REGULAR MEETING STARTS AT 6:00 PM
Mayor Dan Epperson
Vice Mayor Rodney Plamondon
Council Member Dominic Atlan
Council Member Stacy Rhoades
Council Member Diane Wratten
DUE TO THE GOVERNOR'S EXECUTIVE ORDER N-25-20, THE CITY OF IONE
WILL BE CONDUCTING ITS MEETING IN PERSON
AT 1 E. MAIN STREET, IONE, CA 95640
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Tuesday, March 15, 2022
1 E. Main Street
lone, CA 95640
THE CITY OF IONE IS A GENERAL LAW CITY DEDICATED TO
PROVIDING LEADERSHIP, ACCOUNTABILITY, AND FISCAL INTEGRITY
WHILE PROMOTING ECONOMIC OPPORTUNITIES AND MAINTAINING
A HIGH QUALITY OF LIFE FOR OUR CITIZENS
PLEASE LIMIT PUBLIC COMMENT/TESTIMONY TO FOUR MINUTES
Gov't. Code §54954.3
The lone City Council welcomes, appreciates, and encourages participation in the City Council Meeting. The City Council reserves the right to reasonably limit the total time for public comment on any particular noticed agenda item as it may deem necessary.
Full staff reports and associated documents are available for public review at the Office of the City Clerk, City Hall, 1 E. Main Street, lone, CA. Hard copies may be obtained for $3.60 for pages 1-5 and $.45 for each additional page. Documents that are not available when the agenda is posted will be made available for public review at the meeting.
AGENDA
A. ROLL CALL
B. PLEDGE OF ALLEGIANCE
C. APPROVAL OF AGENDA
D. PRESENTATIONS/ANNOUNCEMENTS:
• Presentation and Adoption of Resolution No. 2022-06 Congratulating Jeff Arnold on his 17 Years of Service to the City and his Retirement as Police Chief of the City of lone
• Presentation on the Public Agency Retirement Services (PARS) - Mitch Barker, Executive Vice President
E. PUBLIC COMMENT: EACH SPEAKER IS LIMITED TO 4 MINUTES NOTE: This is the time for members of the public who wish to be heard on matters that do not appear on the Agenda. Persons may address the City Council at this time on any subject within the jurisdiction of the lone City Council.
Please be mindful of the 4 minute time limit per person. Pursuant to the Brown Act, the City Council may not take action or engage in a detailed discussion on an item that does not appear on the Agenda. However, matters that require Council action will be referred to staff for a report and/or recommendation for possible action at a future Council meeting. Is there anyone in the audience who wishes to address the Council at this time?
F. CONSENT CALENDAR:
Notice to the Public: All matters listed under this category are considered to be routine and will be enacted by one motion. Any item may be removed for discussion and possible action and made a part of the regular agenda at the request of a Council Member(s).
1. Approval of Minutes - February 15, 2022
2. Warrants - February, 2022
G. PUBLIC HEARING:
3. Waive Second Reading by Substitution of Title Only and Adopt Ordinance No. 529 - Organic Waste Disposal Reduction
H. REGULAR AGENDA:
4. Adoption of Resolution No. 2022-05 Expressing Support for the "Brand-Huang- Mendoza Tripartisan Land Use Initiative" to Amend Article XI of the Constitution of the State of California to Make Zoning and Land Use Community Affairs, and not of State Interest
2 5. Ratify Approval of the Staffing for Adequate Fire and Emergency Response (SAFER) Grant Coordinator Retroactively on the Salary Range Schedule
6. Discussion on Possible Direction regarding the Power Purchase Agreement (PPA) with IW Solar, LLC
7. Appointment of Advisory Member to the Parks and Recreation Commission I. REPORTS AND COMMUNICATIONS FROM CITY MANAGER
J. COUNCIL COMMENTS/COMMITTEE REPORTS/FUTURE AGENDA ITEMS K. CLOSED SESSION:
• Conference with Legal Counsel - Anticipated Litigation: Significant Exposure to Litigation Pursuant to Paragraph (2) of Section 54956.9 of the Government Code - Three (3) Cases
Pursuant to Government Code 54957 - Public Employee Appointment:
Police Chief
L. ADJOURNMENT
NOTICE REGARDING CHALLENGES TO DECISIONS
Pursuant to all applicable laws and regulations, including without limitation, California Government Code Section 65009 and or California Public Resources Code Section 21177, if you wish to challenge in court any of the above decisions (regarding planning, zoning and/or environmental decisions), you may be limited to raising only those issues you or someone else raised at the public hearing(s) described in this notice/agenda, or in written correspondence delivered to the City at, or prior to, this public hearing.
ADA COMPLIANCE STATEMENT
In compliance with the American with Disabilities Act, if you need special assistance to participate in this meeting, please contact City Clerk Janice Traverso at (209) 274-2412, ext. 102. Notification 24 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. 1, Janice Traverso, the City Clerk of the City of lone declare under penalty of perjury that the foregoing agenda for the Tuesday, March 15, 2022 meeting of the lone City Council was posted on March 12, 2022
ALLASO
Janice Traverso, City Clerk
3 PUBLIC
AGENCY
RETIREMENT PARS
SERVICES
TRUSTED SOLUTIONS. LASTING RESULTS.
CITY OF IONE
PARS 115 Trust - OPEB Prefunding Program & Pension Rate Stabilization Program (PRSP) March 10, 2022
CONTACTS
- PARS /HIGHMARK®
SERVICES
TRUSTED SOLUTIONS. LASTING RESULTS. CAPITAL MANAGEMENT
Mitch Barker Michael Wiehn, CFA
Executive Vice President Institutional Relationship Manager (800) 540-6369 x116 (415) 705-7181
[email protected] [email protected]
Kevin O'Rourke Andrew Brown, CFA
Senior Municipal Consultant Director, Senior Portfolio Manager (707) 249-5356 (415) 705-7605
[email protected] [email protected]
RETREMENT A PARS
SERVICES
CITY OF IONE
TRUSTED SOLUTIONS. LASTING RESULTS.
PARS 115 TRUST TEAM
Trust Administrator & Consultant
- PARS • Serves as record-keeper, consultant, • Monitors plan compliance
SERVICES
and central point of contact (IRS/GASB/State Government Code) TRUSTED SOLUTIONS. LASTING RESULTS.
• Sub-trust accounting Processes contributions/disbursements • Coordinates all agency services • Hands-on, dedicated support teams 38 2,000+ 1,000+ 430+ $6.7 B
Years of Experience Plans under Public Agency 115 Trust Clients (1984-2022) Plan Participants Assets under
Administration Clients Administration
Trustee Investment Manager
usbank. /HIGHMARK*
CAPITAL MAHAGEMERY
• 5th largest commercial bank and one of the • Investment sub-advisor to trustee U.S. Bank nation's largest trustees for Section 115 trusts • Investment policy assistance • Safeguard plan assets • Uses open architecture
• Oversight protection as plan fiduciary
• Custodian of assets • Customized portfolios (with minimum asset level) 159 $5.0T 103 $20.2в
Years of Experience Assets under Years of Experience
(1863-2022) Administration (1919-2022)
- PARS
SERVIES
TRUSTED SOLUTIONS. LASTING RESULTS. CITY OF IONE
430+ PARS 115 TRUST CLIENTS
Updated March 2022
Regional Client Agencies Include:
City of Elk Grove Calaveras County Water District
City of Galt Rancho Murieta Community Services District City of Lodi Sacramento Area Flood Control Agency
City of Stockton San Andreas Sanitary District
City of West Sacramento
Amador County
Calaveras County
- PARS
TRUSTED SOLUTIONS. LASTING RESULTS. CITY OF IONE
PARS IRS-APPROVED SECTION 115 TRUST
Prefund OPEB GASB 75 Prefund Pension (PRSP)
GASB 68
General Fund
OPEB Pension
prefund
Retiree Medical Benefits either or both
Pension Rate Stabilization Program
Assets can be used to: Assets can be used to:
Reimburse agency; or Reimburse agency; or
Pay benefits provider Pay retirement system
Subaccounts Financial Stability Flexible Investing
OPEB and Pension assets are Assets in the PARS Section 115 individually sub-accounted, Allows separate investment
Combination Trust can be used strategies for OPEB and
and can be divided by dept., to address unfunded liabilities. Pension subaccounts. bargaining group, or cost center
Anytime Access Economies-of-Scale No Set Up Cost or Minimums Trust funds are available OPEB and Pension assets No set-up costs, no minimum anytime; OPEB for OPEB aggregate and reach lower fees annual contribution amounts, and Pension for Pension. on tiered schedule sooner - and no fees until assets are added. saving money!
HIRE TE
- PARS
SERVICES
TRUSTED SOLUTIONS. LASTING RESULTS. CITY OF IONE | 5
The
PARS PENSION RATE
STABILIZATION PROGRAM
for prefunding pension obligations
AGENCY
PARS
CITY OF IONE | 6
TRUSTED SOLUTIONS. LASTING RESULTS.
BACKGROUND - PENSION
• Since 2015, GASB 68
has required disclosing CaPERS Changes
Net Pension Liability on financial CaPERS has announced changes directly statements as a line item on the affecting unfunded liability amounts and employer contributions:
balance sheet
Before the concept of pension Lowering of Discount Rate 1 prefunding, the only way to
7.0% CalPERS lowered the
reduce retirement system discount rate from 7.0% to 6.8%. unfunded liabilities was to send The impact is reflected in the additional contributions in 6.8% June 30, 2021 valuation reports. excess of annual required 1 Contributions from policy changes beginning employer contributions FY 23-24.
• Pension trust prefunding Shortened Amortization Period 2 assets can be transferred to
30 years New actuarial liabilities are
the retirement system at the amortized over 20 years instead of Agency's direction, which can 30, increasing required annual 20 years employer contribution amounts*
help offset future rate increases
(i.e., pension rate stabilization). 2 5-year ramp up in payments beginning FY 15-16 with full impact in FY 19/20.
- PARS
SERVICES
CITY OF IONE | 7
TRUSTED SOLUTIONS. LASTING RESULTS.
5.0KM
21,500 Balance Sh
54,144
42 80,6.
232,75 Assets
PENSION FUNDING STATUS
As of June 30, 2020, City of lone's CalPERS pension plan is funded as follows:
Combined Miscellaneous Valuation as of Valuation as of
& Safety Groups * June 30, 2019 Change
June 30, 2020
Actuarial Liability $9.5 M $10.1 M 6.1% 1
Assets $6.6 M $7.0 M
6.4% 1
Unfunded Liability $3.0 M $3.1 M 5.5% 1
Funded Ratio 68.94% 69.13% 0.3% 1
Employer Contribution Amount $0.4 M $0.44 M
(FY 20-21) (FY 21-22) 17.4% 1
Employer Contribution Amount - Projected * $0.51 M
16.5% 1
(FY 27-28)
- PARS * Data through 2027-28 from Agency's latest CalPERS actuarial valuation.
SERVICES
CITY OF IONE | 8
TRUSTED SOLUTIONS. LASTING RESULTS.
WHY PREFUND PENSION OBLIGATIONS?
1. Complete Local Control over Assets
Agency has complete control over assets, including contributions, disbursements and the timing, amount, and risk tolerance level of investments
2. Pension Rate Stabilization
Assets can be transferred to the retirement system at the Agency's direction, potentially reducing/eliminating large fluctuations in employer contribution amounts
3. Rainy Day Fund
Emergency source of funds when employer revenues are strained in difficult budgetary or economic times
4. Diversification
Allows for investment flexibility and offers the potential for assets to earn greater returns than the general fund; spread the risk vs. sending additional money to CaPERs PUBLIC
- PARS
SERVICES
TRUSTED SOLUTIONS. LASTING RESULTS. CITY OF IONE 9
maniahhann
SIMPLE INVESTMENT APPROACH
1. Input Phase 2. Model Portfolios 3. Dedicated Portfolio Manager - Target discount rate Strategy Equity - Makes recommendation - Risk tolerance Capital Appreciation 65-85%
- Fiduciary responsibility
Balanced 50-70%
- Investment philosophy - Drafts investment policy
Moderate 40-60%
- Asset allocation
Moderately Conservative 20-40% - Annual on-site reviews - Timing on use of funds - Cell phone access
Conservative 5-20%
FUELC
- PARS
CITY OF IONE
TRUSTED SOLUTIONS. LASTING RESULTS.
HIGHMARK CAPITAL MANAGEMENT
As of December 31, 2021
ACTIVE PORTFOLIO RETURNS
Strategy Equity (%) 1 Year 3 Years 5 Years 10 Years
Capital
Appreciation 65-85% 14.96% 17.30% 12.15% 10.83%
Balanced 50-70% 11.44% 14.99% 10.80%
9.45%
Moderate 40-60% 9.31%
13.26% 9.56% 8.39%
Moderately
Conservative 20-40% 5.15% 9.82% 7.17% 6.34%
Conservative 5-20% 2.20% 7.36% 5.43%
4.75%
* Past performance does not guarantee future results.
- PARS
SERVICES
TRUSTED SOLUTIONS. LASTING RESULTS. CITY OF IONE
SAMPLE FUNDING POLICIES
Contribute 50% of a given year's realized year
1. end surplus to address pension liability Alameda/Solana Beach Contribute full amount of annual PERS employer cont.,
2. allowing anytime access to trust assets City of Brea Contribute funds to stabilize PERS employer
3. Misc. and Safety rates through FY 23-24 City of Healdsburg "One equals five plan" - $1M contribution for 5 years
4. Will save taxpayers $5M over 25 years City of Huntington Beach Contribute Employer contribution equal to the 2.8%
5. discount rate, with difference going into the Section 115 Trust City of Sausalito Contribute the annual savings realized from Reduction in UAL payment resulting from Pension Obligation Bonds issuance City of Placentia
7. Earmark a portion of a local sales tax to be set
aside for unfunded pension liabilities City of Fountain Valley Use ongoing savings from prepaying CaPERS
8. unfunded liability vs. higher monthly payments City of Pasadena Use one-time revenue source and lower the
9. minimum General Fund Reserve level (30% → 20%) City of Glendale
AGENCY PARS
TRUSTED SOLUTIONS. LASTING RESULTS. CITY OF IONE
PROGRAM FEES
As of December 31, 2021
Trust Administration/Consulting Fees*
Plan Set-Up Fee: Ongoing Fees:
None
PUBIJC 0.25% for assets $0-10 million
AGENCY
PARS
RETREMENT
SERVICES 0.20% for assets $10-15 million
TRUSTED SOLUTIONS. LASTING RESULTS. 0.15% for assets $15-50 million
0.10% for assets over $50 million
Discretionary Trustee/Investment Management Fees**
Plan Set-Up Fee: Ongoing Fees:
None 0.35%
usbank. for assets under $5 million
0.25% for assets $5-10 million
0.20% for assets $10-15 million
HIGHMARK®
0.15% for assets $15-50 million
CAPITAL MANAGEMENT
0.10% for assets over $50 million
PARS does not receive any compensation from the investments or any commissions, back-end loads, or any other forms of compensation. ** Subject to change due to rebalancing, as fees are waived for plan assets in First American Funds (money market) E PARS
TRUSTED SOLUTIONS. LASTING RESULTS. CITY OF IONE 13
WHY TAKE THIS STEP?
1. Offers Hedge against Inflation
2. Smooths out pension rate volatility
3. Provides a fiscal tool in your financial toolbox
4. Prepares today for tomorrow's pension realities
Questions?
AGENCY - PARS
RETIREMENTI
SERVICES
TRUSTED SOLUTIONS. LASTING RESULTS. CITY OF IONE 14
#1
CITY OF IONE COUNCIL MEETING MINUTES
Meeting of February 15, 2022
Mayor Epperson called meeting to order at 6:00 PM
A. ROLL CALL:
Present: Dan Epperson, Mayor
Rodney Plamondon, Vice Mayor
Dominic Atlan, Councilmember
Stacy Rhoades, Councilmember
Absent: Diane Wratten, Councilmember
Staff: Michael Rock, Interim City Manager
Sophia Meyer, City Attorney
Janice Traverso, City Clerk
B. PLEDGE OF ALLEGIANCE:
Mayor Epperson led the Pledge of Allegiance.
C. APPROVAL OF AGENDA:
It was moved by Councilmember Atlan, seconded by Councilmember Rhoades and and carried to approve the agenda.
AYES: Epperson, Plamondon, Atlan, Rhoades
NOES: None
ABSENT: Wratten
ABSTAIN: None
D. PRESENTATIONS/ANNOUNCEMENTS:
Police Chief, Jeff Arnold presented the John Stewart Award to Officer Bryan Campbell.
E. PUBLIC COMMENT: None
F. CONSENT CALENDAR:
It was moved by Councilmember Rhoades, seconded by Vice Mayor Plamondon and carried to approve the following Consent Calendar:
1. Approval of Minutes - January 18, 2022
2. Financial and Investment Report through December 31, 2021 AYES: Epperson, Plamondon, Atlan, Rhoades
NOES: None
ABSENT: Wratten
ABSTAIN: None
G. PUBLIC HEARING: None
DISCUSSION ITEMS:
For the record: Action minutes provide the necessary documentation of City Council action.
Audio recordings are retained for those desiring more detail on particular agenda item discussions. These audio recordings provide an accurate and comprehensive backup of City Council deliberations and citizen discussions.
H. REGULAR AGENDA:
3. Presentation and Adoption of Resolution No. 2022-02 Accepting the Fiscal Year 2018/2019 Audit by the City of lone's Independent Auditor, Brian Nash of Richardson and Company, LLP - Brian Nash presented the draft Fiscal Year 2018/2019 Audit. The Audit will be brought back at the next meeting for adoption.
4. Waive the Second Reading by Substitution of title Only and Adopt Ordinance No. 528 - Amendment to Municipal Code, Title 17 - Focused Zoning Code Update - Beth Thompson, City Planner stated that at the February 1, 2022 meeting, the Council directed staff to revise the Focused Zoning Code Update to limit the second unit on lots developed with two units or a duplex pursuant to Senate Bill 9 provisions to 800 square feet.
Chapter 17.118.020 of the proposed amendment to Title 17 is revised to include the following requirement:
• Unit Size. One of the two units developed pursuant to this Section shall not exceed 800 square feet in size.
The Council also directed that the title and language of the ordinance be revised to reflect the update to the Title 17, Zoning, text and to exclude the Zoning Map, as discussed in the staff report. MOTION:_It was moved by Councilmember Atlan, seconded by Vice Mayor Plamondon and carried to waive the Second Reading by Substitution of Title Only and adopt Ordinance No. 528 - Amendment to Municipal Code, Title 17 - Focused Zoning Code Update.
AYES: Epperson, Plamondon, Atlan
NOES: Rhoades
ABSENT: Wratten
ABSTAIN: None
5. Adoption of Resolution No. 2022-03 Approving the Memorandum of Understanding between the City of lone and the lone Police Officer's Association - Michael Rock explained that the current IPOA MOU expired on June 30, 2021 and over the past several months he has met with Officers Alfonso Casias and Michael Damiano along with their Labor Relations Consultant, Mark Bartley. The changes to the MOU were the following:
• The MOU increases the wage scale for Police Officers by 2% July 1 of 2021, 2% July 1 of 2022 and 2% July 1 of 2023
• Creates two new merit steps worth 5% each
MOTION: It was moved by Councilmember Atlan, seconded by Councilmember Rhoades and carried to adopt Resolution No. 2022-03 Approving the Memorandum of Understanding between the City of lone and the lone Police Officer's Association.
AYES: Epperson, Plamondon, Atlan, Rhoades
NOES: None
ABSENT: Wratten
ABSTAIN: None
Councilmember Rhoades recused himself from the meeting:
6. Approve the Creation of a New Position of Public Works Manager and delete the position of Public Works Superintendent from the Salary Schedule - Michael Rock explained that the job duties for the Public Works Superintendent have changed significantly over the last year. The City hired an additional Maintenance Worker in this fiscal year and created a permanent Building Official/Code Enforcement Officer position both of which report to the Public Works Superintendent. Due to these increasing supervisory responsibilities and due to reorganizing the building inspection and code enforcement program into the Public Works Department it has become necessary to reclassify the title of Superintendent to Manager to better reflect the increased supervisory and management duties now required of the position. MOTION: It was moved by Vice Mayor Plamondon, seconded by Councilmember Atlan and carried to approve of the creation of the Public Works Manager.
AYES: Epperson, Plamondon, Atlan
NOES: None
ABSTAIN: None
ABSENT: Wratten, Rhoades (Recused)
Councilmember Rhoades returned to the meeting:
7. Discuss and Consider the Appointment of a Youth Advisory Position to the Parks and Recreation Commission pursuant to Section 2.36.020€ of the lone Municipal Code which reads: The City Council may from time to time appoint advisory personnel to assist the Commission. Such advisors shall not have voting privileges. Michael Rock stated that a high school student inquired as to whether it would be possible to serve on the Park & Recreation Commission in a youth or student capacity. In reviewing the Municipal Code, there is a provision that allows for the City Council to appoint advisory personnel to assist the Parks and Recreation Commission. Corrinne Shelton introduced herself to the Council and stated that she was interested on the advisory position with the Park & Recreation Commission. Council directed staff come back at a future meeting with a draft ordinance allowing advisory personnel on the Parks & Recreation Commission.
J. REPORTS AND COMMUNICATIONS FROM CITY MANAGER:
• Police Chief, Jeff Arnold announced his retirement on March 31, 2022.
K. COUNCIL COMMENTS/COMMITTEE REPORTS/FUTURE AGENDA ITEMS:
• Councilmember Rhoades - future agenda item: Solar Field Update • Mayor Epperson - ACRA appointed their officers for 2022 L. CLOSED SESSION: Council convened to Closed Session to discuss the following:
• Conference with Legal Counsel Pursuant to Government Code Section 54956.9(d)(1), Existing Litigation - California Public Utilities Commission v. City of lone • Conference with Legal Counsel - Anticipated Litigation: Significant Exposure to Litigation Pursuant to Paragraph (2) of Section 54956.9 of the Government Code - Two (2) Cases
Pursuant to Government Code Section 54956.8 with Real Property Negotiator:
Property: APN 004-151-012
Agency Negotiator: Michael Rock, Interim City Manager
Negotiation Parties: Loreta Tillery and Helen Ninnis
M. DISPOSITION OF CLOSED SESSION ITEMS:
• Conference with Legal Counsel Pursuant to Government Code Section 54956.9(d)(1), Existing Litigation - California Public Utilities Commission v. City of lone - Information received and direction given to staff.
• Conference with Legal Counsel - Anticipated Litigation: Significant Exposure to Litigation Pursuant to Paragraph (2) of Section 54956.9 of the Government Code - Two (2) Cases:
1 Case: Information received and direction was given to staff 2 Case: Information received and direction was given to staff - Councilmember Rhoades recused himself.
• Pursuant to Government Code Section 54956.8 with Real Property Negotiator:
Property: APN 004-151-012
Agency Negotiator: Michael Rock, Interim City Manager
Negotiation Parties: Loreta Tillery and Helen Ninnis
Information received and no reportable action.
N. ADJOURNMENT:
It was moved by Councilmember Atlan, seconded by Vice Mayor Plamondon and carried to adjourn at 8:43 p.m.
Respectfully submitted,
Janice Traverso. City Clerk
#2
Report Criteria:
Report type: Invoice detail
Check. Type = (<>) "Adjustment"
Check Num Check Issue Date Vendor ID Payee Amount
Description
2711 02/08/2022 10 8X8 INC. 764.38
VOLP PHONE SERV SW NOV-JAN 22
2712 02/08/2022 70 AFLAC 63.70
MO. EMPLOYEE INS. CONT. 01/22
2713 02/08/2022 115 ALHAMBRA 100.02
DRINKING WATER
2714 02/08/2022 250 AMADOR COUNTY RECREATION AGENCY 16,465.00 2021 PARK IMPACT FEES
2715 02/08/2022 265 AMADOR COUNTY SHERIFF'S DEPT 520.75 MO. RIMS ACCESS FEE 12/21
2716 02/08/2022 420 AT&T CALNET 3 225.15
MO. PHONE SERV. BAN:9391064373 1/22
2717 02/08/2022 425 ATT MOBILITY 321.92
FD FIRSTNET - 01/22
2717 02/08/2022 425 ATT MOBILITY 167.74
MO. CELL-PARKS 01/22
2718 02/08/2022 540 BENEFIT COORDINATORS CORPORATION 360.95 LIFE INSURANCE & AD&D BENEFITS-FEB 2022
2721 02/08/2022 875 CARBON COPY INC. 21.99
COPY EXPENSE - JAN 21
2721 02/08/2022 875 CARBON COPY INC. 156.32
COPY EXPENSE - JAN 22
2721 02/08/2022 875 CARBON COPY INC. 420.56
TONER FOR COPIER
2722 02/08/2022 905 CASELLE INC. 1,651.00
CONTRACT SUPPORT/MAINT - MAR2022
2723 02/08/2022 1050 COLUMBIA COMMUNICATIONS INC 110.17
VH FRUGGED QUARTER WAVE ANTENNA W/SPRING
2724 02/08/2022 1200 DAVID TAUSSIG & ASSOC. INC 142.50
PROJECT D21-80266.000 IONE/ CFD 2005-2 IA 1 FY 21-22
2724 02/08/2022 1200 DAVID TAUSSIG & ASSOC. INC 617.50
PROJECT D21-80266. OS IONE/ CFD 2005-2 IA 1PREPAYMENT
2724 02/08/2022 1200 DAVID TAUSSIG & ASSOC. INC 142.50
PROJECT D21-80267.000 IONE/ CFD 2005-2 IA 2 FY 21-22
2724 02/08/2022 1200 DAVID TAUSSIG & ASSOC. INC 522.50
PROJECT D21-80268.000 /ONE/ CFD 2005-2 IA 3 FY 21-22
2724 02/08/2022 1200 DAVID TAUSSIG & ASSOC. INC 1,425.00 PROJECT D21-80268.OS IONE/ CFD 2005-2 /A :
PREPAYMENT
2725 02/08/2022 1220 DE LAGE LANDEN INC. 357.52
MONTHLY COPIER LEASE 02/22
2726 02/08/2022 1375 ECO URBAN DESIGNS INC. 2,644.00
LANDSCAPE MAINT-CO GOLF COURSE 01/22
2726 02/08/2022 1375 ECO URBAN DESIGNS INC. 2,542.00
CONSULT/TESTING TERTIARY 01/22
2727 02/08/2022 1455 FARM & AUTO SUPPLY INC 273.35
FD - ENGINE 6231 - 2 BATTERIES
2728 02/08/2022 1920 HI-TECH EV S INC 1,003.49
REBUILT PM CONTROLLER AND REINSTALLED FD VEHICLE
2729 02/08/2022 1950 HUNT & SONS INC. 1,399.42
HUNT FUEL - BUILDING
2729 02/08/2022 1950 HUNT & SONS INC. 1,091.92
HUNT FUEL - PUBLIC WORKS
2730 02/08/2022 2040 IONE PHARMACY 75.50
BRAUN THERMO LEN FIL/ BRAUN THERMOSCAN
2730 02/08/2022 2040 IONE PHARMACY 42.60
GLUTOSE - 15 GEL (MEDICAL RESTOCK)
M = Manual Check, V = Void Check
Check Num Check Issue Date Vendor ID Payee Amount
Description
2730 02/08/2022 2040 IONE PHARMACY 23.68
TRUE METRIX GLUCOSE TEST (MEDICAL RESTOCK)
2731 02/08/2022 2050 IONE PLAZA MARKET 28.00
DONUTS FOR VOLUNTEERS
2734 02/08/2022 2105 JACKSON TIRE SERVICE INC 30.00
UNIT 6220 04 CHEVY C4500
2736 02/08/2022 2305 LEAGUE OF CALIFORNIA CITIES 100.00 2022 MEMBERSHIP DUES
2737 02/08/2022 2375 LIFE- ASSIST INC 538.75
SUPRENO SE NITRILE EXAM GLOVES
2737 02/08/2022 2375 LIFE- ASSIST INC 715.93
LIFEBAND FOR AUTOPULSE
2737 02/08/2022 2375 LIFE- ASSIST INC 538.75
SUPRENO SE NITRILE EXAM GLOVES
2740 02/08/2022 2570 MEEKS-WESTERN BUYERS LLC 300.62
FIRE DEPT - TROY BUILT BLOWER GROUNDSKEEPING
2755 02/08/2022 2775 NORTHERN CALIF CITIES SELF INS 21,139.75 WORKERS COMP-3RD QTR FY 21/22
2742 02/08/2022 2930 PG & E 8,223.46
2134403982-7-ARENA
2743 02/08/2022 2950 PINNACLE ALARM 180.00
REPLACED UNIT AT CITY HALL
2747 02/08/2022 3315 SANDY GULCH SIGN COMPANY 247.94
FARINE BULBS - 924 PLEASANT VALLEY RO 8.910
2750 02/08/2022 3570 STAPLES BUSINESS CREDIT 228.68
CITY HALL - MULTIPURPOSE PAPER
2751 02/08/2022 3810 TOMMY'S GARAGE 552.84
•W-1997 FORD F150-REPLACE KEY, SWITCH, AND BOTH
ACUATORS
2752 02/08/2022 3950 USA NORTH 811 487.17
2022 MEMBERSHIP FEE PLUS UNIQUE BILLABLE TICKET
FEE
2753 02/08/2022 4000 VOLCANO TELEPHONE COMPANY 503.17
ACCT 63376 02/22
2735 02/08/2022 2115 JAW HEATING & AIR INC. 5,300.00
HEATING & COOLING UNIT INSTALLATION-CITY HALL
2745 02/08/2022 2996 PRENTICE LONG PC 2,382.00
LEGAL SERVICES, COMPLAINT DISCUSSION
2745 02/08/2022 2996 PRENTICE LONG PC 7,000.00
LEGAL SERVICES-DEC
2745 02108/2022 2996 PRENTICE LONG PC 1,997.00
LEGAL SERVICES, COMPLAINT DISCUSSION
2745 02/08/2022 2996 PRENTICE LONG PC 7,355.57
LEGAL SERVICES-JAN 2022
2733 02/08/2022 2071 IW SOLAR LLC 3,231.44
SOLAR PRODUCED-WWTP DEC 21
2733 02108/2022 2071 IW SOLAR LLC 6,669.81
SOLAR PRODUCED-WWTP JAN 22
2720 02/08/2022 732 CAL.NET INC 109.87
INTERNET SERVICE AT EB HALL-FEB 22
2719 02/08/2022 4245 BHI Management Consulting 4,955.00
SEARCH AND PLACEMENT FOR FINANCE MGR
2738 02/08/2022 4330 MARY A. MORRIS-MAYORGA 10,285.00
AUDIT ASSISTANCE 12/01 - 12/30
2739 02/08/2022 4530 MCCLATCHY COMPANY LLC 1,269.77
PUBLIC NOTICE - CITY COUNCIL
2744 02/08/2022 4620 PLUMBING, HEATING & AIR CONDITIONING .00 V
HYDRO JETTED LINE AND CLEARED BLOCKAGE
2754 02/08/2022 4620 ABC PLUMBING HEATING & AIR CONDITIONING 1,120.00
HYDRO JETTED LINE AND CLEARED BLOCKAGE
M = Manual Check, V = Void Check
Check Num Check Issue Date Vendor ID Payee Amount
Description
2741 02/08/2022 4670 NEWEGG BUSINESS INC. 18,910.13
DISCOUNT - 1.15101|ITEM PRICE ADJ9883-098-024
2749 02/08/2022 4675 SOROPTIMIST OF AMADOR COUNTY 300.00
RENTAL DEPOSIT RETURN
2748 02/08/2022 4680 SNG & ASSOCIATES INC. 6,301.00
CITY ENGINEERING SERVICES
2732 02/08/2022 4685 IONE TRADING POST 699.57
FIRE - FUEL
2746 02/08/2022 4690 ROCK, MICHAEL 210.60
LEAGUE OF CA CITIES - MILEAGE REIMB
Grand Totals: 145,564.95
Dated:
Mayor:
City Council:
City Recorder:
Report Criteria:
Report type: Invoice detail
Check. Type = (<>) "Adjustment"
M = Manual Check, V = Void Check
OF
10N
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN THAT the City Council of the City of lone will hold a public hearing at 6:00 p.m. at its regular meeting on Tuesday, March 15, 2022, to hear the Organic Waste Disposal Reduction Ordinance.
The City of lone is subject to providing education and outreach information to organic waste generators, enforcing certain provisions of the CALGreen Building Standards and Model Water Efficient Landscape Ordinance, implementing an edible food recovery program and edible food recovery capacity planning, procurement of paper products, facility sampling for contamination of materials, inspections and enforcement, and recordkepping and reporting to Cal Recycle in compliance with the SB 1383 Regulations.
In compliance with the Governor's Executive Order N-25-20, the City Council of the City of lone will be conducting its meeting in-person at 1 E. Main Street and via Zoom Teleconference. The meeting agenda for the March 15, 2022, City Council Meeting will provide detailed information explaining how to join the meeting via Zoom.
Public comment will also be accepted by email at [email protected]. All emails must be received prior to the start of the meeting and will be incorporated into the record. Written comments may also be submitted to the City Clerk, City of lone, P.O.
Box 398, lone, CA 95640 and must be received not later than 6:00 p.m. Tuesday, March 15, 2022.
Additional information on this item is available for public review on the City's website and at lone City Hall, 1 E. Main Street, lone, CA.
NOTICE REGARDING CHALLENGES TO DECISIONS
Pursuant to all applicable laws and regulations, including without limitation to California Government Code Section 65009 and/or California Public Resources Code Section 21177, if you wish to challenge in court, any of the above, described decisions, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written or email comments received by the City at, or prior to, this public hearing.
ADA COMPLIANCE STATEMENT
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk at [email protected] Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
To be published on Friday, March 4, 2022
Janice Traverso, City Clerk
ORDINANCE NO. 529
Organic Waste Disposal Reduction Ordinance
An ordinance creating Chapter 8.32 of the lone Municipal Code, relating to the requirements for the reduction of organic waste disposal.
The CITY COUNCIL of the City of lone ordains as follows:
Chapter 8.32 is hereby added as follows: Organic Waste Disposal Reduction.
8.32.010 Title
8.32.020 Purpose and Findings
8.32.030 Definitions
8.32.040 Requirements for Recordkeeping and Reporting Authority
8.32.050 Requirements for Education and Outreach
8.32.060 Requirements for Commercial Businesses
8.32.070 Requirements for Commercial Edible Food Generators
8.32.080 Requirements for Food Recovery Organizations and Services
8.32.090 Compliance with CalGreen Recycling Requirements
8.32.100 Model Water Efficient Landscaping Ordinance Requirements
8.32.110 Procurement Requirements
8.32.120 Solid Waste Facility Requirements
8.32.130 Inspections and Investigations
8.32.140 Enforcement
8.32.150 Effective Date
8.32.010 TITLE.
This Chapter may be cited as the Organic Waste Disposal Reduction Ordinance.
8.32.020 PURPOSE AND FINDINGS
The City of lone finds and declares:
State recycling law, Assembly Bill 939 of 1989, the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000, et seq., as amended, supplemented, superseded, and replaced from time to time), requires cities and counties to reduce, reuse, and recycle (including composting) Solid Waste generated in their Jurisdictions to the maximum extent feasible before any incineration or landfill disposal of waste, to conserve water, energy, and other natural resources, and to protect the environment. 1 B. State recycling law, Assembly Bill 341 of 2011 (approved by the Governor of the State of California on October 5, 2011, which amended Sections 41730, 41731, 41734, 41735, 41736, 41800, 42926, 44004, and 50001 of, and added Sections 40004, 41734.5, and 41780.01 and Chapter 12.8 (commencing with Section 42649) to Part 3 of Division 30 of, and added and repealed Section 41780.02 of, the Public Resources Code, as amended, supplemented, superseded and replaced from time to time), places requirements on businesses and Multi- Family property owners that generate a specified threshold amount of Solid Waste to arrange for recycling services and requires Jurisdictions to implement a Mandatory Commercial Recycling program.
C. SB 1383, the Short-lived Climate Pollutant Reduction Act of 2016, requires CalRecycle to develop regulations to reduce organics in landfills as a source of methane. The regulations place requirements on multiple entities including Jurisdictions, residential households, Commercial Businesses and business owners, Commercial Edible Food Generators, haulers, Self-Haulers, Food Recovery Organizations, and Food Recovery Services to support achievement of Statewide Organic Waste disposal reduction targets.
D. SB 1383, the Short-lived Climate Pollutant Reduction Act of 2016, requires Jurisdictions to adopt and enforce an ordinance or enforceable mechanism to implement relevant provisions of SB 1383 Regulations applicable to their jurisdiction. This ordinance will also help reduce food insecurity by requiring Commercial Edible Food Generators to arrange to have the maximum amount of their Edible Food, that would otherwise be disposed, be recovered for human consumption.
E. Amador County meets the definition of Rural Jurisdiction as defined in Section 42649.8 of the Public Resources Code and has therefore applied for the Rural Exemption in compliance with Section 18984.12 (c) of Chapter 12 (Short-lived Climate Pollutants) of Division 7 of Title 14 of the California Code of Regulations ('SB 1383 Regulations" or "Regulations"). The City submitted and received approval of its Rural Exemption Application and therefore is not subject to Article 3 Organic Waste Collection Services, Section 18992.1 of Article 11 Organic Waste Capacity Planning, and Sections 18993.1 and .2 of Article 12 Procurement of Recovered Organic Waste Products through December 31, 2026. Collection of recyclables and organics may occur in exempt rural areas and that collection is not subject to SB 1383 regulations or this ordinance unless otherwise required.
F. City of lone is subject to providing education and outreach information to organic waste generators, enforcing certain provisions of the CALGreen Building Standards and Model Water Efficient Landscape Ordinance, implementing an edible food recovery program and edible food recovery capacity planning, procurement of paper products, facility sampling for contamination of materials, inspections and enforcement, and recordkeeping and reporting to CalRecycle in compliance with the SB 1383 Regulations.
8.32.030 DEFINITIONS
For purposes of this Chapter, the following words or phrases are defined as follows:
2 A. "CalRecycle" means California's Department of Resources Recycling and Recovery, which is the Department designated with responsibility for developing, implementing, and enforcing SB 1383 Regulations on Jurisdictions (and others).
B. "California Code of Regulations" or "CCR" means the State of California Code of Regulations. CCR references in this ordinance are preceded with a number that refers to the relevant Title of the CCR (e.g., "14 CCR" refers to Title 14 of CCR).
C. "City" means City of XXXXX.
D. "Commercial Business" or "Commercial" means a firm, partnership, proprietorship, joint- stock company, corporation, or association, whether for-profit or nonprofit, strip mall, industrial facility, or a multifamily residential dwelling, or as otherwise defined in 14 CCR Section 18982(a)(6). A Multi-Family Residential Dwelling that consists of fewer than five (5) units is not a Commercial Business for purposes of implementing this ordinance.
E. "Commercial Edible Food Generator" includes a Tier One or a Tier Two Commercial Edible Food Generator as defined in 14 CCR Section 18982(a)(73) and (a)(74). For the purposes of this definition, Food Recovery Organizations and Food Recovery Services are not Commercial Edible Food Generators pursuant to 14 CCR Section 18982(a)(7).
F. "Compliance Review" means a review of records by a Jurisdiction to determine compliance with this ordinance.
"C&D" means construction and demolition debris.
H. "Designee" means an entity that a Jurisdiction contracts with or otherwise arranges to carry out any of the Jurisdiction's responsibilities of this ordinance as authorized in 14 CCR Section 18981.2. A Designee may be a government entity, a hauler, a private entity, or a combination of those entities.
1. "Edible Food" means food intended for human consumption, or as otherwise defined in 14 CCR Section 18982(a)(18). For the purposes of this ordinance or as otherwise defined in 14 CCR Section 18982(a)(18), "Edible Food" is not Solid Waste if it is recovered and not discarded.
Nothing in this ordinance or in 14 CCR, Division 7, Chapter 12 requires or authorizes the Recovery of Edible Food that does not meet the food safety requirements of the California Retail Food Code.
J. "Enforcement Action" means an action of the Jurisdiction to address non-compliance with this ordinance including, but not limited to, issuing administrative citations, fines, penalties, or using other remedies.
"Food" has the same meaning as in Section 113781 of the Health and Safety Code. "Food" means a raw, cooked, or processed edible substance, ice, beverage, an ingredient used or intended for use or for sale in whole or in part for human consumption, and chewing gum. "Food Distributor" means a company that distributes food to entities including, but not limited to, Supermarkets and Grocery Stores, or as otherwise defined in 14 CCR Section 18982(a)(22).
M. "Food Facility" has the same meaning as in Section 113789 of the Health and Safety Code.
N. "Food Recovery" means actions to collect and distribute food for human consumption that otherwise would be disposed, or as otherwise defined in 14 CCR Section 18982(a)(24).
0. "Food Recovery Organization" means an entity that engages in the collection or receipt of Edible Food from Commercial Edible Food Generators and distributes that Edible Food to the 3 public for Food Recovery either directly or through other entities or as otherwise defined in 14 CCR Section 18982(a)(25), including, but not limited to:
1. A food bank as defined in Section 113783 of the Health and Safety Code;
2. A nonprofit charitable organization as defined in Section 113841 of the Health and Safety code; and,
3. A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.
A Food Recovery Organization is not a Commercial Edible Food Generator for the purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR Section 18982(a)(7).
If the definition in 14 CCR Section 18982(a)(25) for Food Recovery Organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this ordinance.
P. "Food Recovery Service" means a person or entity that collects and transports Edible Food from a Commercial Edible Food Generator to a Food Recovery Organization or other entities for Food Recovery, or as otherwise defined in 14 CCR Section 18982(a)(26). A Food Recovery Service is not a Commercial Edible Food Generator for the purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR Section 18982(a)(7). "Food Service Provider" means an entity primarily engaged in providing food services to institutional, governmental, Commercial, or industrial locations of others based on contractual arrangements with these types of organizations, or as otherwise defined in 14 CCR Section 18982(a)(27).
R. "Grocery Store" means a store primarily engaged in the retail sale of canned food; dry goods; fresh fruits and vegetables; fresh meats, fish, and poultry; and any area that is not separately owned within the store where the food is prepared and served, including a bakery, deli, and meat and seafood departments, or as otherwise defined in 14 CCR Section 18982(a)(30). "Implementation Record" means the records and documentation required to be kept under Section 18995.2 of the SB 1383 Regulations.
T. "Inspection" means a site visit where a Jurisdiction reviews records, containers, and an entity's collection, handling, recycling, or landfill disposal of Organic Waste or Edible Food handling to determine if the entity is complying with requirements set forth in this ordinance, or as otherwise defined in 14 CCR Section 18982(a)(35).
U. "Jurisdiction" means the City of lone.
"Jurisdiction Enforcement Official" means the City of lone or their authorized Designee(s) who is/are partially or wholly responsible for enforcing the ordinance. "Large Event" means an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than 2,000 individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definition in 14 CCR Section 4 18982(a)(38) differs from this definition, the definition in 14 CCR Section 18982(a)(38) shall apply to this ordinance.
X. "Large Venue" means a permanent venue facility that annually seats or serves an average of more than 2,000 individuals within the grounds of the facility per day of operation of the venue facility. For purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12, a venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. For purposes of this ordinance and implementation of 14 CCR, Division 7, Chapter 12, a site under common ownership or control that includes more than one Large Venue that is contiguous with other Large Venues in the site, is a single Large Venue. If the definition in 14 CCR Section 18982(a)(39) differs from this definition, the definition in 14 CCR Section 18982(a)(39) shall apply to this ordinance.
Y. "Local Education Agency" means a school district, charter school, or county office of education that is not subject to the control of city or county regulations related to Solid Waste, or as otherwise defined in 14 CCR Section 18982(a)(40). "Multi-Family" or "Multi-Family Residential Dwelling" means of, from, or pertaining to residential premises with five (5) or more swelling units. Multi-Family premises do not include hotels, motels, or other transient occupancy facilities, which are considered Commercial businesses.
AA. "MWELO" refers to the Model Water Efficient Landscape Ordinance (MWELO), 23 CCR, Division 2, Chapter 2.7.
BB. "Non-Local Entity" means the following entities that are not subject to the Jurisdiction's enforcement authority, or as otherwise defined in 14 CCR Section 18982(a)(42):
1. Special Districts) located within the boundaries of the jurisdiction.
Federal facilities, including federal parks, located within the boundaries of the Jurisdiction.
3. Prison(s) located within the boundaries of the Jurisdiction.
4. Facilities operated by the State Park system located within the boundaries of the Jurisdiction.
5. Public universities (including community colleges) located within the boundaries of the Jurisdiction.
6. County fairgrounds located within the boundaries of the Jurisdiction.
State agencies located within the boundaries of the Jurisdiction.
CC. "Notice of Violation (NOV)" means a notice that a violation has occurred that includes a compliance date to avoid an action to seek penalties, or as otherwise defined in 14 CCR Section 18982(a)(45) or further explained in 14 CCR Section 18995.4.
DD. "Paper Products" include, but are not limited to, paper janitorial supplies, cartons, wrapping, packaging, file folders, hanging files, corrugated boxes, tissue, and toweling, or as otherwise defined in 14 CCR Section 18982(a)(51).
EE. "Person(s)" means any corporation, company, partnership, firm, or association as well as a natural person.
5 FF. "Printing and Writing Papers" include, but are not limited to, copy, xerographic, watermark, cotton fiber, offset, forms, computer printout paper, white wove envelopes, manila envelopes, book paper, note pads, writing tablets, newsprint, and other uncoated writingpapers, posters, index cards, calendars, brochures, reports, magazines, and publications, or as otherwise defined in 14 CCR Section 18982(a)(54).
GG. "Recycled-Content Paper" means Paper Products and Printing and Writing Paper that consists of at least 30 percent, by fiber weight, postconsumer fiber, or as otherwise defined in 14 CCR Section 18982(a)(61).
HH. "Reporting Authority" means the Amador Waste Management Department. "Restaurant" means an establishment primarily engaged in the retail sale of food and drinks for on-premises or immediate consumption, or as otherwise defined in 14 CCR Section 18982(a)(64).
JJ. "SB 1383" means Senate Bill 1383 of 2016 approved by the Governor on September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and Safety Code, and added Chapter 13.1 (commencing with Section 42652) to Part 3 of Division 30 of the Public Resources Code, establishing methane emissions reduction targets in a Statewide effort to reduce emissions of short-lived climate pollutants as amended, supplemented, superseded, and replaced from time to time.
KK. "SB 1383 Regulations" or "Regulations" means or refers to, for the purposes of this ordinance, the Short-Lived Climate Pollutants: Organic Waste Reduction regulations developed by CalRecycle and adopted in 2020 that created 14 CCR, Division 7, Chapter 12 and amended portions of regulations of 14 CCR and 27 CCR.
LL. "State" means the State of California.
MM. "Supermarket" means a full-line, self-service retail store with gross annual sales of two million dollars ($2,000,000), or more, and which sells a line of dry grocery, canned goods, or nonfood items and some perishable items, or as otherwise defined in 14 CCR Section 18982(a)(71).
NN. "Tier One Commercial Edible Food Generator" means a Commercial Edible Food Generator that is one of the following:
1. Supermarket.
2. Grocery Store with a total facility size equal to or greater than 10,000 square feet.
3. Food Service Provider.
4. Food Distributor.
Wholesale Food Vendor.
If the definition in 14 CCR Section 18982(a)(73) of Tier One Commercial Edible Food Generator is amended in the future and differs from this definition, the definition in 14 CCR Section 18982(a)(73) shall automatically apply to this Chapter.
O0. "Tier Two Commercial Edible Food Generator" means a Commercial Edible Food Generator that is one of the following:
6 Restaurant with 250 or more seats, or a total facility size equal to or greater than 5,000 square feet.
Hotel with an on-site Food Facility and 200 or more rooms.
Health facility with an on-site Food Facility and 100 or more beds.
4. Large Venue.
Large Event.
6. A State agency with a cafeteria with 250 or more seats or total cafeteria facility size equal to or greater than 5,000 square feet.
A Local Education Agency facility with an on-site Food Facility.
If the definition in 14 CCR Section 18982(a)(74) of Tier Two Commercial Edible Food Generator is amended in the future and differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall automatically apply to this Chapter.
PP. "Wholesale Food Vendor" means a business or establishment engaged in the merchant wholesale distribution of food, where food (including fruits and vegetables) is received, shipped, stored, prepared for distribution to a retailer, warehouse, distributor, or other destination, or as otherwise defined in 14 CCR Section 189852(a)(76).
8.32.040 REQUIRMENTS FOR THE RECORDKEEPING AND REPORTING AUTHORITY In conformance with Section 18995.2 of the SB 1383 Regulations, the City will store and maintain the Implementation Record in a manner as required in the Regulations and shall provide that information to the Reporting Authority upon request.
Upon request by a CalRecycle representative, the City will provide access to the Implementation kecord within 10 business days in conformance with the California Public Records Act (Government Code §6250 et seq.). The City or Responsible Department shall each notify the other and the Reporting Authority if a request for all or part of the Implementation Record is received and shall coordinate a response to such request.
8.32.050 REQUIREMENTS FOR EDUCATION AND OUTREACH
A list of food recovery organizations as identified in the SB 1383 Regulations at Section 18982(a)(25)(A)-(B) and food recovery services operating within the jurisdiction shall be maintained on the jurisdiction's website. The list shall be updated annually and include, at a minimum, the following information about each food recovery organization and each food recovery service:
1. Name and physical address.
2. Contact information.
3. Collection service area.
4. An indication of types of food the food recovery service or organization can accept for food recovery.
B. At least annually the City or the County Waste Management Department by agreement shall:
Provide Tier 1 and 2 Commercial Edible Food Generators with the following information:
a.) Information about the jurisdiction's edible food recovery program established pursuant to Section 18991.1 of the Regulations. b.) Information about the commercial edible food generator requirements specified in Article 10 of the Regulations.
c.) Information about food recovery organizations and food recovery services operating within the jurisdiction, and where a list of those food recovery organizations and food recovery services can be found. d.) Information about actions that commercial edible food generators can take to prevent the creation of food waste.
2. The jurisdiction may provide this information by including it with regularly scheduled notices to those commercial businesses, including the notices provided pursuant to Section 18985.1 of the Regulations.
8.32.060 REQUIREMENTS FOR COMMERCIAL BUSINESSES
A. A business that generates more than four cubic yards of commercial solid waste per week or is a multifamily residential dwelling of five units or more shall arrange for recycling services, consistent with state laws and the Mandatory Commercial Recycling requirements of the City.
B. The commercial solid waste recycling program shall include education, outreach to, and monitoring and enforcement of businesses and multifamily residential dwelling of five units or more.
8.32.070 REQUIREMENTS FOR COMMERCIAL EDIBLE FOOD GENERATORS Tier One Commercial Edible Food Generators must comply with the requirements of this Section 8.32.070 commencing January 1, 2022, and Tier Two Commercial Edible Food Generators must comply commencing January 1, 2024, in accordance with Section 18991.3 of the SB 1383 Regulations.
B. Large Venue or Large Event operators not providing food services, but allowing for food to be provided by others, shall require Food Facilities operating at the Large Venue or Large Event to comply with the requirements of this Section, commencing January 1, 2024.
Commercial Edible Food Generators shall comply with the following requirements:
Arrange to recover the maximum amount of Edible Food that would otherwise be disposed.
2. Contract with or enter into a written agreement with Food Recovery Organizations or Food Recovery Services for:
a.) The collection of Edible Food for Food Recovery; or, 8 b.) Acceptance of the Edible Food that the Commercial Edible Food Generator self-hauls to the Food Recovery Organization for Food Recovery.
3. Shall not intentionally spoil Edible Food that is capable of being recovered by a Food Recovery Organization or a Food Recovery Service.
Allow the City or the City's designated enforcement entity to access the premises and review records pursuant to 14 CCR Section 18991.4 of the Regulations.
Keep records that include the following information, or as otherwise specified in 14 CCR Section 18991.4:(A) of the Regulations.
a.) A list of each Food Recovery Service or organization that collects or receives its Edible Food pursuant to a contract or written agreement established under 14 CCR Section 18991.3(b) of the Regulations. b.) A copy of all contracts or written agreements established under 14 CCR Section 18991.3(b) of the Regulations.
c.) A record of the following information for each of those Food Recovery Services or Food Recovery Organizations:
(1) The name, address and contact information of the Food Recovery Service or Food Recovery Organization.
(2) The types of food that will be collected by or self-hauled to the Food Recovery Service or Food Recovery Organization.
(3) The established frequency that food will be collected or self-hauled. (4) The quantity of food, measured in pounds recovered per month, collected or self-hauled to a Food Recovery Service or Food Recovery Organization for Food Recovery.
(6) No later than March 1st of each year commencing no later than March 1, 2023 for Tier One Commercial Edible Food Generators and March 1, 2025 for Tier Two Commercial Edible Food Generators, provide an annual Food Recovery report to the Reporting Authority that includes all information listed above in 8.32.070(c)(5) of the Regulations.
D. Nothing in this ordinance shall be construed to limit or conflict with the protections provided by the California Good Samaritan Food Donation Act of 2017, the Federal Good Samaritan Act, or share table and school food donation guidance pursuant to Senate Bill 557 of 2017 (approved by the Governor of the State of California on September 25, 2017, which added Article 13 [commencing with Section 49580] to Chapter 9 of Part 27 of Division 4 of Title 2 of the Education Code, and to amend Section 114079 of the Health and Safety Code, relating to food safety, as amended, supplemented, superseded and replaced from time to time).
8.32.080 REQUIREMENTS FOR FOOD RECOVERY ORGANIZATIONS AND SERVICES Food Recovery Services collecting or receiving Edible Food directly from Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b) of the SB 1383 Regulations, shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(1) of the Regulations:
9 1. The name, address, and contact information for each Commercial Edible Food Generator from which the service collects Edible Food.
The quantity in pounds of Edible Food collected from each Commercial Edible Food Generator per month.
The quantity in pounds of Edible Food transported to each Food Recovery Organization per month.
4. The name, address, and contact information for each Food Recovery Organization that the Food Recovery Service transports Edible Food to for Food Recovery.
B. Food Recovery Organizations collecting or receiving Edible Food directly from Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b)of the Regulations, shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(2)of the Regulations:
1. The name, address, and contact information for each Commercial Edible Food Generator from which the organization receives Edible Food.
2. The quantity in pounds of Edible Food received from each Commercial Edible Food Generator per month.
3. The name, address, and contact information for each Food Recovery Service that the organization receives Edible Food from for Food Recovery.
C. Food Recovery Organizations and Food Recovery Services that have their primary address physically located in the Jurisdiction and contract with or have written agreements with one or more Commercial Edible Food Generators pursuant to 14 CCR Section 18991.3(b) of the Regulations shall report to the Jurisdiction the total pounds of Edible Food recovered in the previous calendar year from the Tier One and Tier Two Commercial Edible Food Generators they have established a contract or written agreement with pursuant to 14 CCR Section 18991.3(b) of the Regulations no later than March 1.
Food Recovery Capacity Planning
1. In order to support Edible Food Recovery capacity planning assessments or other studies conducted by the City or its designated entity, Food Recovery Services and Food Recovery Organizations operating in the Jurisdiction shall provide information and consultation to the City, upon request, regarding existing, or proposed new or expanded, Food Recovery capacity that could be accessed by the Jurisdiction and its Commercial Edible Food Generators. A Food Recovery Service or Food Recovery Organization contacted by the City shall respond to such request for information within 60 days, unless a shorter timeframe is otherwise specified by the Jurisdiction.
2. The County shall conduct Edible Food Recovery capacity planning, in coordination with the Cities. If the County identifies that new or expanded capacity to recover Edible Food is needed, then the City will work with the County to expand Edible Food recovery
8.32.090 COMPLIANCE WITH CALGREEN RECYCLING REQUIREMENTS 10 A. The City is responsible for CALGreen Building Code compliance, and shall annually report to the Reporting Authority the number of projects subject to the following:
The adequate space requirements for recycling containers for new construction of Multi-Family dwelling units of five or more units on a building site and new commercial construction and additions.
2. Requirements and applicable laws related to management of Construction and Demolition (C&D) from disposal, including tracking of C&D debris.
B. Persons applying for a permit from the Jurisdiction for new construction and building additions and alterations shall comply with all required components of the California Green Building Standards Code, 24 CCR, Part 11, known as CALGreen, as amended, if its project is covered by the scope of CALGreen.
Project applicants shall refer to the Jurisdiction's Building Department for complete CALGreen requirements.
8.32.100 COMPLIANCE WITH MODEL WATER EFFICIENT LANDSCAPING ORDINANCE
REQUIREMENTS
A. The City is responsible for Model Water Efficient Landscaping Ordinance (MELO) compliance, including the tracking and reporting of compost and mulch use requirements and upon request annually reporting to the Reporting Authority in compliance with the SB 1383 regulations.
B. Persons applying for a permit from the Jurisdiction for new construction requiring a permit with a landscape area greater than 500 square feet or rehabilitating an existing landscape with a total landscape area greater than 2,500 square feet shall comply with all required components of the MWELO.
Project applicants shall refer to the City for complete MWELO requirements.
C. If, after the adoption of this ordinance, the California Department of Water Resources, or its successor agency, amends 23 CCR, Division 2, Chapter 2.7, Sections 492.6(a)(3)(B) (C), (D), and (G) of the MWELO September 15, 2015 requirements in a manner that requires Jurisdictions to incorporate the requirements of an updated MWELO in a local ordinance, and the amended requirements include provisions more stringent than those required in this Section, the revised requirements of 23 CCR, Division 2, Chapter 2.7 shall be enforced.
8.32.110 PROCUREMENT REQUIREMENTS FOR JURISDICTION DEPARTMENTS, DIRECT
SERVICE PROVIDERS, AND VENDORS
The Jurisdiction is responsible for paper procurement in compliance with their procurement policy, including the tracking and reporting of procurement by each department and annually reporting to the Reporting Authority in compliance with the SB 1383 regulations. 11 8.32.120 SOLID WASTE FACILITY REQUIREMENTS
The applicable sampling and monitoring requirements found in Article 6.0, Transfer/Processing Operations and Facilities Regulatory Requirements of Title 14, Division 7, Chapter 3 in the California Code of Regulations shall apply.
8.32.130 INSPECTIONS AND INVESTIGATIONS BY JURISDICTION A. City employees and any entity acting on behalf of the City, are authorized to conduct Inspections and investigations, at random or otherwise, of any collection container, collection vehicle loads, or transfer, processing, or disposal facility for materials collected from generators, or Source Separated materials to confirm compliance with this ordinance by Solid Waste Generators, Commercial Businesses (including Multi-Family Residential Dwellings), property owners, Commercial Edible Food Generators, haulers, Self-Haulers, Food Recovery Services, and Food Recovery Organizations, subject to applicable laws. This Section does not allow Jurisdiction to enter the interior of a private residential property for Inspection.
B. Regulated entities shall provide or arrange for access during all Inspections (with the exception of residential property interiors) and shall cooperate with the Jurisdiction's employee or its designated entity/Designee during such Inspections and investigations. Such Inspections and investigations may include confirmation of proper placement of materials in containers, Edible Food Recovery activities, records, or any other requirement of this ordinance described herein. Failure to provide or arrange for: (1) access to an entity's premises; or (2) access to records for any Inspection or investigation is a violation of this ordinance and may result in penalties described.
C. Any records obtained by the City and/or its designated entities during its Inspections, inspections, and other reviews shall be subject to the requirements and applicable disclosure exemptions of the Public Records Act as set forth in Government Code Section 6250 et seq.
D. The City and/or its designated entities shall receive written complaints from persons regarding an entity that may be potentially non-compliant with SB 1383 Regulations, including receipt of anonymous complaints.
8.32.140 ENFORCEMENT
A. Violation of any provision of this ordinance shall constitute grounds for issuance of a Notice of Violation and assessment of a fine by a Jurisdiction Enforcement Official or representative.
Enforcement Actions under this ordinance are issuance of an administrative citation and assessment of a fine. The Jurisdiction's procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this ordinance and any rule or regulation adopted pursuant to this ordinance, except as otherwise indicated in this ordinance.
B. Other remedies allowed by law may be used, including civil action or prosecution as misdemeanor or infraction. Jurisdiction may pursue civil actions in the California courts to seek 12 recovery of unpaid administrative citations. Jurisdiction may choose to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations exist such that court action is a reasonable use of Jurisdiction staff and resources.
Enforcement pursuant to this Chapter may be undertaken by the City Enforcement Official, or their designated entity, legal counsel, or combination thereof.
D. Process for Enforcement
1. Enforcement Officials and/or their Designee will monitor compliance with the ordinance randomly and through Compliance Reviews, investigation of complaints, and an Inspection program. Section 8.32.130 establishes City's right to conduct Inspections and investigations.
2. The City may issue an official notification to notify regulated entities of its obligations under the ordinance.
3. The City shall issue a Notice of Violation requiring compliance within 60 days of issuance of the notice.
4. Absent compliance by the respondent within the deadline set forth in the Notice of Violation, City shall commence an action to impose penalties, via an administrative citation and fine, pursuant to the Jurisdiction's requirements contained in Section 8.32.140(j).
Notices shall be sent to "owner" at the official address of the owner maintained by the tax collector for the Jurisdiction or if no such address is available, to the owner at the address of the dwelling or Commercial property or to the party responsible for paying for the collection services, depending upon available information.
Penalty Amounts for Types of Violations
The penalty levels are as follows:
For a first violation, the amount of the base penalty shall be $50 to $100 per violation.
2. For a second violation, the amount of the base penalty shall be $100 to $200 per violation.
For a third or subsequent violation, the amount of the base penalty shall be $250 to $500 per violation.
F. Factors Considered in Determining Penalty Amount
The following factors shall be used to determine the amount of the penalty for each violation within the appropriate penalty amount range:
1. The nature, circumstances, and severity of the violation(s).
2. The violator's ability to pay.
3. The willfulness of the violator's misconduct.
Whether the violator took measures to avoid or mitigate violations of this chapter. 13 5. Evidence of any economic benefit resulting from the violation(s).
6. The deterrent effect of the penalty on the violator.
7. Whether the violation(s) were due to conditions outside the control of the violator.
G. Compliance Deadline Extension Considerations
The Jurisdiction may extend the compliance deadlines set forth in a Notice of Violation issued in accordance with Section 8.32.130 if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:
Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters,
2. Delays in obtaining discretionary permits or other government agency approvals; or,
Deficiencies in Organic Waste recycling infrastructure or Edible Food Recovery capacity and the Jurisdiction is under a corrective action plan with Callecycle pursuant to 14 CCR Section 18996.2 due to those deficiencies.
H. Appeals Process
Persons receiving an administrative citation containing a penalty for an uncorrected violation may request a hearing to appeal the citation. A hearing will be held only if it is requested within the time prescribed and consistent with Jurisdiction's procedures in the Jurisdiction's codes for appeals of administrative citations. Evidence may be presented at the hearing. The Jurisdiction will appoint a hearing officer who shall conduct the hearing and issue a final written order.
1. Education Period for Non-Compliance
Beginning January 1, 2022 and through December 31, 2023, the City, or other designated entity by agreement, will conduct Inspections, and Compliance Reviews, depending upon the type of regulated entity, to determine compliance, and if the City determines that Tier One Commercial Edible Food Generator, Food Recovery Organization, Food Recovery Service, or other entity is not in compliance, it shall provide educational materials to the entity describing its obligations under this ordinance and a notice that compliance is required by January 1, 2022, and that violations may be subject to administrative civil penalties starting on January 1, 2024.
Enforcement Table
14 The following is a list of potential violations for entities subject to this ordinance:
Table 1. List of Violations
Requirement Description of Violation
Commercial Business and Commercial Business fails to provide or arrange for Commercial Business Owner Organic Waste collection services consistent with Responsibility Requirement Jurisdiction requirements for employees, contractors, tenants, and customers, including supplying and allowing access to adequate numbers, size, and location of
containers and sufficient signage.
Facility Sampling and Solid Waste Facilities fail to conduct required sampling Monitoring and monitoring.
Commercial Edible Food Tier One Commercial Edible Food Generator fails to Generator Requirement arrange to recover the maximum amount of its Edible Food that would otherwise be disposed by establishing a contract or written agreement with a Food Recovery
Organization or Food Recovery Service and comply with
this Section commencing Jan. 1, 2022.
Commercial Edible Food Tier Two Commercial Edible Food Generator fails to Generator Requirement arrange to recover the maximum amount of its Edible Food that would otherwise be disposed by establishing a contract or written agreement with a Food Recovery
Organization or Food Recovery Service and comply with
this Section commencing Jan. 1, 2024
Commercial Edible Food Tier One or Tier Two Commercial Edible Food Generator Generator Requirement intentionally spoils Edible Food that is capable of being recovered by a Food Recovery Organization or Food
Recovery Service.
Commercial Edible Food Failure to provide or arrange for access to an entity's Generator, Food Recovery premises for any Inspection or investigation.
Organization or Food Recovery
Service
Recordkeeping Requirements Tier One or Tier Two Commercial Edible Food Generator for Commercial Edible Food fails to keep records, as prescribed by Section 8.32.070.
Generator
15 Recordkeeping Requirements A Food Recovery Organization or Food Recovery Service for Food Recovery Services and that has established a contract or written agreement to Food Recovery Organizations collect or receive Edible Food directly from a Commercial Edible Food Generator pursuant to 14 CCR Section
18991.3(b) fails to keep records, as prescribed by Section
8.32.080.
8.32.150 EFFECTIVE DATE
This ordinance shall be effective thirty (30) days after its adoption.
The foregoing Ordinance was introduced at a regular meeting of the City Council of the City of lone March 1, 2022 and adopted at a regular meeting on March 15, 2022 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Dan Epperson Mayor
Attest:
Janice Traverso, City Clerk
16 #4
RESOLUTION NO. 2022-05
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF IONE CALIFORNIA, EXPRESSING SUPPORT FOR THE "BRAND-HUANG-MENDOZA TRIPARTISAN LAND USE INITIATIVE" TO AMEND
ARTICLE XI OF THE CONSTITUTION OF THE STATE OF CALIFORNIA TO MAKE ZONING
AND LAND USE COMMUNITY AFFAIRS, AND NOT OF STATE INTEREST WHEREAS, the Legislature of the State of California in recent years has proposed, passed, and signed into law a number of bills addressing a range of land use planning and housing issues; and WHEREAS, the majority of these bills usurp the authority of local jurisdictions to determine for themselves the land use policies and practices that best suit each city and its residents and instead impose "one-size-fits-all" mandates that do not take into account the unique needs and differences of local jurisdictions throughout the State of California; and WHEREAS, the majority of these bills do not provide any incentives or requirements for low- income affordable or moderate-income workforce housing, but instead impose new policies that will incentivize speculation and result in the addition of market-rate or luxury housing, thereby eliminating the opportunity for local jurisdictions to implement effective policies that will create more affordable housing and affirmatively further fair housing practices; and WHEREAS, the ability of local jurisdictions to determine for themselves which projects require review beyond ministerial approval; what parking requirements are appropriate for various neighborhoods; what housing plans and programs are suitable and practical for each community; and what zoning should be allowed for residential properties, rather than having these decisions imposed upon cities without regard for the unique circumstances and needs of each individual community, is a matter of critical importance to the City of lone and many other municipalities focused on local zoning and housing issues; and
WHEREAS, the City Council of the City of lone hereby determines that local government entities are best able to assess and respond to the unique needs of their respective communities and hereby objects to the proliferation of State legislation (including SB 9 and SB 10) that would deprive us of that ability.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of lone does hereby resolve as follows:
SECTION 1. That the City Council of the City of lone is opposed to the legislature of the State of California continually proposing and adopting legislation that overrides the zoning and land use authority of local SUPPORT FOR BRAND-HUANG-MENDOZA TRIPARTISAN LAND USE INITIATVE Page 2 government and inhibits the ability of local government to effectively plan for and implement policies to stimulate the efficient production of affordable housing in the City of lone.
Resolution No. 2022-05
SECTION 2. That the City Council of the City of lone supports the Brand-Huang-Mendoza Tripartisan Land Use Initiative (Attached to the Resolution as Exhibit A) to ensure that zoning and land use authority rests with the local government entities that represent the communities in which the residents reside, and to allow local government to participate in solving our affordable housing crisis through solutions that effectively address the unique needs and conditions of each local community.
SECTION 3. That the City Council of the City of lone incorporates each recital set forth herein above.
The foregoing resolution was duly introduced and adopted by the City Council of the City of lone at their regular meeting held on March 15, 2022 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Dan Epperson, Mayor
Attest:
Janice Traverso, City Clerk
Redondo Beach Mayor Bill Brand
leads effort to wrest city planning
control from the State of California
by Ryan McDonald and Mark McDermott
Published on November 12, 2021
Easy Reader and Peninsula (Redondo Beach)
Redondo Beach Mayor Bill Brand visited the State Capitol building in Sacramento in early 2018 to meet with state legislators about the numerous efforts underway to address the state's housing crisis.
Two of those efforts were authored by Sen. Scott Wiener (D-San Francisco).
Senate Bill 827 would have required cities to allow four-and five-story apartments and condominiums within a half-mile of transit centers and in jobs-rich areas.
Senate Bill 828 used a part of the state's housing law, called the Regional Housing Needs Allocation (RHNA), to require cities and counties to double the area available for condominium and apartment uses, and to increase overall residential zoning. SB 827 failed to gain traction, while a weakened version of SB 828 passed.
At the time, however, over 60 other pieces of housing legislation were in various stages of development in Sacramento. Wiener was involved in many of them. For Brand, the implications were clear. Bills would keep coming, creating what he viewed as a fundamental reordering of the way land-use decisions would be made by shifting power away from local government to Sacramento. "At the time, I realized that for Scott Wiener, this was a long game," Brand said. "This was his call to action, and rallying cry. This was going to go on for years, this idea that the cities and counties are responsible for the housing shortage and affordability crisis. He was going to strip our control of what goes on in our town." Brand began his political career in the early 2000s as a citizen activist opposing major development in Redondo Beach's King Harbor. This has trained him in thinking about "the long game," because no sooner had one development proposal been defeated by activists than another would appear. It was like a game of whack-a-mole designed to wear down opposition.
"And so I started thinking about something similar we had done in Redondo Beach, which was an initiative that went to the voters," Brand said, referring to Measure DD, which required voter approval for all large developments in Redondo Beach.
"In this case, it would be the voters of California, who want control of zoning in their towns. Do you want faraway legislators doing it, who have never even been to your town? Or do you want your local agencies, represented by people who live where you live? I thought the answer was clear.
"I realized if you were going to have that kind of transfer of power, you were going to have to amend the State Constitution, which I had never read. So I sat down and read it, and figured out, 'Oh, I see. We are going to have to amend Article 11, and transfer the power back to local communities."
Brand discovered that any citizen could request the assistance of the Office of Legislative Counsel - the attorneys who help legislators write laws - to assist in the writing of an initiative. He followed their guidelines, petitioned for help, and was duly assigned attorneys to help him write an initiative. After months of back and forth, by early 2019, he had language for an initiative that would ensure local control of zoning.
"I am sitting here with this statewide initiative to strip Sacramento of its ability to rezone the whole state, thinking, 'Okay, what am I going to do with this?'" Brand recalled. "So I just kind of sat on it."
Wiener kept working. In 2019, he authored SB 50, a sweeping piece of legislation that proposed allowing up to four housing units on land zoned for single-family homes throughout the state, and limited cities' ability to block four-to five-story apartment buildings proposed for sites close to transit hubs, or in jobs-rich areas.
SB 50 died in committee. But Wiener, as Brand had intuited, was far from done.
This year, he co-authored SB 9, which eliminates single-family zoning statewide by allowing up to four units on all single-family parcels. On September 15, SB 9 was signed into law.
"The intent of SB 9 is clear - to streamline so homeowners can create a duplex or subdivide their property — and aims to set California's housing availability on a path of inclusion, so that more families can attain the California dream," SB 9's lead author, Senate President pro tem Toni Atkins (D-San Diego) said in a statement after Gov. Gavin Newsom signed the bill.
And so last week, Brand and a group of like-minded civic leaders unveiled the Community Zoning initiative, which would block the state from imposing most kinds of zoning requirements on cities and counties. Brand and his allies have until April of next year to collect the 1.5 million signatures needed to qualify the initiative for the November 2022 statewide ballot.
Brand said he'd hoped SB 9 would be defeated in the legislature, but as soon as it became law the only way to defend his and other communities against its impact was to go forward with the initiative.
"Scott Wiener has no business taking his broad brush to the entire state of California as if he knows best," Brand said. "He has no business telling Redondo Beach what our zoning should be, any more than I have any business telling Scott Wiener what San Francisco's zoning should be."
Predictably, Wiener is opposed to Brand's initiative. Were it to qualify for the ballot and pass, it would be "an absolute disaster for the State of California," he said, a state already suffering from a profound shortage of affordable housing.
Wiener is a product of local government. He is a former member of the San Francisco Board of Supervisors, and once served as president of a neighborhood association. He said he would rather SB 9 and the bills that preceded it not be necessary; Sacramento has stepped in only because local governments have so thoroughly failed to ensure enough housing is built.
"To be clear, in an ideal world, the state wouldn't have to be involved. Cities would just do what they need to do to produce enough housing. That would be my ideal scenario: that cities would just do what they need to do, and the state would only have minimal involvement, more of a coordinating role. But that's not reality.
And we know that it's not reality from decades of experience. Cajoling, and asking pretty please, unfortunately that hasn't been enough," Wiener said.
Wiener suggested Brand's initiative will worsen the housing crisis. "It would ensure a perpetual massive housing shortage with all the damage that flows from that: increased homelessness and poverty, pushing out working families, forcing people into long commutes and overcrowded housing," he said.
Few dispute that California has a housing crisis. California home prices are the highest in the country; one-third of California tenants fork over more than half their paycheck to a landlord every month; about 130,000 of the state's residents are homeless. This has occurred as housing production in California has plummeted, and many see obstacles put up by local government as the reason.
SB 9 and its predecessors have attempted to boost housing production by giving local governments fewer ways to stop housing from being built, and What irks Brand is that the state's approach is largely market-based, relying on supply and demand to create more housing in the hopes of driving prices down rather than more directly addressing the creation of more affordable housing.
Brand denies that his bill is a result of "NIMBYism," short for "Not In My Back Yard." He believes that what is at stake in the battle between SB 9 and the Community Planning initiative is the survival of the American Dream in California. "What is missing in so much of the discussion of this is the speculation that is going on in the real estate industry," Brand said. "This is really an anti-speculation initiative, as well as an affordable housing push. What the state is doing is taking the lid off residential real estate and opening it up to Wall Street. NIMBY is not the problem. What they want to engage in is really WIMBY, or Wall Street In My Back Yard. Institutional investment is driving speculation across the world to take over real estate, and turn it into another financial engine for their investors... Blanket upzoning with no affordability requirement is exactly what they need. We want homes for people, not investors."
Similar charges helped tank SB 827 several years ago. SB 9 carry some protections for poorer tenants. The bill cannot be used, for example, for rent- restricted housing, or housing that has held a tenant within the previous three years. It also, Wiener notes, does not stop cities from imposing affordability requirements on land it impacts, or undo those that already exist. It's uncertain, on the other hand, what the fate of the state's existing rent control law, which limits annual rent hike to five percent per year plus a cost-of-living-increase, would be under Brand's initiative.
More broadly, initiative opponents counter that affordability charges are a smokescreen, an appeal to a virtue the initiative's supporters don't really believe in. Consider Redondo Beach's response to the current RHNA process. State law requires that a city's "housing element" plan for enough housing for multiple income levels, including low- and very-low-income housing. A draft of the Redondo's housing element, submitted over the summer, indicated that a majority of the lower-income requirement could be met with five sites, totaling a little more than 14 acres in the northeastern portion of the city, an area that includes land occupied by aerospace firm Northrop Grumman. The sites, it claimed, are "ripe for development."
The problem, the state's Department of Housing and Community Development pointed out, is that none of the sites are vacant. Some contained national chains with long leases, including a motorcycle dealership, a Baskin Robbins and a Vons supermarket. In a letter, the state required the city demonstrate the sites were viable, or choose new ones. (Last month, the council approved its housing element, and city staff wrote of CD's concerns that the city was continuing to investigate the sites, and that some of the property owners had expressed interest in future redevelopment.)
Current law requires only that cities plan a certain amount of housing, not that it actually be built, and housing elements are often examples of meeting the letter of a law rather than its spirit. In this, Redondo's plan was not particularly egregious. Beverly Hills, for example, is attempting to meet part of its housing obligations by forecasting a 185-unit, mixed-income apartment complex on what is now a 10-story office building occupied by law firms, medical offices and salons. Wiener argues that these are the impulses of local government that Brand's initiative would unchain.
"There are cities that take our housing responsibilities seriously," Wiener said. "There are cities that don't. And there are cities that are actively looking to avoid their obligations about housing."
It is not clear where Redondo Beach fits in such a classification. On the one hand, the most significant increase in affordable housing that has occurred in the Beach Cities in decades occurred in Redondo Beach in 2019, when Brand and the City Council required that 20 percent of the 300 residential units proposed for the Galleria project be affordable.
"The city did that, not the state," Brand said. "All the state did was force us to upzone through the RHNA process, which requires no affordable housing [be built]. But we conditioned the approval of that project on affordable housing." On the other hand, Redondo and the other Beach Cities have continued to fall woefully short of the affordable housing goals set by the state. Grace Peng, a Redondo Beach resident, has written several letters to the council, deriding what she declares to be a foot-dragging approach to building more housing, and its long-term consequences for the city.
"Because doing nothing is making a decision, right? And the decision is to make our city increasingly unaffordable. And then it becomes an optimization problem.
If you make it affordable to only people with, say, the top five percent of incomes, you're not allowing school teachers, or even rocket scientists to live there," Peng said in an interview. "Do we want to ensure that we never have another school teacher live in our community again, or nurse or even a primary care doctor? I mean, is that a community you really want to be a part of?" For supporters of Brand's initiative, however, the battle over the RHNA process is merely one indication that the state has already gone too far in asserting control:
if the attempts to comply seem ridiculous, it is only because the law itself is absurd.
Jim Light is a Redondo resident who keeps a close watch on housing issues. He's also a longtime friend of Brand. He looked over early versions of the initiative.
The South Bay is a prime example of how shifting power to Sacramento results in outcomes that make little sense to the people affected, Light said. Bills that tie housing possibilities to transit or job availability have the effect of rewarding places that have been better at holding back the new urbanist philosophy that guides much of current state housing policy.
"The areas they exclude are the areas that are the least dense already, like Palos Verdes. They're far away from transit, they don't have a lot of buses stopping there, and they're certainly not a job center," Light said. "And so areas that are elite already get a pass on it, while cities like Redondo that have accommodated a fantastic amount of growth, if you look at population density per square mile, we get penalized for it."
Light is correct that many of the policies enacted in the last few years do not spread density around evenly. It's unclear, however, how much progress cities would make on housing under Brand's initiative as long as they continue to view adding it as a penalty or, as Light later referred to it, "a punishment." Battleground California
Under existing California law, cities and counties are generally free to pass laws about purely local affairs. But if one of those ordinances conflicts with a state law, the local law must give way. Some cities in California are known as "charter cities," including Redondo Beach. Their laws can prevail over state laws, except on matters of "statewide concern "
Housing has met this threshold since at least 1980, when California approved the Housing Element Law, declaring that "the availability of housing is of vital statewide importance." Two years later, the state passed the Housing Affordability Act, commonly known as the HAA or the "anti-NIMBY law," which had as its goal "effectively curbing the ability of local governments to deny, reduce density for, or render infeasible housing development projects." The state has frequently amended the two laws over the years, including in 1990 when it made clear that charter cities were subject to the HAA, and in 2017, when one of several housing bills to emerge from the session created updates to the RHNA system that Redondo and other cities are now engaging with.
Cities have challenged these laws in court with logic similar to the underpinnings of the Brand initiative. These attempts have failed. In September of this year, the California Court of Appeal published an opinion in a case coming from San Mateo, a charter city in the San Francisco Bay area, which had denied permits for a four-story apartment building. A trial court upheld the city's denial of the permit, ruling that the HAA violated the California Constitution. The city had argued that an individual city's decision to deny a housing development was not a matter of "statewide concern." The Court of Appeal declined to follow this argument and reversed the trial court, noting the legislature's past findings that "the actions and policies of local governments limiting the approval of affordable housing were a partial cause" of the state's housing crisis.
As the court noted, the legislature removed the word "affordable" from these findings in 2001. The stated reasoning from Sacramento was that intransigence from cities and counties had gotten so bad that it was now impacting the availability of housing in general, not just affordable housing. It is, however, the sort of thing that fuels one of Brand's primary objections to the state's more prominent role in housing decisions: that it is not really about affordability. "Take SB 9," Brand said. "While it sounds good to upzone the entire state, and affordable housing then trickles down... That has been a loser's game for decades. Trickle-down doesn't work. Wiener is living in the past, and a lot of people are following him, unfortunately. It goes back to supply and demand. It's an economic theory, but it does not work when it comes to residential development. High density does not make housing more affordable. San Francisco is the most densely populated city in the state, and the most expensive.
The most densely populated cities are the most expensive to live in all over the world."
The obvious response to such a criticism is that, under supply and demand, the housing would be even more expensive without such density. Backers note that, even if the value of a plot of land were to increase because more density is permitted, when the price is divided by the higher number of possible units, each unit would be cheaper.
This fails to assuage some supporters of Brand's initiative. One of Brand's closest allies in the Community Planning initiative is John Heath, the president of the United Homeowners Association II, a non-profit organization that advocates for residents living in the unincorporated area of LA County east of La Brea Avenue and west of Crenshaw Boulevard. This area is largely an African American community. Heath became involved with the initiative because he believes SB 9 and other state efforts to address the housing crisis will lead to the displacement of many residents of South and East LA.
Heath said he is trying to get people to understand that "land use policy coming from Sacramento that purports to be about affordable housing... in reality [is] Christmas gifts being given to large institutional real estate entities that will take single-family properties in South LA and elsewhere and turn them into commodities. That is what got me involved."
"We are affordable housing advocates, not just in the form of low-income housing but also ownership housing. Young people in the tech industry making good money can't find a place to live," Heath said. "The best way to think about this is that in many City of LA, and areas south and east of LA, as well as the Valley... These are largely Black and Brown working-class communities. These are areas with lower land values. If you are an institutional investor, these are areas you are going to be looking at. It's happening everywhere, but very intensely in certain parts of town. Gentrification and displacement are very real issues."
The connection between market rate housing and displacement is currently a fertile area for research. A 2019 paper by economist Evan Mast that is often cited by pro-housing groups indicates that the construction of market rate housing units in one neighborhood tends to create vacancies in middle-income neighborhoods elsewhere within three to five years. In other words, well off people are no longer renting as many of the apartments that poorer people might be able to afford.
Another study, however, released last February by the University of Minnesota's Center for Urban and Regional Affairs, found that while market rate units don't drive up rents for a regional market, they may contribute to increases at the neighborhood level; in other words, that gleaming new apartment complex opening down the block might cause the rent in your dusty old building to rise, not fall. These results are not incompatible. Making more of something will eventually lower its price, but particularly with housing, the effects will be neither instantaneous, nor uniform, and some people could be caught in between.
Housing insecurity has long been the default status of America's lower castes.
Official government policy simultaneously kept Black people "far from white residential areas" and "shifted African-American populations away from downtown business districts," Richard Rothstein wrote in "The Color of Law: A Forgotten History of How Our Government Segregated America." With almost all neighborhoods off-limits, Black people lacked leverage with landlords, and endured rents far higher than their housing conditions might suggest. This trend continues today. As the sociologist Matthew Desmond documented in "Evicted:
Poverty and Profit in the American City," the difference in median rent difference between low-income, minority-heavy neighborhoods, and wealthier, whiter areas is typically far less dramatic than the income disparities of their residents would suggest. People in down-market neighborhoods often adjust by living three or four to a room. Demographers distinguish between "density," the ratio of people to a fixed land area, and "crowding," the ratio of people to the number of habitable rooms in a fixed land area. The Los Angeles metro area has the worst "crowding" in the country, a phenomenon linked to thousands of COVID-19 deaths.
And although price increases in some once-affordable markets have been especially rapid in the last decade, it is also true that the cresting of "statewide concern" with housing as an issue coincides with an increase in the number of white-collar white people affected by it. Even supporters of the state's more aggressive stance on housing note that the quantity of state housing bills began to ramp up about six years ago when rents and home values had increased to the point that they started severely impacting not just the poor, but the middle and upper-middle classes. This was particularly true in urban areas that had once shed families fearful of crime and blight but were now drawing back childless millennials. ("Among movers and shakers in media and politics, gentrification may truly seem to be everywhere they go. Often, it's because they're bringing it with them," housing researcher Will Stancil wrote in 2019.) The YIMBY movement — which stands for "Yes In My Back Yard" and has become a force in state and local housing policy — draws many of its most eloquent and forceful advocates from these ranks.
Anthony Dedousis is the director of research and policy at Abundant Housing LA, a pro-housing nonprofit advocacy organization. He comes from a background in the business and tech worlds, and his skills in data and visualization proved useful when he began volunteering at the organization three years ago. Recently, he has been working on Abundant Housing's effort to send letters to cities across Southern California, including those in the South Bay, pointing out potential issues with their housing elements. In an interview, Dedousis referred to Brand's proposal as "the sore loser initiative.
"The democratically elected state legislature has taken modest actions to address the high cost of housing, something that is high on the list of Californians' concerns. And the proponents of this initiative essentially want a do-over. They want to allow cities to pick and choose which state laws they want to follow," he said
Votes in the legislature have been mostly one-sided affairs, passing by large margins, and Dedousis said that opposition to the state's increased housing goals is often the work of people in wealthy, connected communities. These claims form a sort of mirror image of what Brand and others say about backers of the state's housing bills: that they represent the triumph of real estate interests, not affordable housing.
"You will see hundreds of thousands of dollars flowing from the building industry to Sacramento, and for good reason. They just got legislation that upzones the entire state of California," Brand said. "It's a dream come true for them. It's Christmas. And it does nothing to actually solve the housing crisis.
Building trades organizations have backed SB 9, along with many chambers of commerce, developers, and real estate trade groups. But so did Habitat for Humanity, the United Way of Greater Los Angeles, the Natural Resources Defense Council and a Boyle Heights nonprofit called Innercity Struggle.
The list of the SB 9's opponents can seem equally incompatible: wealthy enclaves like Cupertino and Malibu pair with working-class cities like Carson and South Gate; the Howard Jarvis Taxpayers Association has locked arms with the Latino Alliance for Community Engagement. John Mirisch, a city councilmember in Beverly Hills, and Damion Goodmon, an activist in South Los Angeles, both describe the law as a giveaway to the investor class.
Housing, it seems, is so challenging to resolve in part because it scrambles the political divides that have come to define state and national politics.
The golden era of the Golden State
In an Easy Reader profile published last year, Brand recalled his arrival in Redondo Beach with vivid awe. He was eight years old, motoring down Harbor Drive in a red 1960 Chrysler New Yorker. He and his family had just moved to Southern California from Dallas.
"I'm hanging out the window of the station wagon going, 'We're going to live here?'" Brand said.
For Brand, the initiative effort is both political and personal. His attempts to preserve Redondo are a reflection of how much he treasures the beach and a small-town atmosphere, causes to which he has dedicated his life for the last two decades. They are also revealing of profound changes in the State's approach to housing, politics and the environment.
The Baby Boom fueled the period of the most sustained growth in the history of the South Bay and the rest of California. Between 1940 and 1960, the population of the Beach Cities more than tripled. Much of this growth was ramshackle and poorly planned. Housing faced few design standards, and the area's population, then predominantly working-class, crowded in. "Between the center of Manhattan and the beach is a network of passageways referred to as 'avenues' and 'streets.' They are alleys. Some are so narrow a strong man could spit from one front door across the 'street' onto someone else's door," read a Los Angeles Times story from 1965.
That year, Governor Pat Brown signed legislation requiring municipalities to address zoning in a more systematic manner, what would become known as a city's "general plan." A preference for unimpeded ocean views and a loathing of traffic has long been a part of the South Bay's identity, but these early planning documents called for far more housing than is currently allowed in the South Bay.
Hermosa's first general plan called for a maximum zoning capacity of about 29,000 people; today, the city has about 19,500 people, and its latest general plan, approved in 2017, leaves little room for any more. The land-use plan that the Manhattan Beach City Council approved in 1967 allowed for a maximum population of 55,565 people; today, Manhattan Beach has about 35,500 people and is similarly maxed out. These changes have echoed throughout the state.
Over the last decade, California, which now has more than twice as many people as it did in the mid-60s, has averaged just 80,000 housing units per year, the majority of them single-family homes.
What changed? In 1966, the year Brand arrived in Redondo Beach, the number of people living in suburbs exceeded the number of people living in major cities for the first time in U.S. history, and Californians elected a former actor named Ronald Reagan to replace Brown in the governor's office. Brown, whose son Jerry would also go on to serve as Governor, served during an unprecedented boom in housing construction. During his two terms, the state averaged nearly a quarter- million permitted units per year, a majority of which were in multi-family housing.
In his 2020 book "Golden Gates: Fighting For Housing in America," Conor Dougherty points out that the housing boom was propelled by a Cold War consensus that makes today's politics unrecognizable. "Dynamite for infrastructure was liberal. Damming rivers was liberal," wrote Dougherty, who is a California-based housing reporter for the New York Times. "Building a 400-mile aqueduct through nature and building power plants to propel it to factory farms and over the mountains and into a parched south land, and doing all this for the 11 purpose of mass building of new subdivisions, that was liberal too.
Both massive public works projects and individual homes have become much more difficult to build since Reagan signed the California Environmental Quality Act, around the time of the first Earth Day celebration in 1970. CEQA, as it is commonly abbreviated, is pilloried for slowing down housing production. (Brand's initiative would leave CEQA in force.) But it can't explain everything. In many years leading up to the Great Recession, for example, homebuilding rates in California's interior were higher than those of the country as a whole. Rather, the malleability of the environment as a motivation against housing production helps reveal why housing is so hard to build in particular parts of the state. As Dougherty points out, environmentalism, in the '70s, was bound up with the anti- growth movement, and focused on smaller, local battles that had more to do with quality of life. Though it raged against "sprawl" and the destruction of open space, seemingly well-intended measures like expanded lot size requirements had the effect of increasing these things, by making it easier to build where there was no one around to object.
The result today is a contorted political arrangement in which self-identified progressives scorn infill development, and its attendant environmental benefits compared to car-dependent exurbs, out of a pervasive yet ill-defined mistrust of "developers." A sign of the ways housing crosses boundaries of California politics emerged last summer, when President Donald Trump and then HUD Secretary Ben Carson targeted Wiener in an op-ed in the Wall Street Journal. In what appeared to be an attempt to turn around bad polling numbers among suburban voters, they tried to tie Wiener's upzoning proposals to the protests that followed the murder of George Floyd, noting that the city of Minneapolois voted to end single-family zoning "a few months before it voted to abolish its police force." In a 2019 study, Stanford political scientists examined support for new housing among cross-sections of liberals and conservatives, homeowners and renters.
Liberal homeowners, the authors found, were "barely more likely" than conservative homeowners to support the construction of apartments in their neighborhood, and more opposed to the construction of affordable housing than conservative renters. "The stakes arising from home ownership present complex influences for liberals that are less present for conservatives," the authors meekly conclude.
Brand's coalition is indicative of this. It is diverse, both ethnically and politically. It includes Heath, a progressive advocate for affordability who is African-American; Peggy Huang, the Republican mayor of Yorba Linda who is Asian-American; and Jovina Mendoza, a first-generation Mexican-American who serves on the Brentwood City Council (in the East Bay, not LA).
Huang said that there is a misperception that proponents of the initiative are all from wealthy areas and are against building housing.
"We had a public comment come in that said, 'Oh, cities like Yorba Linda are rich white people who do not want us to build, "'" she said. "And I looked at them and I said, 'First of all, I am not white....I am pretty damned Asian. And in my city, nearly 50 percent of students are on the free lunch program, so that tells you we are not a rich city.''
Huang is a government veteran, having served in the state Senate in the '90s and in several capacities for the Southern California Association of Governments (SCAG), including chairing its regional RHNA subcommittee and appeals board.
She is a believer in the RHNA process, and two of her council colleagues actually faced an unsuccessful recall effort after the council approved projects intended to meet the city's housing allocation numbers. She simply believes SB 9 is unfair to cities like hers who have abided by the state's efforts to create more housing and now will have little control over what kind of housing is built in their neighborhoods.
"It is punishing nearly 600 cities and counties in the state of California for a few that do not want to build," Huang said, noting that Yorba Linda obtained state and federal funding to build transitional housing and housing for veterans. "We met RHNA and exceeded it. We were creative in how we did things...We go all out in terms of innovation to make it happen. We are committed not only to RHNA but really to the purpose of serving our residents and their needs. And so to have the state say, 'Well, you're not doing anything, we're going to punish you and we are going to tell you how it's done.' That's really offensive." Grace Peng, the Redondo resident who has written critically of Redondo's housing policies, takes issue with the notion that housing is a "punishment." "Having your elderly parent who doesn't even drive anymore so that you can just pop by on a bicycle or walk over, that's not a punishment: That's a reward for a well-planned city," Peng said. "More traffic, more cars, more pollution, that's the punishment."
When Peng moved to Redondo Beach with her husband, they rented in South Redondo. Both of them are PhDs, and they eventually bought a home in North Redondo, in part to be able to bike to work in the satellite industry that the city hosts. Peng, who got her PhD in chemical physics, came to work on satellites used to study climate change. As much debate as there is about the affordability impacts of upzoning, the environmental impacts are much clearer: enhancing density reduces vehicle trips, and emissions with it. The inability, or unwillingness, of many self-identified environmentalists in the South Bay to connect these two frustrates her.
"I came here to work on earth-observing satellites. I've been concerned about climate change, and pollution for my entire time in the South Bay. and have just been seeing it get worse and worse: everyone paying lip service, and then just doing business as usual, making us more car-dependent than ever," she said Dennis Richards, a developer and former planning commissioner for the City of San Francisco, met Brand in Sacramento five years ago. They strategized together as wave after wave of housing bills aimed at weakening local control appeared. Like Brand, his initial idea was to defeat one bill at a time, but it became a "game of Whack-a-Mole," and then SB 9 appeared and they realized it was time for the most drastic countermeasure.
Richards lives a few blocks away from Wiener, whom he has known for nearly 20 years and who endorsed Richards in his bid for the planning commission. "I hold no bad feelings towards the Senator at all. I just think we have different approaches, ," Richards said. "And I don't think for some communities, what he's saying is wrong. I get it. This stuff isn't perfect. Our initiative isn't perfect. But / think it's down to what the neighborhood voter is feeling. Sacramento is getting ahead of itself on this. They're misreading what people are feeling, and not getting a say in how their neighborhood changes.. All of a sudden, where there were two people living next door to you, now there are 12. And there are 10 cars, and taxis, the sewer system is being stretched, and the roads, because there are more people, and the schools are more crowded. That, to me, is the unintended consequence of the state's approach." ER
#5
Agenda Item
DATE: March 15, 2022
TO: lone City Council
FROM: Michael Rock, Interim City Manager
Chris Hancock, Accountant/Treasurer
Mary Morris-Mayorga, Finance Consultant
SUBJECT: RATIFY APPROVAL OF THE STAFFING FOR ADEQUATE FIRE AND
EMERGENCY RESPONSE (SAFER) GRANT COORDINATOR
RETROACTIVELY ON THE SALARY RANGE SCHEDULE
RECOMMENDED ACTION:
Ratify approval of the SAFER Grant Coordinator Retroactively on the Salary Range Schedule.
FISCAL IMPACT:
The cost for retirement contributions will not likely be recoverable from the grant; therefore, will be paid by the City to CaPERS with an estimate of $7,634 plus any fees and/or penalties for not reporting. City staff will work with CalPERS to mitigate those costs and complete the enrollment in CaPERS. Government Section 20283 of the Public Employees Retirement Law (PERL) states in part that an employer that fails to enroll an employee into membership within 90 days of eligibility is required to pay all arrears, both member and employer contributions and a $500 administrative fee per member to the system. The Section also states that employers cannot pass on the cost to the employee.
BACKGROUND:
On September 6, 2016, the City Council accepted the SAFER Grant in the amount of $462,000 for Volunteer Firefighter Recruitment and Retention. The Grant included funding for a Grant Coordinator position which was approved as a component of the Grant by the awarding agency and the City. Staff proceeded with grant activities and resulting reimbursement requests.
As this position was not considered a regular City position with grant specific duties that were limited in overall duration, City staff at the time did not realize that the hours worked in each fiscal year required monitoring for CaPERS membership eligibility in accordance with PERL and Government Code Section 20305(a)(3)(B). During Fiscal Year 2016-2017 the hours worked by the SAFER Grant Coordinator exceeded 1,000 hours; therefore, the employee should have been enrolled in CaPERS.
Government Code 20305
(a) An employee whose appointment or employment contract does not fix a term of full- time, continuous employment in excess of six months is excluded from this system unless:
Agenda Item - Ratify Approval of the SAFER Grant Coordinator Position Retroactively to 2016 March 15, 2022
(1) He or she is a member at the time he or she renders that service and is not otherwise excluded pursuant to this article or by a provision of a contract. (2) His or her position requires regular, part-time service for one year or longer for at least an average of 20 hours a week or requires service that is equivalent to at least an average of 20 hours a week for one year or longer, unless he or she elects membership pursuant to Section 20325.
(3) His or her employment is, in the opinion of the board, on a seasonal, limited-term, on- call, emergency, intermittent, substitute, or other irregular basis, and is compensated and meets one of the following conditions:
(A) The appointment or employment contract does not fix a term of full-time, continuous employment in excess of six months, but full-time employment continues for longer than six months, in which case membership shall be effective not later than the first day of the first pay period of the seventh month of employment.
(B) The person completes 125 days, if employed on a per diem basis or, if employed on other than a per diem basis, completes 1,000 hours within the fiscal year, in which case, membership shall be effective not later than the first day of the first pay period of the month following the month in which 125 days or 1,000 hours of service were completed. For purposes of this subdivision, "day" means each eight-hour period of employment worked by an employee paid on a per diem basis so that membership is effective after he or she has completed 1,000 hours of compensated service in a fiscal year.
In the Fiscal Year 2017-2018 Audit, this was brought to the attention of management who evaluated the position and determined that it fit within the category of independent contractor rather than employee so would not require reporting. However, after further review the position does NOT meet the specific requirements of an independent contractor and was also requested within the grant as an employee. Therefore, the employee's earnings must be reported to CaPERS and related contributions paid.
The Salary Range Schedule now includes the SAFER Grant Coordinator position which was previously approved by the City Council as part of the SAFER Grant. With the change in staff and an awareness of this requirement, this oversight will not occur in the future.
Attachments: City Council Approval of SAFER Grant on September 6, 2016 Salary Range Schedule for Fiscal Year 2021-2022
Agenda Hem # 3
CITY OF IONE
CITY COUNCIL
STAFF REPORT
ALIFORN
FOR THE MEETING OF: 09-06-2016
DATE: 09-01-2016
TO: MAYOR AND CITY COUNCIL MEMBERS
FROM: KEN A. MACKEY - FIRE CHIEF
SUBJECT: Assistance to Firefighters SAFER Grant EMW-2015-FF-00496 RECOMMENDED ACTION:
Request that the City Council approve and accept the Assistance to Firefighters SAFER Grant awarded through the Department of Homeland Security and FEMA. This is a
Volunteer Recruitment and Retention grant that is 100% funded through the awarding agencies.
SOURCE OF FUNDING:
1. Department of Homeland Security & FEMA in the amount of $462,000
2. City of lone $0.00
DISCUSSION:
The City of lone Fire Department has been awarded a grant for the purpose f volunteer recruitment and retention. This grant will provide an in hous cordinator position that will assist the City of lone Fire Department i recruiting new fire personnel and retaining current fire personnel so that we will meet recommended staffing levels that will keep our firefighters and community safe (NFPA 1720). This is a four year grant that will provide the opportunity for volunteer personnel educational opportunities, work experience recognition on achievements and incentives.
ATTACHMENTS:
Notification of award & budget breakdown
TYPE OF ITEM: City Council for the City of lone
Consent
XXX. Departmental Opon motion of Council Membea
Public Hearing Seconded by Council Membe
Other Written Correspondence
The cannel tereby wily tember ded actor contained in this PREVIOUS ACTION/REFERRAL:
Council Order No.
Meeting of: Panice Travers, City Clerk
By:
a good meeting because we have nothing to discuss and this meeting will be over in less than a half hour. Mr. Nevin asked the status of the following:
What is happening with Wastewater Phase 1B--we have not seen a Certificate of Completion for Phase 18
2. What is the status of the Feasibility Study that the Council is doing for CDCR for the new sprayfield - $32,000 contract - we have not seen a study.
How many of you know that CDCR has hired another Engineering firm to do the engineering and design for the sprayfield pipeline, no longer Dexter Wilson, they have chosen a firm out of Stockton. Assuming you did not get the letter updating the changes-ARSA did
4. We have a 2020 Capacity Report that is coming due - no discussion
5. Lining the ponds-we know that ponds 1-4 will cost $499,000, but no discussion on the cost of ponds 5, 6 and 7, and how much that will cost.
6. No public discussion the Regional Wastewater Study - draft report. Part of the revised CDO was either line the ponds, abandon the ponds or have a Regional Study and yet we have had no discussion.
Two councilmembers have asked that this be on the agenda and we would like to know why this it is not on the agenda.
8. CONSENT CALENDAR:
It was moved by Vice Mayor Smylie, seconded by Councilmember Weart and carried to approve the following:
A. Approval of Minutes - July 19, 2016
B. Re-Appointment of Shane Alderson and Angela Bennett to the Park & Recreation Commission until September, 2018
AYES: Epperson, Smylie, Atlan, Haney, Weart
NOES: None
ABSTAIN: None
ABSENT: None
9. PUBLIC HEARING: None
DISCUSSION ITEMS:
For the record: Action minutes provide the necessary documentation of City Council actions and audio recordings are retained for those desiring more detail on particular agenda item discussions. These audio recordings provide an accurate and comprehensive backup of City Council deliberations and citizen discussions.
10. REGULAR AGENDA:
A. Acceptance of Assistance to Firefighters SAFER Grant EMW-2015-FF-00496-lone Fire Department - Fire Chief Mackey commented that the Grant obtained by Fire Marshall Debbie Mackey is 100% funded by the Government. It was moved by Councilmember Weart, seconded by Vice Mayor Smylie and carried to accept the G AYES: Epperson, Smylie, Atlan, Haney, Weart
NOES: None
ABSTAIN: None
ABSENT: None
9.616 minute Approved in Mou, Zel mra
Summary Award Merro
SUMMARY OF ASSISTANCE ACTION
STAFFING FOR ADEQUATE FIRE AND EMERGENCY RESPONSE GRANTS Application
INSTRUMENT: GRANT
AGREEMENT NUMBER: EMW-2015-FF-00496
GRANTEE: City of lone Fire Department
DUNS NUMBER: 030444835
AMOUNT: $462,000.00, Recruitment
Project Description
The purpose of the Staffing for Adequate Fire and Emergency Response Program is to protect the health and safety of the public and firefighting personnel against fire and fire-related hazards.
After careful consideration, FEMA has determined that the recipient's project or projects submitted as part of the recipient's application, and detailed in the project narrative as well as the request details section of the application - including budget information - was consistent with the Staffing for Adequate Fire and Emergency Response Grant program's purpose and worthy of award. The projects approved for funding are indicated by the budget or negotiation comments below. The recipient shall perform the work described in the grant application for the recipient's approved project or projects as itemized in the request details section of the application and further described in the grant application narrative. The content of the approved portions of the application - along with any documents submitted with the recipient's application - are incorporated by reference into the terms of the recipient's award. The recipient may not change or make any material deviations from the approved scope of work outlined in the above referenced sections of the application without prior written approval, via amendment request, from FEMA.
Period of Performance
20-NOV-16 to 19-NOV-20
Amount Awarded
The amount of the award is detailed in the attached Obligating Document for Award. The following are the budgeted estimates for object classes for this grant (including Federal share plus recipient match):
Personnel: $264,000.00
Fringe Benefits $36,000.00
Travel 54,800.00
Equipment $0.00
Supplies $22,100.00
Contractual $41,100.00
Construction $0.00
Other $94.000.00
Indirect Charges $0.00
Total $462,000.00
NEGOTIATION COMMENTS IF APPLICABLE (max 8000 characters) Any questions pertaining to your award package, please contact your GPD Grants Management Specialist Edith Myerly at [email protected]
FEMA Officials
Adopted: XXXX/2022
Chy of Resolution: 2022-XX
IONE Approval Date: 3/15/2022
• California Effective Date: 7/1/2021
atecay to the Mothmod
FY 2021-22 Salary Schedule
Position Title Step 1 Step 2 Step 3 Step 4 Step 5
Accountant Annual $ 5,420.00 $ 68,355.00 $ 71,772.75 $ 75,361.39 $ : 79,129.46 Monthly 5,425.00 $ 5,696.25 $ 5,981.06 $ 6,280.12 $ 6,594.12 Bi-Weekly 2,503.85 $ 2,629.04 $ 2,760.49 2,898.51 $ 3,043.44 Hourly 31.30 $ 32.86 $ 34.51 $ 36.23 $ 38.04
Administrative Assistant Annual 40,629.96 $ 42,661.46 $ 44,794.53 $ 47,034.26 $ 49,385.97 Monthly $ 3,385.83 $ 3,555.12 $ 3,732.88 $ 3,919.52 $ 4,115.50 Bi-Weekly $ 1,562.69 $ 1,640.83 $ 1,722.87 $ 1,809.01 $ 1,899.46 Hourly $ 19.53 $ 20.51 $ 21.54 $ 22.61 $ 23.74
Assistant Fire Chief (stipend) Annual $ 4,348.26
Monthly $ 362.36
Bi-Weekly
Hourly
Building Official Annual $ 66,708.00 70,043.40 $ 73,545.57 $ 77,222.85 $ 81,083.99 Monthly $ 5,559.00 $ 5,836.95 $ 6,128.80 $ 6,435.24 $ 6,757.00 Bi-Weekly $ 2,565.69 $ 2,693.98 $ 2,828.68 $ 2,970.11 $ 3,118.62 Hourly $ 32.07 33.67 35.36 $ 37.13 38.98
City Council (elected) Annual $ 2,400.00
Monthly $ 200.00
City Manager (contract) Annual $ 135,000.00
Monthly $ 11,250.00
Bi-Weekly $ 5,192.31
Hourly $ 64.90
City Treasurer (elected) Annual $ 2,400.00
Monthly $ 200.00
Clerk of the City Council (elected) Annual $ 26,400.00
Monthly $ 2,200.00
Finance Manager Annual $ 84,184.00 88,393.20 $ 92,812.86 97,453.50 $ 102,326.18 Monthly $ 7,015.33 7,366.10 $ 7,734.41 8,121.13 $ 8,527.18 Bi-Weekly $ 3,237.85 $ 3,399.74 $ 3,569.73 $ 3,748.21 $ 3,935.62 Hourly 40.47 $ 42.50 $ 44.62 $ 46.85 $ 49.20
Fire Captain (stipend) Annual 1,863.54
Monthly tA tA 155.30
Bi-Weekly
Hourly
Fire Chief (stipend) Annual $ 12,000.00
Monthly $ 1,000.00
Bi-Weekly
Hourly
Fire Engineer - Probationary Annual $ 43,520.21 $ 45,696.22 $ 47,981.03 $ 50,380.08 $ 52,899.09 Monthly $ 3,626.68 3,808.02 $ 3,998.42 $ 4,198.34 $ 4,408.26 Bi-Weekly $ 1,673.85 $ 1,757.55 $ 1,845.42 $ 1,937.70 $ 2,034.58 Hourly $ 20.92 21.97 $ 23.07 $ 24.22 $ 25.43
Fire Engineer - Non-Probationary Annual $ 53,856.31 $ 56,549.13 $ 59,376.58 $ 62,345.41 65,462.68 Monthly $ 4,488.03 4,712.43 $ 4,948.05 $ 5,195.45 tA tA 5,455.22 Bi-Weekly $ 2,071.40 $ 2,174.97 $ 2,283.71 $ 2,397.90 2,517.80 Hourly $ 25.89 $ 27.19 $ 28.55 $ 29.97 $ 31.47
Adopted: XXXX2022
City of Resolution: 2022-XX
IONE California Approval Date: 3/15/2022
Effective Date: 7/1/2021
FY 2021-22 Salary Schedule
Position Title Step 1 Step 2 Step 3 Step 4 Step 5
Fire Fighter (Paid Call/Stipend) Daily Rate $ 100.00
Grant Coordinator (SAFER Grant) $ 26.43
Approved 9/16/2016
Maintenance Worker I Annual 36,073.87 $ 37,877.56 $ 39,771.44 $ 41,760.01 $ 43,848.01 Monthly $ 3,006.16 $ 3,156.46 $ 3,314.29 $ 3,480.00 $ 3,654.00 Bi-Weekly 1,387.46 $ 1,456.83 $ 1,529.67 $ 1,606.15 $ 1,686.46 Hourly 17.34 $ 18.21 $ 19.12 $ 20.08 $ 21.08
Maintenance Worker II Annual $ 43,913.32 46,108.99 $ 48,414.44 50,835.16 $ : 53,376.91 Monthly $ 3,659.44 $ 3,842.42 $ 4,034.54 4,236.26 $ 4,448.08 Bi-Weekly $ 1,688.97 $ 1,773.42 1,862.09 $ 1,955.20 2,052.96 Hourly $ 21.11 22.17 23.28 $ 24.44 25.66
Management Analyst Annual 70,000.00 73,500.00 $ 77,175.00 $ 81,033.75 85,085.44 Monthly $ 5,833.33 $ 6,125.00 $ 6,431.25 $ 6,752.81 $ 7,090.45 Bi-Weekly $ 2,692.31 $ 2,826.92 $ 2,968.27 $ 3,116.68 $ 3,272.52 Hourly $ 33.65 35.34 $ 37.10 $ 38.96 $ 40.91
Police Chief Annual 107,037.00
Monthly $ 8,919.75
Bi-Weekly $ 4,116.81
Hourly $ 51.46
Police Officer (per MOU) Annual $ 63,668.80 66,851.20 70,200.00 $ 73,715.20 $ 77,396.80 Monthly $ 5,305.73 $ 5,570.93 5,850.00 6,142.93 $ 6,449.73 Bi-Weekly $ 2,448.80 $ 2,571.20 2,700.00 2,835.20 $ 2,976.80 Hourly $ 30.61 $ 32.14 33.75 35.44 $ 37.21
Police Sergeant (per MOU) Annual $ 75,878.40 $ 79,664.00 83,657.60 87,838.40 $ 92,227.20 Monthly $ 6,323.20 $ 6,638.67 $ 6,971.47 $ 7,319.87 $ 7,685.60 Bi-Weekly $ 2,918.40 $ 3,064.00 $ 3,217.60 $ 3,378.40 $ 3,547.20 Hourly $ 36.48 38.30 40.22 42.23 $ 44.34
Public Works Manager Annual $ 77,736.00 $ 81,622.80 $ 85,703.94 $ 89,989.14 94,488.59 Monthly $ 6,478.00 $ 6,801.90 $ 7,142.00 7,499.09 7,874.05 Bi-Weekly $ 2,989.85 $ 3,139.34 $ 3,296.31 3,461.12 3,634.18 Hourly 37.37 $ 39.24 $ 41.20 $ 43.26 $ 45.43
Temporary/Seasonal Hourly $ 13.00 (based on minimum wage) Agenda Item # 6
DATE: March 15, 2022
TO: Mayor and City Council Members
FROM: Michael Rock, Interim City Manager
SUBJECT: Discussion and possible direction regarding the Power Purchase Agreement (PPA) with IW Solar, LLC
RECOMMENDED ACTION:
1. Continue the PPA with IW Solar, LLC based on the professional evaluation by energy efficiency firm Climatec.
2. Direct staff to explore the possibility of adding solar panels to the current location at the Tertiary Plant (COWRP).
3. Direct staff to explore connecting the Waste Water Treatment Plant (WWTP) to the solar array.
FISCAL IMPACT:
The City electric meter runs backwards at the COWRP when producing solar power. The City receives a credit from PG&E for the solar panels.
The PPA lease agreement costs the City an average of $6,222/month. The per month cost to run the WWTP (before solar power) was $6,303. The per month cost to run the COWRP (before solar power) was $1,322/month for a total monthly average cost of $7,625. Thus, the City is saving $1,403/month, on average, since the solar panels were activated.
The increased costs to the lease agreement to add solar panels is unknown at this time, ut if Council directs staff to explore adding more solar panels to the existing array a cos estimate will be brought back to the Council for consideration.
BACKGROUND:
The current PPA with IW Solar, LLC was approved by the City Council on December 3, 2019 (Item #6). The solar panel array became active in November 2020.
The Council recently requested that this Agreement be analyzed to determine whether the City, in fact, has a competitive and cost-effective Agreement with IW Solar, LLC.
Staff requested Climatec, our energy auditing firm, to review all of the City's facilities for energy efficiency and this PPA. After a careful review from several staff members at Climatec they made the following comments:
Based on this agreement and financial metrics, the PPA rate and escalation † $0.1275/kWh and 0%, respectively, are competitive rates compared t 'urrent PG&E energy rates and other PPAs we have seen in the markel Inless there are other contractual or operational items that are of concert for the City, we feel the financial metrics of this agreement benefit the City Attachments:
Power Purchase Agreement with IW Solar, LLC
December 3, 2019 Staff Report - PPA Council Approval
SUMMARY OF PPA PROVISIONS
1. ENERGY SELLER ISolar, LLC a California limited liability company ("Seller")
2. ENERGY SELLER
INFORMATION 330 SW 43™d St
Suite K-225
Renton, WA 98057
3. ENERGY BUYER City of lone ("Buyer")
4. ENERGY BUYER INFO cast Main Stree
Lone, CA 95640
(209) 274-2412
5. PREMISES 9832 Five Mile Dr.
Ione, CA 95640
6. SOLAR ENERGY SYSTEM See Exhibit B
7. COMMENCEMENT DATE Commercial Operation Date as Certified by Seller.
8. INITIAL TERM 25 Years.
9. EXTENSION TERM Automatic Extension for three additional terms of five (5) years unless terminated by Buyer not
less than 180 days prior to expiration of Initial
Term, or for Event of Default.
10. ENERGY PURCHASE 100% of Energy Output during the Initial Term and Extension Term.
11. ENERGY PAYMENT RATE See Exhibit D
12. BUYER PURCHASE OPTION At each of the 10t, 15 and the last year of year of the Term or any Extension Term.
13. RISK OF SYSTEM LOSS Seller carries the risk of Solar Facility Loss.
14. INSURANCE Commercial general liability insurance with limits not less than $2,000,000 for injury to or
death of one or more persons in any one
occurrence and $1,000,000 for damage or
destruction to property in any one occurrence.
Worker's compensation and employer's liability
insurance, including Stop Gap coverage, in
4817-6605-7645.2
compliance with Applicable Laws with limits of
not be less than $1,000,000.
Insurance against any System Loss, including
business interruption insurance, in an amount not
less than the full System Loss Amount per
Casualty Schedule with loss payable to Seller.
15. MAINTENANCE Seller shall maintain (or cause to be maintained) the System at its sole cost and expense. Buyer
shall grant access to System for Seller and its
agents or maintenance contractors for
maintenance and repairs at any time.
16. PURCHASE OPTION Buyer has the right and option to purchase all of the Seller's right, title and interest in and to the
System Assets and may be exercised by Buyer (i)
during a period of 180 days before the 15t
anniversary of the Commercial Operation Date,
(ii) during a period of 180 days before the last day
of the Initial Term or Extension Term, or (il) if
Buyer has given notice of termination then before
the Early Termination Date. Closing of such
buyout shall take place within 60 days of the
setting of the Purchase Price.
Purchase Price shall be equal to the greater of (a)
the Fair Market Value as mutually agreed by the
Parties or as determined by an Independent
Appraiser, and (b) the Buyout Price (120% of the
remaining balance of any debt used to finance the
System)
17. DISPUTE RESOLUTION If a controversy arises, the parties have a 20 business day period to meet, confer, and
negotiate in good faith to resolve the issue.
During that 20 business day period either party
can request utilization of a mediator and the
parties shall share costs of the mediator.
In the event that the controversy cannot be settled
during that 20 business day period, either party
may submit the claim to an Arbitrator who shall
have authority to make a final, binding, and non-
appealable decision.
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NO JURY TRIALS
18. O&M CONTRACT That certain Operations and Maintenance Agreement between Seller and the Contractor
with respect to the System, as more fully set forth
in Section 6.3(a) and Exhibit C.
NOTE - THE INFORMATION ABOVE IS MEANT AS AN INFORMATION SUMMARY ONLY, AND IS NOT TO BE CONSIDERED PART OF THE PPA. IN THE EVENT OFANY
CONFLICT BETWEEN THIS SUMMARY OF PPA PROVISIONS AND THE BODY OF
THE PPA, THE PROVISIONS CONTAINED IN THE BODY OF THE PPA SHALL PREVAIL.
Remainder of page intentionally blank.
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SOLAR ENERGY POWER PURCHASE AGREEMENT
THIS POWER PURCHASE AGREEMENT (this "PPA" or "Agreement") is made and entered into as of this 4' day of December 2019 (the "Effective Date"), by and between ISolar, LLC. a California limited liability company ("Seller") and the City of lone, located in Amador County, California ("Buyer"). Seller and Buyer are sometimes hereinafter referred to individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, concurrently herewith, Buyer and Seller are entering that certain Site Lease Agreement (the "Lease") pursuant to which Seller agrees to lease a portion of Buyer's premises located at 9832 Five Mile Dr. Ione, CA 95640 (the "Premises") and more particularly described in Exhibit A attached hereto.
WHEREAS, Seller intends to install, finance, own (or control) and operate a solar energy generation facility (the "System") as more particularly defined in Exhibit B hereto.
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, all of the Energy Output generated by the System during the Term in accordance with the terms and conditions of this PPA.
NOW THEREFORE, for good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINED TERMS; RULES OF INTERPRETATION
Defined Terms. Capitalized terms used in this PPA shall have the meanings ascribed to them in the Schedule of Definitions and Rules of Interpretation attached hereto as Exhibit C and made an integral part of this PPA by this reference.
Rules of Interpretation.
Dofinitions and Rue i pratiation shal apule of hiere ation in she Sch puli of
ARTICLE II
TERM
2.1 Term.
(a) The initial term of this PPA (the "Initial Term") shall commence on the Effective Date and shall be in effect until 00:00 hours Pacific Time on the 25th anniversary of the Commercial Operation Date.
The Term shall automatically extend for three (3) additional periods of five years (such extension, the "Extension Term""), with such Extension Term expiring at 00:00 hours Pacific Time at the end of such five (5) year periods, unless earlier terminated by (i) either Party pursuant
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to Section 9.2, or (ii) by Buyer not less than one hundred eighty (180) days prior to the end of the Initial Term.
2.2 Conditions Precedent.
The respective rights and obligations of the Parties under this PPA are expressly conditioned upon the satisfaction in full (or written waiver) of all of the following conditions; provided, however, that each of the Parties shall use its commercially reasonable efforts to satisfy or cause to be satisfied each condition precedent applicable to such Party:
Buyer and Seller shall have confirmed the appropriateness of each of the Premises as a viable site on which to construct and operate a System, including, but not limited to, completing site due diligence and necessary engineering. (b) Seller and Buyer shall have entered into the Lease providing to Seller real property and access rights and interest that are sufficient for the installation, construction, operation, maintenance and use of the System as contemplated by this Agreement, and Seller shall have received from the landlord or grantor of such rights and interests title reports showing that each Premises is free and clear of liens, security interests, claims, and other encumbrances that might adversely affect the ability of Seller to perform its obligations or enjoy its rights as contemplated in this Agreement or the ability of Seller to install, finance, operate or maintain the System during the Term.
(c) Buyer shall have provided Seller (at no additional cost to Seller or Buyer) with access to the utilities and communications services/infrastructure on each Premises to be used by Seller for the start-up, maintenance, repair, replacement and operation of the System, including:
(i) electricity, (ii water, (iii) gas, (iv) telephone/communications lines, (v) an internet connection at each Premises as described in Section 5.5, and (vi) cellular signal availability, as further described in the Lease. Seller shall have the right to install on each Premises, upon Buyer's approval and at Seller's sole expense, equipment to enable wireless connection of the System to the internet.
(d) Buyer shall have entered into an interconnection agreement to the extent required by the local electric utility;
(e) Seller shall have entered into all applicable contracts required for the System to be placed in service;
(f) Seller shall have obtained all necessary permits, licenses and other approvals required by Applicable Law for entering into this Agreement; and (g) Seller shall have obtained insurance or proof of insurance, pursuant to the terms of this Agreement.
If the conditions precedent above are not satisfied by December 31, 2020, either Party may terminate this Agreement upon written notice to the non-terminating Party without penalty and without triggering the default provisions of Article 9 or incurring any liability under this
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Agreement whatsoever. Alteratively, in the event that such conditions precedent are not satisfied by such date, the Parties may mutually agree to amend this Agreement.
2.3 Notice of Commercial Operation.
Seller shall notify Buyer when the System is capable of Commercial Operation, and shall in such notice certify to Buyer the Commercial Operation Date.
2.4 Removal of System at End of Term.
Except as otherwise provided herein, Seller shall be entitled, within 180 days following the end of the Term, and at Seller's sole cost and expense, to remove the System from the Premises. Seller and its agents, consultants, and representatives shall have access at all reasonable times to the Premises and the System for purposes of such removal. The Seller is responsible to repair any and all damage caused by the removal of the System.
2.5 Survival.
Effective as of any termination of this PPA, the Parties will no longer be bound by the terms and conditions of this PPA, except (a) to the extent necessary to enforce any rights and obligations of the Parties, including payment obligations, arising under this PPA prior to termination of this PPA, (b) as provided in Section 14.1(b), and (c) that the obligations of the arties under this PPA with respect to indemnification will survive the termination of this PPA and will continue (but only with respect to claims for indemnification based upon events o circumstances occurring or arising on or before the termination of this PPA) for a period of three (3) years following any termination of this PPA. Section 2.4 (Removal of System at End of Term) shall survive the termination of this PPA.
ARTICLE III
PURCHASE AND SALE; DELIVERY; GOVERNMENTAL CHARGES
3.1 Purchase and Sale of Energy.
Commencing on the Commercial Operation Date and continuing throughout the remainder of the Term, Seller shall make available to Buyer, and Buyer shall take delivery of, at the Delivery Point, all of the Energy produced by the System. Neither Party shall seek to change any of the rates or terms of this Agreement by making a filing or application with any local, state or federal agency with jurisdiction over such rates or terms or exercise any rights a Party may have, if any, to seek changes to such rates or terms during the Term of this Agreement.
3.2 Price for Energy Output.
Buyer shall pay Seller for the Energy Output, as metered at the Metering Device, at the applicable Energy Payment Rate as set forth on Exhibit D. The payment to be made by Buyer to Seller shall equal the Energy Output for the relevant period multiplied by the Energy Payment Rate for such period.
3.3 Test Energy.
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Prior to the Commercial Operation Date, Seller shall make available to Buyer and Buyer shall take delivery of, at the Delivery Point, any Test Energy produced by the System. Buyer shali pay Seller for the Test Energy at a rate equal to 80 percent of the Energy Payment Rate that would otherwise be applicable on the Commercial Operation Date.
3.4 Title and Risk of Loss.
Subject to Seller's right to resell any excess electricity, title to and risk of loss of the Energy Output will pass from Seller to Buyer at the Delivery Point. Seller warrants that it will deliver the Energy Output to Buyer at the Delivery Point free and clear of all liens, security interests, claims, and other encumbrances.
3.5 Governmental Charges.
Sales Taxes. Buyer shall be responsible for and pay all Governmental Charges imposed directly on Buyer in connection with or relating to the delivery and sale of Energy Output or Environmental Attributes by Seller to Buyer, whether imposed before, upon or after the delivery of Energy Output to Buyer at the Delivery Point.
(b) Efforts to Minimize. Both Parties shall use reasonable efforts to administer this PPA and implement its provisions so as to minimize Governmental Charges. In the event any of the sales of Energy or Environmental Attributes hereunder are to be exempted from or not subject to one or more Governmental Charges, promptly upon Seller's request therefore, Buyer shall provide Seller with all necessary documentation to evidence such exemption or exclusion.
Property Taxes. Buyer shall be responsible for paying (or reimbursing Seller for paying) any and all property taxes that may be at any time during the Term (or during the construction of the System) imposed or levied on or assessed against Seller as a result of the Lease or this Agreement, or otherwise in connection with the Premises (or any portion thereof), including any incremental property taxes that result from a reassessment or re-evaluation of the value of the Premises (or a portion thereof) as a result of the installation of the System. Seller shall forward to Buyer reasonably promptly after Seller's receipt thereof any and all statements or invoices for any such property taxes to enable Buyer to pay such taxes to the applicable taxing authority on or before the applicable due date. If Seller at any time pays any such property taxes, Seller shall provide to Buyer a copy of the relevant statement or invoice and reasonable evidence of payment, and Buyer shall, not later than ten days after receipt thereof, reimburse Seller in full for such payment. In furtherance of the foregoing, Buyer shall indemnify and hold harmless Seller from and against any and all Losses resulting from or arising out of Buyer's breach of its obligations under this Section 3.5(c). For avoidance of doubt, this Section 3.5(c) does not apply to personal property taxes that may be imposed on or levied against Seller (or any other owner of the System) solely with respect to the personal property constituting the System, and Seller (or any such other owner thereof) shall remain responsible for payment of such taxes, if any.
ENVIRONMENTAL ATTRIBUTES
4.1 Title to Environmental Attributes.
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Notwithstanding the purchase and sale of Energy pursuant to Section 3.1, All Environmental Attributes relating to the System or the Energy Output shall remain the property of Seller. Seller shall have all right, title, and interest in and to any and all Environmental Attributes that relate to the Energy Output during the Term, and Buyer shall have no right, title or interest in or to any such Environmental Attributes.
4.2 Reporting of Ownership of Environmental Attributes.
Buyer shall not report to any Person that any Environmental Attributes relating to the Energy Output belong to any Person other than Seller. Because the right to claim the use of renewable energy follows the Environmental Attributes, Buyer shall not make any public statement to the effect that it is using "renewable energy" and will coordinate its statements concerning the System with Seller so as to preserve the Environmental Attributes relating to the System and the Energy Output and Seller's title to those Environmental Attributes.
ARTICLE V
CONSTRUCTION AND INSTALLATION OF THE SYSTEM
5.1 Installation.
Subject to Section 5.2, Seller will enter into the EPC Contract with the Contractor
5.2 Permits and Approvals.
Seller shall be responsible for and bear all costs associated with applying for and obtaining all permits, licenses and approvals required for the installation, operation, and maintenance of the System. Notwithstanding the foregoing, Buyer agrees to assist Seller (at no cost to Buyer) in obtaining all necessary permits, licenses and approvals in connection with the installation, operation and maintenance of the System, including but not limited to the submission of applications for interconnection of the System with the local electric utility and applications for the resale of excess power to the local utility. Buyer shall not make any material changes to its electrical equipment at the Premises after the date on which any applicable utility interconnection Premises or require equipment in addition to the equipment set forth in Exhibit B in connection with the Premises, Seller may terminate this Agreement immediately subsequent to notification from the local utility. The Parties shall not be obligated to proceed with the installation of the System if the applicable utility or inspector approvals are conditioned upon material upgrades to 4817-6605-7645.2 Page 8 of 43
the existing electrical infrastructure and neither Party elects to provide for such upgrades. If the which may be by means of one or more lump sum payments or an adjustment of the Energy Payment Rate.
5.3 Energy Delivery.
The Commercial Operation Date shall be the date that Seller has given written notice to Buyer that the deliveries of Energy have commenced, provided that Buyer is under no obligation to accept energy delivered to the Premises unless and until the following have occurred:
(a) Seller shall have obtained a certificate of final completion for the installation of the System;
(b) Seller shall have obtained satisfactory evidence of insurance coverage for the System;
(c) Seller shall have obtained receipt of third party cost certification for the installation of the System;
(d) Seller shall have certified to Buyer that the System is complete and available for commercial operation; and
all permits and licenses required to be obtained under Applicable Law in connection with the operation of the System shall have been obtained and be in full force and effect.
Notwithstanding anything to contrary, Seller shall not have any liability to Buyer for delays to the Commercial Operation Date.
5.4 Buyer Cooperation and Responsibilities.
Buyer will cooperate with Seller and any third parties with whom Seller contracts y providing access to the Premises during working hours without unreasonable restriction uver shall cooperate with Seller in obtaining and maintaining all permits and licenses require for Commercial Operations as further described in Section 5.2.
5.5 Buyer to Provide Data Connection.
Buyer shall provide, at Buyers expense, an Internet connection or phone line (specifications to be agreed upon) at the Premises to allow Seller to continuously and remotely monitor the System's performance.
ARTICLE VI
OWNERSHIP; MAINTENANCE OF SYSTEM; COVENANTS
6.1 Ownership of System by Seller.
4817-6605-7645.2
Seller (or Seller's assignees with respect to the System) shall own the System, and shall be entitled to own, claim and retain any and all federal, state, or local tax benefits associated with the ownership of the System, including any federal income tax credits or grants, as well as any and all state or local incentives for the installation of solar energy facilities or the production of electricity from renewable energy sources. Notwithstanding the System's presence on the Premises, Buyer shall not directly or indirectly cause, create, incur, assume or suffer to exist any Encumbrance on or with respect to the System or any interest therein. If Buyer breaches its obligations under this Section 6.1, and without limitation of any of Seller's rights at law or equity, it shall immediately notify Seller in writing and shall promptly cause such Encumbrance to be discharged and released of record without cost to Seller.
6.2 Lease of Premises.
Pursuant to the terms and conditions of the Lease being entered into concurrently herewith, the Parties acknowledge and agree that Seller is leasing the portion of Buyer's Premises upon which the Systems is located
6.3 Maintenance of System by Seller: Production Guarantee from O&M Provider; Access.
(a) Maintenance and O&M Provider. Seller shall maintain, or cause to be maintained, policies maintained by Buyer (copies of which to be provided to Seller) with respect to the System, and the terms of this PPA. Seller shall operate and maintain the System consistent with any applicable requirements of the roof warranty covering the Premises and shall at its sole expense use commercially reasonable efforts to remove snow accumulation on the solar arrays. Seller further agrees to enter into the O&M Contract with Contractor and that any replacement operations and maintenance ("O&M") provider shall be of national reputation, be experienced as a solar energy O&M services contractor and shall provide a production guarantee.
Seller Access. • Seller and its agents, consultants, and representatives shall have access at all reasonable times (including under emergency conditions) to the Premises and the System, all System operations, and any documents, materials and records and accounts relating thereto for purposes of inspection and maintenance of the System. During any inspection or maintenance of the System, Seller, and its agents, consultants and representatives shall comply with Buyer's reasonable safety and security procedures, and Seller and its agents, consultants and representatives shall conduct such inspection and maintenance in such a manner as to cause minimum interference with Buyer's activities and the activities of Buyer's tenants.
6.4 Shading: Load Configuration.
(a) Shading. Buyer shall not alter, and shall not cause or permit any interference with (including any activities causing any increase in levels of dust or accumulations of dust), the System's insolation and access to sunlight as such access exists as of the Effective Date. At all times during the Term, Buyer shall ensure that Shading of the System's solar arrays does not
4817-6605-7645.2
exceed the Shading as it exists on the Effective Date. Buyer represents to Seller that there are no circumstances known to Buyer and no commitments to third parties that may damage, impair, or otherwise adversely affect the System Assets or their function by blocking sunlight to, or reducing the insolation at, the System.
covenants to maintain signage on the Metering Devices at all times during the Term, requesting that Seller be contacted before Buyer performs any change to the load configuration.
6.5 Substitution of Premises: Temporary Disruption.
(a) Movement of Generating Facilities; Substitute Sites. If Buyer (i) ceases to conduct operations at the Premises, (ii) vacates the Premises, (iii) transfers title to the Premises, or (iv) otherwise desires to remove all or a portion of the System from the Premises, then Buyer shall provide substitute premises (the "Substitute Premises") for installation, operation and maintenance of the System. Further, if a Force Majeure event occurs at any time during the Term, then at Seller's option, Buyer shall provide a Substitute Site in accordance with the provisions hereof in order to prevent recapture or other prejudice to any tax credits, rebates or other incentives intended to be received by Seller hereunder. Notwithstanding this Section 6.5(a), substitute premises proposed by Buyer shall not qualify as a Substitute Site unless: (i) the new location is within the same service territory of the applicable utility; (ii) the relocation of the System to the new location is reasonably estimated by Seller to take less than 90 calendar days; and (iii) the new location is reasonably acceptable to Seller. Buyer shall provide at least 60 days' written notice to Seller prior to the date on which it desires to effect such substitution (b) Removal and Reinstallation Costs. Buyer shall be responsible for all Removal Costs and associated costs of reinstallation of such System to operate as before; provided, however, that Buyer shall not be responsible for such costs in the event the System is relocated to a Substitute Site due to a Force Majeur ovent. Additionally, Buyer shall pay to Seller, in addition to other amounts set forth in this Section 6.5(b), a monthly payment (prorated as needed) equal to the sum of (i) the average monthly power purchase invoiced in accordance with Section 3.2 for the preceding 12 months, or however long such System has been in Commercial Operation if less than 12 months, and (ii) the rebates from the utility that would have been received by Seller based on such average monthly power purchase. Buyer shall pay such monthly payments (prorated as needed) for the period of time during which such System is not in Commercial Operation due to the movement or replacement. If the Substitute Site has inferior insolation as compared to the Site being abandoned or replaced, Seller shall have the right to make an upward adjustment to the kWh Rates for such Substitute Site so that Buyer's payments to Seller are the same as if the relocated System were located at the Premises being abandoned or replaced. Seller shall utilize commercially reasonable efforts in expeditiously moving or replacing the System to the Substitute Site.
Temporary Removal of Generating Facilities Requested by Buyer. If temporary removal of a System is required due to work at the Premises undertaken by Buyer unrelated to the System, Buyer is responsible for all Removal Costs and associated costs of reinstallation and must
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proceed diligently as outlined in the Site Lease between the Parties. Upon completion of the work at such Premises undertaken by the Buyer, Buyer shall promptly notify Seller that such work has been completed. Upon receiving such notice, Seller shall utilize commercially reasonable efforts to restore expeditiously the System at the Premises to Commercial Operation. In the event that Seller fails to utilize commercially reasonable efforts to restore expeditiously the System, Buyer shall not be liable for any payments to Seller due to the suspension of Commercial Operation of such System. During any period while a System is off-line in connection with a temporary removal under this Section 6.5(c), Buyer shall pay Seller a monthly payment (prorated as needed) equal to the sum of (i) the average monthly power purchase invoiced in accordance with Section 3.2 for the preceding 12 months, or however long such System has been in Commercial Operation if less than 12 months, and (ii) the rebates from the utility that would have been received by Seller based on such average monthly power purchase. Buyer shall pay such monthly payments (prorated as needed) for the period of time during which such System is not in Commercial Operation due to the temporary removal. Buyer shall notify Seller at least 30 days in advance of any activity that may render any System inoperable.
ARTICLE VII
METERING DEVICE AND METERING
7.1 Metering Equipment.
A Metering Device shall be installed, and the Seller shall provide, install, own, operate and maintain the Metering Device.
7.2 Measurements.
Readings of the Metering Device shall be conclusive as to the amount of Energy Output; provided that if the Metering Device is out of service, is discovered to be inaccurate pursuant to Section 7.3, or registers inaccurately, measurement of Energy Output shall be determined in the following sequence: (a) by estimating by reference to quantities measured during periods of similar conditions when Metering Device were registering accurately; or (b) it no reilable information exists as to the period of time during which such Metering Device was registering inaccurately, it shall be assumed for correction purposes hereunder that the period of such inaccuracy for the purposes of the correction under Section 7.3 was equal to (i) if the period of inaccuracy can be determined, the actual period during which inaccurate measurements were made; or (ii) if the period of inaccuracy cannot be determined, one-half of the period from the date of the last previous test of such Metering Device through the date of the adjustments, provided, however, that, in the case of clause (ii), the period covered by the correction under this Section 7.3 shall not exceed six months.
7.3 Testing and Correction.
Buyer's Right to Conduct Tests. Each Party and its consultants and representatives shall have the right to witness any Metering Device test to verify the accuracy of the measurements and recordings of the Metering Device. Seller shall provide at least twenty (20) calendar days' prior written notice to Buyer of the date upon which any such test is to occur. Seller shall prepare a written report setting forth the results of each such test, and shall, at the request of Buyer, provide Buyer with copies of such written report not later than thirty (30) calendar days after completion
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of such test. Seller shall bear the cost of the annual testing of the Metering Device and the preparation of the Metering Device test reports.
(b) Standard of Metering Device Accuracy; Resolution of Disputes as to Accuracy.
The following steps shall be taken to resolve any disputes regarding the accuracy of the Metering Device:
(i) If either Party disputes the accuracy or condition of the Metering Device, such Party shall so advise the other Party in writing.
Seller shall, within fiften (15) calendar days after receiving such notice from Buyer or issuing such notice to Buyer, advise Buyer in writing as to Seller's position concerning the accuracy of such Metering Device and Seller's reasons for taking such position. (11ii) If the Parties are unable to resolve the dispute through reasonable negotiations, then either Party may request a test of the Metering Device. (iv) If the Metering Device is found to be inaccurate by not more than two percent (2%), any previous recordings of the Metering Device shall be deemed accurate, and the Party disputing the accuracy or condition of the Metering Device under Section 7.3(b)(i) shail bear the cost of inspection and testing of the Metering Device. (v) If the Metering Device is found to be inaccurate by more than two percent (2%) or if such Metering Device is for any reason out of service or fails to register, then (a) Seller shall promptly cause any Metering Device found to be inaccurate to be adjusted to correct, to the extent practicable, such inaccuracy, and (b) the Parties shall estimate the correct amounts of Energy delivered during the periods affected by such inaccuracy, service outage or failure to register as provided in Section 7.2. If as a result of such adjustment the quantity of Energy Output for any period is decreased (such quantity, the "Energy Deficiency Quantity"), Seller shall reimburse Buyer for the amount paid by Buyer in consideration for the Energy Deficiency Quantity, and shall bear the cost of inspection and testing of the Metering Device. If as a result of such adjustment the quantity of Energy Output for any period is increased (such quantity, the "Energy Surplus Quantity"), Buyer shall pay for the Energy Surplus Quantity at the Energy Payment Rate applicable during the applicable Contract Year, and shall bear the cost of inspection and testing of
ARTICLE VIII
LOSS, DAMAGE OR DESTRUCTION OF SYSTEM; INSURANCE; FORCE MAJEURE
8.1 System Loss.
(a) Seller's Risk. Subject to Buyer's obligation to indemnify Seller set forth in Section 12.1, Seller shall bear the risk of any System Loss.
Partial Loss. In the event of any System Loss that, in the reasonable judgment of Seller, results in less than total damage, destruction or loss of the System, this PPA will remain ir ull force and effect and Seller has the option, at Seller's absolute and sole discretion and sole cost 4817-6605-7645.2 Page 13 of 43
and expense, to repair or replace the System as quickly as practicable. Seller shall be entitled to all proceeds of insurance with respect to the System.
Total Damage. In the event of any System Loss that, in the reasonable judgment of Seller, results in total damage, destruction or loss of the System, Seller shall, within twenty (20) Business Days following the occurrence of such System Loss, notify Buyer whether Seller is willing, notwithstanding such System Loss, to repair or replace the System. In the event that Seller notifies Buyer that Seller is not willing to repair or replace the System, this PPA will terminate automatically effective upon the delivery of such notice, and Seller shall be entitled to all proceeds of insurance with respect to the System, provided, however, that proceeds paid on account of damage to the Premises shall be paid to Buyer.
8.2 Insurance.
(a) General Conditions. Prior to the commencement of work on the construction and installation of the System, each Party shall secure and thereafter maintain the insurance described in this Section 8.2 covering each Party's operations and activities on the Premises and goods or services provided pursuant to this Agreement. Each Party shall keep such required insurance coverage in force at all times during the Termn, or any extension, during any warranty period, and for 1 year after termination of the Agreement. The required insurance must be underwritten by an insurer licensed to do business in the State of California and rated by A.M. Best Company as "A" VIll or better. Each policy must contain a valid provision or endorsement substantially to the effect of the following: "Should any of the above-described policies be canceled or should any coverage be reduced before the expiration date thereof, the issuing company shall endeavor to send written notice to Buyer. Written notice must be sent 30 days before cancellation or reduction unless due to non-payment of premiums for which notice must be sent 10 days prior." If any policy is in excess of a deductible or self-insured retention, the insured Party must notify the other Party of this. The insured Party is responsible for the payment of any deductible or self-insured retention. Each Party shall maintain, at its own expense, any additional kinds or amounts of insurance that it may deem necessary to cover its obligations and liabilities under this Agreement. (b) Proof of Insurance. Each Party shall provide a copy of this Agreement to its insurance agent or broker and provide a certificate of insurance from the insurer for each coverage required by this Section 8.2, which certificate shall be evidence of the insurance coverage required by this Section 8.2.
Additional Insured. Each Party's insurers shall name the other Party as an additional insured with respect to the general liability and excess/umbrella liability insurance required by this Section 8.2.
(d) Waiver of Subrogation. For all coverages, the Party's insurer shall waive subrogation rights against the other Party.
(e) Property Insurance. Buyer shall maintain all risk physical damage insurance on the Premises including the System in an amount equal to the full replacement value thereof and naming Seller "and/or its assigns" as the loss payee.
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General Liability. Each Party shall maintain general liability coverage with limits of $1,000,000 for each occurrence claim, $1,000,000 for each personal and advertising injury claim, $2,000,000 products and completed operations for each occurrence, and $2,000,000 policy aggregate.
(g) Excess/Umbrella Liability. Each Party shall maintain excess or umbrella coverage with limits of $4,000,000.
(h) Additional Provisions.
(1) For general liability and excess/umbrella liability, the policies must provide the following:
If any aggregate limit is reduced by 25% or more by paid or reserved claims, the affected insured Party shall notify the other Party within 10 days and reinstate the aggregates required;
(B) Unlimited defense costs in excess of policy limits; Contractual liability covering the indemnification provisions of the Agreement;
(D) A severability of interests provision;
(E) Waiver of exclusion for lawsuits by one insured against another; (F) A provision that coverage is primary; and
(G) A provision that coverage is non-contributory with other coverage or self-insurance provided by the insured Party.
For goncral liability and excess/umbrella liability, if the policy is a claims-made policy, then the retroactive date must be on or before the date of this Agreement.
The provisions of this PPA shall not be construed so as to relieve any insurer of its obligation to pay any insurance proceeds in accordance with the terms and conditions of valid and collectible insurance policies. The liability of the Parties shall not be limited by insurance.
8.3 Performance Excused by Force Majeure.
To the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under this PPA and such Party (the "Claiming Party") gives notice nd details of the Force Majeure to the other Party as soon as practicable (and in any event withi ive (5) Business Days after the Force Majeure first prevents performance by the Claiming Party then the Claiming Party will be excused from the performance of its obligations under this PPA (other than the obligation to make payments then due or becoming due with respect to performance
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prior to the Force Majeure, and except as otherwise provided in Section 8.1); provided, however, Buyer shall not be excused from its performance obligations if the Force Majeure event consists of Buyer relocating, terminating its operations at the Premises or otherwise winding down its operations and facilities at the Premises (other than as a result of acts of God, war or natural disaster), any such event shall require Buyer to exercise its right of termination and pay the applicable termination value as provided in Section 9.4. The Party affected by Force Majeure will use commercially reasonable efforts to eliminate or avoid the Force Majeure and resume performing its obligations; provided, however, that neither Party is required to settle any strikes, lockouts or similar disputes except on terms acceptable to such Party, in its sole discretion. Except as otherwise provided in Section 8.1, the non-Claiming Party will not be required to perform or resume performance of its obligations to the Claiming Party corresponding to the obligations of the Claiming Party excused by Force Majeure.
ARTICLE IX
EVENTS OF DEFAULT; REMEDIES
9.1 Events of Default.
An "Event of Default" means, with respect to a Party (a "Defaulting Party"), the occurrence of any of the following:
the failure to make, when due, any payment required under this PPA if such failure is not remedied within ten (10) Business Days after written notice; the failure to perform any material covenant or obligation set forth in this PPA (except to the extent constituting a separate Event of Default), if such failure is not remedied within sixty (60) days after receipt of written notice;
(c) such Party becomes Bankrupt;
(d) such Party fails to provide or maintain in full force and effect any required insurance, it such failure is not remedied within ten (10) Business Days after receipt of written notice from the Non-Defaulting Party to the Defaulting Party; Landlord (as defined in the Lease) sells, assigns, mortgages or otherwise transfers its interests in all or a portion of the Premises without prior written notice to Seller and the buyer, assignee, mortgagee or other transferee thereof does not agree pursuant to an instrument in writing to be bound by the terms of the Lease (and the Event of Default under this Section 9.1(e) shall be an Event of Default with respect to Buyer for the purposes of this Agreement); or, (f) default by Landlord (as defined in the Lease) under the Lease, which could reasonably be expected to interfere with the operation, maintenance or use of the System for more than thirty (30) days (and the Event of Default under this Section 9.1(e) shall be an Event of Default with respect to Buyer for the purposes of this Agreement).
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9.2 Remedies for Event of Default.
If at any time an Event of Default with respect to a Defaulting Party has occurred and is continuing, the other Party (the "Non-Defaulting Party") will, without (except as otherwise provided in Section 9.3) limiting the rights or remedies available to the Non-Defaulting Party under this PPA or Applicable Law, have the right:
(a) by notice to the Defaulting Party, to designate a date, not earlier than the date such notice is effective and not later than thirty (30) Business Days after the date such notice is effective, as an early termination date ("Early Termination Date") in respect of this PPA; (b) to withhold any payments due to the Defaulting Party under this PPA; and to suspend performance due to the Defaulting Party under this PPA. In the event that the Non-Defaulting Party designates an Early Termination Date, this PPA will terminate as of the Early Termination Date.
9.3 Buyer Rights Upon Termination for Default.
In the event that Buyer is the Non-Defaulting Party, and that Buyer elects to terminate this PPA as provided in Section 9.2, Buyer will be entitled, in its sole and absolute discretion, either to:
(a) require that Seller remove the System (or to remove and have stored the System at Seller's sole cost and expense if Seller fails to remove the System within sixty (60) calendar days after the Early Termination Date), or
exercise the Purchase Option provided in Section 13.1. Buyer's election of either remedy provided in this Section 9.3 does not prevent Buyer from seeking any damages and remedies at law or in equity provided by the laws of the State of California.
9.4 Seller Rights Upon Termination for Default: Liquidated Damages. (a) Liquidated Damages. If Seller is the Non Defaulting Party, and Seller elects to terminate this PPA as provided in Section 9.2, Seller will be entitled to all damages and remedies, at law or equity provided by the laws of the State of California; provided, that in the event of any termination by Seller pursuant to this Section 9.4, Buyer shall pay to Seller the greater of (a) the Termination Value of the appropriate year as set forth in Exhibit E plus Removal Costs, as applicable, and (b) the difference between (1) the contracted amount anticipated to be paid by Buyer pursuant to Section 3.2 hereunder over the Initial Term (but only inclusive of Environmental Attributes if and to the extent the Buyer or its affiliates interfere with Seller's energy production thereby depriving Seller of the benefit of such Environmental Attributes) and (2) the actual revenues received by Seller from wholesale or retail sale of the System's energy output using commercially reasonable efforts. Buyer acknowledges and agrees that (A) the production of energy output by the System during the Initial Term and the purchase by Buyer of all such energy output during the Initial Term are essential to the success of Seller, in particular to prevent recapture or other prejudice to any Environmental Attributes intended to be received by Seller 4817-6605-7645.2 Page 17 of 43
hereunder, and that (B) the amounts of the Termination Values for the Initial Term are therefore approprate and justified.
Additional Remedies of Seller. Buyer further acknowledges and agrees that if Buyer during the Initial Term (i) terminates, gives notice to Seller that it is terminating, threatens to terminate, or takes any other actions in support of terminating or attempting to terminate, this Agreement, (i1) causes any portion of the System to shut down and cease production and delivery of energy output due to Buyer's alteration of the load configuration on the Metering Device for any portion of the System without the prior written consent of Seller or as permitted by this Agreement, (Il) removes any portion of the System or any System Assets from the Premises without the prior written consent of Seller or (iv) refuses to take delivery of any of the energy output produced by the System, Seller shall be entitled to reimbursement of and to recover from Buyer all reasonable attorney's fees and costs, whether or not suit is filed in enforcing or attempting All Remedies Cumulative. All remedies provided for herein shall be cumulative and not exclusive, and shall be in addition to any other remedies available to Seller for any breach of this Agreement.
9.5 Closeout Setoffs.
Either Party will be entitled, at its option and in its discretion, to set off, against any amounts due and owing from the other Party under this PPA or the Lease, any amounts due and owing from the other Party under this PPA or the Lease.
9.6 Remedies Cumulative.
Except as provided in Sections 9.3 and 9.4, the rights and remedies contained in this Article 9 are cumulative with the other rights and remedies available under this PPA or at law or in equity.
9.7 Unpaid Obligations.
The Non-Defaulting Party shall be under no obligation to prioritize the order with respect to which it exercises anyone or more rights and remedies available under this PPA. able to the Non-Defaulting Party for any amount payable by the Defaulting Party in respect o Notwithstanding anything to the contrary herein, the Defaulting Party shall in all events remat any of its obligations remaining outstanding after any such exercise of rights or remedies.
ARTICLE X
INVOICING AND PAYMENT
10.1 Invoicing and Payment.
All invoices under this PPA will be due and payable not later than thirty (30) calendar days after receipt of the applicable invoice (or on the next Business Day). Each Part will make payment by mutually agreeable methods, to the account designated by the other Party
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Any amounts not paid by the applicable due date will accrue interest at the Late Payment Interest Rate until paid in full.
10.2 Disputed Amounts.
A Party may in good faith dispute the correctness of any invoice (or any adjustment to any invoice) under this PPA at any time within six (6) months following the delivery of the invoice (or invoice adjustment). In the event that either Party disputes any invoice or invoice adjustment, such Party will nonetheless be required to pay the full amount of the applicable invoice or invoice adjustment (except any portions thereof that are reasonably believed to be inaccurate or are not reasonably supported by documentation, payment of which amounts may be withheld applicable dispute, together with interest accrued at the Late Payment Interest Rate from the due date to the date paid.
10.3 Records and Audits.
Each Party will keep, for a period not less than (3) years after the expiration or termination of any Transaction, records sufficient to permit verification of the accuracy of billing statements, invoices, charges, computations and payments for such Transaction. During suck period each Party may, at its sole cost and expense, and upon reasonable notice to the other Party, examine the other Party's records pertaining to Transactions during such other Party's normal business hours.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES; BUYER ACKNOWLEDGEMENT
11.1 Representations and Warranties.
Each Party represents and warrants to the other Party that:
the execution, delivery and performance of this PPA are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it;
subject to all conditions precedent described herein, this PPA and each other document executed and delivered in accordance with this PPA constitutes its legally valid and binding obligation enforceable against it in accordance with its terms; subject to any bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally, and with regard to equitable remedies, the discretion of the applicable court; it is acting for its own account, and has made its own independent decision to enter into this PPA, and is not relying upon the advice or recommendations of the other Party in so doing;
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(d) it is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this PPA;
(e) it understands that the other Party is not acting as a fiduciary for or an adviser to it or its Affiliates; and
that the various charges and fees contained in this PPA are the result of arms' length transactions, or, to the extent that such charges and fees are not the result of arms length transactions, represent market rate charges and fees and that the cost to the Seller is equivalent to fair market value.
11.2 Additional Buyer Representations.
Buyer represents and warrants that:
it or its permitted successors or assigns will continue to own or lease the Premises through the Term plus an additional period sufficient to enable Seller to remove the System in accordance with Section 2.4;
(b) none of the electricity to be generated by the System will be used to generate energy for the purpose of heating a swimming pool.
11.3 Additional Seller Representations.
Seller represents and warrants that it is not an electric public utility or electrical corporation under California law.
11.4 Buyer Acknowledgement Regarding Inapplicability of Bankruptcy Code Section 366.
Buyer acknowledges and agrees that, for purposes of this PPA, Seller is not a "utility" as such term is used in Section 366 of the Bankruptcy Code, and Buyer agrees to waive and not to assert the applicability of the provisions of Section 366 in any bankruptcy proceeding
ARTICLE XII
INDEMNITY; LIMITATIONS
12.1 Indemnity.
(a) Indemnification by Seller. Seller hereby agrees to indemnify and hold harmless causing damage to the Premises, any other property of Buyer or persons at the Premises.
Indemnification by Buyer. Buyer hereby agrees to indemnify and hold harmless Seller and its officers, directors, managers, principals, affiliates, agents and representatives from
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and against any and all Losses resulting from or arising out of (i) any misrepresentation, breach of warranty or breach or nonfulfillment of any covenant or agreement of Buyer contained in this Agreement, the Lease or any certificate, schedule, exhibit, agreement or instrument delivered to Seller by or on behalf of Buyer pursuant to the provisions of this Agreement or the Lease, or the matters that are the subject of any such misrepresentation, breach, or nonfulfillment, or (ii) the acts or omissions of Buyer or its affiliates, agents, officers, employees, contractors or representatives in connection with Buyer's performance of its obligations under this Agreement or the Lease or the operation of the System.
(c) Indemnification Procedures.
(1) Promptly after receipt by an indemnified party under Section 12.1(a) or 12.1(b) of notice of the commencement of any Proceeding against it, such indemnified party will, if a claim is to be made against an indemnifying Party under such Section, give notice to the indemnifying Party of the commencement of such claim, but the failure to notify the indemnifying Party will not relieve the indemnifying Party of any liability that it may have to any indemnified party, except to the extent that the indemnifying Party demonstrates that the defense of such action is prejudiced by the indemnifying Party's failure to give such notice.
If any Proceeding referred to in Section 12.1(c)(1) is brought against an indemnified party and it gives notice to the indemnifying Party of the commencement of such Proceeding, the indemnifying Party will be entitled to participate in such Proceeding and, to the extent that it wishes (unless the indemnifying Party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate to assume the defense of such Proceeding with counsel satisfactory to the indemnified party and, after notice from the indemnifying Party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying Party will not, as long as it diligently conducts such defense, be liable to the indemnified party under this Section 12 for any fees of other counsel or any other expenses with respect to the defense of such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding, other than reasonable costs of investigation. If the indemnifying Party assumes the defense of a Proceeding, (A) no compromise or settlement of such claims may be effected by the indemnifying Party without the indemnified party's consent unless (i) there is no finding or admission of any violation of Applicable Laws or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party, and (i) sole relief provided is monetary damages that are paid in full by the indemnifying Party; and (B) the indemnified party will have no liability with respect to any compromise or settlement of such claims effected without its consent. If notice is given to an indemnifying Party of the commencement of any Proceeding and the indemnifying Party does not, within 20 days after the indemnified party's notice is given, give notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying Party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party. In the event it is ultimately determined that the indemnified party was not entitled to indemnification under this Section 12, or under any other provision of this Agreement, and the indemnifying Party has nonetheless assumed the defense of such asserted liability, then the indemnified party shall, at such time as it is ultimately determined that the indemnified party was not entitled to indemnification, reimburse the indemnifying Party for the
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costs and expenses, including reasonable attorneys' and expert witness' fees, incurred by the indemnifying Party in connection with such assumption.
Notwithstanding Section 12.1(c)(2), if an indemnified party determines in good taith that there is a reasonable probability that a Proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the indemnified party may, by notice to the indemnifying Party, assume the exclusive night to defend, compromise, or settle such Proceeding, but the indemnifying Party will not be bound by any determination of a Proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). (4) A claim for indemnification for any matter not involving a third-party claim may be asserted by notice to the Party from whom indemnification is sought.
Exclusion. Any Party's indemnity obligation provided for in this Section 12 does not apply to Losses proximately caused solely by the negligence or malfeasance of the other Party or its affiliates, agents, officers, employees, contractors or representatives. (e) Insurance. Insurance coverage requirements specified in the Agreement in no way lessen or limit the liability of the Parties under the terms of this foregoing provision. The Parties shall obtain, at their own expense, any additional insurance deemed necessary for their protection in the performance of the Agreement.
ARTICLE XIII
SYSTEM PURCHASE AND SALE OPTIONS
13.1 Grant of Purchase Option.
For and in consideration of the payments made by Buyer under this PPA, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, Seller hereby grants Buyer the right and option to purchase all of Seller's right, title and interest in and to the System Assets on the terms set forth in this PPA (the "Purchase Option") The Purchase Option shall be irrevocable by Seller and may be exercised by Buyer in accordance with this Article (i) during period of 180 days before the 15th anniversary of the Commercial Operation Date, (ii) during a period of 180 days before the last day of the Initial Term or any Extension Term, or (iii) if Buyer has given notice of termination under Section 9.2, then before the Early Termination Date contemplated by that notice (each, a "Purchase Option Term"). In the event that Buyer exercises the Purchase Option, the closing of such buyout by Buyer from Seller of the System shall be take place within 60 days of the setting of the Purchase Price.
13.2 Buyer Request for Appraisal of System Value.
Not later than the end of the applicable Purchase Option Term, Buyer shall have the right to provide a notice to Seller requiring a determination of the Purchase Price (as defined below) in accordance with Section 13.4
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13.3 Selection of Independent Appraiser.
Within twenty (20) Business Days after Seller's receipt of a notice provided under Section 13.2, Seller and Buyer shall mutually agree upon an Independent Appraiser. If Seller and Buyer do not agree upon the appointment of an Independent Appraiser within such twenty (20) Business Day period, then at the end of such twenty (20) Business Day period Seller and Buyer shall notify each other in writing of their respective designation of three proposed Independent Appraisers. Seller and Buyer shall each within five (5) Business Days of receipt of such notice strike two of the proposed Independent Appraisers designated by Seller and Buyer, respectively, and shall provide notice thereof to the other party. The remaining two proposed Independent Appraisers shall, within two (2) Business Days of each party's notice, select one of themselves to perform the valuation and provide notice thereof to Seller and Buyer, provided that if either Seller or Buyer still objects to the valuation being performed by such selected Independent Appraiser, then, within two (2) Business Days of the selection notice, such two proposed Independent Appraisers shall select a third Independent Appraiser (who may be one of the Independent Appraisers originally designated by the Parties or another Independent Appraiser) and such third Independent Appraiser shall perform the duties of the Independent Appraiser as set forth herein.
Such selection shall be final and binding on Seller and Buyer. If no agreement is made as to the selection of an Independent Appraiser, either Party may apply for the judicial appointment of such Independent Appraiser.
13.4 Determination of Purchase Price
(a) Preliminary Determination. The Independent Appraiser shall, within twenty (20) Business Days of appointment, make a preliminary determination of the Purchase Price in accordance with Section 13.5 (the "Preliminary Determination").
Final Determination. Upon making such Preliminary Determination, the Independent Appraiser shall provide such Preliminary Determination to Seller and Buyer, together with all supporting documentation that details the calculation of the Preliminary Determination.
Seller and Buyer shall have the right to object to the Preliminary Determination within twenty (20) Business Days of receiving such Preliminary Determination. Within ten (10) Business Days after the expiration of such twenty (20) Business Day period, the Independent Appraiser shall issue the Independent Appraiser's final determination (the "Final Determination") to Seller and Buyer, which shall specifically address the objections received by the Independent Appraiser and whether such objections were taken into account in making the Final Determination. Except in the case of fraud or manifest error, the Final Determination of the Independent Appraiser shall be final and binding on the Parties.
13.5 Calculation of Purchase Price.
The purchase price the "Purchase Price") for the System shall be equal to the greater of (a) the Fair Market Value as mutually agreed by the Parties upon Buyer's exercise o he Purchase Option or as determined by an Independent Appraiser in accordance with th procedure set forth in this Article and (b) the Buyout Price.
13.6 Costs and Expenses of Independent Appraiser.
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Seller and Buyer shall each be responsible for payment of one half of the costs and expenses of the Independent Appraiser.
13.7 Exercise of Purchase Option
Exercise Period and Exercise Notice. Buyer shall have twenty (20) Business Days from the date of the Final Determination, or, if Buyer and Seller have mutually agreed upon a Purchase Price, the date that the Parties agree upon a Purchase Price (such period, the "Exercise Period), to exercise the Purchase Option, at the Purchase Price set forth in the Final Determination or as mutually agreed upon by the Parties. Buyer must exercise its Purchase Option during the Exercise Period by providing a notice (an "Exercise Notice") to Seller. Once Buyer delivers its Exercise Notice to Seller, such exercise shall be irrevocable. (b) Buyer's Right to Inspect. Seller shall, upon at least three (3) Business Days' prior written notice from Buyer to Seller at any time during the Exercise Period, make the System Assets, including records relating to the opcrations, maintenance, and warranty repairs, available to Buyer for its inspection during normal business hours.
13.8 Terms of System Purchase.
On the Transfer Date (a) Seller shall surrender and transfer to Buyer all of Seller's right, title and interest in and to all System Assets and shall retain all liabilities arising from or related to the System Assets prior to the Transfer Date, (b) Buyer shall pay the Purchase Price, by certified check, bank draft or wire transfer and shall assume all liabilities arising from or related to the Solar System Assets from and after the Transfer Date, and (c) both Parties shall execute and deliver a bill of sale with respect to the System Assets providing for a conveyance of the System Assets free and clear of any liens, security interests or other encumbrances created by or through
13.9 Transfer Date.
The closing of any sale of the System (the "Transfer Date") pursuant to this Article will occur no later than sixty (60) calendar days following the date on which the Independent Appraiser issues the Final Determination. On the Transfer Date, Seller shall assign to Buyer any then-existing warranties, and, at Buyer's request, any equipment, maintenance, operations or supply oned tacos petareip to the 5y pery and operatiental consos equired to pe mil the transfer to Buyer (which each Party will use commercially reasonable efforts to obtain).
ARTICLE XIV
CONFIDENTIALITY
14.1 Confidentiality.
Limits on Disclosure of Confidential Information. Neither Party will use any Confidential Information for any purpose except such Party's performance under this PPA.
Furthermore, to the maximum extent permitted by applicable law, neither Party will disclose any Confidential Information to any third party other than the Party's or the Party's Affiliates' officers,
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employees, lenders, counsel, accountants or advisors (collectively, "Representatives"), who have a need to know such information and who have agreed to keep such terms confidential or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein, provided, however, that a Party may disclose Confidential Information in order to comply with the requirements of any Applicable Law or regulation or any exchange, control area or independent system operator rule, tariff or agreement or in connection with any judicial or regulatory proceeding or request by a governmental authority, provided further, however, that each Party will use reasonable efforts to prevent or limit any such disclosure. (b) Duration of Confidentiality Obligation. The obligations of the Parties under this Article will survive for a period of two (2) years from and after the termination of this Agreement.
ARTICLE XV
DISPUTE RESOLUTION AND ARBITRATION
15.1 Notice of Dispute/Negotiated Resolution.
(a) Duty to Meet and Confer: Mediation. In the event that there is any controversy, claim or dispute between the Parties arising out of or related to this PPA, or the breach hereof, that has not been resolved by informal discussions and negotiations, either Party may, by written notice to the other, invoke the formal dispute resolution procedures set forth herein. The written notice invoking these procedures shall set forth in reasonable detail the nature, background and circumstances of the controversy, claim or dispute. During the twenty (20) Business Day period following said written notice, the Parties shall meet, confer and negotiate in good faith to resolve the dispute. Either Party may, during said twenty (20) Business Day period, request the utilization of the services of a professional mediator, and the other Party or Parties to this dispute shall cooperate with such request and share the reasonable costs of such mediator. b) Arbitration. In the event that any controversy, claim or dispute between the Parties ereto arising out of or related to this PPA. or the breach hereot. cannot be settled or resolver micably by the Parties during the twenty (20) Business Day period of good faith negotiation provided for above, then either or any Party hereto may submit said controversy, claim or dispute for arbitration before a single neutral arbitrator in accordance with the provisions contained herein and in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA Rules"); provided, however, that notwithstanding any provisions of such AAA Rules, the parties to the arbitration shall have the right to take depositions and obtain discovery regarding the subject matter of the arbitration, as provided by applicable law, as and to the extent that the arbitrator deems fair and reasonable. The arbitrator shall determine all questions of fact and law relating to any controversy, claim or dispute hereunder, including but not limited to whether or not any such controversy, claim or dispute is subject to the arbitration provisions contained herein.
The arbitrator shall have no authority to award any relief, which could not be awarded by a court applying the laws of the State of California. The decision of the arbitrator shall be final, binding, and non-appealable except for fraud or lack of jurisdiction.
Notice. Any Party desiring arbitration shall serve on the other Party or Parties and the San Francisco Office of the American Arbitration Association (or nearest American Arbitration Association ("AAA") office thereto), in accordance with the AAA Rules, its Notice of Intent to
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Arbitrate ("Notice of Intent to Arbitrate"). The Notice of Intent to Arbitrate shall be served within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statutes of limitations.
Single Neutral Arbitrator. A single, neutral arbitrator shall be selected by the Parties, who is generally familiar with the factual and legal issues that relate to the purchase and sale of electrical energy generated by solar energy facilities on the basis of power purchase agreements. In the event that the Parties are unable to agree on a neutral arbitrator, then one shall be selected in accordance with the AAA Rules. The arbitration proceedings provided hereunder are hereby declared to be self-executing, and it shall not be necessary to petition a court to compel arbitration.
ubiect to the arbitration provisions hereunder, and there exists or later arises a controversy, clair r dispute between the Parties and any third party, which controversy, claim or dispute arises or unless otherwise required by the AAA. Location. All arbitration proceedings shall be held in Sacramento, Califomia, Entry of Judgment. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
15.2 Acknowledgment of Arbitration.
EACH PARTY UNDERSTANDS THAT THIS PPA CONTAINS AN
AGREEMENT TO ARBITRATE WITH RESPECT TO ANY DISPUTE OR NEED OF INTERPRETATION PERTAINING TO THIS PPA. AFTER SIGNING THIS PPA, EACH
PARTY UNDERSTANDS THAT IT WILL NOT BE ABLE TO BRING A LAWSUIT
CONCERNING ANY DISPUTE THAT MAY ARISE AND THAT IS COVERED BY THE ARBITRATION PROVISION. INSTEAD, EACH PARTY AGREES TO SUBMIT ANY SUCH DISPUTE TO IMPARTIAL ARBITRATION AS SET FORTH IN THIS PPA.
ARTICLE XVI
NOTICES
16.1 Notices.
22222
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mail notice is provided immediately thereafter in accordance with the requirements of this Section by hand delivery, overnight delivery, or facsimile). Notice by facsimile will (where confirmation of successful transmission is received) be deemed to have been received on the day on which it was transmitted (unless transmitted after 5:00 p.m. at the place of receipt or on a day that is not a Business Day, in which case it will be deemed received on the next Business Day).
Notice by hand delivery or overnight delivery will be deemed to have been received when delivered. Notice by e-mail will be deemed to have been received when such e-mail is transmitted, so long as a copy of such e-mail notice is delivered immediately thereafter by hand delivery, overnight delivery, or facsimile. When Notice is permitted to be provided orally, notice by telephone will be permitted and will be deemed to have been received at the time the call is received. A Party may change its address by providing notice of the same in accordance with the provisions of this section.
Buyer: City of lone
1 East Main Street
lone, CA 95640
Seller: IWSolar, LLC
c/o EcoPower Development LLC
330 SW 43rd St., Suite K#225
Renton, WA 98057
ARTICLE XVII
ASSIGNMENT; BINDING EPFECT
17.1 Assignment; Binding Effect.
Neither Party may, without the prior written consent of the other (which consent vill not be unreasonably withheld or delayed), assign, pledge or transfer all or any part of, or an ight or obligation under, this PPA, and any such assignment or transfer without such consent wil connection with any equity, lease or debt financing of Seller or Seller's Affiliates.
17.2 Cooperation with Financing.
Buyer acknowledges that Seller will be financing the development, acquisition, construction, commissioning, ownership, operation and/or use of the System and Buyer agrees that it shall cooperate with Seller and its financing parties in connection with such financing of the System, including (a) the furnishing of such information, (b) the giving of such certificates, and
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(c) providing such opinions of counsel and other matters as Seller and its financing parties may reasonably request; provided that the foregoing undertaking shall not obligate Buyer to materially change any rights or benefits, or materially increase any burdens, liabilities or obligations of Buyer, under this PPA (except for providing notices and additional cure periods to the financing parties with respect to Events of Defaults with respect to Seller as a financing party may reasonably request).
17.3 Financing Party Default Rights. Notwithstanding any contrary term of this Agreement:
(a) Exercise of Rights and Remedies of Seller. Seller's financing provider, as collateral assignee, shall be entitled to exercise, in the place and stead of Seller, any and all rights and remedies of Seller under this Agreement in accordance with the terms of this Agreement. Such financing provider shall also be entitled to exercise all rights and remedies of secured parties generally with respect to this Agreement and the System. (b) Right to Cure. Seller's financing provider shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty or obligation required of Seller thereunder or cause to be cured any default of Seller thereunder in the time and manner provided by the terms of this Agreement. Nothing herein requires such financing provider to cure any default of Seller under this Agreement or (unless the Lender has succeeded to Seller's interests under this Agreement) to perform any act, duty or obligation of Seller under this Agreement, but Buyer hereby gives it the option to do so. (c) Exercise of Remedies. Upon the exercise of remedies under its security interest in the System, including any sale thereof by Seller's financing provider, whether by judicial proceeding or under any power of sale contained therein, or any assignment from Seller to such financing provider (or any Qualified Assignee of such financing provider as defined below) in lieu thereof, such financing provider shall give notice to Buyer of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a default under this Agreement. (d) Rejection and New Agreement. Upon any rejection or other termination of this Agreement pursuant to any process undertaken with respect to Seller under the United States Bankruptcy Code, at the request of Seller's financing provider made within 90 days of such termination or rejection, Buyer shall enter into a new agreement with such financing provider or its Qualified Assignee having substantially the same terms and conditions as this Agreement. (e) Qualified Assignee. For purposes of this Section 17.3, a "Qualified Assignee" must be a business organization with at least 2 years of experience in the operation, maintenance and management of commercial solar generating systems.
17.4 Right to Cure.
(a) Financing Party's Right to Cure. Buyer will not exercise any right to terminate this Agreement unless it shall have given Seller's financing providers) prior written notice of its intent to terminate this Agreement, as required by this Agreement, specifying the condition giving rise to such right, and Seller's financing provider shall not have caused to be cured the condition giving rise to the right of termination within 30 days after such notice or (if longer) the periods provided
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for in this Agreement; provided that if such Seller default reasonably cannot be cured by Seller's financing provider(s) within such period and such financing provider commences and continuously pursues cure of such default within such period, such period for cure will be extended for a reasonable period of time under the circumstances, such period not to exceed additional 30 days.
The Parties' respective obligations will otherwise remain in effect during any cure period. (b) Effect of Cure. If Seller's financing provider or its Qualified Assignee (including any transteree), pursuant to an exercise of remedies by such financing provider, shall acquire control of Seller's assets and shall, within the time periods described above, cure all defaults under this Agreement existing as of the date of such change in control in the manner required by this Agreement and which are capable of cure by a third person or entity, then such person or entity shall no longer be in default under this Agreement, and this Agreement shall continue in full force and effect.
ARTICLE XVIII
MISCELLANEOUS
18.1 Governing Law/Venue; No Immunity.
This PPA will be governed by and construed under the laws of the State of California without giving effect to principles of conflicts of laws. Venue for any litigation arising from this Agreement shall only be proper in a state or federal court located in Amador County, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court. To the extent that any Party (including any assignees of any Party's rights or obligations under this Agreement) may be entitled to claim for itself, or any of its assets, revenues or properties, immunity from service of process, suit, the jurisdiction of any court, attachment (whether in aid of execution or otherwise) or enforcement of a judgment (interlocutory or final) or any other legal process, and to the extent that in such jurisdiction there may be attributed to itself, or any of its assets, revenues or properties, such immunity (whether or not claimed), each Party hereby irrevocably and unconditionally waives such immunity.
18.2 Appropriations Covenant. Buyer agrees that, in any fiscal year during the Term, Buyer will prepare and submit to the appropriate Governmental Authority a request for an appropriation of a sufficient amount to fund all payments required to be made by Buyer hereunder in such fiscal year in the fiscal budget for such year. It is the present intention and expectation of Buyer and such Governmental Authority to appropriate such funds or cause such funds to be appropriated as contemplated hereunder, within the limits of available funds and revenues, but this declaration of intent shall not be binding upon such Governmental Authority in any future fiscal year, except to the extent of any previously appropriated funds. If Buyer does not submit a request for appropriation or receive an appropriation of an amount sufficient to fund all payments required supply under this Agreement.
18.3 Entire Agreement; Amendments.
This PPA (including the exhibits, any written schedules, supplements or amendments) constitutes the entire agreement between the Parties, and shall supersede any prior
4817-6605-7645.2
oral or written agreements between the Parties, relating to the subject matter hereof. Any amendment, modification or change to this PPA will be void unless in writing and signed by both Parties.
18.4 Non- Waiver.
No failure or delay by either Party in exercising any right, power, privilege, o remedy hereunder will operate as a waiver thereof. Any waiver must be in a writing signed by th Party making such waiver.
18.5 Severability.
If any part, term, or provision of this PPA is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect or impair the validity, legality, or enforceability of any other part, term, or provision of this PPA, and shall not render this PPA unenforceable or invalid as a whole. Rather the part of this PPA that is found invalid or unenforceable will be amended, changed, or interpreted to achieve as nearly as possible the same objectives and economic effect as the original provision, or replaced to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision, within the limits of Applicable Law or applicable court decisions, and the remainder of this PPA will remain in full force.
18.6 No Third Party Beneficiaries.
Nothing in this PPA will provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind.
18.7 No Recourse to Affiliates.
This PPA is solely and exclusively between the Parties, and any obligations created herein on the part of either Party shall be the obligations solely of such Party. No Party shall have recourse to any parent, subsidiary, partner, member, Affiliato, lender, dirctor, officer or employee of the other Party for performance or non-performance of any obligation hereunder, unless such obligations were assumed in writing by the Person against whom recourse is sought.
18.8 Relationships of Parties.
This PPA shall not be interpreted to create an association, joint venture, or partnership between the Parties nor to impose any partnership obligation or liability upon either
18.9 Attorneys' Fees.
It any action, arbitration, judicial reference or other proceeding is instituted The prevailing Party shall be determined by the trial of fact based upon an assessment of which
4817-6605-7645.2
Party's major arguments or positions taken in the proceedings could fairly be said to have prevailed over the other Party's major arguments or positions on major disputed issues.
18.10 Counterparts.
This PPA may be executed in several counterparts, each of which is an original and all ot which together constitute one and the same instrument. A signature on a copy of this PPA eceived by either Party by facsimile is binding upon the other Party as an original. Both Parties agree that a photocopy of such facsimile may also be treated by the Parties as a duplicate original.
18.11 Further Assurances.
The Parties shall do such further acts, perform such further actions, execute and deliver such further or additional documents and instruments as may be reasonably required or appropriate to consummate, evidence, or confirm the agreements and understandings contained herein and to carry out the intent and purposes of this PPA.
18.12 Estoppel Certificates.
From time to time, upon written request by either Party (or its financing provider(s)), the other Party shall provide within 10 days thereafter an estoppel certificate attesting, to the knowledge of the other Party, of such requesting Party's compliance with the terms of this Agreement or detailing any known issues of noncompliance. If the other Party fails to deliver such requested document to the requesting Party within such 10 day period, then the requesting Party may make an additional written demand for such requested document and if the other Party does not deliver the requested document within 10 days following such additional written demand from the requesting Party, then such failure shall constitute an event of default under this Agreement.
18.13 Construction of Agreement.
This Agreement and any ambiguities or uncertainties contained herein shall be equally and fairly interpreted for the benefit of and against all Parties to this Agreement and shall further be construed and interpreted without reference to the identity of the Party or Parties preparing this document, it being expressly understood and agreed that the Parties participated equally in the negotiation and preparation of this Agreement or have had equal opportunity to do so. Accordingly, the Parties hereby waive the legal presumption that the language of the contract should be interpreted most strongly against the Party who caused the uncertainty to exist. The captions used herein are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof.
18.14 Exhibits and Schedules.
Any and all exhibits and schedules referenced herein and/or attached hereto are hereby incorporated into this Agreement by reference.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of this 4th day of December 2019.
BUYER
City of lone
18722.
Its:
[IF GOVERNMENTAL ENTITY]
APPROVED AS TO FORM:
[Office of Counsel]
By: - Date:
Title:
SELLER
IWSolar, a California limited liability
Todd Grenich
President
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EXHIBIT A
DESCRIPTION OF PREMISES
The Premised are located on property and facilities owned by the City of lone located at 9832 Five Mile Dr., lone, CA 95640
PROPERTY LINE
I INTERTERS AT ARRAT
PROPERTT LINE CITY CE 10:3
RETEACE AID EVE MERE DE.
PY LOAD CENTER
EVE DISCONNES;
TONE. CA 9StUC
PONg TRANSGOSMER
NO TINE SETBACK
ВКОРОЗК 21
EASTEN SPEC3.
PRELIMINARY DRAWING
EVILVERTER "YPE POTLE PHA TARONER COPSIES USET LAYOUT
BYROLTOR: ILLECTER AUST COMMERCAL
PY SYSTEMA: CUTPUT: 23C AMPS :71 450V-25
NODLE TIT 30
20400712-23
A2S9BPATED VETERA
2018N3
MADOR COLITY
E715 sen
4817-6605-7645.2
EXHIBIT B
DETAILED DESCRIPTION OF THE SYSTEM
See attached design
PROPERTY LINE
EV'INVERTERS AT ARRAY
PROPER DE LINE CITY OF HONE
SETENCE
LONE, CA 23610
FU LOAD CENTEE
PI AC DISCONVEC:
CONS, CA 95840
230 AMP MAEN SMITOHGEAE
PAO MOUNTED:
I FIRE SETBICK
PROFODED 9:
LOCATRIS
SYSTEM SPECT.
PY VOGJUET FEIOTY: SU.FOMER @PR-910-395/2511,018 PRELIMINARY DRAWING
PEOTY EMERICHER CORDI CAUSE) LAYOUT
MONTOR: SUPER RIDE COMMERCAL
SISTEN A CUTLE 230 A0191 27 4901 - 20
MODULE TILT:
UTTY CONFAME F30E
GERMICE VO.TADE: 27743001E-38
ASSERTED METEPS:
24-1/e-10
4817-6605-76452
EXHIBIT C
SCHEDULE OF DEFINITIONS AND RULES OF INTERPRETATION
1. Definitions. The definitions provided below and elsewhere in this PPA will apply to the defined terms used in this PPA:
"AAA Rules" shall have the meaning ascribed to such term in Section 15.2. "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such "Applicable Law" means, with respect to any governmental authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, registration, license, franchise, permit, authorization, guideline, governmental approval, consent or requirement of such governmental authority, enforceable at law or in equity, along with the interpretation and administration thereof by any governmental "Bankrupt" means that a Party or other entity (as applicable): (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (i) becomes insolvent or is unable to pay its debts or fails (or admits in writing its inability) generally to pay its debts as they become due; (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (iv) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditor's rights, or a petition is presented for its winding-up, reorganization or liquidation, which proceeding or petition is not dismissed, stayed or vacated within 30 days thereafter; (v) commences a voluntary proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights; (vi) seeks or consents to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all of its assets; (vil) has a secured party take possession of all or substantially all of its assets, or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets; (vili) causes or is subject to any event with respect to it which, under the Applicable Laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (i) to (vii) inclusive; or (ix) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
"Bankruptcy Code" means the United States Bankruptcy Code. "Basic PPA Provisions" means the Basic PPA Provisions set forth above Article I of this PPA. "Business Day" means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. "Buyout Price" means an amount equal to 120% of the remaining balance of any debt used to finance the System.
"Commercial Operation" means that the System is ready for regular, daily operation, has been connected to the Premises electrical system, and is capable of producing Energy Output
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"Commercial Operation Date" means the first day on which the System is ready for Commercial Operation as certified in writing by Seller to Buyer.
"Confidential Information" means any non-public confidential or proprietary information of a Party or its Affiliates or any of its or their Representatives relating to this PPA and the System and revealed to the other Party or its Affiliates or any of its or their Representatives during the Term. "Contract Year" means the consecutive 12 months period commencing on the Commercial Operation Date.
"Contractor" shall mean California Solar Innovators Inc. a California Corporation. "Costs" means any fees, expenses and/or obligations incurred by either Party in connection with this Agreement or breach thereof by the other Party.
"Delivery Point" means the agreed location or locations where Energy is to be delivered and received under this PPA.
"Early Termination Date" shall have the meaning ascribed to such term in Section 9.2 "Encumbrance" means any mortgage, pledge, encumbrance, assessment, security interest, lease, lien, adverse claim, levy, charge, option, right of first refusal, restriction of any kind, or any conditional sale contract, title retention contract or other agreement to give any of the foregoing. "Energy" means electric energy (three-phase, 60-cycle alternating current, expressed in kilowatt- hours.
"Energy Deficiency Quantity" shall have the meaning ascribed to such term in Section 7.3(b)(v). "Energy Output" means the amount of electrical energy generated by the System and delivered to Buyer at the Delivery Point, as metered in whole kilowatt-hours (kWh) at the Metering Device.
The Energy Output delivered to Buyer at the Delivery Point shall be deemed to be equal to the energy measured at the Metering Device.
"Energy Payment Rate" shall have the meaning ascribed to such term in Exhibit D. "Energy Surplus Quantity" shall have the meaning ascribed to such term in Section 7.3(b)(v). "Environmental Attributes" means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the System, and its displacement of conventional energy generation. Environmental Attributes include but are not limited to renewable energy credits (however entitled) recognized under the law of the state of California, as well as: (I) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4) nitrous oxide, hydrofluoro carbons, perfluoro carbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere; (3) the reporting rights to these avoided emissions such as Green Tag Reporting Rights. Green Tag Reporting Rights are the right of a Green Tag Buyer to report the ownership of accumulated Green
4817-6605-7645.2
Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party at the Green Tag Buyer's discretion, and include without limitation those Green Tag Reporting Rights accruing 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. Green Tags are accumulated on MWh basis and one Green Tag represents the Environmental Attributes associated with one (1) Wh of energy. Environmental Attributes do not include: (i) any energy, capacity, reliability or other power attributes from the System; (ii) production or investment tax credits associated with the construction or operation of the energy projects, Treasury grants made pursuant to Section 1603 of the American Recovery and Reinvestment Act and other financial incentives in the form of credits, reductions, or allowances associated with the project that are applicable to a state or federal income taxation obligation; or (ili) emission reduction credits encumbered or used by the System for compliance with local, state, or federal operating and/or air quality permits.
"EPC Contract" shall mean that certain Engineering, Procurement and Construction Agreement, cated as of L ], 2019, between Seller and the Contractor. "Event of Default" shall have the meaning ascribed to such term in Section 9.1. "Exercise Notice" shall have the meaning ascribed to such term in Section 13.7(a). "Exercise Period" shall have the meaning ascribed to such term in Section 13.7(a). "Extension Term" shall have the meaning ascribed to such term in Section 2.1(b). "Federal Energy Regulatory Commission" shall mean the United States Federal Energy Regulatory Commission, or any successor agency.
"Force Majeure" means any event or circumstance that prevents a Party from performing its obligations under this PPA, which event or circumstance (i) is not within the reasonable control, or the result of the negligence, of the Claiming Party, and (ii) by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided. Force Majeure will not be based on (i) Buyer's inability economically to use Energy purchased hereunder, or (i) Seller's ability to sell Energy at a price greater than the price of Energy under this PPA. Economic hardship or lack of funds for any reason (including as a result of lack or insufficiency of appropriations) of either Party shall not constitute Force Majeure.
"Full Insurable Value" means the full replacement value of the System. "Governmental Authority" means any (a) nation, state, county, city, town, village, district, or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign, or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); (d) multi-national organization or body; or (e) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature. "Governmental Charges" means all applicable federal, state and local taxes (other than taxes based on income or net worth), governmental charges, emission allowance costs, duties, tariffs, levies, licenses, fees, permits, assessments, adders or surcharges (including public purposes charges and
4817-6605-7645.2
low income bill payment assistance charges), imposed or authorized by a governmental authority, independent system operator, utility, transmission and distribution provider or other similar entity, on or with respect to the Energy or this PPA.
"Independent Appraiser" means an individual who is a member of a national accounting, engineering or energy consulting firm qualified by education, experience and training to determine the value of solar generating facilities of the size and age and with the operational characteristics of the System. Except as may be otherwise agreed by the Parties, the Independent Appraiser shall not be (or within three years before his appointment have been) a director, officer or an employee of, or directly or indirectly retained as consultant or adviser to, Seller or any Affiliate of Seller or Buyer.
"Initial Term" shall have the meaning ascribed to such term in Section 2.1(a). "Installation Term" shall have the meaning ascribed to such term in Section 5.1. "Late Payment Interest Rate" means, for any date, the lesser of (i) the per annum rate of interest equal to the prime lending rate as may from time to time be published in The Wall Street Journa under "Money Rates" on such day (or, if not published on such day, on the most recent preceding day on which published), plus two percent (2%) and (ii) the maximum rate permitted by Applicable "Lease" means the Site Lease Agreement dated concurrently herewith by and between the Parties. "Loss" means any loss, liability, claim, damage, expense (including costs of investigation and defense and reasonable attorneys' fees), interest, or diminution of value, whether or not involving a third-party claim.
"Metering Device" means any and all meters at or before the Delivery Point needed for the registration, recording, and transmission of information regarding the Energy generated by the System and delivered to the Delivery Point.
"Non-Defaulting Party" shall have the meaning ascribed to such term in Section 9.2. 'Notice of Intent to Arbitrate" shall have the meaning ascribed to such term in Section 15.2 "Notices" shall have the meaning ascribed to such term in Section 16.1. "O&M Contract" shall mean that certain Operations and Maintenance Agreement between Seller and the Contractor with respect to the System.
"Performance Assurance" means collateral in form and substance reasonably acceptable to the requesting Party, including but not limited to cash, bank letter of credit, or other security. "Person" means an individual, general or limited partnership, corporation, municipal corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority, limited liability company, or any other entity of whatever nature. "Preliminary Determination" shall have the meaning ascribed to such term in Section 13.4.
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"Premises" shall have the meaning ascribed to such term in the first recital of this Agreement, as further described in Exhibit A.
"Proceeding" means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority or arbitrator.
"Purchase Price" shall have the meaning ascribed to such term in Section 13.5. "Qualifying Facility" is a generating facility which meets the requirements for Qualifying Facility status under the Public Utility Regulatory Policies Act of 1978 and part 292 ofFERC's Regulations (18 C.F.R. Part 292), and which has obtained certification of its Qualifying Facility status either through an application filed with FERC or through self-certification. "Removal Costs" means all costs associated with the removal of the System and all System Assets from the Premises, including repairing any damage to the Premises required by such removal. "Representatives" shall have the meaning ascribed to such term in Section 14.1(a). "Schedule of Definitions and Rules of Interpretation" shall have the meaning ascribed to such term in Section 1.1.
"Shading" means the extent (expressed as a percent of total area of aggregate physical obstruction per hour between the Generating Facilities' solar arrays and the sun between the hours of 9:00 a.m. and 5:00 p.m. local time.
"System" means the solar electric generating facility that produces the Energy Output sold and purchased under this PPA. The System is more particular described in Exhibit B. "System Assets" means each and all of the assets of which the System is comprised, including seller's solar energy panels, mounting systems, inverters, integrators and other related equipmen nstalled on the Premises, electric lines required to connect such equipment to the Delivery Point protective and associated equipment, improvements, and other tangible and intangible assets, permits, property rights and contract rights reasonably necessary for the construction, operation, and maintenance of the System.
"Syster Loss" means loss, theft, damage or destruction of the System or System Assets, or any other occurrence or event that prevents or limits the System from operating in whole or in part, resulting from or arising out of any cause (including casualty, condemnation or Force Majeure) other than (i) Seller's negligence or intentional misconduct, (il) Seller's breach of maintenance obligations under the PPA, or (iii) normal wear and tear of the System. "Term" means the Initial Term and any Extension Term.
"Transaction" means any transaction between the Parties under the terms of the PPA or the Lease or any other agreements, instruments, or undertakings between the Parties. "Transfer Date" shall have the meaning ascribed to such term in Section 13.9. 4817-6605-7645.2 Page 39 of 43
"USD" means United States Dollars.
2. Rules of Interpretation. In this PPA, unless expressly provided otherwise:
the words "herein," "hereunder" and "hereof" refer to the provisions of this PPA and a reference to a recital, Article, Section, subsection or paragraph of this PPA or any other agreement is a reference to a recital, Article, Section, subsection or paragraph of this PPA or other agreement in which it is used unless otherwise stated;
references to this PPA, or any other agreement or instrument, includes any schedule, exhibit, annex or other attachment hereto or thereto, and references to this PPA include the Basic PPA Provisions; a reference to a paragraph also refers to the subsection in which it is contained, and a reference to a subsection refers to the Section in which it is contained;
a reference to this PPA, any other agreement or an instrument or any provision of any of them includes any amendment, variation, restatement or replacement of this PPA or such other agreement, instrument or provision, as the case may be;
a reference to a statute or other law or a provision of any of them includes all regulations, rules, subordinate legislation and other instruments issued or promulgated thereunder as in effect from time to time and all consolidations, amendments, re-enactments, extensions or replacements of such statute, law or provision;
(f) the singular includes the plural and vice versa;
a reference to a Person includes a reference to the Person's executors and administrators (in the case of a natural person) and successors, substitutes (including Persons taking by novation) and permitted assigns; (h) words of any gender shall include the corresponding words of the other gender;
(i) "including" means "including, but not limited to," and other forms of the verb "to include" are to be interpreted similarly; references to "or" shall be deemed to be disjunctive but not necessarily exclusive, (i.e., unless the context dictates otherwise, "or" shall be interpreted to mean "and/or" rather than "either/or");
where a period of time is specified to run from or after a given day or the day of an act or event, it is to be calculated exclusive of such day; and where
4817-6605-7645.2
a period of time is specified as commencing on a given day or the day of an act or event, it is to be calculated inclusive of such day;
(1) a reference to a Business Day is a reference to a period of time commencing at 9:00 a.m. local time on a Business Day and ending at 5:00 p.m. local time on the same Business Day;
if the time for performing an obligation under this PPA expires on a day that is not a Business Day, the time shall be extended until that time on the next Business Day;
(n) a reference to (i) a month is a reference to a calendar month and (ii) a year is a reference to a calendar year;
(o) where a word or phrase is specifically defined, other grammatical forms of such word or phrase have corresponding meanings; a reference to time is a reference to the time in effect in Amador County on the relevant date;
if a payment prescribed under this PPA to be made by a Party on or by a given Business Day is made after 2:00 pm on such Business Day, it is taken to be made on the next Business Day; and
if any index used in this PPA at any time becomes unavailable, whether as a result of such index no longer being published or the material alteration of the basis for calculating such index, then Seller and Buyer shall agree upon a substitute index that most closely approximates the unavailable index as in effect prior to such unavailability. If the base date of any such index is at any time reset, then the change to the index resulting therefrom shall be adjusted accordingly for purposes of this PPA.
4817-6605-7645.2 Page 41 of 43
EXHIBIT D
Energy Payment Rate
A Fixed Rate 25 Year Tariff of USD $0.1275/kWh
4817-6605-7645.2
EXHIBIT E
Termination Value
Year Termination Value
1 $1,500,000
$1,462,500
$1,425,938
$1,390,289
$1,355,532
$1,321,644
7 8 $1,288,602
$1,256,387
9 $1,224,978
10 $1,194,353
11 $1,164,494
12 $1,135,382
13 $1,106,998
14 $1,079,323
15 $1,052,340
6 $1,026,031
7 $1,000,380
18 $975,371
9 $950,986
2 $927,212
2 $904,032
22 $881,431
23 $859,395
24 $837,910
25 $816,962
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#7
3/8/22, 9:42 AM lone, CA Code of Ordinances
Chapter 2.36 - PARKS AND RECREATION COMMISSION
Sections:
2.36.010 - Purpose.
A city-wide parks and recreation commission is established and shall be referred to as the "lone parks and recreation commission."
The purpose of the commission is to advise the city council on all matters relating to public parks and facilities and recreation matters and services.
The authority of the commission to act in an advisory capacity is to be interpreted broadly, i.e., the scope of investigation, research and recommendations may pertain to any facet of public parks and recreation activities. The commission may investigate matters on its own or at the direction of the city council. No single councilperson may direct the commission towards specific interests, but the majority of the city council at a public meeting of the city council may provide direction to the commission.
The commission shall be governed by by-laws approved by the city council. (Ord. 304 $ 2, 1990)
2.36.020 - Membership.
A. The commission shall consist of five members.
B. No less than three of the five commissioners shall reside within the city limits.
C. No member of the commission shall be an elected official of the city, an appointed employee of the city, or a member of any other city commission appointed by the city council.
D. One member of the city council may be appointed by the mayor with approval of a majority of the city council to serve as an ex-officio member of the commission.
E. The city council may from time to time appoint advisory personnel to assist the commission. Such advisors shall not have voting privileges.
(Res. 981 § 1, 1996; Ord. 304 $ 3, 1990)
2.36.030 - Terms of office.
A. Commissioners shall be appointed by the mayor with the approval of a majority of the city council.
B. The commissioners, other than advisory personnel and ex-officio members, shall be appointed as follows:
1/2
3/8/22, 9:42 AM lone, CA Code of Ordinances
Three of the members first appointed shall be designated to serve the terms of one, two, and three years respectively from the date of their appointments and two shall be designated to serve for terms of four years from the date of their appointments. All successors shall be appointed for two years. The term of office shall start on the fourth day of September and shall end on the third day of September two years from that initial date. A member shall hold office until his or her successor has been appointed.
C. Any commissioner who misses three consecutive meetings with unexcused absences may be requested by the commission, the city council, or the mayor to resign.
D. The first chairperson of the commission shall be designated by the mayor to serve a term of four years. Thereafter, the chairperson shall be elected annually at the commission's first meeting in September by the member of the commission. A vice-chairperson shall also be elected at that meeting.
(Res. 1274 55 1, 2, 2001; Ord. 304 $ 4, 1990)
2.36.040 - Powers, duties and procedures.
A. The commission shall operate pursuant to by-laws approved by the city council.
B. The powers and functions of the commission may include:
1. Research, investigations, studies and analysis of park and recreation matters;
2. Preparing and recommending policy matters for consideration by the city council;
3. Oversee implementation policies as directed by the city council;
4. Preparing and recommending master development plans and capital improvement plans for park facilities;
5. Preparing and recommending recreation service/activities programs;
6. Acting in its advisory capacity to recommend policy to the city council which will provide for improved park facilities and recreational activities, and the maintenance and operation of those facilities and services.
(Ord. 304 $ 5, 1990)
2.36.050 - Time and place of meeting.
The park and recreation commission shall meet regularly at City Hall, 1 East Main Street, at seven p.m. on the fourth Tuesday of each month. Other meetings may be called from time to time in the manner required by law.
(Res. 1336 § 1, 2002)
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