverse economic impact on the System, Purchaser may request relocation of the System under Section 8 hereof. To the extent that temporary disconnection of the System is necessary in order for Purchaser to perform such alterations or repairs, Seller shall cause to be performed such work, and any re- connection of the System, at Purchaser’s cost, subject to Section 6(c), 6(d), and 6(e) . To the extent that temporary removal of the System is necessary in order for Purchaser to perform such alterations or repairs, Seller shall use reasonable efforts to cause to be performed such removal work within one hundred and eighty (180) days of Seller’s determination that such temporary removal is required and any such removal and re -installation work shall be at Purchaser’s cost, subject to Section 6(c), 6(d), and 6(e). Purchaser shall cause to be made any alterations and repairs in a good and workmanlike manner, in compliance with all applicable laws, codes and permits.
7. Miscellaneous Rights and Obligations of the Parties.
a. Access Rights. In consideration of and in order to effectuate the mutual covenants and terms of this Agreement, Purchaser hereby grants to Seller and to Seller’s agents, employees, contractors and subcontractors and the Utility (i) a non-exclusive license running with the Premises (the “Non-Exclusive License”) for access to, on, over, under and across the Premises from the Effective Date until the date that is one hundred and eighty (180) days following the date of expiration or earlier termination of this Agreement (the “ License Term”), for the purposes of performing all of Seller’s obligations and enforcing all of Seller’s rights set forth in this Agreement and otherwise as required by Seller in order to effectuate the purposes of this Agreement, including, but not limited to design, engineering, development, construction, installation, inspection, interconnection, testing, operation, maintenance, repair, replacement and removal of the System and all incidental and related uses connected therewith . In addition to the foregoing, if the System shall be a ground -mounted System to be located within a secure, fenced area on the Premises, Purchaser hereby grants to Seller an exclusive, sub-licensable license running with the Premises (the “Exclusive License”, and together with the Non -Exclusive License, the “Licenses ”) for purposes of the installation, operation, use and maintenance of the System on such exclusively licensed area of the Premises during the License Term. Seller shall provide at least seventy-two (72) hours advance notice to Purchaser of any access required prior to the Commercial Operation Date; after the Commercial Operation Date notice shall be provided subject to Section 6(c) . Seller shall use reasonable efforts to ensure that when on the Premises during the License Term, it and its employees, agents, contractors and subcontractors comply with Purchaser’s site saf ety and security requirements , which are to be provided to Seller in writing within sixty (60) days of the Effective Date . During the License Term, Purchaser shall preserve and protect Seller’s rights under the Licenses and Seller’s access to the Premises and shall not interfere, or permit any third parties under Purchaser’s control to interfere , with such rights or access. Seller may record a customary memorandum of license in the land records respecting the Licenses.
b. OSHA Compliance. Each Party shall comply with all Occupational Safety and Health Act (“OSHA”) requirements and other similar applicable safety laws and codes with respect to such Party’s performance under this Agreement.
c. Safeguarding the Premises. Purchaser shall maintain the physical security of the Premises and Improvements in a Exh. 3, p. 6
manner to be expected of a reasonable and prudent owner of premises and improvements similar to the Premises and Improvements in nature and location. Purchaser shall not conduct or permit activities on, in or about the Premises or the Improvements that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the System. Purchaser shall indemnify Seller for any loss or damage to the System to the extent caused by or arising out of (i) Purchaser’s breach of its obligations under this Section or (ii) the acts or omissions of Purchaser or its employees, agents, invitees or separate contractors. Without limiting the foregoing, Seller shall arrange for security of the System, equipment and tools during the construction of the System and Purchaser shall cooperate with Seller and its contractor with respect to such security measures. The obligations set forth in this Section 7(c) shall survive until the date that is one hundred and eighty (180) days following the date of expiration or earlier termination of this Agreement.
d. Insolation. Purchaser acknowledges that unobstructed access to sunlight (“ Insolation”) is essential to Seller’s performance of its obligations and a material term of this Agreement. Purchaser shall not, to the extent within its reasonable control, cause or permit any interference with the System’s Insolation, and shall ensure that vegetation on the Premises adjacent to the System is regularly pruned or otherwise maintained to prevent interference with the System’s Insolation. If either Party discovers any activity or condition that could diminish the Insolation of the System, such Party shall immediately notify the other Party and Purchaser shall cooperate with Seller in preserving and restoring the System’s Insolation levels as they existed on the Effective Date.
e. Use and Payment of Contractors and Subcontractors. Seller shall use and shall cause to be used suitably qualified, experienced and licensed contractors and subcontractors to perform its obligations under this Agreement. However, Seller shall be responsible for the quality of the work performed by such contractors and subcontractors. Seller shall pay or shall cause to be paid when due all valid charges from all contractors, subcontractors and suppliers supplying goods or services to Seller under this Agreement.
f. Liens.
i. Lien Obligations. Purchaser shall not directly or indirectly cause, create, incur, assume or allow to exist any mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any nature, except such encumbrances as may be required to allow Seller access to the Premises (each a “Lien ”) on or with respect to the System. Seller shall not directly or indirectly cause, create, incur, assume or allow to exist any Lien on or with respect to the Premises or the Improvements, other than those Liens which Seller is permitted by law to place on the Premises due to non-payment by Purchaser of amounts due under this Agreement. Each Party shall immediately notify the other Party in writing of the existence of any such Lien following such Party’s discovery of same, and shall promptly (and in all events within thirty (30) days) cause the same to be discharged and released of record without cost to the other Party; provided, however, that each indemnifying Party has the right to contest any such Lien, so long as it provides a statutory bond or other reasonable assurances of payment that either removes such Lien from title to the affected property, or that assures that any adverse judgment with respect to such Lien shall be paid without affecting title to such property.
ii. Lien Indemnity . Each Party shall indemnify the other Party from and against all claims, losses, damages, liabilities and expenses resulting from any Liens filed against such other Party’s property as a result of the indemnifying Party’s breach of its obligations under Section 7(f)(i).
8. Relocation of System. If, during the Term, Purchaser ceases to conduct operations at the Premises or vacates the Premises, the Premises have been destroyed, or the Purchaser is otherwise unable to continue to host the System or accept the electricity delivered by the System for any other reason (other than a Default Event by Seller), Purchaser shall propose in writing the relocation of the System, at Purchaser’s cost. Such proposal shall be practically feasible and preserve the economic value of this Agreement for Seller. The Parties shall seek to negotiate in good faith an agreement for the relocation of the System. Pending agreement on relocation of the System, Purchaser shall continue to make payments to Seller pursuant to Section 11(b)(i)(C).
9. Removal of System upon Termination or Expiration. Upon the expiration or earlier termination of this Agreement (provided Purchaser does not purchase the System pursuant to the terms and conditions of Section 14(b)), Seller shall, at its expense (unless expressly provided otherwise in this Agreement), cause to be removed all of the tangible property comprising the System from the Premises with a targeted completion date that is no later than one hundred and eighty (180) days after the expiration of the Term. The portion of the Premises where the System is located shall be returned to substantially its original condition as is reasonably possible, except for ordinary wear and tear, including the removal of System mounting pads or other support structures, and repair and restoration of the roof and the roof membrane. Seller is required to cause to be repaired any and all damage to the Premises caused by removal of the System. Notwithstanding the foregoing, Seller shall not be obligated to remove or cause to be removed any support structures for the System which are affixed to and below the exposed surface of Purchaser’s Exh. 3, p. 7
structures or any below grade structures, including foundations and conduits, or any roads. If the System is installed on the roof of an Improvement, Seller’s warranties under Section 12(c)(i) shall apply, as applicable. Purchaser must provide sufficient access, space and cooperation as reasonably necessary to facilitate System removal. Purchaser shall comply with Section 7(c) and Section 13 until removal is complete. If Seller fails to cause the removal of the System within one hundred and eighty (180) days after expiration of the Term, Purchaser may, at its option, remove the System to a public warehouse and restore the Premises to its original condition (other than ordinary wear and tear) at Seller’s cost, provided that if Seller pays Purchaser for such costs, Seller shall not be liable to Purchaser for a Default Event by Seller.
10. Measurement.
a. Meter. The System’s electricity output during the Term shall be measured by Seller’s meter, which shall be a revenue grade meter that meets ANSI-C12.20 standards for accuracy (the “Meter”). Purchaser shall have access to the metered energy output data via the monitoring system caused to be installed and maintained by Seller as part of the System.
b. Meter Calibration. Seller shall cause the Meter to be calibrated in accordance with manufacturer’s recommendations.
Notwithstanding the foregoing, Purchaser may install, or cause to be installed, its own revenue -grade meter at the same location as the Meter. If there is a discrepancy between the data from Purchaser’s meter and the data from the Meter of greater than two percent (2%) over the course of a Contract Year, then Purchaser may request that Seller calibrate the Meter at Seller’s cost.
c. Internet Connection. At all times during the Term, Purchaser shall maintain and make available, at Purchaser’s cost:
i. A hard-wired ethernet port for connection to System equipment located within fifty (50) physical feet of the electrical room of the Premises; or, if such hard -wired port is not feasible, Wi- Fi available seven (7) days per week and twenty-four (24) hours per day;
ii. Information technology support services as needed to provide Internet connectivity via the connection described in Section 10(c)(i); and
iii. A dedicated IP address for System equipment.
If Purchaser does not maintain such Internet connection described above, Seller will not be able to cause the System to be monitored or provide the performance guaranty set forth on Exhibit 4. Further, if Seller is not able to monitor the System, Seller will be required to estimate the System’s power production for purposes of determining the monthly payment(s) for any such month in which the required Internet connection was not available.
d. Meter Testing. Purchaser may require Seller to cause the Meter to be tested once at any time during the Term at Seller’s cost (an “Initial Meter Test”). After the Initial Meter Test, Purchaser may request that Seller cause the Meter to be tested only upon Purchaser’s reasonable basis for belief that a Meter Inaccuracy (as defined below) exists, at Seller’s cost (a “Second Meter Test”). In the absence of a Meter Inaccuracy as demonstrated by a Second Meter Test, any future Meter testing shall be at Purchaser ’s sole cost and expense. If any Meter test demonstrates inaccuracy of the Meter of greater than two percent (2%) over the course of a Contract Year (a “ Meter Inaccuracy”), then Seller shall credit any overpayment by Purchaser against, or add any underpayment by Purchaser to, the next monthly invoice it provides to Purchaser. Purchaser shall have the right to witness any Meter test.
11. Default, Remedies and Damages
.
a. Default. Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances listed below is deemed a “Defaulting Party”, the other Party is the “Non-Defaulting Party” and each of the following is a “Default Event”:
i. failure of a Party to pay any amount due and payable under this Agreement, other than an amount that is subject to a good faith dispute, within ten (10) days following receipt of written notice from the Non-Defaulting Party of such failure to pay (“Payment Default”);
ii. failure of a Party to perform any material obligation under this Agreement or an act or omission of a Party in violation of the terms and conditions of this Agreement not addressed elsewhere in this Section 11 within sixty (60) days following receipt of written notice from the Non-Defaulting Party demanding such cure; provided, that if the Default Event cannot reasonably be cured within sixty (60) days and the Defaulting Party has demonstrated prior to the end of that period that it is diligently pursuing such cure, the cure period will be extended for a further Exh. 3, p. 8
reasonable period of time, not to exceed ninety (90) days;
iii. such Party fails to provide or maintain in full force and effect any required insurance, if such failure is not remedied within ten (10) business days after receipt of written notice from the Non -Defaulting Party to the Defaulting Party;
iv. any representation or warranty given by a Party under this Agreement was incorrect in any material respect when made and is not cured within thirty (30) days following receipt of written notice from the Non-Defaulting Party demanding such cure;
v. a Party becomes insolvent or is a party to a bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or any general assignment for the benefit of creditors or other similar arrangement or any event occurs or proceedings are taken in any jurisdiction with respect to the Party which has a similar effect (or, if any such actions are initiated by a third party, such action(s) is (are) not dismissed within sixty (60) days); or,
vi. in the case of Purchaser as the Defaulting Party only, Purchaser (A) loses its rights to occupy and enjoy the Premises, unless the Parties agree upon a relocation under Section 8 above; (B) loses its right to provide access to the System or is otherwise in default under Section 7(a); or (C) prevents Seller from performing any material obligation under this Agreement unless such action by Purchaser is (x) permitted under this Agreement, or (y ) cured within ten (10) days after written notice thereof from Seller.
b. Remedies.
i. Purchaser Default Event Remedies. Upon the occurrence and during the continuation of a Default Event where the Purchaser is the Defaulting Party, including a Payment Default:
A. Seller may exercise any and all remedies available or granted to it pursuant to law or hereunder, including seeking by mandamus or other suit, action or proceeding at law or in equity to enforce the Seller’s rights against the Purchaser, including rights to any payments due hereunder in an action for damages, and to compel the Purchaser to perform and carry out its duties and obligations under the law and its covenants and agreements with the Seller as provided herein.
B. Seller may suspend performance of its obligations under this Agreement , including, but not limited to , turning off the System, until the earlier to occur of (x) the date that Purchaser cures the Default Event in full, including making payment in full as provided in Section 11(b)(i)(C), or (y) the termination date of this Agreement. Seller’s rights under this Section 11(b)(i)(B) are in addition to any other remedies available to it under this Agreement, at law or in equity.
C. Except as otherwise provided herein, this Agreement shall not terminate as a result of such Default Event and shall continue in full force and effect, and Purchaser shall continue to pay, and Seller shall be entitled to recover payment for: (x) all electricity delivered by Seller pursuant to Section 3 of this Exhibit 3, and (y) all electricity that Seller reasonably estimates it would have been able to deliver to Purchaser in accordance with this Agreement but for the Default Event by Purchaser, in each case at the Contract Price, together with (z) any other amounts due and payable pursuant to this Agreement.
ii. Seller Default Event Remedies . Upon the occurrence and during the continuation of a Default Event where Seller is the Defaulting Party:
A. Purchaser may exercise any and all remedies available or granted to it pursuant to law or hereunder, including seeking by mandamus or other suit, action or proceeding at law or in equity to enforce the Purchaser’s rights against the Seller, including rights to any payments due hereunder in an action for damages, and to compel the Seller to perform and carry out its duties and obligations under the law and its covenants and agreements with the Purchaser as provided herein.
B. except as otherwise provided herein, this Agreement shall not terminate as a result of such Default Event and shall continue in full force and effect, and Seller and Purchaser shall continue to pay all amounts due and payable pursuant to this Agreement.
iii. Optional Termination by Purchaser. In addition to the remedies provided for in Section 11(b)(ii) , upon the occurrence and during the continuation of a Default Event where Seller is the Defaulting Party , the Purchaser may terminate this Agreement as further set forth in this Section 11(b)(iii) by providing thirty (30) days prior Exh. 3, p. 9
written notice to the Seller; provided, that, in the case of a Default Event under Section 11(a)(v) where the Seller is the Defaulting Party , no such notice period shall be required. Upon termination pursuant to this Section 11(b)(iii), Seller shall pay to Purchaser an amount equal to the sum of (A) the present value of the excess, if any, of the reasonably expected cost of electricity delivered by the Utility over the Contract Price for the reasonably expected production of the System for a period of the lesser of five (5) years or the remainder of the Initial Term or the then current Additional Term, as applicable; (B) all direct costs reasonably incurred by Purchaser by reason of the termination; and (C) any and all other amounts previously accrued under this Agreement and then owed by Seller to Purchaser (the “Seller Termination Payment”). The Seller Termination Payment determined under this Section 11(b)(iii) cannot be less than zero.
iv. Optional Termination by Seller . In addition to the remedies provided for in Section 11(b)(i), upon the occurrence and during the continuation of a Default Event where Purchaser is the Defaulting Party, the Seller may terminate this Agreement as further set forth in this Section 11(b)(iv) by providing thirty (30) days prior written notice to the Purchaser; provided, that, in the case of a Default Event under Section 11(a)(v) where the Purchaser is the Defaulting Party, no such notice period shall be required. Upon termination pursuant to this Section 11(b)(iv), Purchaser shall pay to Seller an amount equal to the sum of (1) the applicable amount set forth in the Termination Payment Schedule of Section 6 of Exhibit 1, and (2) any other amounts previously accrued under this Agreement and then owed by Purchaser to Seller (collectively, the “Purchaser Termination Payment” and, together with the Seller Termination Payment, the “ Termination Payment”). The Purchaser Termination Payment determined under this Section 11(b)(iv) cannot be less than zero.
v. Severability of Remedies. If any remedy in Section 11(b) is held by a court of competent jurisdiction to be in conflict with any statute, constitutional provision, regulation or other rule of law, or is otherwise held to be unenforceable for any reason whatsoever, such circumstances shall not have the effect of rendering the other remedies herein contained invalid, inoperative, or unenforceable to any extent whatsoever. If any one or more of the provisions contained in Section 11(b) of this Exhibit 3 shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Section 11(b) and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The Parties hereby declare that they each would have executed this Agreement and each and every other section hereof irrespective of the fact that any one or more sections of this Section 11(b) may be held illegal, invalid or unenforceable.
vi. Liquidated Damages. The Parties agree that, if Seller terminates this Agreement prior to the expiration of the Term pursuant to Section 11(b)( iv), actual damages would be difficult to ascertain, and the Purchaser Termination Payment determined in accordance with Section 11(b)(iv) is a reasonable approximation of the damages suffered by Seller as a result of early termination of this Agreement and is not a penalty.
c. Obligations Following Termination. If a Party terminates this Agreement pursuant to Section 11(b)(iii), or Section 11(b)(iv), then following such termination, Seller shall cause and shall have the right to cause the equipment constituting the System to be removed in compliance with Section 9 at the sole cost and expense of the Defaulting Party, provided, however that Seller shall not be required to cause the System to be removed following the occurrence of a Default Event by Purchaser, unless Purchaser has paid the Purchaser Termination Payment to Seller or pre-pays the cost of removal and restoration reasonably estimated by Seller.
i. Reservation of Rights. Except in the case of a termination under Section 11(b)(iii) or Section 11(b)(iv) and payment of a Termination Payment , if any, determined as provided therein, nothing in this Section 11 limits either Party’s right to pursue any remedy under this Agreement, at law or in equity, including with respect to the pursuit of an action for damages by reason of a breach or Default Event under this Agreement.
ii. Mitigation Obligation . Regardless of whether this Agreement is terminated for a Default Event, the Non - Defaulting Party must make reasonable efforts to mitigate its damages as the result of such Default Event; provided that such obligation shall not reduce Purchaser’s obligation to pay the full Purchaser Termination Payment set forth in Section 6 of Exhibit 1 following a Default Event by Purchaser.
iii. No Limitation on Payments. Nothing in this Section 11 excuses a Party’s obligation to make any payment when due under this Agreement, including with respect to payments for electricity that would have been delivered to Purchaser but for a Purchaser breach or Default Event.
Exh. 3, p. 10
12. Representations and Warranties.
a. General Representations and Warranties. Each Party represents and warrants to the other the following:
i. Such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary governmental action, and do not and will not violate any law; and this Agreement is the valid obligation of such Party, enforceable against such Party in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors’ rights generally).
ii. Such Party has obtained all licenses, authorizations, consents and approvals required by applicable law and any Governmental Authority or other third-party and necessary for such Party to own its assets, carry on its business and operations and to execute and deliver this Agreement; and such Party is in compliance with all laws that relate to this Agreement in all material respects.
b. Purchaser’s Representations and Warranties. Purchaser represents and warrants to Seller the following:
i. Licenses. (A) Purchaser has title to and is the fee owner of the Premises such that Purchaser has the full right, power and authority to enter into and perform all of its obligations under this Agreement, (B) this Agreement does not violate any law, ordinance, rule or other governmental restriction applicable to Purchaser or the Premises and is not inconsistent with and will not result in a breach or default under any agreement by which Purchaser is bound or that affects the Premises, and (C) there are no deeds of trust, mortgages or similar security instruments with a lien against the Premises.
ii. Other Agreements. Neither the execution and delivery of this Agreement by Purchaser nor the performance by Purchaser of any of its obligations under this Agreement conflicts with or will result in a breach or default under any agreement or obligation to which Purchaser is a party or by which Purchaser is bound.
iii. Accuracy of Information. All information provided by Purchaser to Seller, as it pertains to (A) the Premises, (B) the Improvements on which the System is to be installed, if applicable, ( C) Purchaser’s planned use of the Premises and any applicable Improvements, and (D) Purchaser’s estimated electricity requirements, is accurate in all material respects.
iv. Purchaser Status. Purchaser is not a public utility or a public utility holding company and is not subject to regulation as a public utility or a public utility holding company.
v. Limit on Use. No portion of the electricity generated by the System shall be used to heat a swimming pool.
c. Seller’s Warranties.
i. If Seller causes to be penetrated the roof of any Improvement on which the System is installed, during System installation or any System repair, Seller shall provide for a warranty on roof damage caused by these roof penetrations and shall repair such damage at Seller’s expense . Seller’s roof warranty shall terminate upon the earlier of (A) five (5) years following the Commercial Operation Date and (B) the expiration of the warranty applicable to such roof provided by Purchaser’s roofing contractor that is effective as of the Effective Date (“Existing Roof Warranty”). If there is an Existing Roof Warranty, Purchaser shall provide it to Seller, and Seller shall ensure that the construction, operation, maintenance and removal of the System conforms to the requirements of the Existing Roof Warranty to the extent such Existing Roof Warranty is in effect.
ii. If Seller or its agents damage any other part of the Premises or any Improvement (including roof damages not covered under Section 12(c)(i) above), Seller shall repair or reimburse Purchaser for such damage, as agreed by the Parties and subject to Section 15.
d. NO OTHER WARRANTY . THE WARRANTIES SET FORTH IN SECTIONS 12(a) AND 12(c) OF THIS AGREEMENT ARE PURCHASER’S SOLE AND EXCLUSIVE BASIS FOR ANY CLAIM OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS SECTION 12 , WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. OTHER THAN AS EXPRESSLY SET FORTH IN SECTIONS 12(a) AND 12(c), NO WARRANTY, WHETHER STATUTORY, WRITTEN, ORAL,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING Exh. 3, p. 11
OR USAGE OF TRADE, APPLIES UNDER THIS AGREEMENT. THE PERFORMANCE GUARANTY SET FORTH IN EXHIBIT 4 REPRESENTS A SEPARATE CONTRACT BETWEEN PURCHASER AND THE ISSUER OF THE PERFORMANCE GUARANTY. IF THE ISSUER OF THE PERFORMANCE GUARANTY (OR
ANY SUBSEQUENT ASSIGNEE) AND THE SELLER ARE NOT THE SAME PERSON, NO RIGHTS
PROVIDED TO PURCHASER BY THE PERFORMANCE GUARANTY MAY BE ASSERTED UNDER THIS AGREEMENT, AND NO CLAIM UNDER THE PERFORMANCE GUARANTY WILL AFFECT PURCHASER’S OBLIGATIONS UNDER THIS AGREEMENT.
13. Insurance
.
a. Insurance Coverage. At all times during the Term, the Parties shall maintain the following insurance, as applicable:
i. Seller’s Insurance. Seller shall maintain (A) property insurance on the System for the replacement cost thereof, (B) commercial general liability, employers liability and automobile liability insurance with primary coverage of at least $1,000,000 per occurrence, an excess liability limit of $5,000,000, for a total of $6,000,000 in the aggregate, and (C) workers’ compensation insurance as required by law. Seller’s coverage may be provided as part of an enterprise insurance program.
ii. Purchaser’s Insurance. Purchaser shall maintain commercial general liability insurance with coverage of at least $2,000,000 per occurrence.
b. Policy Provisions. The insurance policies referenced in Section 13(a) shall (i) contain a provision whereby the insurer agrees to give the other Party at least thirty (30) days (ten (10) days for non -payment of premiums) written notice before the insurance is cancelled, or terminated, (ii) be written on an occurrence basis, and (iii) be maintained with companies either rated no less than A-VII as to Policy Holder’s Rating in the current edition of A.M. Best’s Insurance Guide or otherwise reasonably acceptable to the other Party.
c. Certificates. Upon the other Party’s request, each Party shall deliver to the other Party certificates of insurance evidencing the above required coverage. A Party’s receipt, review or acceptance of such certificate shall in no way limit or relieve the other Party of the duties and responsibilities to maintain insurance as set forth in this Agreement.
d. Deductibles. Each Party shall pay or cause to be paid its own insurance deductibles, except in the case of claims (i) resulting from a breach of this Agreement, in which case the breaching Party is responsible for payment of the non - breaching Party’s deductible for any responding insurance, and (ii) covered by an indemnity set forth in this Agreement.
14. Ownership; Option to Purchase.
a. Ownership of System.
i. Ownership; Personal Property. System Owner or its assignee shall be the legal and beneficial owner of the System and the System will remain the personal property of System Owner or such assignee and will not attach to or be deemed a part of, or fixture to, the Premises or any Improvement on which the System is installed.
Each of the Seller and Purchaser agree that System Owner or its assignee is the tax owner of the System and all tax filings and reports shall be filed in a manner consistent with this Agreement. The System will at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code.
ii. Notice to Purchaser Lienholders. Purchaser shall use reasonable efforts to place all parties having a Lien on the Premises or any Improvement on which the System is installed on notice of the ownership of the System and the legal status or classification of the System as personal property. If any mortgage or fixture filing against the Premises could reasonably be construed as prospectively attaching to the System as a fixture of the Premises, Purchaser shall provide a disclaimer or release from such lienholder.
iii. Fixture Disclaimer. Purchaser consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction where the Premises are located.
If, at any point after the Effective Date, Purchaser is not the fee owner of the Premises, Purchaser shall obtain such consent from such fee owner. For the avoidance of doubt, in either circumstance Seller has the right to file such disclaimer.
iv. SNDA. Upon request, Purchaser shall deliver to Seller a subordination and non-disturbance agreement in a form Exh. 3, p. 12
mutually acceptable to Seller and Purchaser, any mortgagee with a Lien on the Premises, and other Persons holding a similar interest in the Premises.
v. Eviction Notice. Purchaser hereby represents and warrants that it is the legal owner of t he Premises. To the extent that Purchaser does not own the Premises or any Improvement on which the System is installed after the Effective Date, Purchaser shall provide to Seller immediate written notice of any such change in ownership and receipt of notice of eviction from the Premises or applicable Improvement or termination of Purchaser’s lease of the Premises and/or Improvement.
b. Option to Purchase.
i. Early Purchase Option. Commencing on the next date after the date that is the sixth (6th) anniversary of the Commercial Operation Date, and continuing for a period of two hundred and seventy (270) days (the “ Early Purchase Option Period”), so long as Purchaser is not in default under this Agreement, Purchaser may exercise an option to purchase the System from System Owner on any such date within the Early Purchase Option Period for a purchase price equal to the greater of ( A) the Fair Market Value of the System, or ( B) the year six (6) Termination Payment amount set forth in Section 6 of Exhibit 1. Purchaser shall exercise the option in this Section 4(b)(i) by providing System Owner with written notice. ii. Exercise of Option. At the end of the Initial Term and each Additional Term, so long as Purchaser is not in default under this Agreement, Purchaser may purchase the System from System Owner on any such date for a purchase price equal to the Fair Market Value of the System applicable as of the date of the transfer of title to the System (“End of Term Option to Purchase ”). Purchaser shall notify Seller in writing of its intent to purchase at least ninety (90) days and not more than one hundred eighty (180) days prior to the end of the Initial Term or Additional Term, as applicable, and the purchase shall be completed prior to the end of the Initial Term or Additional Term, as applicable. For the avoidance of doubt, the End of Term Option to Purchase shall not apply prior to the expiration of the full Initial Term.
iii. Fair Market Value. The “Fair Market Value” of the System shall be determined by mutual agreement of the Parties; provided, however, if the Parties cannot agree to a Fair Market Value within thirty (30) days after Purchaser has delivered to Seller a written notice of its intent to purchase the System, the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to determine the Fair Market Value of the System. Such appraiser shall act reasonably and in good faith to determine the Fair Market Value of the System on an installed basis and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser will be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be borne by the Parties equally.
iv. Title Transfer; Warranties; Manuals . If Purchaser exercises a purchase option pursuant to Section s 14(b)(i) or (ii) above, title to the System and manufacturers’ warranties shall transfer to Purchaser upon System Owner’s receipt of the purchase price and execution by System Owner and Purchaser of a written instrument or agreement to effect such transfer to be negotiated between System Owner and Purchaser. The System will be sold “as is, where is, with all faults.” Upon purchase of the System, Purchaser shall assume complete responsibility for the operation and maintenance of the System and liability for the performance of (and r isk of loss for) the System, and, except for any Seller obligations that survive termination under Section 19(d), System Owner will have no further liabilities or obligations hereunder for the System.
15. Indemnification and Limitations of Liability.
a. General. Each Party (the “Indemnifying Party ”) shall defend, indemnify and hold harmless the other Party, its affiliates and the other Party’s and its affiliates’ respective directors, officers, shareholders, partners, members, agents and employees (collectively, the “Indemnified Parties ”), from and against any loss, damage, expense, liability and other claims, including court costs and reasonable attorneys’ fees (collectively, “Liabilities ”) resulting from ( i) any Claim (as defined in Section 15(c)) relating to the Indemnifying Party’s breach of any representation or warranty set forth in Section 12 and (ii) injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in connection wi th this Agreement; provided, however, that nothing herein will require the Indemnifying Party to indemnify the Indemnified Parties for any Liabilities to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, an Indemnified Party. This Section 15(a) does not apply to Liabilities arising out of or relating to any form of Hazardous Substances or other environmental contamination, such matters being addressed exclusively by Section 15(d).
Exh. 3, p. 13
b. Permission to Operate Indemnification . Purchaser shall defend, indemnify and hold harmless Seller Indemnified Parties from and against any Liabilities resulting from Purchaser’s breach of Purchaser’s obligations under Section 5e).
c. Notice and Participation in Third-Party Claims. The Indemnified Party shall give the Indemnifying Party written notice with respect to any l iability asserted by a third -party (a “ Claim”), as soon as possible upon the receipt of information of any possible Claim or of the commencement of such Claim. The Indemnifying Party may assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnified Party may, however, select separate counsel if both Parties are defendants in the Claim and such defense or other form of participation is not reasonably available to the Indemnifying Party. The Indemnifying Party shall pay the reasonable attorneys’ fees inc urred by such separate counsel until such time as the need for separate counsel expires. The Indemnified Party may also, at the sole cost and expense of the Indemnifying Party, assume the defense of any Claim if the Indemnifying Party fails to assume the defense of the Claim within a reasonable time. Neither Party may settle any Claim covered by this Section 15(c) unless it has obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party has no liability under this Section 15(c) for any Claim for which such notice is not provided if the failure to give notice prejudices the Indemnifying Party.
d. Environmental Indemnification.
i. Seller Indemnity. Seller shall indemnify, defend and hold harmless all of Purchaser’s Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance (as defined in Section 15(d)(iii)) to the extent deposited, spilled or otherwise caused by Seller or any of its contractors, agents or employees.
ii. Purchaser Indemnity. Purchaser shall indemnify, defend and hold harmless all of Seller’s Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance, except (A) to the extent deposited, spilled or otherwise caused by Seller or any of its contractors, agents or employees or, (B) where the deposit, spill, or existence of the Hazardous Substance is not caused by Seller or any of its contractors or agents, to the extent the condition is known by Seller or any of its contractor or agents and is worsened as a result of the negligent acts or omissions, willful misconduct, or breach of this Agreement by Seller or any of its contractors, agents or employees.
iii. Notice. Each Party shall promptly notify the other Party if it becomes aware of any Hazardous Substance on or about the Premises generally or any deposit, spill or release of any Hazardous Substance. “ Hazardous Substance” means any chemical, waste or other substance ( A) which now or hereafter becomes defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “pollution,” “pollutants,” “regulated substances,” or words of similar import under any laws pertaining to the environment, health, safety or welfare, (B ) which is declared to be hazardous, toxic, or polluting by any Governmental Authority, (C) exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Authority, (D) the storage, use, handling, disposal or release of which is restricted or regulated by any Governmental Authority, or (E) for which remediation or cleanup is required by any Governmental Authority.
e. Limitations on Liability.
i. No Consequential Damages. Except with respect to indemnification of third-party claims pursuant to Section 15, fraud or willful misconduct, neither Party nor its directors, officers, shareholders, partners, members, agents and employees subcontractors or suppliers will be liable for any indirect, special, incidental, exemplary, or consequential loss or damage of any nature (including, without limitation, lost revenues, lost profits, lost business opportunity or any business interruption) arising out of their performance or non-performance hereunder even if advised of such. Notwithstanding the previous sentence, the Termination Payment amounts set forth in Section 6 of Exhibit 1 shall be deemed to be direct, and not indirect or consequential damages for purpose of this Section 15(e)(i).
ii. Actual Damages. Except with respect to indemnification of Claims pursuant to this Section 15 , and except as otherwise limited in Section 12(d) , Seller’s aggregate liability under this Agreement arising out of or in connection with the performance or non -performance of this Agreement cannot exceed $1,000,000. The provisions of this Section 15(e)(ii) will apply whether such liability arises in contract, tort, strict liability or otherwise.
Exh. 3, p. 14
f. EXCLUSIVE REMEDIES. TO THE EXTENT THAT THIS AGREEMENT SETS FORTH SPECIFIC REMEDIES FOR ANY CLAIM OR LIABILITY, SUCH REMEDIES ARE THE AFFECTED PARTY’S SOLE AND
EXCLUSIVE REMEDIES FOR SUCH CLAIM OR LIABILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
g. Comparative Negligence. Where negligence is determined to have been joint, contributory or concurrent, each Party shall bear the proportionate cost of any liability.
16. Change in Law.
a. Impacts of Change in Law. If Seller determines that a Change in Law has occurred or will occur that has or will have a material adverse effect on Seller’s rights, entitlement, obligations or costs under this Agreement, then Seller may so notify the Purchaser in writing of such Change in Law. Within thirty (30) days following receipt by the Purchaser of such notice, the Parties shall meet and attempt in good faith to negotiate such amendments to this Agreement as are reasonably necessary to preserve the economic value of this Agreement to both Parties. If the Parties are unable to agree upon such amendments within such thirty (30) day period, then Seller may terminate this Agreement and cause the System to be removed and the Premises to be restored in accordance with Section 9 without either Party having further liability under this Agreement except with respect to liabilities accrued prior to the date of termination.
b. Illegality or Impossibility. If a Change in Law renders this Agreement, or Seller’s performance of this Agreement, either illegal or impossible, then Seller may terminate this Agreement immediately upon notice to Purchaser without either Party having further liability under this Agreement except with respect to liabilities accrued prior to the date of termination.
c. “Change in Law” means (i) the enactment, adoption, promulgation, modification or repeal after the Effective Date of any applicable law or regulation, (ii) the imposition of any material conditions on the issuance or renewal of any applicable permit after the Effective Date (notwithstanding the general requirements contained in any applicable Permit at the time of application or issue to comply with future laws, ordinances, codes, rules, regulations or similar legislation), or (iii) a change in any utility rate schedule or tariff approved by any Governmental Authority that materially alters the financial obligations of Seller under this Agreement.
17. Assignment and Financing.
a. Assignment.
i. Restrictions on Assignment. Subject to the remainder of this Section 17(a), this Agreement may not be assigned in whole or in part by either Party without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Purchaser may not withhold its consent to an assignment proposed by Seller where the proposed assignee has the financial capability and experience necessary to operate and maintain solar photovoltaic systems such as the System in accordance with prudent solar industry practices in the State of California.
ii. Permitted Assignments . Notwithstanding Section 17(a)(i) , Seller may, without the prior written consent of Purchaser, assign, mortgage, pledge or otherwise directly or indirectly assign its interests in this Agreement to (A) any Financing Party (as defined in Section 17(b)), (B) any entity through which Seller is obtaining financing from a Financing Party, or (C) any affiliate of Seller or any person succeeding to all or substantially all of the assets of Seller; provided, that, the assignment does not negatively affect the terms of this Agreement or Seller’s ability to perform hereunder or thereunder. Seller is not released from liability hereunder as a result of any assignment to an affiliate unless the assignee assumes Seller’s obligations hereunder by binding written instrument.
iii. Successors and Permitted Assignees. This Agreement is binding on and inures to the benefit of successors and permitted assignees. The restrictions on assignment contained herein do not prohibit or otherwise limit changes in control of Seller.
b. Financing. The Parties acknowledge that Seller and/or System Owner may obtain debt or equity financing or other credit support from lenders, investors or other third parties (each, a “Financing Party ”) in connection with the installation, construction, ownership, operation and maintenance of the System. In furtherance of Seller’s and/or Exh. 3, p. 15
System Owner’s financing arrangements and in addition to any other rights or entitlements of Seller or System Owner’s under this Agreement, Purchaser shall timely execute any consents to assignment (which may include notice, cure, attornment and step -in rights) or estoppels and negotiate any amendments to this Agreement that may be reasonably requested by Seller and/or System Owner or the Financing Parties; provided, that such estoppels, consents to assignment or amendments do not alter the fundamental economic terms of this Agreement.
c. Termination Requires Consent. Seller and Purchaser agree that any right of Seller to terminate this Agreement is subject to the prior written consent of any Financing Party.
18. Confidentiality.
a. Confidential Information. To the maximum extent permitted by applicable law, if either Party provides confidential information (“Confidential Information”) to the other or, if in the course of performing under this Agreement or negotiating this Agreement a Party learns Confidential Information of the other Party, the receiving or learning Party shall (i) protect the Confidential Information from disclosure to third parties with the same degree of care accorded its own confidential and proprietary information, and (ii) refrain from using such Confidential Information, except in the negotiation, performance, enforcement and, in the case of Seller, financing, of this Agreement.
b. Permitted Disclosures. Notwithstanding Section 18(a):
i. A Party may provide such Confidential Information to its affiliates and to its and its affiliates’ respective officers, directors, members, managers, employees, agents, contractors, consultants and Financing Parties (collectively, “Representatives”), and potential direct or indirect assignees of this Agreement if such potential assignees are first bound by a written agreement or legal obligation restricting use and disclosure of Confidential Information.
Each Party is liable for breaches of this provision by any person to whom that Party discloses Confidential Information.
ii. Confidential Information does not include any information that (A) becomes publicly available other than through breach of this Agreement, (B) is required to be disclosed to a Governmental Authority under applicable law or pursuant to a validly issued subpoena, (C ) is independently developed by the receiving Party, or ( D) becomes available to the receiving Party without restriction from a third party under no obligation of confidentiality. If disclosure of information is required by a Governmental Authority, the disclosing Party shall, to the extent permitted by applicable law, notify the other Party of such required disclosure promptly upon becoming aware of such required disclosure and shall reasonably cooperate with the other Party’s efforts to limit the disclosure to the extent permitted by applicable law. Notwithstanding any other provision in this Agreement, Seller and its affiliates are permitted to provide Confidential Information to the Internal Revenue Service and the United States Department of Treasury with respect to Seller satisfying the requirements for and obtaining the Elective Payment Incentive.
iii. Each Party hereto acknowledges and agrees that this Agreement and information and documentation provided in connection with this Agreement may be subject to the California Public Records Act (Government Code Section 7920.000 et seq.).
Upon request or demand from any third person not a Party to this Agreement for production, inspection and/or copying of Confidential Information, the recipient of such request or demand shall, to the extent permissible, notify the other Party in writing in advance of any disclosure that the request or demand has been made and shall take all reasonably necessary and customary steps to protect Confidential Information that is the subject of any California Public Records Act request submitted by a third person to Purchaser , including, but not limited to, applicable exceptions described by Cal. Gov’t Code Sections 6254 and 6255.
iv. A Party may be required to make this Agreement or portions of this Agreement available to the public in connection with the process of seeking approval from its respective governing board of its entry into this Agreement.
v. Confidential Information may be disclosed by either Party to any nationally recognized credit rating agency (e.g., Moody’s Investors Service, Standard & Poor’s, or Fitch Ratings) in connection with the issuance of a credit rating for that Party, provided that any such credit rating agency agrees in writing to maintain the confidentiality of such Confidential Information.
c. Miscellaneous. All Confidential Information remains the property of the disclosing Party and will be returned to the disclosing Party or destroyed (at the receiving Party’s option) after the receiving Party’s need for it has expired or upon the request of the disclosing Party. Each Party acknowledges that the disclosing Party would be irreparably Exh. 3, p. 16
injured by a breach of this Section 18 by the receiving Party or its Representatives or other person to whom the receiving Party discloses Confidential Information of the disclosing Party and that the disclosing Party may be entitled to equitable relief, including injunctive relief and specific performance, for breaches of this Section 18. To the fullest extent permitted by applicable law, such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 18 , but will be in addition to all other remedies available at law or in equity. The obligation of confidentiality will survive termination of this Agreement for a period of two (2) years.
d. Goodwill and Publicity. Neither Party may (i) make any press release or public announcement of the specific terms of this Agreement or the use of solar or renewable energy involving this Agreement (except for filings or other statements or releases as may be required by applicable law), or ( ii) use any name, trade name, service mark or trademark of the other Party in any promotional or advertising material without the prior written consent of the other Party which consent shall not be unreasonably withheld. The Parties shall coordinate and cooperate with each other when making public announcements regarding this Agreement, the System and its use, and each Party may promptly, and in any case within fourteen (14) days, review, comment upon and approve any publicity materials, press releases or other public statements before they are made. Notwithstanding the above, Seller is entitled to publish the name of Purchaser, System location, System size without obtaining the prior, written consent of Purchaser and to place signage on the Premises reflecting its association with the System.
19. General Provisions.
a. Definitions and Interpretation. Unless otherwise defined or required by the context in which any term appears: (i) the singular includes the plural and vice versa, (ii) the words “herein,” “hereof” and “hereunder” refer to this Agreement as a whole and not to any particular section or subsection of this Agreement, (iii) references to any agreement, document or instrument mean such agreement, document or instrument as amended, restated, modified, supplemented or replaced from time to time, and (iv) the words “include,” “includes” and “including” mean include, includes and including “without limitation.” The captions or headings in this Agreement are strictly for convenience and will not be considered in interpreting this Agreement. As used in this Agreement, “dollar” and the “$” sign refer to United States dollars.
b. Choice of Law; Dispute Resolution. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the State of California, without regard to principles of conflict of laws. In the event of a dispute, controversy, or claim arising out of or relating to this Agreement, the Parties shall confer and attempt to resolve such matter informally. If such dispute or claim cannot be resolved in this matter, then the dispute or claim shall be referred first to e xecutive officers of the Parties for their review and resolution. If the dispute or claim still cannot be resolved by such officers, then any dispute arising out of this Agreement shall be venued either in the San Mateo County Superior Court or in the United States District Court for the Northern District of California. The prevailing Party in any dispute arising out of this Agreement is entitled to reasonable attorneys’ fees and costs.
c. Notices. All notices under this Agreement shall be in writing and delivered by hand, electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and will be deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the mail. Notices must be sent to the person identified in this Agreement at the addresses set forth in this Agreement or such other address as either Party may specify in writing.
d. Survival. Section 6 of Exhibit 1, and Sections 3, 4, 5(c), 7(a), (c) and (f), 9, 11, 12(c), 14, 15, 17, 18 and 19 of this Exhibit 3 shall survive termination of this Agreement.
e. Further Assurances. Each Party shall provide such information, execute and deliver any instruments and documents and to take such other actions as may be reasonably requested by the other Party to give full effect to this Agreement and to carry out the intent of this Agreement.
f. Waivers. No provision or right or entitlement under this Agreement may be waived or varied except in writing signed by the Party to be bound. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision, nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
g. Non-Dedication of Facilities. Nothing in this Agreement may be construed as the dedication by either Party of its facilities or equipment to the public or any part thereof. Neither Party may knowingly take any action that would subject the other Party, or other Party’s facilities or equipment, to the jurisdiction of any Governmental Authority as a public utility or similar entity. Neither Party may assert in any proceeding before a court or regulatory body that the Exh. 3, p. 17
other Party is a public utility by virtue of such other Party’s performance under this Agreement. If Seller is reasonably likely to become subject to regulation as a public utility, then the Parties shall use reasonable efforts to restructure their relationship under this Agreement in a manner that preserves their relative economic interests while ensuring that Seller does not become subject to any such regulation. If the Parties are unable to agree upon such restructuring, Seller may terminate this Agreement without further liability under this Agreement except with respect to liabilities accrued prior to the date of termination and remove the System in accordance with Section 9.
h. Service Contract . The Parties intend this Agreement to be a “service contract” within the meaning of Section 7701(e)(3) of the Code. Purchaser shall not take the position on any tax return or in any other filings suggesting that it is anything other than a purchase of electricity from the System.
i. No Partnership. No provision of this Agreement may be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties. No Party is authorized to act on behalf of the other Party, and neither may be considered the agent of the other.
j. Entire Agreement, Modification, Invalidity, Captions . This Agreement constitutes the entire agreement of the Parties regarding its subject matter and supersedes all prior proposals, agreements, or other communications between the Parties, oral or written. This Agreement may be modified only by a writing signed by both Parties.
k. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be in conflict with any statute, constitutional provision, regulation or other rule of law, or is otherwise held by such court to be unenforceable for any reason whatsoever, such provision shall not be read to render and shall not have the effect of rendering this Agreement or the other provisions herein unenforceable, inoperative or invalid to any extent whatsoever.
In such event, such provision shall be deemed severable from the remaining provisions of this Agreement and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein.
l. No Third -Party Beneficiaries . Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto, and the Financing Parties to the extent provided herein or in any other agreement between a Financing Party and Seller or Purchaser, and do not imply or create any rights on the part of, or obligations to, any other Person.
m. Counterparts. This Agreement may be executed in any number of separate counterparts and each counterpart will be considered an original and together comprise the same Agreement.
n. Electronic Signatures. If the Parties agree, electronic signatures may be used in place of original signatures on this Agreement. Each Party intends to be bound by the signatures on the electronic document, is aware that the other Party will rely on the electronic signatures, and hereby waives any defenses to the enforcement of the terms of this Agreement based on the use of an electronic signature. After both Parties agree to the use of electronic signatures, both Parties must sign the document electronically.
o. No Recourse to Members of Seller. Seller is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) pursuant to its Joint Powers Agreement and is a public entity separate from its constituent members. Seller shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Purchaser shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Seller’s constituent members, or the employees, directors, officers, consultants or advisors of Seller or of its constituent members, in connection with this Agreement.
End of Exhibit 3
Exhibit 4
Performance Guaranty
In consideration for Purchaser’s entering into the Solar Power Purchase Agreement between Peninsula Clean Energy Authority (“Seller”) and the Purchaser related to the System at the Premises (the “PPA”), this Performance Guaranty (this “Guaranty”) is entered into by the parties listed below (each a “Party” and collectively the “Parties”) as of the date signed by Guarantor below (the “Effective Date”).
Purchaser: Guarantor:
Name and Address Town of Colma
1198 El Camino Real
Colma, CA 94014
Attention:________________
________________________
Name and Address Peninsula Clean Energy Authority
2075 Woodside Rd.
Redwood City, CA 94061
Attention: Rafael Reyes,
Director of Programs
Phone Phone (650) 260-0087
E-mail E-mail [email protected]
Project Name Colma Town Hall
This Guaranty sets forth the terms and conditions of a guaranty provided by Guarantor in conjunction with the PPA. Capitalize d terms not otherwise defined herein have the meanings given such terms in the PPA. The term of this Guaranty will be concurrent with the term of the PPA, except that it will not exceed the Initial Term. This Guaranty will be updated by Guarantor to reflect the as-built specifications of the System.
1. Guaranty. Guarantor guarantees that during the Initial Term of the PPA the System will generate not less than ninety five percent (95%) of the estimated generation of the System based on Helioscope or PVSyst (“ Estimated Production (Annual kWh)”) as set forth in Table 1.A below (such guaranteed generation, the “Guaranteed Production (Annual kWh)” set forth on Table 1.A below); provided that the Guaranteed Production values are subject to reasonable downward adjustment for extreme weather conditions and to the extent that Purchaser exceeds the Outage Allowance set forth in Exhibit 3, Section 6(d) of the PPA.
A. Guarantor will use local weather data to adjust the System’s Guaranteed kWh, based on the following methods if available and in descending order of preference: (i) at a Typical Meteorological Year (TMY) weather station reasonably close to the facility; (ii) satellite data provided by a third-party vendor of Seller; or (iii) available data from a locally installed weather station at the Premises owned and properly maintained by Purchaser.
Table 1.A, projected production values as measured at a TMY weather station reasonably close to the facility:
Contract Year Estimated Production (Annual kWh) Guaranteed Production (Annual kWh) Year 1 97,256 92,393
Year 2 96,770 91,931
Year 3 96,286 91,472
Year 4 95,804 91,014
Year 5 95,325 90,559
Year 6 94,849 90,106
Year 7 94,375 89,656
Year 8 93,903 89,208
Year 9 93,433 88,761
Year 10 92,966 88,318
Year 11 92,501 87,876
Year 12 92,039 87,437
Year 13 91,578 87,000
Year 14 91,121 86,565
Year 15 90,665 86,132
Year 16 90,212 85,701
Year 17 89,761 85,273
Year 18 89,312 84,846
Year 19 88,865 84,422
Year 20 88,421 84,000
B. If at the end of each successive Contract Year the AC electricity produced by the System as measured and recorded by Seller (the “ Actual kWh”) is less than the Guaranteed kWh for that Contract Year, then Guarantor shall pay Purchaser an amount equal to (i) the difference between the Guaranteed kWh and the Actual kWh, multiplied by (ii) the Performance Guarantee Payment Rate (as defined in Section 1(E)), in each case with respect to the affected Contract Year.
C. If at the end of each successive Contract Year the AC electricity produced by the System as measured and recorded by Seller (the “Actual kWh”) is more than the Guaranteed kWh for that Contract Year, then an amount equal to (i) the difference between the Actual kWh and the Guaranteed kWh, multiplied by (ii) the Performance Guarantee Payment Rate, in each case with respect to the affected Contract Year, shall be credited against and shall reduce by such amount any payments owed by Guarantor to Purchaser in the following Contract Year pursuant to Section 1(B) of this Exhibit 4. The amount under Section 1(C)(i) above shall be capped at one hundred and five percent (105%) of the Guaranteed kWh for the applicable Contract Year.
D. If a payment of greater than fifty dollars ($50) is due under Section 1(B), after subtracting any credits pursuant to Section 1(C), (i) Guarantor will deliver a statement to Purchaser detailing the Guaranteed kWh and the calculation of the payment due; and (ii) the payment shall be due within ninety (90) days after the end of the Contract Year. If no payment is due, then no statement or payment will be issued.
E. “Performance Guarantee Payment Rate” means the Contract Price.
2. Exclusions. The Guaranty set forth in Section 1 does not apply to the extent of any reduced generation from the System due to the following (including the downtime required for repair, replacement or correction):
A. a Force Majeure Event, which includes (i) destruction or damage to the System or its ability to safely produce electricity not caused by Seller or its approved service providers while servicing the System (e.g., vandalism); (ii) a power or voltage surge caused by someone other than Seller, including a grid supply voltage outside of the standard range specified by the Utility; and (iii) theft of the System; and (iv) curtailment or reduction of energy production required by the Utility or grid operator.
B. Purchaser’s failure to perform, or breach of, Purchaser’s obligations under the PPA.
3. Liquidated Damages; Waiver of Cost Savings. The Parties agree that the payment described in Section 1(B) is a reasonable approximation of the damages suffered by Purchaser as a result of underperformance of the System, is bargained-for by the Parties, and shall be the Purchaser’s sole and exclusive remedy hereunder for underperformance of the System. Purchaser hereby disclaims, and any beneficiary of this Guaranty hereby waives, any warranty with respect to any cost savings from using the System.
4. Incorporation of PPA Provisions . Section 5(c) (Force Majeure), Section 17 (Assignment and Financing) and Section 19 (General Provisions) of Exhibit 3 of the PPA and any Sections referenced therein are incorporated into this Guaranty as if any reference therein to “Agreement” were to this Guaranty and any reference to “Parties” were to the Parties to this Guaranty.
Guarantor:
Signature:
Purchaser:
Signature:
Printed Name: Shawn Marshall
Printed Name:
Title: Chief Executive Officer
Title:
Date:
Date:
Solar Power Purchase Agreement
This Solar Power Purchase Agreement (this “Agreement”) is entered into by the parties listed below (each a “ Party” and collectively the “Parties”) as of _______________________, 2024 (the “Effective Date”).
Purchaser: Seller:
Name
and
Address
Town of Colma
1198 El Camino Real
Colma, CA 94014
Attention: Daniel Barros, City Manager
Name
and
Address
Peninsula Clean Energy Authority
2075 Woodside Rd.
Redwood City, CA 94061
Attention: Rafael Reyes, Director
of Programs
Phone (650) 997-8300 Phone (650) 260-0087
E-mail [email protected] E-mail [email protected] Premises
Ownership Purchaser owns the Premises.
Tax Status System Owner
Project Name Colma Town Hall
This Agreement sets forth the terms and conditions of the purchase and sale of solar generated electricity from the solar panel system described in Exhibit 2 (the “System”) and installed on the real property comprising Purchaser’s premises described or depicted in Schedule A to Exhibit 2 (the “Premises”), including any buildings and other improvements on the Premises other than the System (the “Improvements”).
The Syste
m shall initially be owned by Seller. “System Owner” means Seller or a subsequent owner of the System in the event that Seller transfers title to the System.
The exhibits listed below are incorporated by reference and made part of this Agreement.
Exhibit 1 Prici ng
Exhibit 2 System Description, Delivery Point and Premises Exhibit 3 General Terms and Conditions
Exhibit 4 Performance Guaranty
Purchaser: Town of Colma Seller: Peninsula Clean Energy Authority Signature: Signature:
Printed Name: Printed Name: Shawn Marshall
Title: Title: Chief Executive Officer
Date: Date:
ATTACHMENT C
Exh. 1, p. 1
Exhibit 1
Pricing
1. Initial Term: Twenty (20) years, beginning on the date that Commercial Operation is achieved (such date, the “ Commercial Operation Date” and such term, the “Initial Term”). “Commercial Operation” means that the System is mechanically complete, commences regular, daily operation, complies with all applicable law, has undergone successful system testing, is providing electricity to the Delivery Point at the System Size specified in Exhibit 2 and has obtained all necessary Approvals (as defined in Section 5(b) of Exhibit 3), including permission to operate from the Utility and Seller.
2. Additional Terms: Upon mutual written agreement, the Parties may extend the Initial Term for up to two (2) additional terms of up to five (5) years each beginning on the expiration of the Initial Term or on the expiration of the first Additional Term, as applicable (each, an “Additional Term”).
3. Contract Pri ce: $0.234 per kilowatt-hour (“kWh”) AC at the Delivery Point specified in Exhibit 2.
4. Contract Price Assumptions. The Contract Price is based on the following assumptions:
a. Statutory prevailing wage rates (e.g., Davis-Bacon) do apply.
b. A Performance Guaranty is being provided.
5. Contract Price Exclusions. U nless Seller and Purchaser have agreed otherwise in writing, and except as otherwise provided in Section 2(c) of Exhibit 3, the Contract Price excludes the following:
a. Groundwork (including excavation and circumvention of underground obstacles) that is unforeseen despite reasonable efforts to assess existing site conditions. Upgrades or repair to Purchaser or Utility electrical infrastructure (including Purchaser or Utility service, transformers, substations, poles, breakers, reclosers, and disconnects). “Utility” means the electric distribution utility serving Purchaser.
b. Tree removal, tree trimming, mowing and any landscape improvements.
c. Decorative fencing and/or any visual screening materials, decorative enhancements to solar support structures (including painting, paint matching, masonry/stone work, and any lighting not required to meet the minimum code compliance).
d. Removal of existing lighting, light poles, or concrete light post bases.
e. Roof membrane maintenance or reroofing work.
f. Structural upgrades to the Improvements, including Americans with Disabilities Act (“ADA”) upgrades.
g. Installation of public information screen or kiosk (including accompanying Internet connection, power supply, technical support and ADA access).
h. Changes in System design caused by any inaccuracy in information provided by Purchaser, including information regarding Purchaser’s energy use, the Premises and the Improvements, including building plans and specifications.
If such excluded costs will result in an increase to the Contract Price, Seller shall deliver notice to Purchaser of such increase to the Contract Price not less than sixty (60) days prior to commencement of the installation of the System (“ Commencement of Installation” and such notice, the “ Excluded Costs Notice”). If excluded costs will result in an increase to the Contract Price such that the revised Contract Price would increase by no more than five percent (5%), Purchaser shall be responsible for such increased Contract Price and the Contract Price shall be amended to reflect the new Contract Price included in the Excluded Costs Notice. If such excluded costs will result in an increase to the Contract Price, such that the revised Contract Price would increase by more than five percent (5%), Purchaser shall have a right to terminate this Agreement without penalty by providing notice of such termination within thirty (30) days of delivery of the Excluded Costs Notice.
Exh. 1, p. 2
6. Termination Payment Schedule:
Contract Year Termination Payment
($)
1 $282,353
2 $271,281
3 $260,244
4 $249,243
5 $238,277
6 $227,350
7 $216,460
8 $205,611
9 $194,802
10 $184,036
11 $173,313
12 $162,634
13 $152,002
14 $141,417
15 $130,881
16 $120,396
17 $109,962
18 $99,581
19 $89,256
20 $78,987
“Contract Year” m eans the year commencing on the Commercial Operation Date and each subsequent year commencing on the anniversary of the Commercial Operation Date.
Exhibit 2
System Description, Delivery Point and Premises
1. System Location: 1198 El Camino Real, Colma, CA 94014
2. System Size (DC kW): 50.4 (AC kW): 50.0
3. System Description (Expected Structure, etc.): Roof-Mount
4. Delivery Point and Premises: Schedul e A to this Exhibit 2 contains one or more drawings or images depicting:
a. Premises, including the Improvements (as applicable);
b. Proposed System location at the Premises;
c. Delivery point for electricity generated by the System (the “Delivery Point”);
d. Access points needed for Seller to cause the System to be installed and serviced (building access, electrical room, stairs, etc.); and
e. Construction assumptions (if any).
Schedule A
1. Physical building address: 1198 El Camino Real, Colma, CA 94014
2. Number of Stories: 1 story with a basement
3. Total Square Footage: 14,000
4. Year Built: Original building 1941; an addition was constructed and completed in 2018
5. Year of any mechanical/electrical updates: No updates
6. Type of Construction, (example; wood frame, masonry, steel): Wood, Steel and concrete
7. Description/ Type of roof structure/system: Terra cotta tile
8. Confirm whether the building is sprinklered: Yes
9. Describe any additional security measures, (example: video surveillance, etc.): Burglar alarm, video surveillance, and access control
A Site Plan and Single Line Diagram are attached at the end of this Schedule A labeled “Attachment 1 to Schedule A of Exhibit 2”.
Attachment 1 to Schedule A of Exhibit 2
[attachment follows]
Exhibit 3
General Terms and Conditions
Exhibit 3 Table of Cont ents
1. PURCHASE AND SALE OF ELECTRICITY .................................................................................................................. 1
2. TERM AND TERMINATION ............................................................................................................................................ 1
3. BILLING AND PAYMENT; TAXES ................................................................................................................................. 1
4. RECS AND INCENTIVES .................................................................................................................................................. 2
5. PROJECT COMPLETION ................................................................................................................................................. 3
6. INSTALLATION, OPERATION AND MAINTENANCE ............................................................................................... 4
7. MISCELLANEOUS RIGHTS AND OBLIGATIONS OF THE PARTIES .................................................................... 5
8. RELOCATION OF SYSTEM ............................................................................................................................................. 6
9. REMOVAL OF SYSTEM UPON TERMINATION OR EXPIRATION ........................................................................ 6
10. MEASUREMENT ................................................................................................................................................................ 7
11. DEFAULT, REMEDIES AND DAMAGES ....................................................................................................................... 7
12. REPRESENTATIONS AND WARRANTIES ................................................................................................................. 10
13. INSURANCE ...................................................................................................................................................................... 11
14. OWNERSHIP; OPTION TO PURCHASE ...................................................................................................................... 11
15. INDEMNIFICATION AND LIMITATIONS OF LIABILITY ...................................................................................... 12
16. CHANGE IN LAW ............................................................................................................................................................. 14
17. ASSIGNMENT AND FINANCING .................................................................................................................................. 14
18. CONFIDENTIALITY ........................................................................................................................................................ 15
19. GENERAL PROVISIONS ................................................................................................................................................. 16
Exh. 3, p. 1
Exhibit 3
General Terms and Conditions
1. Purchase and Sale of Electricity. Su bject to the terms and conditions of this Agreement, Purchaser shall purchase from Seller, and Seller shall sell to Purchaser, all of the electricity generated by the System during the Term (as defined in Section 2(a)).
Electricity generated by the System shall be delivered to Purchaser at the Delivery Point. Title to and risk of loss for the electricity generated by the System passes to Purchaser from Seller at the Delivery Point. Seller warrants that it will deliver the electricity to Pur
chaser at the Delivery Point free and clear of all liens, security interests, claims, and other encumbrances.
2. Term and Ter mination.
a. Effective Date; Term. T his Agreement is effective as of the Effective Date. The electricity supply period under this Agreement commences on the Commercial Operation Date (as defined in Section 1 of Exhibit 1) and continues for the duration of the Initial Term and any Additional Terms, unless earlier terminated as provided for in this Agreement (collectively, the “Term”).
b. Additional Terms. The Parties may agree in writing to extend this Agreement for up to two (2) Additional Terms at a Contract Price to be negotiated by the Parties prior to the expiration of the Initial Term or the first Additional Term, as applicable.
c. Termination Due to Contract Price Adjustments or Lack of Project Viability . If , at any time after the Effective Date and prior to Commencement of Installation, (i) Purchaser terminates this Agreement pursuant to Section 5 of Exhibit 1, or (ii) Seller determines that the installation of the System will not be viable for any reason, then either Party may terminate this Agreement by providing ten (10) days’ prior written notice to the other Party. Neither Party shall be liable for any damages in connection with such termination. After Commencement of Installation, the Contract Price shall not be subject to further adjustment pursuant to Section 5 of Exhibit 1 or otherwise.
d. Termination by Purchaser for Delay. If Commencement of Installation has not occurred within three hundred and sixty-five (365) days after the Effective Date, Purchaser may terminate this Agreement by providing thirty (30) days’ prior written notice to Seller; provided that this Agreement will not terminate pursuant to this Section 2(d) if Seller causes to be achieved Commencement of Installation on or before the end of such thirty (30) day notice period or if Commencement of Installation is delayed due to a Force Majeure Event. Purchaser shall not be liable for any damages in connection with such termination. For the avoidance of doubt, such event shall not be deemed a Default Event by Seller and Purchaser’s only remedy shall be the reimbursement by Seller of direct costs reasonably incurred by Purchaser by reason of the termination.
3. Billing and Paym ent; Taxes.
a. Monthly Charges. Purchaser shall pay Seller monthly for the electricity generated by the System and delivered to the Delivery Point at the $/kWh rate shown in Exhibit 1 as adjusted by Section 5 of Exhibit 1, if applicable (the “Contract Price”). The monthly payment for such energy will be equal to the applicable $/kWh rate multiplied by the number of kWh of electricity generated during the applicable month, as measured by the Meter (as defined in Section 10).
Additional costs for items differing from the assumptions in Exhibit 1, Section 4 are Purchaser’s responsibility.
b. Monthly Invoices. Seller shall invoice Purchaser monthly for amounts owed by Purchaser hereunder. Such monthly invoices shall state (i) the amount of electricity produced by the System and delivered to the Delivery Point, (ii) the rates applicable to, and charges incurred by, Purchaser under this Agreement, and (iii) the total amount due from Purchaser.
c. Payment Terms. Al l amounts due under this Agreement are due and payable within thirty (30) days following receipt of invoice. Any undisputed portion of the invoice amount not paid within such thirty (30) day period shall accrue interest at the annual rate of two and one-half percent (2.5%) above the Prime Rate (but not to exceed the maximum rate permitted by law). All payments shall be made in U.S. dollars. “Prime Rate” shall mean the annual prime rate of interest published in the Wall Street Journal for the applicable period during which interest is incurred pursuant to the terms of the Agreement.
Exh. 3, p. 2
d. Taxes.
i. Purchaser’s Taxes. Purchaser is responsible for: ( A) payment of, or reimbursement of Seller for , all taxes assessed on the generation, sale, delivery or consumption of electricity produced by the System or the interconnection of the System to the Utility’s electricity distribution system; (B) real property taxes; and (C) any sales or use taxes as a result of exercising the options to purchase the System in Section 14(b).
ii. Seller’s Taxes. Se ller is responsible for: ( A) payment of income taxes or similar taxes imposed on Seller’s revenues due to the sale of electricity under this Agreement; and ( B) personal property taxes imposed on the System (“Seller’s Taxes”).
e. Budgeting for Contract Price. Up on execution of this Agreement and prior to the commencement of each subsequent budgetary cycle of Purchaser during the Initial Term (and Additional Term, if any), Purchaser shall take all necessary action to obtain all necessary budgetary approvals and certifications for payment of all of its obligations under this Agreement for such budgetary cycle, including, but not limited to including the maximum amount of its annual payment obligations under this Agreement in its budget submitted to Purchaser’s City Council for each year of that budget cycle.
4. RECs and Incentives.
a. Definitions.
“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority having jurisdiction or effective control over a Party.
“Incentives” means (i) a payment paid by a utility or state or local Governmental Authority based in whole or in part on the cost or size of the System such as a rebate, (ii) a performance -based incentive paid as a stream of periodic payments by a utility, state or G overnmental Authority based on the production of the System, (iii) investment tax credits, production tax credits, and similar tax credits, grants or other tax benefits under federal, state or local law, including, but not limited to, the election to receive a payment with respect to investment tax credits or production tax credits pursuant to Code Section 6417, and (iv) any other attributes, commodity, revenue stream or payment in connection with the System (such as ancillary or capacity revenue), in each case of (i) through (iv) relating to the construction, ownership, use or production of energy from the System, provided that Incentives shall not include RECs.
“REC” means a renewable energy credit or certificate under any state renewable portfolio, standard or federal renewable energy standard, voluntary renewable energy credit certified by a non-governmental organization, pollution allowance, carbon credit and any similar environmental allowance or credit and green tag or other reporting right under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program, in each case relating to the construction, ownership, use or production of energy from the System, provided that RECs shall not include Incentives.
b. RECs. Th
e Parties hereby agree that Seller is entitled to the benefit of, and will retain all ownership interests in , the RECs. Seller shall not sell, assign or otherwise transfer the RECs to a third party. If necessary, Purchaser shall cooperate with Seller in obtaining, securing and transferring any and all RECs. Purchaser is not obligated to incur any out -of- pocket costs or expenses in connection with such actions unless reimbursed by Seller. Purchaser shall not make any filing or statements inconsistent with Seller’s ownership interests in the RECs, nor shall Purchaser attempt to sell, assign or transfer such RECs. If any RECs are delivered directly to Purchaser, Purchaser shall immediately deliver such items or amounts to Seller.
c. Incentives. Th e Parties hereby agree that Seller or a subsequent System Owner, if applicable, and not Purchaser, is entitled to the benefit of, and will retain all ownership interests in, the Incentives. If necessary, Purchaser shall cooperate with Seller and any such third -party System Owner in obtaining, securing and transferring any and all Incentives , including cooperating, as requested by Seller, with respect to any challenges as to Seller obtaining any portion or amount of the Incentives. Without limiting the foregoing, Purchaser acknowledges that Seller intends to qualify for the elective payment incentive (the “Elective Pay Incentive ”) and make the elective payment election in Section 6417 of the Internal Revenue Code of 1986, as amended (the “ Code”) with respect to the federal income tax credits (the “Applicable Credits”) under either Code Sections 45 or 48. Purchaser agrees to cooperate with Seller to the extent requested by Seller, so that Seller can (i) qualify for the Applicable Credits in the context of the Elective Pay Incentive, (ii) make the elective payment election and obtain a payment of applicable proceeds with respect to the Elective Pay Incentive, (iii) avoid a disallowance, recapture, or reduction of the proceeds with respect to the Elective Pay Incentive, Exh. 3, p. 3
and (iv) prevent an excessive payment as set forth in Code Section 6417(d)(6). Purchaser is not obligated to incur any out-of-pocket costs or expenses in connection with such actions unless reimbursed by Seller or any such System Owner.
Purchaser shall not make any filing or statements inconsistent with Seller’s or System Owner’s ownership interests in the Incentives, nor shall Purchaser attempt to sell, assign or transfer such Incentives. If any Incentives are delivered directly to Purchaser, Purchaser shall immediately deliver such items or amounts to Seller.
5. Project Com
pletion.
a. Project Development. Seller shall use reasonable efforts to pursue or cause to be pursued the development and installation of the System, subject to Section 2(c) and the remaining provisions of this Section 5.
b. Permits and Approvals. Seller shall use reasonable efforts to cause to be obtained the following at its sole cost and expense (each, an “Approval”):
i. any
zoning, land use and building permits required for Seller to cause the System to be constructed, installed and operated; and
ii. any agreements and approvals from the Utility necessary in order to interconnect the System to the Utility’s electric distribution system.
Purchaser shall reasonably cooperate with Seller’s reasonable requests to assist Seller in expeditiously obtaining such Approvals, including, without limitation, the execution of documents required to be provided by Purchaser to the Utility. The Parties acknowledge and agree that Purchaser does not have authority or jurisdiction over any other public agency’s ability to grant Approvals or ability to impose limitations that may affect the System, provided, that such acknowledgment and agreement does not apply to joint powers authorities or related agencies over which Purchaser asserts authority.
c. Force Maj
eure.
i. Force Majeure Event . If either Party is unable to timely perform any of its obligations (other than payment obligations) under this Agreement in whole or in part due to a Force Majeure Event, that Party will be excused from performing such obligations for the duration of the time that such Party remains affected by the Force Majeure Event; provided, that such Party uses reasonable efforts to mitigate the impact of the Force Majeure Event and resumes performance of its affected obligations as soon as reasonably practical. The Party affected by the Force Majeure Event shall notify the other Party as soon as reasonably practical after the affected Party becomes aware that it is or will be affected by a Force Majeure Event. If the Force Majeure Event occurs during the Term and impacts the ability of the System to deliver electricity to the Delivery Point, the Term will be extended day for day for each day delivery is suspended due to the Force Majeure Event , up to a maximum of two (2) years.
ii. Extended Force Majeure. If a Force Majeure Event notified by either Party under paragraph (i) above continues for a consecutive period of three hundred sixty -five (365) days or more, then either Party may elect to terminate this Agreement without either Party having further liability under this Agreement except: (A) liabilities accrued prior to termination, (B) Seller’s obligation to cause the System to be removed as required under Section 9 (but Purchaser shall reimburse Seller for Seller’s removal costs if the Force Majeure Event affects Purchaser and Purchaser elects to terminate the Agreement) and (C) if Purchaser elects to terminate the Agreement in accordance with this Section, Purchaser shall pay Seller a termination payment equal to the amount set forth in Section 6 of Exhibit 1 . Notwithstanding the foregoing, if the Force Majeure Event can be corrected through repair or restoration of the System or other actions by Seller and, prior to expiration of the three hundred sixty -five (365) day period, Seller provides written evidence to Purchaser that it is diligently pursuing such actions, then Purchaser shall not have the right to terminate this Agreement so long as Seller continues to diligently pursue such actions.
iii. Definition of “ Force Majeure Event .” “Force Majeure Event” means any event or circumstance beyond the reasonable control of and without the fault or negligence of Seller or Purchaser, including, without limitation: an act of God; war (declared or undeclared); sabotage; piracy; riot; insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction, tariff or embargo; civil strike, work stoppage, slow- down, or lock-out; explosion; fire; earthquake; tsunami; storm; tornado; blizzard; heatwave; hurricane; flood; lightning; hail; wind; drought; animals; epidemic; pandemic; action or the failure to act by a Governmental Authority or the Utility, including, but not limited to, a moratorium on any activities related to this Agreement or the delay or a lack o
f a final Approval based on the California Environmental Quality Act (“ CEQA”) or other applicable law, provided that the delay in decision-making is not attributable to the Party claiming a Force Majeure Event and that Exh. 3, p. 4
such Party has exercised its reasonable efforts to cause such Approval to be obtained ; delays in interconnection, provided that the delay in obtaining interconnection is not attributable to the Party claiming a Force Majeure Event or its agents; unavailability of electricity from the Utility grid; and failure or unavailability of equipment, supplies or products outside of Seller’s control or due to a Force Majeure Event. For purposes of the definition of “Force Majeure Event,” a Party shall not be considered a Governmental Authority if such Party is claiming the presence of a Force Majeure Event as an excuse for its failure to timely perform its obligations under this Agreement.
d. Extension of Time. If Seller is delayed in causing the achievement of Commencement of Installation due to a Force Majeure Event, the time for achievement of Commencement of Installation will be automatically extended to account for the impact of the delay.
e. Commercial Operation. Se ller shall notify Purchaser in writing at least one week prior to the Commercial Operation Date. Upon Purchaser’s reasonable request, Seller shall provide Purchaser with the “Final Completion Certificate” as executed by the contractor to Seller responsible for installing the System and the “Final Completion Notification” as executed by Seller to evidence that the System is ready to begin Commercial Operation. Purchaser may not turn on, electrify or otherwise operate the System in the absence of prior, written permission from Seller.
6. Installation, Ope ration and Maintenance.
a. Seller’s General Obligations Regarding the System. Subject to the terms and conditions of this Agreement, Seller shall use reasonable efforts to cause the System to be designed, engineered, installed, commissioned, monitored, operated and maintained, in each case in a good and workmanlike manner and in accordance with applicable law and prudent solar industry practices in the State of California. T he Seller shall ensure that the System compl ies with all applicable law, rules, regulations and local building codes. In furtherance of the foregoing, Seller shall use reasonable efforts to enforce all of its rights under its agreement or agreements with the installer of the System and with the entity engaged to operate and maintain the System; provided , that Seller shall maintain full discretion with respect to any determinations regarding the nature of such enforcement actions and Seller shall not be obligated pursuant to this Agreement to initiate litigation or other legal process.
b. System Design Approval . Se ller has provided Purchaser with a copy of the System design, and Purchaser has approved such design. Should any subsequent changes to the System design be made prior to C ommencement of Installation, Purchaser shall be provided with a copy of any such revised System design and any resulting changes to the Contract Price, Section 6 of Exhibit 1, any of the data on Exhibit 2 and/or Table 1.A of Exhibit 4, and Purchaser shall have ten (10) business days after receipt to approve or disapprove the revised design and any such resulting changes in writing, such approval not to be unreasonably withheld. Failure by Purchaser to respond within such ten (10) business day period shall be deemed approval of the revised System design and any such resulting changes . If Purchaser disapproves the revised System design and/or any such resulting changes , Seller may either (i) cause the design to be reverted to the original design approved by Purchaser or (ii) terminate this Agreement and such termination shall be without further liability to Purchaser. If changes to the System design or other changes, including new information regarding Purchaser’s electricity needs or Seller’s selection of equipment for the System, will result in a change to any of the data on Exhibit 2 (including, but not limited to the System Size), the Contract Price, Section 6 of Exhibit 1, any of the data on Exhibit 2 and/or Table 1.A of Exhibit 4, such sections and/or table of this Agreement may be revised if any such changes are approved by both Parties in writing. If changes to the System design are reasonably expected to lower the costs to Seller of engineering, constructing, installing, interconnecting, operating, maintaining, repairing and/or removing the System, Seller may, in its sole discretion, decrease the Contract Price and provide such updated Contract Price to Purchaser in an addendum to this Agreement.
c. System Repair and Maintenance. Sel ler may cause the suspension of delivery of electricity from the System to the Delivery Point for the purpose of causing the maintenance to and repairs of the System; provided that Seller shall use reasonable efforts to minimize any interruption in service to the Purchaser and shall provide at least thirty (30) business days’ advance notice to Purchaser of any scheduled maintenance and repairs. Emergency maintenance and repairs may be performed in the absence of such notice if necessary to prevent harm to persons or property. Scheduled and unscheduled maintenance and repairs shall be undertaken at Seller’s sole cost and expense, except that Purchaser shall reimburse Seller for the reasonable cost of any repairs or maintenance resulting from damage caused by Purchaser, its agents, employees or contractors.
d. System Outage Allowance. Upo
n Purchaser’s written request, Seller shall cause the System to be taken off-line for a total of forty-eight (48) daylight hours (as defined by the United States National Weather Service in the area where the System is located) during each Contract Year (each event an “Outage ” and the forty- eight (48) hour period the “Outage Allowance”). The Outage Allowance includes all Outage hours undertaken by Seller for maintenance or Exh. 3, p. 5
repairs for which Purchaser is responsible pursuant to Section 6(c) or requested by Purchaser under this Section 6(d) (other than due to the fault or negligence of Seller). Purchaser’s request shall be delivered at least forty- eight (48) hours in advance. Purchaser is not obligated to accept or pay for electricity that could have been delivered by the System but for an Outage up to the annual Outage Allowance. If the aggregate hours for Outages, including, but not limited to Outages resulting from a tempora ry disconnection or removal pursuant to Section 6(f) , exceed the Outage Allowance in a given Contract Year and Purchaser has opted out of receiving retail electric generation service from Seller, Seller shall reasonably estimate the amount of electricity that would have been delivered to Purchaser during such excess Outages and Purchaser shall pay Seller for such amount in accordance with this Agreement.
e. Maintenance of Premises. P urchaser shall, at its sole cost and expense, maintain the Premises and Improvements in good condition and repair. Purchaser, to the extent within its reasonable control, (i) shall ensure that the Premises remains interconnected to the local Utility grid at all times; and (ii) shall not permit cessation of delivery of electric service to the Premises from the local Utility . Purchaser is fully responsible for, and shall properly maintain in full working order and good repair, the electrical infrastructure on the Purchaser’s side of the Delivery Point, including all of Purchaser’s equipment that utilizes the System’s outputs. Purchaser shall use reasonable efforts to cooperate with Seller to comply with any technical standard of the Utility providing electrical power to the Purchaser.
f. Alteration or Repairs to Premises . Not less than ninety (90) days prior to making any alterations or repairs to the Premises (except for emergency repairs) or any Improvement which may adversely affect the operation and maintenance of the System, Purchaser shall inform Seller in writing and, thereafter, shall use reasonable efforts to conduct such repairs, alterations or Improvements in compliance with any reasonable request made by Seller within ten (10) days after having received such written request to m itigate any adverse effect. If any repair, alteration or Improvement result in a permanent and material adverse economic impact on the System, Purchaser may request relocation of the System under Section 8 hereof. To the extent that temporary disconnection of the System is necessary in order for Purchaser to perform such alterations or repairs, Seller shall cause to be performed such work, and any re- connection of the System, at Purchaser’s cost, subject to Section 6(c), 6(d), and 6(e) . To the extent that temporary removal of the System is necessary in order for Purchaser to perform such alterations or repairs, Seller shall use reasonable efforts to cause to be performed such removal work within one hundred and eighty (180) days of Seller’s determination that such temporary removal is required and any such removal and re -installation work shall be at Purchaser’s cost, subject to Section 6(c), 6(d), and 6(e). Purchaser shall cause to be made any alterations and repairs in a good and workmanlike manner, in compliance with all applicable laws, codes and permits.
7. Miscellaneous Rig hts and Obligations of the Parties.
a. Access Rights. In consideration of and in order to effectuate the mutual covenants and terms of this Agreement, Purchaser hereby grants to Seller and to Seller’s agents, employees, contractors and subcontractors and the Utility (i) a non-exclusive license running with the Premises (the “Non-Exclusive License”) for access to, on, over, under and across the Premises from the Effective Date until the date that is one hundred and eighty (180) days following the date of expiration or earlier termination of this Agreement (the “ License Term”), for the purposes of performing all of Seller’s obligations and enforcing all of Seller’s rights set forth in this Agreement and otherwise as required by Seller in order to effectuate the purposes of this Agreement, including, but not limited to design, engineering, development, construction, installation, inspection, interconnection, testing, operation, maintenance, repair, replacement and removal of the System and all incidental and related uses connected therewith . In addition to the foregoing, if the System shall be a ground -mounted System to be located within a secure, fenced area on the Premises, Purchaser hereby grants to Seller an exclusive, sub-licensable license running with the Premises (the “Exclusive License”, and together with the Non -Exclusive License, the “Licenses ”) for purposes of the installation, operation, use and maintenance of the System on such exclusively licensed area of the Premises during the License Term. Seller shall provide at least seventy-two (72) hours advance notice to Purchaser of any access required prior to the Commercial Operation Date; after the Commercial Operation Date notice shall be provided subject to Section 6(c) . Seller shall use reasonable efforts to ensure that when on the Premises during the License Term, it and its employees, agents, contractors and subcontractors comply with Purchaser’s site saf ety and security requirements , which are to be provided to Seller in writing within sixty (60) days of the Effective Date . During the License Term, Purchaser shall preserve and protect Seller’s rights under the Licenses and Seller’s access to the Premises and shall not interfere, or permit any third parties under Purchaser’s control to interfere , with such rights or access. Seller may record a customary memorandum of license in the land records respecting the Licenses.
b. OSHA Compliance. Each Party shall comply with all Occupational Safety and Health Act (“OSHA”) requirements and other similar applicable safety laws and codes with respect to such Party’s performance under this Agreement.
c. Safeguarding the Premises. Pur chaser shall maintain the physical security of the Premises and Improvements in a Exh. 3, p. 6
manner to be expected of a reasonable and prudent owner of premises and improvements similar to the Premises and Improvements in nature and location. Purchaser shall not conduct or permit activities on, in or about the Premises or the Improvements that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the System. Purchaser shall indemnify Seller for any loss or damage to the System to the extent caused by or arising out of (i) Purchaser’s breach of its obligations under this Section or (ii) the acts or omissions of Purchaser or its employees, agents, invitees or separate contractors. Without limiting the foregoing, Seller shall arrange for security of the System, equipment and tools during the construction of the System and Purchaser shall cooperate with Seller and its contractor with respect to such security measures. The obligations set forth in this Section 7(c) shall survive until the date that is one hundred and eighty (180) days following the date of expiration or earlier termination of this Agreement.
d. Insolation. Pu rchaser acknowledges that unobstructed access to sunlight (“ Insolation”) is essential to Seller’s performance of its obligations and a material term of this Agreement. Purchaser shall not, to the extent within its reasonable control, cause or permit any interference with the System’s Insolation, and shall ensure that vegetation on the Premises adjacent to the System is regularly pruned or otherwise maintained to prevent interference with the System’s Insolation. If either Party discovers any activity or condition that could diminish the Insolation of the System, such Party shall immediately notify the other Party and Purchaser shall cooperate with Seller in preserving and restoring the System’s Insolation levels as they existed on the Effective Date.
e. Use and Payment of Contractors and Subcontractors. Se ller shall use and shall cause to be used suitably qualified, experienced and licensed contractors and subcontractors to perform its obligations under this Agreement. However, Seller shall be responsible for the quality of the work performed by such contractors and subcontractors. Seller shall pay or shall cause to be paid when due all valid charges from all contractors, subcontractors and suppliers supplying goods or services to Seller under this Agreement.
f. Liens.
i. Lien Obligations. Purchaser shall not directly or indirectly cause, create, incur, assume or allow to exist any mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any nature, except such encumbrances as may be required to allow Seller access to the Premises (each a “Lien ”) on or with respect to the System. Seller shall not directly or indirectly cause, create, incur, assume or allow to exist any Lien on or with respect to the Premises or the Improvements, other than those Liens which Seller is permitted by law to place on the Premises due to non-payment by Purchaser of amounts due under this Agreement. Each Party shall immediately notify the other Party in writing of the existence of any such Lien following such Party’s discovery of same, and shall promptly (and in all events within thirty (30) days) cause the same to be discharged and released of record without cost to the other Party; provided, however, that each indemnifying Party has the right to contest any such Lien, so long as it provides a statutory bond or other reasonable assurances of payment that either removes such Lien from title to the affected property, or that assures that any adverse judgment with respect to such Lien shall be paid without affecting title to such property.
ii. Lien Indemnity . Each Party shall indemnify the other Party from and against all claims, losses, damages, liabilities and expenses resulting from any Liens filed against such other Party’s property as a result of the indemnifying Party’s breach of its obligations under Section 7(f)(i).
8. Relocation of Syst em. If, during the Term, Purchaser ceases to conduct operations at the Premises or vacates the Premises, the Premises have been destroyed, or the Purchaser is otherwise unable to continue to host the System or accept the electricity delivered by the System for any other reason (other than a Default Event by Seller), Purchaser shall propose in writing the relocation of the System, at Purchaser’s cost. Such proposal shall be practically feasible and preserve the economic value of this Agreement for Seller. The Parties shall seek to negotiate in good faith an agreement for the relocation of the System. Pending agreement on relocation of the System, Purchaser shall continue to make payments to Seller pursuant to Section 11(b)(i)(C).
9. Removal of Syst em upon Termination or Expiration. Upon the expiration or earlier termination of this Agreement (provided Purchaser does not purchase the System pursuant to the terms and conditions of Section 14(b)), Seller shall, at its expense (unless expressly provided otherwise in this Agreement), cause to be removed all of the tangible property comprising the System from the Premises with a targeted completion date that is no later than one hundred and eighty (180) days after the expiration of the Term. The portion of the Premises where the System is located shall be returned to substantially its original condition as is reasonably possible, except for ordinary wear and tear, including the removal of System mounting pads or other support structures, and repair and restoration of the roof and the roof membrane. Seller is required to cause to be repaired any and all damage to the Premises caused by removal of the System. Notwithstanding the foregoing, Seller shall not be obligated to remove or cause to be removed any support structures for the System which are affixed to and below the exposed surface of Purchaser’s Exh. 3, p. 7
structures or any below grade structures, including foundations and conduits, or any roads. If the System is installed on the roof of a
n Improvement, Seller’s warranties under Section 12(c)(i) shall apply, as applicable. Purchaser must provide sufficient access, space and cooperation as reasonably necessary to facilitate System removal. Purchaser shall comply with Section 7(c) and Section 13 until removal is complete. If Seller fails to cause the removal of the System within one hundred and eighty (180) days after expiration of the Term, Purchaser may, at its option, remove the System to a public warehouse and restore the Premises to its original condition (other than ordinary wear and tear) at Seller’s cost, provided that if Seller pays Purchaser for such costs, Seller shall not be liable to Purchaser for a Default Event by Seller.
10. Measurement.
a. Meter. The System’s electricity output during the Term shall be measured by Seller’s meter, which shall be a revenue grade meter that meets ANSI-C12.20 standards for accuracy (the “Meter”). Purchaser shall have access to the metered energy output data via the monitoring system caused to be installed and maintained by Seller as part of the System.
b. Meter Cal ibration. Seller shall cause the Meter to be calibrated in accordance with manufacturer’s recommendations.
Notwithstanding the foregoing, Purchaser may install, or cause to be installed, its own revenue -grade meter at the same location as the Meter. If there is a discrepancy between the data from Purchaser’s meter and the data from the Meter of greater than two percent (2%) over the course of a Contract Year, then Purchaser may request that Seller calibrate the Meter at Seller’s cost.
c. Internet Connection. At
all times during the Term, Purchaser shall maintain and make available, at Purchaser’s cost:
i. A hard-wired ethernet port for connection to System equipment located within fifty (50) physical feet of the electrical room of the Premises; or, if such hard -wired port is not feasible, Wi- Fi available seven (7) days per week and twenty-four (24) hours per day;
ii. Information technology support services as needed to provide Internet connectivity via the connection described in S
ection 10(c)(i); and
iii. A dedicated IP address for System equipment.
If Purchaser does not maintain such Internet connection described above, Seller will not be able to cause the System to be mo
nitored or provide the performance guaranty set forth on Exhibit 4. Further, if Seller is not able to monitor the System, Seller will be required to estimate the System’s power production for purposes of determining the monthly payment(s) for any such month in which the required Internet connection was not available.
d. Meter Testing. Pu rchaser may require Seller to cause the Meter to be tested once at any time during the Term at Seller’s cost (an “Initial Meter Test”). After the Initial Meter Test, Purchaser may request that Seller cause the Meter to be tested only upon Purchaser’s reasonable basis for belief that a Meter Inaccuracy (as defined below) exists, at Seller’s cost (a “Second Meter Test”). In the absence of a Meter Inaccuracy as demonstrated by a Second Meter Test, any future Meter testing shall be at Purchaser ’s sole cost and expense. If any Meter test demonstrates inaccuracy of the Meter of greater than two percent (2%) over the course of a Contract Year (a “ Meter Inaccuracy”), then Seller shall credit any overpayment by Purchaser against, or add any underpayment by Purchaser to, the next monthly invoice it provides to Purchaser. Purchaser shall have the right to witness any Meter test.
11. Default, Remed
ies and Damages.
a. Default. Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances listed below is deemed a “Defaulting Party”, the other Party is the “Non-Defaulting Party” and each of the following is a “Default Event”:
i. fai
lure of a Party to pay any amount due and payable under this Agreement, other than an amount that is subject to a good faith dispute, within ten (10) days following receipt of written notice from the Non-Defaulting Party of such failure to pay (“Payment Default”);
ii. failure of a Party to perform any material obligation under this Agreement or an act or omission of a Party in viola
tion of the terms and conditions of this Agreement not addressed elsewhere in this Section 11 within sixty (60) days following receipt of written notice from the Non-Defaulting Party demanding such cure; provided, that if the Default Event cannot reasonably be cured within sixty (60) days and the Defaulting Party has demonstrated prior to the end of that period that it is diligently pursuing such cure, the cure period will be extended for a further Exh. 3, p. 8
reasonable period of time, not to exceed ninety (90) days;
iii. such Party fails to provide or maintain in full force and effect any required insurance, if such failure is not remedied within ten (10) business days after receipt of written notice from the Non -Defaulting Party to the Defaulting Party;
iv. any representation or warranty given by a Party under this Agreement was incorrect in any material respect when made and is not cured within thirty (30) days following receipt of written notice from the Non-Defaulting Party demanding such cure;
v. a Party becomes insolvent or is a party to a bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or any general assignment for the benefit of creditors or other similar arrangement or any event occurs or proceedings are taken in any jurisdiction with respect to the Party which has a similar effect (or, if any such actions are initiated by a third party, such action(s) is (are) not dismissed within sixty (60) days); or,
vi. in the case of Purchaser as the Defaulting Party only, Purchaser (A) loses its rights to occupy and enjoy the Prem
ises, unless the Parties agree upon a relocation under Section 8 above; (B) loses its right to provide access to the System or is otherwise in default under Section 7(a); or (C) prevents Seller from performing any material obligation under this Agreement unless such action by Purchaser is (x) permitted under this Agreement, or (y ) cured within ten (10) days after written notice thereof from Seller.
b. Remedies.
i. Purchaser Default Event Remedies. Upon the occurrence and during the continuation of a Default Event where the Purchaser is the Defaulting Party, including a Payment Default:
A. Seller may exercise any and all remedies available or granted to it pursuant to law or hereunder, including seeking by mandamus or other suit, action or proceeding at law or in equity to enforce the Seller’s rights against the Purchaser, including rights to any payments due hereunder in an action for damages, and to compel the Purchaser to perform and carry out its duties and obligations under the law and its covenants and agreements with the Seller as provided herein.
B. Seller may suspend performance of its obligations under this Agreement , including, but not limited to , turning off the System, until the earlier to occur of (x) the date that Purchaser cures the Default Event in full, including making payment in full as provided in Section 11(b)(i)(C), or (y) the termination date of this Agreement. Seller’s rights under this Section 11(b)(i)(B) are in addition to any other remedies available to it under this Agreement, at law or in equity.
C. Except as otherwise provided herein, this Agreement shall not terminate as a result of such Default Event and shall continue in full force and effect, and Purchaser shall continue to pay, and Seller shall be entitled to recover payment for: (x) all electricity delivered by Seller pursuant to Section 3 of this Exhibit 3, and (y) all electricity that Seller reasonably estimates it would have been able to deliver to Purchaser in accordance with this Agreement but for the Default Event by Purchaser, in each case at the Contract Price, together with (z) any other amounts due and payable pursuant to this Agreement.
ii. Seller Default Event Remedies . Upon the occurrence and during the continuation of a Default Event where Seller is the Defaulting Party:
A. Purchaser may exercise any and all remedies available or granted to it pursuant to law or hereunder, including seeking by mandamus or other suit, action or proceeding at law or in equity to enforce the Purchaser’s rights against the Seller, including rights to any payments due hereunder in an action for damages, and to compel the Seller to perform and carry out its duties and obligations under the law and its covenants and agreements with the Purchaser as provided herein.
B. except as otherwise provided herein, this Agreement shall not terminate as a result of such Default Event and shall continue in full force and effect, and Seller and Purchaser shall continue to pay all amounts due and payable pursuant to this Agreement.
iii. Optional Term
ination by Purchaser. In addition to the remedies provided for in Section 11(b)(ii) , upon the occurrence and during the continuation of a Default Event where Seller is the Defaulting Party , the Purchaser may terminate this Agreement as further set forth in this Section 11(b)(iii) by providing thirty (30) days prior Exh. 3, p. 9
written notice to the Seller; provided, that, in the case of a Default Event under Section 11(a)(v) where the Seller is the Defaulting Party , no such notice period shall be required. Upon termination pursuant to this Section 11(b)(iii), Seller shall pay to Purchaser an amount equal to the sum of (A) the present value of the excess, if any, of the reasonably expected cost of electricity delivered by the Utility over the Contract Price for the reasonably expected production of the System for a period of the lesser of five (5) years or the remainder of the Initial Term or the then current Additional Term, as applicable; (B) all direct costs reasonably incurred by Purchaser by reason of the termination; and (C) any and all other amounts previously accrued under this Agreement and then owed by Seller to Purchaser (the “Seller Termination Payment”). The Seller Termination Payment determined under this Section 11(b)(iii) cannot be less than zero.
iv. Optional Termination by Seller . In a ddition to the remedies provided for in Section 11(b)(i), upon the occurrence and during the continuation of a Default Event where Purchaser is the Defaulting Party, the Seller may terminate this Agreement as further set forth in this Section 11(b)(iv) by providing thirty (30) days prior written notice to the Purchaser; provided, that, in the case of a Default Event under Section 11(a)(v) where the Purchaser is the Defaulting Party, no such notice period shall be required. Upon termination pursuant to this Section 11(b)(iv), Purchaser shall pay to Seller an amount equal to the sum of (1) the applicable amount set forth in the Termination Payment Schedule of Section 6 of Exhibit 1, and (2) any other amounts previously accrued under this Agreement and then owed by Purchaser to Seller (collectively, the “Purchaser Termination Payment” and, together with the Seller Termination Payment, the “ Termination Payment”). The Purchaser Termination Payment determined under this Section 11(b)(iv) cannot be less than zero.
v. Severability of Remedies. If any remedy in Section 11(b) is held by a court of competent jurisdiction to be in conflict with any statute, constitutional provision, regulation or other rule of law, or is otherwise held to be unenforceable for any reason whatsoever, such circumstances shall not have the effect of rendering the other remedies herein contained invalid, inoperative, or unenforceable to any extent whatsoever. If any one or more of the provisions contained in Section 11(b) of this Exhibit 3 shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Section 11(b) and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The Parties hereby declare that they each would have executed this Agreement and each and every other section hereof irrespective of the fact that any one or more sections of this Section 11(b) may be held illegal, invalid or unenforceable.
vi. Liquidated Damages. Th e Parties agree that, if Seller terminates this Agreement prior to the expiration of the Term pursuant to Section 11(b)( iv), actual damages would be difficult to ascertain, and the Purchaser Termination Payment determined in accordance with Section 11(b)(iv) is a reasonable approximation of the damages suffered by Seller as a result of early termination of this Agreement and is not a penalty.
c. Obligations Following Termination. If a Party terminates this Agreement pursuant to Section 11(b)(iii), or Section 11(b)(iv), then following such termination, Seller shall cause and shall have the right to cause the equipment constituting the System to be removed in compliance with Section 9 at the sole cost and expense of the Defaulting Party, provided, however that Seller shall not be required to cause the System to be removed following the occurrence of a Default Event by Purchaser, unless Purchaser has paid the Purchaser Termination Payment to Seller or pre-pays the cost of removal and restoration reasonably estimated by Seller.
i. Reservation of Rights. Except in the case of a termination under Sec tion 11(b)(iii) or Section 11(b)(iv) and payment of a Termination Payment , if any, determined as provided therein, nothing in this Section 11 limits either Party’s right to pursue any remedy under this Agreement, at law or in equity, including with respect to the pursuit of an action for damages by reason of a breach or Default Event under this Agreement.
ii. Mitigation Obligation . Reg
ardless of whether this Agreement is terminated for a Default Event, the Non - Defaulting Party must make reasonable efforts to mitigate its damages as the result of such Default Event; provided that such obligation shall not reduce Purchaser’s obligation to pay the full Purchaser Termination Payment set forth in Section 6 of Exhibit 1 following a Default Event by Purchaser.
iii. No Limitation on Payments. N othing in this Section 11 excuses a Party’s obligation to make any payment when due under this Agreement, including with respect to payments for electricity that would have been delivered to Purchaser but for a Purchaser breach or Default Event.
Exh. 3, p. 10
12. Representations and Warranties.
a. General Representations and Warranties. Each Party represents and warrants to the other the following:
i. Such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary governmental action, and do not and will not violate any law; and this Agreement is the valid obligation of such Party, enforceable against such Party in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors’ rights generally).
ii. Such Party has obtained all licenses, authorizations, consents and approvals required by applicable law and any Governmental Authority or other third-party and necessary for such Party to own its assets, carry on its business and operations and to execute and deliver this Agreement; and such Party is in compliance with all laws that relate to this Agreement in all material respects.
b. Purchaser’s Repres
entations and Warranties. Purchaser represents and warrants to Seller the following:
i. Licenses. (A) Purchaser has title to and is the fee owner of the Premises such that Purchaser has the full right, power and authority to enter into and perform all of its obligations under this Agreement, (B) this Agreement does not violate any law, ordinance, rule or other governmental restriction applicable to Purchaser or the Premises and is not inconsistent with and will not result in a breach or default under any agreement by which Purchaser is bound or that affects the Premises, and (C) there are no deeds of trust, mortgages or similar security instruments with a lien against the Premises.
ii. Other Agreements. Neither the execution and delivery of this Agreement by Purchaser nor the performance by Purchaser of any of its obligations under this Agreement conflicts with or will result in a breach or default under any agreement or obligation to which Purchaser is a party or by which Purchaser is bound.
iii. Accuracy of Inf ormation. All information provided by Purchaser to Seller, as it pertains to (A) the Premises, (B) the Improvements on which the System is to be installed, if applicable, ( C) Purchaser’s planned use of the Premises and any applicable Improvements, and (D) Purchaser’s estimated electricity requirements, is accurate in all material respects.
iv. Purchaser Status. Pu rchaser is not a public utility or a public utility holding company and is not subject to regulation as a public utility or a public utility holding company.
v. Limit on Use. No portion of the electricity generated by the System shall be used to heat a swimming pool.
c. Seller’s Warranties.
i. If Seller causes to be penetrated the roof of any Improvement on which the System is installed, during System installation or any System repair, Seller shall provide for a warranty on roof damage caused by these roof penetrations and shall repair such damage at Seller’s expense . Seller’s roof warranty shall terminate upon the earlier of (A) five (5) years following the Commercial Operation Date and (B) the expiration of the warranty applicable to such roof provided by Purchaser’s roofing contractor that is effective as of the Effective Date (“Existing Roof Warranty”). If there is an Existing Roof Warranty, Purchaser shall provide it to Seller, and Seller shall ensure that the construction, operation, maintenance and removal of the System conforms to the requirements of the Existing Roof Warranty to the extent such Existing Roof Warranty is in effect.
ii. If Seller or its agents damage any other part of the Premises or any Improvement (including roof damages not cover
ed under Section 12(c)(i) above), Seller shall repair or reimburse Purchaser for such damage, as agreed by the Parties and subject to Section 15.
d. NO OTHER WARRANTY . THE WARRANTIES SET FORTH IN SECTIONS 12(a) AND 12(c) OF THIS AGREEMENT ARE PURCHASER’S SOLE AND EXCLUSIVE BASIS FOR ANY CLAIM OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS SECTION 12 , WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. OTHER THAN AS EXPRESSLY SET FORTH IN SECTIONS 12(a) AND 12(c), NO WARRANTY, WHETHER STATUTORY, WRITTEN, ORAL,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING Exh. 3, p. 11
OR USAGE OF TRADE, APPLIES UNDER THIS AGREEMENT. THE PERFORMANCE GUARANTY SET FORTH IN EXHIBIT 4 REPR ESENTS A SEPARATE CONTRACT BETWEEN PURCHASER AND THE ISSUER OF THE PERFORMANCE GUARANTY. IF THE ISSUER OF THE PERFORMANCE GUARANTY (OR
ANY SUBSEQUENT ASSIGNEE) AND THE SELLER ARE NOT THE SAME PERSON, NO RIGHTS
PROVIDED TO PURCHASER BY THE PERFORMANCE GUARANTY MAY BE ASSERTED UNDER THIS AGREEMENT, AND NO CLAIM UNDER THE PERFORMANCE GUARANTY WILL AFFECT PURCHASER’S OBLIGATIONS UNDER THIS AGREEMENT.
13. Insurance
.
a. Insurance Coverage. At all times during the Term, the Parties shall maintain the following insurance, as applicable:
i. Seller’s Insurance. Seller shall maintain (A) property insurance on the System for the replacement cost thereof, (B) commercial general liability, employers liability and automobile liability insurance with primary coverage of at least $1,000,000 per occurrence, an excess liability limit of $5,000,000, for a total of $6,000,000 in the aggregate, and (C) workers’ compensation insurance as required by law. Seller’s coverage may be provided as part of an enterprise insurance program.
ii. Purchaser’s Insur ance. Purchaser shall maintain commercial general liability insurance with coverage of at least $2,000,000 per occurrence.
b. Policy Pro visions. The insurance policies referenced in Section 13(a) shall (i) contain a provision whereby the insurer agrees to give the other Party at least thirty (30) days (ten (10) days for non -payment of premiums) written notice before the insurance is cancelled, or terminated, (ii) be written on an occurrence basis, and (iii) be maintained with companies either rated no less than A-VII as to Policy Holder’s Rating in the current edition of A.M. Best’s Insurance Guide or otherwise reasonably acceptable to the other Party.
c. Certificates. Up
on the other Party’s request, each Party shall deliver to the other Party certificates of insurance evidencing the above required coverage. A Party’s receipt, review or acceptance of such certificate shall in no way limit or relieve the other Party of the duties and responsibilities to maintain insurance as set forth in this Agreement.
d. Deductibles. Each Party shall pay or cause to be paid its own insurance deductibles, except in the case of claims (i) resulting from a breach of this Agreement, in which case the breaching Party is responsible for payment of the non - breaching Party’s deductible for any responding insurance, and (ii) covered by an indemnity set forth in this Agreement.
14. Ownership; Opt ion to Purchase.
a. Ownership of System.
i. Ownership; Personal Property. System Owner or its assignee shall be the legal and beneficial owner of the System and the System will remain the personal property of System Owner or such assignee and will not attach to or be deemed a part of, or fixture to, the Premises or any Improvement on which the System is installed.
Each of the Seller and Purchaser agree that System Owner or its assignee is the tax owner of the System and all tax filings and reports shall be filed in a manner consistent with this Agreement. The System will at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code.
ii. Notice to Purchaser Lienholders. Purchaser shall use reasonable efforts to place all parties having a Lien on the Premises or any Improvement on which the System is installed on notice of the ownership of the System and the legal status or classification of the System as personal property. If any mortgage or fixture filing against the Premises could reasonably be construed as prospectively attaching to the System as a fixture of the Premises, Purchaser shall provide a disclaimer or release from such lienholder.
iii. Fixture Disclaimer. Purchaser consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction where the Premises are located.
If, at any point after the Effective Date, Purchaser is not the fee owner of the Premises, Purchaser shall obtain such consent from such fee owner. For the avoidance of doubt, in either circumstance Seller has the right to file such disclaimer.
iv. SNDA. Up on request, Purchaser shall deliver to Seller a subordination and non-disturbance agreement in a form Exh. 3, p. 12
mutually acceptable to Seller and Purchaser, any mortgagee with a Lien on the Premises, and other Persons holding a similar interest in the Premises.
v. Eviction Notice. Purchaser hereby represents and warrants that it is the legal owner of t he Premises. To the extent that Purchaser does not own the Premises or any Improvement on which the System is installed after the Effective Date, Purchaser shall provide to Seller immediate written notice of any such change in ownership and receipt of notice of eviction from the Premises or applicable Improvement or termination of Purchaser’s lease of the Premises and/or Improvement.
b. Option to Pur chase.
i. Early Purchase Option. Commencing on the next date after the date that is the sixth (6th) anniversary of the Commercial Operation Date, and continuing for a period of two hundred and seventy (270) days (the “ Early Purchase Option Period”), so long as Purchaser is not in default under this Agreement, Purchaser may exercise an option to purchase the System from System Owner on any such date within the Early Purchase Option Period for a purchase price equal to the greater of ( A) the Fair Market Value of the System, or ( B) the year six (6) Termination Payment amount set forth in Section 6 of Exhibit 1. Purchaser shall exercise the option in this Section 4(b)(i) by providing System Owner with written notice. ii. Exercise of Option. At th e end of the Initial Term and each Additional Term, so long as Purchaser is not in default under this Agreement, Purchaser may purchase the System from System Owner on any such date for a purchase price equal to the Fair Market Value of the System applicable as of the date of the transfer of title to the System (“End of Term Option to Purchase ”). Purchaser shall notify Seller in writing of its intent to purchase at least ninety (90) days and not more than one hundred eighty (180) days prior to the end of the Initial Term or Additional Term, as applicable, and the purchase shall be completed prior to the end of the Initial Term or Additional Term, as applicable. For the avoidance of doubt, the End of Term Option to Purchase shall not apply prior to the expiration of the full Initial Term.
iii. Fair Market Value. The “F air Market Value” of the System shall be determined by mutual agreement of the Parties; provided, however, if the Parties cannot agree to a Fair Market Value within thirty (30) days after Purchaser has delivered to Seller a written notice of its intent to purchase the System, the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to determine the Fair Market Value of the System. Such appraiser shall act reasonably and in good faith to determine the Fair Market Value of the System on an installed basis and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser will be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be borne by the Parties equally.
iv. Title Transfer; Warranties; Manuals . If Purchaser exercises a purchase option pursuant to Section s 14(b)(i) or (ii) above, title to the System and manufacturers’ warranties shall transfer to Purchaser upon System Owner’s receipt of the purchase price and execution by System Owner and Purchaser of a written instrument or agreement to effect such transfer to be negotiated between System Owner and Purchaser. The System will be sold “as is, where is, with all faults.” Upon purchase of the System, Purchaser shall assume complete responsibility for the operation and maintenance of the System and liability for the performance of (and r isk of loss for) the System, and, except for any Seller obligations that survive termination under Section 19(d), System Owner will have no further liabilities or obligations hereunder for the System.
15. Indemnification and Lim itations of Liability.
a. General. Each Party (the “Indemnifying Party ”) shall defend, indemnify and hold harmless the other Party, its affiliates and the other Party’s and its affiliates’ respective directors, officers, shareholders, partners, members, agents and employees (collectively, the “Indemnified Parties ”), from and against any loss, damage, expense, liability and other claims, including court costs and reasonable attorneys’ fees (collectively, “Liabilities ”) resulting from ( i) any Claim (as defined in Section 15(c)) relating to the Indemnifying Party’s breach of any representation or warranty set forth in Section 12 and (ii) injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in connection wi th this Agreement; provided, however, that nothing herein will require the Indemnifying Party to indemnify the Indemnified Parties for any Liabilities to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, an Indemnified Party. This Section 15(a) does not apply to Liabilities arising out of or relating to any form of Hazardous Substances or other environmental contamination, such matters being addressed exclusively by Section 15(d).
Exh. 3, p. 13
b. Permission to Operate Indemnification . Purchaser shall defend, indemnify and hold harmless Seller Indemnified Parties from and against any Liabilities resulting from Purchaser’s breach of Purchaser’s obligations under Section 5e).
c. Notice and Participation in Third-Par ty Claims. The Indemnified Party shall give the Indemnifying Party written notice with respect to any l iability asserted by a third -party (a “ Claim”), as soon as possible upon the receipt of information of any possible Claim or of the commencement of such Claim. The Indemnifying Party may assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnified Party may, however, select separate counsel if both Parties are defendants in the Claim and such defense or other form of participation is not reasonably available to the Indemnifying Party. The Indemnifying Party shall pay the reasonable attorneys’ fees inc urred by such separate counsel until such time as the need for separate counsel expires. The Indemnified Party may also, at the sole cost and expense of the Indemnifying Party, assume the defense of any Claim if the Indemnifying Party fails to assume the defense of the Claim within a reasonable time. Neither Party may settle any Claim covered by this Section 15(c) unless it has obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party has no liability under this Section 15(c) for any Claim for which such notice is not provided if the failure to give notice prejudices the Indemnifying Party.
d. Environmental Indem nification.
i. Seller Indemnity. Seller shall indemnify, defend and hold harmless all of Purchaser’s Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance (as defined in Section 15(d)(iii)) to the extent deposited, spilled or otherwise caused by Seller or any of its contractors, agents or employees.
ii. Purchaser Indemnity. Purchaser shall indemnify, defend and hold harmless all of Seller’s Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance, except (A) to the extent deposited, spilled or otherwise caused by Seller or any of its contractors, agents or employees or, (B) where the deposit, spill, or existence of the Hazardous Substance is not caused by Seller or any of its contractors or agents, to the extent the condition is known by Seller or any of its contractor or agents and is worsened as a result of the negligent acts or omissions, willful misconduct, or breach of this Agreement by Seller or any of its contractors, agents or employees.
iii. Notice. Ea ch Party shall promptly notify the other Party if it becomes aware of any Hazardous Substance on or about the Premises generally or any deposit, spill or release of any Hazardous Substance. “ Hazardous Substance” means any chemical, waste or other substance ( A) which now or hereafter becomes defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “pollution,” “pollutants,” “regulated substances,” or words of similar import under any laws pertaining to the environment, health, safety or welfare, (B ) which is declared to be hazardous, toxic, or polluting by any Governmental Authority, (C) exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Authority, (D) the storage, use, handling, disposal or release of which is restricted or regulated by any Governmental Authority, or (E) for which remediation or cleanup is required by any Governmental Authority.
e. Limitations on Liability.
i. No Consequential Damages. Except with respect to indemnification of third-party claims pursuant to Section 15, fraud or willful misconduct, neither Party nor its directors, officers, shareholders, partners, members, agents and employees subcontractors or suppliers will be liable for any indirect, special, incidental, exemplary, or consequential loss or damage of any nature (including, without limitation, lost revenues, lost profits, lost business opportunity or any business interruption) arising out of their performance or non-performance hereunder even if advised of such. Notwithstanding the previous sentence, the Termination Payment amounts set forth in Section 6 of Exhibit 1 shall be deemed to be direct, and not indirect or consequential damages for purpose of this Section 15(e)(i).
ii. Actual Damages. Except with respect to indemnification of Claims pursuant to this Section 15 , and except as otherwise limited in Section 12(d) , Seller’s aggregate liability under this Agreement arising out of or in connection with the performance or non -performance of this Agreement cannot exceed $1,000,000. The provisions of this Section 15(e)(ii) will apply whether such liability arises in contract, tort, strict liability or otherwise.
Exh. 3, p. 14
f. EXCLUSIVE REMEDIES. TO TH E EXTENT THAT THIS AGREEMENT SETS FORTH SPECIFIC REMEDIES FOR ANY CLAIM OR LIABILITY, SUCH REMEDIES ARE THE AFFECTED PARTY’S SOLE AND
EXCLUSIVE REMEDIES FOR SUCH CLAIM OR LIABILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
g. Comparative Neg
ligence. Where negligence is determined to have been joint, contributory or concurrent, each Party shall bear the proportionate cost of any liability.
16. Change in Law.
a. Impacts of Change in Law. If Seller determines that a Change in Law has occurred or will occur that has or will have a material adverse effect on Seller’s rights, entitlement, obligations or costs under this Agreement, then Seller may so notify the Purchaser in writing of such Change in Law. Within thirty (30) days following receipt by the Purchaser of such notice, the Parties shall meet and attempt in good faith to negotiate such amendments to this Agreement as are reasonably necessary to preserve the economic value of this Agreement to both Parties. If the Parties are unable to agree upon such amendments within such thirty (30) day period, then Seller may terminate this Agreement and cause the System to be removed and the Premises to be restored in accordance with Section 9 without either Party having further liability under this Agreement except with respect to liabilities accrued prior to the date of termination.
b. Illegality or Impossibility. If a Change in Law renders this Agreement, or Seller’s performance of this Agreement, either illegal or impossible, then Seller may terminate this Agreement immediately upon notice to Purchaser without either Party having further liability under this Agreement except with respect to liabilities accrued prior to the date of termination.
c. “Change in Law” mea ns (i) the enactment, adoption, promulgation, modification or repeal after the Effective Date of any applicable law or regulation, (ii) the imposition of any material conditions on the issuance or renewal of any applicable permit after the Effective Date (notwithstanding the general requirements contained in any applicable Permit at the time of application or issue to comply with future laws, ordinances, codes, rules, regulations or similar legislation), or (iii) a change in any utility rate schedule or tariff approved by any Governmental Authority that materially alters the financial obligations of Seller under this Agreement.
17. Assignment and Fi nancing.
a. Assignment.
i. Restrictions on Assignment. S ubject to the remainder of this Section 17(a), this Agreement may not be assigned in whole or in part by either Party without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Purchaser may not withhold its consent to an assignment proposed by Seller where the proposed assignee has the financial capability and experience necessary to operate and maintain solar photovoltaic systems such as the System in accordance with prudent solar industry practices in the State of California.
ii. Permitted Assignments . N o
twithstanding Section 17(a)(i) , Seller may, without the prior written consent of Purchaser, assign, mortgage, pledge or otherwise directly or indirectly assign its interests in this Agreement to (A) any Financing Party (as defined in Section 17(b)), (B) any entity through which Seller is obtaining financing from a Financing Party, or (C) any affiliate of Seller or any person succeeding to all or substantially all of the assets of Seller; provided, that, the assignment does not negatively affect the terms of this Agreement or Seller’s ability to perform hereunder or thereunder. Seller is not released from liability hereunder as a result of any assignment to an affiliate unless the assignee assumes Seller’s obligations hereunder by binding written instrument.
iii. Successors and Permitted Assignees. T
his Agreement is binding on and inures to the benefit of successors and permitted assignees. The restrictions on assignment contained herein do not prohibit or otherwise limit changes in control of Seller.
b. Financing. Th
e Parties acknowledge that Seller and/or System Owner may obtain debt or equity financing or other credit support from lenders, investors or other third parties (each, a “Financing Party ”) in connection with the installation, construction, ownership, operation and maintenance of the System. In furtherance of Seller’s and/or Exh. 3, p. 15
System Owner’s financing arrangements and in addition to any other rights or entitlements of Seller or System Owner’s under this Agreement, Purchaser shall timely execute any consents to assignment (which may include notice, cure, attornment and step -in rights) or estoppels and negotiate any amendments to this Agreement that may be reasonably requested by Seller and/or System Owner or the Financing Parties; provided, that such estoppels, consents to assignment or amendments do not alter the fundamental economic terms of this Agreement.
c. Termination Requires Consent. Sel ler and Purchaser agree that any right of Seller to terminate this Agreement is subject to the prior written consent of any Financing Party.
18. Confidentiality.
a. Confidential Information. To the maximum extent permitted by applicable law, if either Party provides confidential information (“Confidential Information”) to the other or, if in the course of performing under this Agreement or negotiating this Agreement a Party learns Confidential Information of the other Party, the receiving or learning Party shall (i) protect the Confidential Information from disclosure to third parties with the same degree of care accorded its own confidential and proprietary information, and (ii) refrain from using such Confidential Information, except in the negotiation, performance, enforcement and, in the case of Seller, financing, of this Agreement.
b. Permitted Dis
closures. Notwithstanding Section 18(a):
i. A Party may provide such Confidential Information to its affiliates and to its and its affiliates’ respective officers, directors, members, managers, employees, agents, contractors, consultants and Financing Parties (collectively, “Representatives”), and potential direct or indirect assignees of this Agreement if such potential assignees are first bound by a written agreement or legal obligation restricting use and disclosure of Confidential Information.
Each Party is liable for breaches of this provision by any person to whom that Party discloses Confidential Information.
ii. Confidential Information does not include any information that (A) becomes publicly available other than through breach of this Agreement, (B) is required to be disclosed to a Governmental Authority under applicable law or pursuant to a validly issued subpoena, (C ) is independently developed by the receiving Party, or ( D) becomes available to the receiving Party without restriction from a third party under no obligation of confidentiality. If disclosure of information is required by a Governmental Authority, the disclosing Party shall, to the extent permitted by applicable law, notify the other Party of such required disclosure promptly upon becoming aware of such required disclosure and shall reasonably cooperate with the other Party’s efforts to limit the disclosure to the extent permitted by applicable law. Notwithstanding any other provision in this Agreement, Seller and its affiliates are permitted to provide Confidential Information to the Internal Revenue Service and the United States Department of Treasury with respect to Seller satisfying the requirements for and obtaining the Elective Payment Incentive.
iii. Each Party hereto acknowledges and agrees that this Agreement and information and documentation provided in connection with this Agreement may be subject to the California Public Records Act (Government Code Section 7920.000 et seq.).
Upon request or demand from any third person not a Party to this Agreement for production, inspection and/or copying of Confidential Information, the recipient of such request or demand shall, to the extent permissible, notify the other Party in writing in advance of any disclosure that the request or demand has been made and shall take all reasonably necessary and customary steps to protect Confidential Information that is the subject of any California Public Records Act request submitted by a third person to Purchaser , including, but not limited to, applicable exceptions described by Cal. Gov’t Code Sections 6254 and 6255.
iv. A Party may be required to make this Agreement or portions of this Agreement available to the public in connection with the process of seeking approval from its respective governing board of its entry into this Agreement.
v. Confidential Information may be disclosed by either Party to any nationally recognized credit rating agency (e.g., Moody’s Investors Service, Standard & Poor’s, or Fitch Ratings) in connection with the issuance of a credit rating for that Party, provided that any such credit rating agency agrees in writing to maintain the confidentiality of such Confidential Information.
c. Miscellaneous. Al l Confidential Information remains the property of the disclosing Party and will be returned to the disclosing Party or destroyed (at the receiving Party’s option) after the receiving Party’s need for it has expired or upon the request of the disclosing Party. Each Party acknowledges that the disclosing Party would be irreparably Exh. 3, p. 16
injured by a breach of this Section 18 by the receiving Party or its Representatives or other person to whom the receiving Party discloses Confidential Information of the disclosing Party and that the disclosing Party may be entitled to equitable relief, including injunctive relief and specific performance, for breaches of this Section 18. To the fullest extent permitted by applicable law, such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 18 , but will be in addition to all other remedies available at law or in equity. The obligation of confidentiality will survive termination of this Agreement for a period of two (2) years.
d. Goodwill and Publicity. Neither Party may (i) make any press release or public announcement of the specific terms of this Agreement or the use of solar or renewable energy involving this Agreement (except for filings or other statements or releases as may be required by applicable law), or ( ii) use any name, trade name, service mark or trademark of the other Party in any promotional or advertising material without the prior written consent of the other Party which consent shall not be unreasonably withheld. The Parties shall coordinate and cooperate with each other when making public announcements regarding this Agreement, the System and its use, and each Party may promptly, and in any case within fourteen (14) days, review, comment upon and approve any publicity materials, press releases or other public statements before they are made. Notwithstanding the above, Seller is entitled to publish the name of Purchaser, System location, System size without obtaining the prior, written consent of Purchaser and to place signage on the Premises reflecting its association with the System.
19. General Pro visions.
a. Definitions and Interpretation. Unless otherwise defined or required by the context in which any term appears: (i) the singular includes the plural and vice versa, (ii) the words “herein,” “hereof” and “hereunder” refer to this Agreement as a whole and not to any particular section or subsection of this Agreement, (iii) references to any agreement, document or instrument mean such agreement, document or instrument as amended, restated, modified, supplemented or replaced from time to time, and (iv) the words “include,” “includes” and “including” mean include, includes and including “without limitation.” The captions or headings in this Agreement are strictly for convenience and will not be considered in interpreting this Agreement. As used in this Agreement, “dollar” and the “$” sign refer to United States dollars.
b. Choice of Law; D
ispute Resolution. This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the State of California, without regard to principles of conflict of laws. In the event of a dispute, controversy, or claim arising out of or relating to this Agreement, the Parties shall confer and attempt to resolve such matter informally. If such dispute or claim cannot be resolved in this matter, then the dispute or claim shall be referred first to e xecutive officers of the Parties for their review and resolution. If the dispute or claim still cannot be resolved by such officers, then any dispute arising out of this Agreement shall be venued either in the San Mateo County Superior Court or in the United States District Court for the Northern District of California. The prevailing Party in any dispute arising out of this Agreement is entitled to reasonable attorneys’ fees and costs.
c. Notices. Al l notices under this Agreement shall be in writing and delivered by hand, electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and will be deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the mail. Notices must be sent to the person identified in this Agreement at the addresses set forth in this Agreement or such other address as either Party may specify in writing.
d. Survival. Sect ion 6 of Exhibit 1, and Sections 3, 4, 5(c), 7(a), (c) and (f), 9, 11, 12(c), 14, 15, 17, 18 and 19 of this Exhibit 3 shall survive termination of this Agreement.
e. Further Assurances. Ea ch Party shall provide such information, execute and deliver any instruments and documents and to take such other actions as may be reasonably requested by the other Party to give full effect to this Agreement and to carry out the intent of this Agreement.
f. Waivers. No provision or right or entitlement under this Agreement may be waived or varied except in writing signed by the Party to be bound. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision, nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
g. Non-Ded ication of Facilities. Nothing in this Agreement may be construed as the dedication by either Party of its facilities or equipment to the public or any part thereof. Neither Party may knowingly take any action that would subject the other Party, or other Party’s facilities or equipment, to the jurisdiction of any Governmental Authority as a public utility or similar entity. Neither Party may assert in any proceeding before a court or regulatory body that the Exh. 3, p. 17
other Party is a public utility by virtue of such other Party’s performance under this Agreement. If Seller is reasonably likely to become subject to regulation as a public utility, then the Parties shall use reasonable efforts to restructure their relationship under this Agreement in a manner that preserves their relative economic interests while ensuring that Seller does not become subject to any such regulation. If the Parties are unable to agree upon such restructuring, Seller may terminate this Agreement without further liability under this Agreement except with respect to liabilities accrued prior to the date of termination and remove the System in accordance with Section 9.
h. Service Contract . Th e Parties intend this Agreement to be a “service contract” within the meaning of Section 7701(e)(3) of the Code. Purchaser shall not take the position on any tax return or in any other filings suggesting that it is anything other than a purchase of electricity from the System.
i. No Partnership. No provision of this Agreement may be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties. No Party is authorized to act on behalf of the other Party, and neither may be considered the agent of the other.
j. Entire Agreement, Modification, Invalidity, Captions . Thi s Agreement constitutes the entire agreement of the Parties regarding its subject matter and supersedes all prior proposals, agreements, or other communications between the Parties, oral or written. This Agreement may be modified only by a writing signed by both Parties.
k. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be in conflict with any statute, constitutional provision, regulation or other rule of law, or is otherwise held by such court to be unenforceable for any reason whatsoever, such provision shall not be read to render and shall not have the effect of rendering this Agreement or the other provisions herein unenforceable, inoperative or invalid to any extent whatsoever.
In such event, such provision shall be deemed severable from the remaining provisions of this Agreement and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein.
l. No Third -Par ty Beneficiaries . Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto, and the Financing Parties to the extent provided herein or in any other agreement between a Financing Party and Seller or Purchaser, and do not imply or create any rights on the part of, or obligations to, any other Person.
m. Counterparts. Thi s Agreement may be executed in any number of separate counterparts and each counterpart will be considered an original and together comprise the same Agreement.
n. Electronic Signatures. If the Parties agree, electronic signatures may be used in place of original signatures on this Agreement. Each Party intends to be bound by the signatures on the electronic document, is aware that the other Party will rely on the electronic signatures, and hereby waives any defenses to the enforcement of the terms of this Agreement based on the use of an electronic signature. After both Parties agree to the use of electronic signatures, both Parties must sign the document electronically.
o. No Recourse to Members of Sel
ler. Seller is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) pursuant to its Joint Powers Agreement and is a public entity separate from its constituent members. Seller shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Purchaser shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Seller’s constituent members, or the employees, directors, officers, consultants or advisors of Seller or of its constituent members, in connection with this Agreement.
End of Exhibit 3
Exhibit 4
Performance Guaranty
In consideration for Purchaser’s entering into the Solar Power Purchase Agreement between Peninsula Clean Energy Authority (“Seller”) and the Purchaser related to the System at the Premises (the “PPA”), this Performance Guaranty (this “Guaranty”) is entered into by the parties listed below (each a “Party” and collectively the “Parties”) as of the date signed by Guarantor below (the “Effective Date”).
Purchaser: Guarantor:
Name and Address Town of Colma
1198 El Camino Real
Colma, CA 94014
Attention:________________
________________________
Name and Address Peninsula Clean Energy Authority
2075 Woodside Rd.
Redwood City, CA 94061
Attention: Rafael Reyes,
Director of Programs
Phone Phone (650) 260-0087
E-mail E-mail [email protected]
Project Name Colma Town Hall
This Guaranty sets forth the terms and conditions of a guaranty provided by Guarantor in conjunction with the PPA. Capitalize d terms not otherwise defined herein have the meanings given such terms in the PPA. The term of this Guaranty will be concurrent with the term of the PPA, except that it will not exceed the Initial Term. This Guaranty will be updated by Guarantor to reflect the as-built specifications of the System.
1. Guaranty. Gu arantor guarantees that during the Initial Term of the PPA the System will generate not less than ninety five percent (95%) of the estimated generation of the System based on Helioscope or PVSyst (“ Estimated Production (Annual kWh)”) as set forth in Table 1.A below (such guaranteed generation, the “Guaranteed Production (Annual kWh)” set forth on Table 1.A below); provided that the Guaranteed Production values are subject to reasonable downward adjustment for extreme weather conditions and to the extent that Purchaser exceeds the Outage Allowance set forth in Exhibit 3, Section 6(d) of the PPA.
A. Guarantor will use local weather data to adjust the System’s Guaranteed kWh, based on the following methods if available and in descending order of preference: (i) at a Typical Meteorological Year (TMY) weather station reasonably close to the facility; (ii) satellite data provided by a third-party vendor of Seller; or (iii) available data from a locally installed weather station at the Premises owned and properly maintained by Purchaser.
Table 1.A, projected production values as measured at a TMY weather station reasonably close to the facility:
Contract Year Estimated Production (Annual kWh) Guaranteed Production (Annual kWh) Year 1 68,544 65,117
Year 2 68,201 64,791
Year 3 67,860 64,467
Year 4 67,521 64,145
Year 5 67,183 63,824
Year 6 66,847 63,505
Year 7 66,513 63,188
Year 8 66,181 62,872
Year 9 65,850 62,557
Year 10 65,520 62,244
Year 11 65,193 61,933
Year 12 64,867 61,624
Year 13 64,543 61,315
Year 14 64,220 61,009
Year 15 63,899 60,704
Year 16 63,579 60,400
Year 17 63,261 60,098
Year 18 62,945 59,798
Year 19 62,630 59,499
Year 20 62,317 59,201
B. If at the end of each successive Contract Year the AC electricity produced by the System as measured and recorded by Seller (the “ Actual kWh”) is less than the Guaranteed kWh for that Contract Year, then Guarantor shall pay Purchaser an amount equal to (i) the difference between the Guaranteed kWh and the Actual kWh, multiplied by (ii) the Performance Guarantee Payment Rate (as defined in Section 1(E)), in each case with respect to the affected Contract Year.
C. If at the end of each successive Contract Year the AC electricity produced by the System as measured and recorded by Seller (the “Actual kWh”) is more than the Guaranteed kWh for that Contract Year, then an amount equal to (i) the difference between the Actual kWh and the Guaranteed kWh, multiplied by (ii) the Performance Guarantee Payment Rate, in each case with respect to the affected Contract Year, shall be credited against and shall reduce by such amount any payments owed by Guarantor to Purchaser in the following Contract Year pursuant to Section 1(B) of this Exhibit 4. The amount under Section 1(C)(i) above shall be capped at one hundred and five percent (105%) of the Guaranteed kWh for the applicable Contract Year.
D. If a payment of greater than fifty dollars ($50) is due under Section 1(B), after subtracting any credits pursuant to Section 1(C), (i) Guarantor will deliver a statement to Purchaser detailing the Guaranteed kWh and the calculation of the payment due; and (ii) the payment shall be due within ninety (90) days after the end of the Contract Year. If no payment is due, then no statement or payment will be issued.
E. “Performance Guarantee Payment Rate” means the Contract Price.
2. Exclusions. The Guaranty set forth in Section 1 does not apply to the extent of any reduced generation from the System due to the following (including the downtime required for repair, replacement or correction):
A. a Force Majeure Event, which includes (i) destruction or damage to the System or its ability to safely produce electricity not caused by Seller or its approved service providers while servicing the System (e.g., vandalism); (ii) a power or voltage surge caused by someone other than Seller, including a grid supply voltage outside of the standard range specified by the Utility; and (iii) theft of the System; and (iv) curtailment or reduction of energy production required by the Utility or grid operator.
B. Purchaser’s failure to perform, or breach of, Purchaser’s obligations under the PPA.
3. Liquidated Damages; Waiver of Cost Savings. T he Parties agree that the payment described in Section 1(B) is a reasonable approximation of the damages suffered by Purchaser as a result of underperformance of the System, is bargained-for by the Parties, and shall be the Purchaser’s sole and exclusive remedy hereunder for underperformance of the System. Purchaser hereby disclaims, and any beneficiary of this Guaranty hereby waives, any warranty with respect to any cost savings from using the System.
4. Incorporation of PPA Provisions . Section 5(c) (Force Majeure), Section 17 (Assignment and Financing) and Section 19 (General Provisions) of Exhibit 3 of the PPA and any Sections referenced therein are incorporated into this Guaranty as if any reference therein to “Agreement” were to this Guaranty and any reference to “Parties” were to the Parties to this Guaranty.
Guarantor:
Signature:
Purchaser:
Signature:
Printed Name: Shawn Marshall
Printed Name:
Title: Chief Executive Officer
Title:
Date:
Date:
A II • I
Staff Report Memorandum of Understandings, Cost of Living Increases, Personnel Policy Changes, Salary Schedule, and Ordinance Amending Town Holidays Page 1 of 4
STAFF REPORT
TO: Mayor
and Members of the City Council
FROM: Daniel Barros, City Manager
MEETING DATE: September 11, 2024
SUBJECT: Adopt Resolutions Approving Memorandums of Understanding, Approving Cost of Living Increases for Certain Unrepresented Employees and Modifying the Town’s Salary Schedule, Amending the Colma Administrative Code Subch apter 3.0 2 Relating to Standby Duty and Overtime, and Ordinance Amending the Municipal Code relating to Town Holidays
RECOMMENDATION
Staff recommends that the City Council:
1. Adopt the following resolutions:
RESOLUTION APPROVING MEMORANDUM OF UNDERSTANDING BETWEEN THE TOWN
OF COLMA AND THE COLMA PEACE OFFICERS ASSOCIATION FOR THE PERIOD OF JULY 1, 2024 THROUGH JUNE 30, 2026 PURSUANT TO CEQA GUIDELINE 15378
RESOLUTION APPROVING MEMORANDUM OF UNDERSTANDING BETWEEN THE TOWN
OF COLMA AND THE COLMA POLICE COMMUNICATION/RECORDS ASSOCIATION FOR THE PERIOD OF JULY 1, 2024 THROUGH JUNE 30, 2026 PURSUANT TO CEQA GUIDELINE 15378
RESOLUTION APPROVING COST OF LIVING SALARY INCREASES FOR CERTAIN UNREPRESENTED EMPLOYEES PURSUANT TO CEQA GUIDELINE 15378 RESOLUTION ADOPTING THE SALARY SCHEDULE AS OF SEPTEMBER 11, 2024 PURSUANT TO CEQA GUIDELINE 15378
RESOLUTION AMENDING COLMA ADMINISTRATIVE CODE SECTIONS 3.02.272 AND
3.02.280 REGARDING STANDBY DUTY AND OVERTIME PURSUANT TO CEQA GUIDELINE 15378
2. Introduce the following ordinance
ORDINANCE AMENDING SECTION 1.01.050 OF THE COLMA MUNICIPAL CODE RELATING TO TOWN HOLIDAYS PURSUANT TO CEQA GUIDELINE 15378 AND WAIVE
FURTHER READING
ITEM 5
Staff Report Memorandum of Understandings, Cost of Living Increases, Personnel Policy Changes, Salary Schedule, and Ordinance Amending Town Holidays Page 2 of 4
COUNCIL ADOPTED VALUES
The Staff recommendation is consistent with the Council adopted values of:
• Responsibility: Making decisions after prudent consideration of their financial impact, taking into account the long-term financial needs of the agency. • Fairness: Treat all persons, claims and transactions in a fair and equitable manner.
BACKGROUND
The Town’s MOUs with the Peace Officers Association (POA) and the Dispatch/Records Association (DRA) expired on June 30, 2024. Upon direction from the City Council, the City Manager and the Town’s labor negotiator were directed to begin labor negotiations prior to the expiration on the existing contract in an effort for the negotiations to be completed prior to the June 30, 2024 contract expiration. Negotiations on the successor agreement with each association began in April. Negotiations carried beyond the June 30 th expiration of the contract
in good faith and, due to both sides working diligently together, updated labor agreement terms have been reached between both sides.
In addition to the negotiations held for the POA and DRA, changes to the Colma Administrative Code were negotiated with specific unrepresented employees as it relates to Standby and Overtime compensation.
The results of those negotiations are now being formally presented to Council for final approval in the form of the two MOUs and salary schedule modifications.
ANALYSIS
Living and working in the Bay Area has become increasingly challenging over the past several years, and recruiting and retaining employees has been difficult with inflation continuing to rise in San Francisco/Bay Area. Because of this, the City Council directed staff to begin labor negotiations prior to the expiration of the existing contract. The City Council wanted to address concerns over existing employees ability to make a living wage for their family and in an effort to retain employees for their commitment to the Town.
Through the course of negotiations, the City Council came to the following agreements with the employee associations:
Peace Officer Association (POA)
:
Effective as of July 1, 2024 through June 30, 2026, the following changes will go into effect
1. Wage Increases:
a. July 7, 2024 – wage increase of 3.8% (Pay date 7/26/2024; Retroactive) b. December 22, 2024 –wage increase of 2% (Pay date 1/10/2025) contingent upon the passing of the increase in sales tax November 5, 2024 c. June 22, 2025 –wage increase of 2% (Pay date 7/11/2025) Staff Report Memorandum of Understandings, Cost of Living Increases, Personnel Policy Changes, Salary Schedule, and Ordinance Amending Town Holidays Page 3 of 4 d. December 21, 2025 –wage increase of 2% (Pay date 1/09/2026)
2. The Town’s monthly contribution to the Retirement Health Savings Plan (RHSP) to increase from 1.5% to 2.5% of members base salary as shown in the Town’s adopted salary schedule.
3. Change City Holidays by deleting Lincoln’s Birthday for Juneteenth.
The parties agree to commence negotiations for a new MoU on or about March 1, 2025.
Among the items to be discussed are the following:
• Retention Pay
• Bilingual Assessment Pay
• Shift Differential
• Crisis Intervention Training Pay
• Motorcycle Officer
• Compensatory Time Maximum
Dispatch/Records Association (DRA):
The DRA will receive the same negotiated benefits as indicated above for the POA with nothing additional and/or separate.
Unrepresented Employees:
The unrepresented employees are not members of any employee association. The Town has had an informal policy for some time that the unrepresented employees should be treated similarly to the POA and Dispatch Association. As a result, the City Council authorized the City Manager to provide the same increases/changes to the unrepresented employees, which was conveyed during a meeting with the unrepresented employees in August, as each employee (with the exception of the City Manager) will receive 3.8 percent pay increase effective September 15, 2024. Additionally, Employees will also receive three (3) separate 2% pay increases every six months beginning December 2024 through December 2025 (the first increase in December of 2024 remains contingent on the voters approving the sales tax ballot measure at the November 5, 2024 election). This amounts to a 9.8 percent pay increase over two years.
Colma Administrative Code (CAC):
The following changes to Chapter 3 of the CAC as it relates to Standby Duty and Overtime Compensation will apply to Public Works employees (standby duty) and the unrepresented employees (overtime).
1. 3.02.272 Standby Duty: Compensation for Standby Duty will no longer be a flat fee and therefor will be moving to an hourly based system where an employee assigned to be on standby to answer calls outside of regularly-scheduled hours shall receive two (2) Staff Report Memorandum of Understandings, Cost of Living Increases, Personnel Policy Changes, Salary Schedule, and Ordinance Amending Town Holidays Page 4 of 4 hours of pay at regular straight-time rate of pay or, at the employee’s option, two (2) hours of compensatory time off at the regular straight-time rate, for each sixteen (16) hours of standby time.
2. 3.02.280 Overtime: Overtime is to be paid for unrepresented, non-exempt employees after forty (40) hours of paid status in one (1) work week, and for actual hours worked in excess of eight (8) consecutive hours in one (1) day (exclusive of lunch period). For purposes of this provision, “paid status” means the employee is paid for actual hours worked or is using sick time, vacation, compensatory time, or administrative leave.
Standby hours are not counted for purposes of “paid status.”
FISCAL IMPACT
The approval of the attached resolutions will increase Town salaries and benefits by a cost of approximately $920,000 over the life of the MOUs. This amount has been calculated into the Town’s long term financial forecast and can be accommodated. As for the administrative changes to Chapters 3, it will increase the Public Works Maintenance Budget approximately $55,000 per year.
ALTERNATIVES
The City Council could choose to not adopt the resolutions approving the MOUs and unrepresented salary increases, or could chose to direct Staff to renegotiate any items within the MOUs. Doing so is not recommended, however, as that action could be construed as bad- faith bargaining and could create the potential for an unfair labor practices charge.
CONCLUSION
Staff recommends that the City Council adopt the resolutions and introduce the ordinance..
ATTACHMENTS
A. Resolution Approving Memorandum of Understanding Between the Town of Colma and the Colma Police Officers Association for the Period of July 1, 2024 to June 30, 2026 B. Memorandum of Understanding Between the Town of Colma and the Colma Police Officers Association for the Period of December July 1, 2024 to June 30, 2026 C. Resolution Approving Memorandum of Understanding Between the Town of Colma and the Colma Police Communications/Records Association for the period of July 1, 2024 to June 30, 2026
D. Memorandum of Understanding Between the Town of Colma and the Colma Police Communications/Records Association for the period of July 1, 2024 to June 30, 2026 E. Resolution Approving Cost of Living Increase For Certain Unrepresented Employees F. Resolution adopting the Colma Salary Schedule as of September 11, 2024 G. Resolution Amending Colma Administrative Code Subchapter 3.02.272 and 3.02.280 Regarding Standby Duty and Overtime
H. Ordinance Amending Section 1.01.050 of the Colma Municipal Code Relating to Town Holidays
ATTACHMENT A
Res 2024-__, Approving POA MOU 2024-2026 Page 1 of 2
RESOLUTION 2024-__
OF THE CITY COUNCIL OF THE TOWN OF COLMA
RESOLUTION APPROVING MEMORANDUM OF UNDERSTANDING
BETWE
EN THE TOWN OF COLMA AND THE COLMA PEACE OFFICERS ASSOCIATION FOR THE PERIOD OF JULY 1, 2024 THROUGH JUNE 30, 2026 PURSUANT TO CEQA GUIDELINE 15378
The City Council of the Town of Colma does hereby resolve as follows:
1. Background.
(a) The Town’s MOU with the Peace Officers Association expired on June 30, 2024. (b) Upon direction from the City Council, the City Manager and the Town’s labor negotiator began labor negotiations prior to the expi ration on the existing contract. Negotiations on the successor agreement with each association began in June 2024 and were completed in July of 2024.
(c) Staff is now presenting the formal MOU detailing the conclusion of the labor negotiation terms for City Council consideration and approval.
2. Order.
(a) The City Council hereby approves the Memorandum of Understanding between the Town of Colma and the Colma Peace Officers Association for the time period of July 1, 2024 through June 30, 2026, which is attached hereto as Exhibit A. This MOU shall supersede the prior MOU upon its execution. (b) The Mayor shall be, and hereby is, authorized to execute the Memorandum of Understanding, subject to any changes in form or technical language approved by the City Manager and City Attorney.
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ATTACHMENT A
Res 2024-__, Approving POA MOU 2024-2026 Page 2 of 2
Certification of Adoption
I certify that the foregoing Resolution No. 2024 -__ was duly adopted at a regular meeting of said City Council held September 11, 2024 by the following vote:
Name Voting Present, Not Voting Absent
Aye No Abstain Not Participating
John Irish Goodwin, Mayor
Ken Gonzalez, Vice Mayor
Helen Fisicaro, Councilmember
Joanne F. del Rosario,
Councilmember
Carrie Slaughter,
Councilmember
Voting Tally
Dated
______________________ ___________________________________ John Irish Goodwin, Mayor
Attest: ____________________________
Michelle Estabillo, City Clerk
ATTACHMENT B
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE TOWN OF COLMA
AND
THE COLMA PEACE OFFICERS ASSOCIATION
July 1, 2024 to June 30, 2026
ATTACHMENT B
TABLE OF CONTENTS
Page
ARTICLE 1 - PURPOSE AND INTENT ...................................................................................... 1 ARTICLE 2 - REPRESENTATION ............................................................................................. 1 ARTICLE 3 - RIGHTS RESERVED ............................................................................................ 1 ARTICLE 4 - MANAGEMENT OBLIGATIONS ............................................................................. 2 ARTICLE 5 - SEVERABILITY ................................................................................................... 2 ARTICLE 6 - WAIVER ............................................................................................................ 2 ARTICLE 7 - MAINTENANCE OF BENEFITS ............................................................................. 2 ARTICLE 8 - DURATION AND RENEWAL ................................................................................. 3 ARTICLE 9 - WORK PERIOD AND HOURS ............................................................................... 3 ARTICLE 10 - STAFFING LEVELS ........................................................................................... 3 ARTICLE 11 - SHIFT SELECTION ........................................................................................... 4 ARTICLE 12 - SHIFT EXCHANGE ............................................................................................ 4 ARTICLE 13 - SALARIES ........................................................................................................ 4 ARTICLE 14 - OVERTIME AND COMPENSATORY PAY .............................................................. 6 ARTICLE 15 - HOLIDAY PAY .................................................................................................. 7 ARTICLE 16 - LEAVES ....................................... .................................................................... 8 ARTICLE 17 - REIMBURSEMENTS .......................................................................................... 9 ARTICLE 18 - RETIREMENT, HEALTH AND WELFARE BENEFITS ............................................. 10 ARTICLE 19 - PAYROLL ERRORS .......................................................................................... 16 ARTICLE 20 - GRIEVANCE PROCEDURE ............................................................................... 16 ARTICLE 21 - SAFETY VESTS ............................................................................................... 16 ARTICLE 22 - DEFINITIONS ................................................................................................ 16 ARTICLE 23 - TRANSITION ................................................................................................. 17
DocuSign Envelope ID: 50B39089-C29E-463C-AF55-A616294B701D DocuSign Envelope ID: 9663C41B-F57B-4EA4-8542-214670CD78A8 Peace Officers Association MoU24-