15 ES-AGY-2016-001
Agreement, at law or in equity, and without constituting or resulting in a waiver, release or estoppel of any right, action or cause of action the Signatory Members may have against NCPA, terminate this Agreement in whole, subject to the provisions of Section 12.6.4. Termination by one Signatory Member shall not affect the validity of the Agreement as to other Signatory Members.
Section 11. Insurance, Defense and Indemnity Obligations
11.1 Limitation of NCPA Liability. Except as otherwise provided in this Section 11, NCPA shall not at any time be liable for any injury or damage occurring to a Participating Member or any other person or property from any cause whatsoever arising out of this Agreement or any Confirmation entered into pursuant to this Agreement.
11.2 Limited Right of Recourse. The provisions of Section 11.1 shall not apply where the injury or damage is to a Participating Member and is caused by the active negligence of NCPA or of any employee, agent or contractor of NCPA, provided, however, that any liability under this subsection is limited to the extent of the actual coverage and coverage limits of the insurance policies described in this Section 11.
11.2.1 Reimbursement of NCPA Deductibles. Notwithstanding Section 11.2 above, the applicable Participating Member agrees to reimburse NCPA, in a timely manner, for all deductibles or and/or self-insured retentions payable by NCPA for any claim, liability, or damage arising out of this Agreement or any Confirmation entered into pursuant to this Agreement.
11.3 Indemnity Obligation of Participating Members. Except as provided in Section
11.2 above, each Participating Member as to the particular Confirmation involved shall, at its sole cost and expense, indemnify and hold harmless NCPA, and its Members, and their respective officers, agents and employees (“Indemnitees”) from and against any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including reasonable attorneys’ fees), which may be imposed upon, incurred by or be asserted against the Indemnitees arising out of this Agreement or any Confirmation entered into pursuant to this Agreement.
11.4 Defense Obligation of Participating Members. In the event any action or proceeding shall be brought against the Indemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, the Participating Members as to the Confirmation involved shall, upon reasonable prior written notice from any of the Indemnitees, at Participating Member’s sole cost and expense, resist and defend the same with legal counsel mutually selected by Indemnitee and the Participating Member or Members, unless mutual selection of counsel is expressly prohibited by an applicable insurance policy; provided however, that neither Indemnitee nor Participating Member shall admit liability in any such matter or on behalf of the other without express written consent, which consent shall not be unreasonably withheld or delayed, nor enter into any compromise or settlement of any claim for which Indemnitees are indemnified hereunder without prior express written consent. The Participating
16 ES-AGY-2016-001
Member’s duty to defend shall begin upon receipt of a written notice identifying with specificity the allegations that give rise to this duty to defend.
11.5. Notice of Claims Required. The Parties shall give each other prompt written notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section 11.
11.6 NCPA Obligation to Maintain Insurance. During the term of the Agreement and prior to providing Support Services under any Confirmation issued pursuant to this Agreement, NCPA shall maintain, or cause to be maintained, in full force and effect, and at its sole cost and expense, the types and limits of insurance as are annually approved by the governing Commission of NCPA.
11.7 Participating Member Insurance. The Signatory Members acknowledge that there are significant limits on NCPA’s liability under the this section 11 and that upon becoming a Participating Member as to one or more Confirmations, the Participating Member may wish to purchase additional insurance of its own to cover the additional risks and the potential additional liabilities it is assuming under this Agreement and Confirmations entered into pursuant to this Agreement. Each Participating Member will, with respect to any additional insurance it obtains or which is otherwise available to it, cause its insurers to issue an endorsement providing a waiver of subrogation rights as to the Indemnitees.
11.8 Survival of Obligations. The defense and indemnity obligations of this Section 11 shall survive the termination of this Agreement.
Section 12. Default and Remedies.
12.1 Events of Default. An Event of Default under this Agreement shall exist upon the occurrence of any one or more of the following by a Party in default of its obligations hereunder (“Defaulting Party”):
(i) if any Signatory Member or Participating Member fails to make any payment due hereunder or to provide assurances as required of NCPA under a Confirmation when due hereunder within two (2) Business Days after receipt of notice given by NCPA of such non-payment; or
(ii) the failure of a Signatory Member to perform any other covenant or obligation under this Agreement where such failure is not cured within ten (10) calendar days following receipt of a notice from NCPA demanding cure (provided that this shall not apply to any failure to make payments (which is covered by Section 12.1 (i) ); or (iii) if any representation or warranty of a Signatory Member material to the transactions contemplated hereby shall prove to have been incorrect in any material respect when made and the Signatory Member does not cure the facts underlying such incorrect representation or warranty so that the representation or warranty becomes true and
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correct within ten (10) calendar days of the date of receipt of notice from any other Party demanding cure; or
(iv) if a Signatory Member is in default or in breach of any of its covenants under any other agreement with NCPA and such default or breach is not cured within the time periods specified in such agreement; or
(v) the failure of NCPA to perform any covenant or obligation under this Agreement following a ten (10) calendar day notice to cure by any non-defaulting Signatory Member.
12.2 Cure of an Event of Default. An Event of Default shall be deemed cured only if such default shall be remedied within the time period specified in Section 12.1 above, as may be applicable, after written notice has been sent to the Defaulting Party from NCPA or a nondefaulting Signatory Member specifying the default and demanding that the same be remedied; provided, however, that the failure of a Party to provide such notice shall not be deemed a waiver of such default.
12.3 Participation Rights Of Defaulting Signatory Member. Notwithstanding anything herein to the contrary, upon the occurrence of an Event of Default and until such Event of Default is cured, the Signatory Member that is the Defaulting Party shall not have the right to participate under any additional Confirmations.
12.4 Remedies in the Event of Default.
12.4.1 Remedies of NCPA. Upon the occurrence of an Event of Default where a Signatory Member is the Defaulting Party, without limiting its other rights or remedies available under this Agreement, at law or in equity, and without constituting or resulting in a waiver, release or estoppel of any right, action or cause of action NCPA may have against the Defaulting Party Participant, NCPA may: (i) suspend the provision of Support Services under this Agreement or any Confirmation issued pursuant to this Agreement to such Defaulting Party until the Event of Default is cured; (ii) demand that the Defaulting Party provide further assurances to compel the correction of the default, including the collection of a surcharge, or such other actions as may be necessary to produce Revenues to secure the cure of the Event of Default; and (iii) terminate this Agreement or any Confirmation as to the Defaulting Party, following the expiration of any applicable cure period pursuant to section 12.1, on ten (10) calendar days’ prior written notice to the Defaulting Party.
12.4.2 Remedies of Signatory Members. Upon the occurrence of an Event of Default where NCPA is the Defaulting Party, and following the applicable cure periods pursuant to section 12.1, one or more Signatory Members may, without limiting their other rights or remedies available under this Agreement, at law or in equity, and without constituting or resulting in a waiver, release or estoppel of any right, action or cause of action they may have against NCPA, terminate this Agreement as to themselves and without affecting the validity of the Agreement as to other Signatory Members, subject to the provisions of Section 12.6.4.
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12.5 Special Covenants Regarding Security Accounts. In the event that a Participating Member’s balance in a required Security Account is insufficient to cover all invoices for Costs incurred under this Agreement sent to such Participating Member, then, without limiting NCPA’s other rights or remedies available under this Agreement, at law or in equity, such Participating Member shall cooperate in good faith with NCPA and shall cure the deficit as rapidly as possible, on an emergency basis, taking all such action as is necessary, including, but not limited to, raising rates and charges to its customers to increase its Revenues to replenish its share of the Security Accounts as provided herein, drawing on its cash-on-hand and lines of credit, obtaining further assurances by way of credit support and letters of credit, and taking all such other action as will cure the default with all due haste.
12.6 Effect of Termination or Suspension.
12.6.1 Generally. The suspension or termination of this Agreement will not terminate, waive, or otherwise discharge any ongoing or undischarged contingent liabilities or obligations arising from this Agreement until such obligations are satisfied in full, and all of the Costs incurred by NCPA in connection with such suspension or termination, including reasonable attorney fees, the fees and expenses of other experts, including auditors and accountants, other costs and expenses that NCPA is entitled to recover under this Agreement, and other reasonable and necessary costs associated with any and all of the remedies, are paid in full.
12.6.2 Suspension by NCPA. If performance of all or any portion of this Agreement is suspended by NCPA with respect to a Signatory Member in accordance with Section 12.4.1(i) such Signatory Member shall pay any and all Costs incurred by NCPA as a result of such suspension including reasonable attorney fees, the fees and expenses of other experts, including auditors and accountants, other reasonable and necessary costs associated with such suspension and any portion of the Costs that were not recovered from such Signatory Member as a result of such suspension.
12.6.3 Termination by NCPA. If this Agreement is terminated by NCPA with respect to a Signatory Member in accordance with Section 12.4.1(iii) such Signatory Member shall pay any and all Costs incurred by NCPA as a result of such termination, including reasonable attorney fees, the fees and expenses of other experts, including auditors and accountants, other reasonable and necessary costs associated with such termination and any portion of the Costs that were not, or will not be, recovered from such Signatory as a result of such termination; provided, however, if NCPA terminates this Agreement with respect to the last remaining Signatory Member, then this Agreement shall terminate.
12.6.4 Termination by Signatory Members. If this Agreement is terminated by all Signatory Members in accordance with Section 10.4 , or by unanimous consent of all of the Parties hereto, then the Signatory Members shall pay to NCPA all previously unpaid Costs incurred as of the date of such termination. The Signatory Members shall indemnify NCPA for any costs incurred in connection with such termination, including reasonable attorney fees, fees
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and expenses of other experts, including auditors and accountants and other reasonable and necessary costs. If the Parties are unable to reach agreement as to the foregoing, then the Parties agree to submit the matter to mediation with a mutually agreed upon mediator. If the Parties are still unable to reach agreement following mediation, then the matter shall be submitted to binding arbitration subject to the rules of the American Arbitration Association, the costs of such arbitration being borne equally among the Signatory Members.
Section 13. Uncontrollable Forces.
13.1 Uncontrollable Force In General. Obligations of the Parties, other than those to pay money when due, shall be excused for so long as and to the extent that failure to perform such obligations is due to an Uncontrollable Force; provided, however, that if a Party is unable to perform due to an Uncontrollable Force, such Party shall exercise due diligence to remove such inability with reasonable dispatch. Nothing contained in this Agreement shall be construed as requiring a Party to settle any strike, lockout, or labor dispute in which it may be involved, or to accept any permit, certificate, contract, or any other service agreement or authorization necessary for the performance of this Agreement or any Confirmations issued pursuant to this Agreement which contains terms and conditions which a Party determines in its good faith judgment are unduly burdensome or otherwise unacceptable.
13.2 Each Party shall notify the others promptly, by telephone to the other Parties’ operating personnel as applicable and to the parties’ Designated Representatives upon becoming aware of any Uncontrollable Force which may adversely affect the performance under this Agreement or any Confirmation entered into pursuant to this Agreement. A Party shall additionally provide written notice to any affected Parties within 24 hours after providing. Each Party shall notify the others promptly, when an Uncontrollable Force has been remedied or no longer exists.
Section 14. Dispute Resolution.
14.1 Informal Dispute Resolution. If any dispute arises between the Parties that cannot be settled after engaging in good faith negotiations, Signatory Members and NCPA agree to resolve the dispute in accordance with the following:
14.1.1 Each Party shall designate a senior management or executive level representative to negotiate any dispute;
14.1.2 The representatives shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority.
14.1.3 If the issue remains unresolved after thirty (30) days of good faith negotiations, despite having used their best efforts to do so, either Party may pursue arbitration pursuant to Section 14.2.
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14.2 Arbitration. In the event that a dispute is unresolved following the informal dispute resolution process established in Section 14.1, either Party may, within sixty (60) days of the termination of such informal dispute resolution process, initiate binding arbitration to resolve such dispute. Disputes shall be arbitrated pursuant to the Commercial Arbitration and Mediation Rules of the American Arbitration Association. The costs of arbitration shall be equally shared by the Parties, and the Parties shall bear their own attorneys’ fees. The arbitrator shall have no authority to amend this Agreement or any Confirmation.
14.3 Claims. This informal resolution process is not intended to nor shall it be construed to, change the time periods for filing a claim or action specified by Government Code § 900, et seq.
Section 15. Miscellaneous
15.1 Compliance with Applicable Laws. NCPA and any subcontractors shall comply with all laws applicable to the performance or provision of the Support Services hereunder.
15.2 Other Governmental Regulations. To the extent that this Agreement or any Confirmation entered into pursuant to this Agreement may be funded by fiscal assistance from another governmental entity, NCPA and any subcontractors shall comply with all applicable rules and regulations to which Participating Members are bound by the terms of such fiscal assistance program.
15.3 Licenses and Permits. NCPA represents and warrants to Participating Members that NCPA and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that is legally required to practice their respective professions. NCPA represents and warrants to Participating Members that NCPA and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions.
15.4 Independent Contractor. At all times during the term of this Agreement, NCPA shall be an independent contractor and shall not be an employee of any Participating Member.
A Participating Member shall not have the right to control the means by which NCPA accomplishes Support Services rendered pursuant to this Agreement and the Confirmations entered into pursuant to this Agreement. Notwithstanding any other agency, state, local or federal policy, rule, regulation, law, or ordinance to the contrary, NCPA and any of its employees, agents, and subcontractors providing Support Services under this Agreement and the Confirmations entered into pursuant to this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by any Participating Member, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of a Participating Member and entitlement to any contribution to be paid by a Participating Member for employer contributions and/or employee contributions for PERS benefits.
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15.5 Confidentiality. The Parties will keep confidential all confidential or trade secret information made available to them in connection with this Agreement (including all Confirmations entered into pursuant to this Agreement), to the extent possible, consistent with applicable laws, including the California Public Records Act. It shall be the responsibility of the holder of the claim of confidentiality or trade secret to defend at its expense against any request that such information be disclosed. Confidential or trade secret information shall be marked or expressly identified as such.
15.6 Liabilities of Signatory Members.
15.6.1 No Signatory Member shall be liable under this Agreement for the obligations of any Confirmation as to which it is not a Participating Member. Notwithstanding the foregoing, the Parties acknowledge that any debts or obligations entered into by NCPA pursuant to this Agreement not connected with any Confirmation shall be jointly and severally borne by them as Signatory Members , and not by non-Signatory Members of NCPA, pursuant to Article IV, Section 3(b) of the Joint Powers Agreement.
15.6.2 Each Participating Member shall be solely responsible and liable for performance of its own obligations under this Agreement as to those Confirmations under which it has chosen to receive Member Services. The obligation of each Participating Member under a given Confirmation is a several obligation and not a joint obligation with those other Participating Members with respect to a given Confirmation, subject to the authority of NCPA pursuant to section 7 to utilize Security Account funds if necessary for a given Confirmation regardless of the Participating Member which provided such Security Account funds.
15.7 No Consequential Damages. FOR ANY BREACH OF ANY PROVISION OF
THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY OR MEASURE OF
DAMAGES IS PROVIDED IN THIS AGREEMENT, THE LIABILITY OF THE
DEFAULTING PARTY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER DAMAGES OR REMEDIES ARE HEREBY WAIVED. IF NO
REMEDY OR MEASURE OF DAMAGE IS EXPRESSLY PROVIDED, THE LIABILITY
OF THE DEFAULTING PARTY SHALL BE LIMITED TO ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES AND REMEDIES ARE HEREBY WAIVED. IN NO
EVENT SHALL NCPA OR ANY PARTICIPATING OR SIGNATORY OR OTHER
MEMBER OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, REPRESENTATIVES,
DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY LOST
PROFITS, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR
INCIDENTAL LOSSES OR DAMAGES, INCLUDING LOSS OF USE, LOSS OF
GOODWILL, LOST REVENUES, LOSS OF PROFIT OR LOSS OF CONTRACTS
ARISING FROM THIS AGREEMENT OR ANY CONFIRMATION ENTERED INTO
PURSUANT TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH SIGNATORY MEMBER EACH
HEREBY WAIVES SUCH CLAIMS AND RELEASES EACH OTHER AND EACH OF NCPA AND ITS MEMBERS FROM ANY SUCH LIABILITY.
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The Parties acknowledge that California Civil Code section 1542 provides that: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” The Parties waive the provisions of section 1542, or other similar provisions of law, and intend that the waiver and release provided by this section of this Agreement shall be fully enforceable despite its reference to future or unknown claims and its application to future and unknown Confirmations.
15.8 Amendments. Except where this Agreement specifically provides otherwise, this Agreement may be amended only by written instrument executed by the Parties with the same formality as this Agreement.
15.9 Severability. In the event that any of the terms, covenants or conditions of this Agreement or the application of any such term, covenant or condition, including application to any particular Confirmation, shall be held invalid as to any person or circumstance by any court having jurisdiction, all other terms, covenants or conditions of this Agreement and their application shall not be affected thereby, but shall remain in force and effect unless the court holds that such provisions are not severable from all other provisions of this Agreement.
15.10 Governing Law. This Agreement shall be interpreted, governed by, and construed under the laws of the State of California.
15.11 Headings. All indices, titles, subject headings, section titles and similar items are provided for the purpose of convenience and are not intended to be inclusive, definitive, or affect the meaning of the contents of this Agreement or the scope thereof.
15.12 Notices. Any notice, demand or request required or authorized by this Agreement or any Confirmation entered into pursuant to this Agreement, to be given to any Party shall be in writing. They shall either be personally delivered to a Signatory Member’s Designated Representatives and to the Secretary of the Commission or transmitted to the Signatory Member’s Designated Representatives and to the Secretary of the Commission at the addresses shown on the signature pages hereof by U.S. mail, first class postage prepaid. The designation of such address may be changed at any time by written notice given to the Secretary of the Commission who shall thereupon give written notice of such change to each Participant.
Notices shall be deemed received upon delivery or three (3) days after mailing.
15.13 Warranty of Authority. Each Party represents and warrants that it has been duly authorized by all requisite approval and action to execute and deliver this Agreement and that this Agreement is a binding, legal, and valid agreement enforceable in accordance with its terms as to that Party.
15.14 Counterparts. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument and as if all the signatories to all of the counterparts had signed the same instrument. Any signature page of this Agreement may be detached from any counterpart of this Agreement without
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impairing the legal effect of any signatures thereon, and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more signature pages.
15.15 No Assignment. Except as otherwise provided in a particular Confirmation, no Signatory Member may assign or otherwise transfer any other rights and obligations under this Agreement without the express written consent of NCPA.
15.16 Venue. In the event that a Party brings any action under this Agreement or any Confirmation issued pursuant to this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Placer or in the United States District Court for the Eastern District of California.
15.17 Attorneys’ Fees. If a Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement or any Confirmation issued pursuant to this Agreement, the Parties shall bear their own attorneys’ fees.
15.18 Interpretation. Each Party to this Agreement is sophisticated in the operation of electric utilities, and operates a publicly owned Electric System. Each Party to this Agreement was represented by counsel during the negotiation of this Agreement. Hence, this Agreement and all Confirmations issued pursuant to this Agreement shall be interpreted as being equally drafted by all Parties and without reference to Civil Code Section 1654 requiring interpretation against Parties causing an ambiguity.
15.19 No Third Party Beneficiaries. Except as otherwise provided in a particular Confirmation to the contrary, nothing contained in this Agreement or any Confirmation issued pursuant to this Agreement is intended by the Parties, nor shall any provision of this Agreement or any Confirmation issued pursuant to this Agreement be deemed or construed by the Parties or by any third person, to be for the benefit of any third party, nor shall any third party have any right to enforce any provision of this Agreement or any Confirmation issued pursuant to this Agreement or be entitled to damages for any breach by the Parties of any of the provisions of this Agreement or any Confirmation issued pursuant to this Agreement.
15.20 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement or any Confirmation does not constitute a waiver of any other breach of that term or any other term of this Agreement or Confirmation.
15.21 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
15.22 Conflict of Interest. NCPA shall not employ any Participating Member official or employee to perform Support Services for that Participating Member. No officer or employee of Participating Member shall have any financial interest in this Agreement or any Confirmation entered into pursuant to this Agreement that would violate California Government Code Sections 1090 et seq.
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EXHIBIT “A”
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved, executed and joined by the following NCPA Member as a Signatory Member:
____________________________ [Name of NCPA Member Agency]
1. The initial Designated Representatives of the Signatory Member who are jointly authorized to execute Confirmations on behalf of the Signatory Member are:
___________________________ ____________________________ Utility Director General Counsel or City Attorney
2. The Designated Representatives are authorized to jointly execute any given individual Confirmation for Support Services on behalf of the Signatory Member which does not exceed $_____________ .
The NCPA Support Services Program Agreement was approved on ______________ __, 20__ by resolution no. ______ of the ____________________ _______________[Name of Governing Body of Signatory Member, e.g., “city council” or “board of directors”].
By:________________________________ [Signature of person executing] Its:________________________________ [Title of person executing] Attest:
__________________________ [Signature of Person Attesting to Approval] Its: _______________________ [Title of Person Attesting] Approved as to Form:
By: _______________________________
Title: _______________________________
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EXHIBIT “B”
NCPA Services Program Agreement Form of Confirmation:
CONFIRMATION UNDER THE NCPA SUPPORT SERVICES PROGRAM
AGREEMENT
1. This is a Confirmation pursuant to the Support Services Program Agreement and subject to the terms and conditions of that agreement, except as expressly provided in this Confirmation. All capitalized terms have the meaning given to them in the Support Services Program Agreement.
2. The Participating Members for this Confirmation are:
3. NCPA agrees to provide the following Support Services to the Participating Members:
The Support Services will be contracted for by NCPA with ____________ using an agreement in substantially the form attached to this Confirmation.
4. The Participating Members executing this Confirmation agree to pay for the Support Services in the not to exceed amounts specified in this Confirmation and in accordance with the provisions of the Support Services Program Agreement:
5. A Security Account deposit [ is not required for this Confirmation/is required for this Confirmation in the amount of $ ______________ ]
Participating Member ____________ NORTHERN CALIFORNIA POWER AGENCY By:__________________________
By its Designated Representatives:
___________________________ Randy S. Howard, General Manager and
___________________________ Attest:
______________________________
Cary Padgett,
Assistant Secretary to the Commission
Approved as to Form:
By: __________________________
2507645.12 General Counsel
EXHIBIT "A"
NORTHERN CALIFORNIA POWER AGENCY
SUPPORT SERVICES PROGRAM AGREEMENT
Signatory Member Execution Page
The Support Services Program Agreement is hereby approved, executed and joined by the following NCPA Mernber as a Signatory Member:
THE CITY OF LODI
CityYanager - Steve Scuer
Authorized for Not More Than $20,000
Per Confirmation
2. The Designated Representatives are authorized to jointly execute any given individual Confirmation for Support Services on behalf of the Signatory Member which does not exceed the dollar amounts specified above.
The NCPA Support Services Program Agreement was approved on pr ttyL { 2, 2016 by Resolution no. 2016- lW-., of the Lodi City Council. ty Dire or - Elizabeth Kirldey
Authorized for Not More Than $15,000
Per Confirmation
--was S
1. The initial Designated Representatives of the Signatory Member who are jointly autho, -d to execute Confirmations on behalf of the Signatory Member are:
City A lorney - Janice D. Magdich
[Signature of person executing]
[Title of person executing]
By:
'anice_DlMagdich
Title: City Attorney
Attachment 2
RESOLUTION No.__
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH APPROVING THE SUPPORT
SERVICES PROGRAM AGREEMENT WITH THE NORTHERN CALIFORNIA POWER AGENCY WHEREAS, the City of Ukiah is a member of the Northern California Power Agency (NCPA), a joint action agency providing members with opportunities for joint generating, transmission and other projects, as well as other supporting programs such as scheduling and dispatch services and legislative advocacy services to publicly owned utilities throughout Northern California; and WHEREAS, the City of Ukiah is a member of NCPA and currently receives benefit from various projects and programs offered at NCPA; and
WHEREAS, NCPA has expanded service offerings to its members by offering additional support services such as joint purchasing, engineering services, transmission and distribution planning, power marketing and analysis, employee training, employment and human relations assistance, customer services and billing, metering and data management, power plant operations, and other forms of assistance and professional services relating to the operation of a publicly owned electric utility, as related to either the generation, transmission, or distribution of electricity or the wholesale or retail operation of such a utility; and
WHEREAS, approval of the attached Support Services Program Agreement (SSPA) between the Northern California Power Agency (NCPA) and the City of Ukiah will provide the opportunity for the City of Ukiah to utilize the benefit of these new services; and WHEREAS, the SSPA provides that Designated Representatives are responsible for committing to individual service offerings on behalf of a member organization and that the governing board of said member delegate authority to bind the City/member to contractually receive and pay for service offerings in writing through a confirmation process; and
WHEREAS, Staff recommends that the City Council appoints the City Attorney, City Manager and Electric Utility Director as Designated Representatives under the SSPA and authority to them, together, to execute service confirmations for amounts not to exceed $20,000 per confirmation or such greater amount as may be authorized by City Council action or applicable City ordinance.; NOW, THEREFORE BE IT RESOLVED, that the City of Ukiah Council hereby:
1) Approves the Support Services Agreement between the Northern California Power Agency and the City of Ukiah and authorizes the City Manager or his delegate to execute the agreement; and
2) Appoints the City Attorney, City Manager and Electric Utility Director as Designated Representatives under the SSPA and authority to them, together, to execute service confirmations for amounts not to exceed $20,000 per confirmation or such greater amount as may be authorized by City Council action or applicable City ordinance.
PASSED, ADOPTED and APPROVED this 19
th day of January, 2022 by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
____________________________________
Jim O. Brown, Mayor
____________________________________
Kristine Lawler, City Clerk
Agenda Item No: 7.i.
MEETING DATE/TIME: 1/19/2022
ITEM NO: 2022-15
AGENDA SUMMARY REPORT
SUBJECT: Notification of Purchase Order #47600-02 Issued to Bartley Pump PM, LLC for the Teardown, Inspection, and Rehabilitation of Well #8 in the Amount of $28,689.70.
DEPARTMENT: Water Resources PREPARED BY: Sean White, Water Resources Director, Seth Strader, Buyer I
PRESENTER: Consent Calendar
ATTACHMENTS:
1. Well 8 rehab PO (Attachment 1)
Summary: Council will receive notification of Purchase Order #47600-02 issued to Bartley Pump PM, LLC for the teardown, inspection, and rehabilitation of Well #8 in the amount of $28,689.70.
Background: Well #8 was designed and constructed to produce approximately 1,100 gallons per minute (gpm). However, Well #8 has never performed to anticipated levels since its construction in 2008. Actual production has ranged from 370-500 gpm. As a result the pump, motor, and Variable Frequency Drive (VFD) have never operated correctly. This mismatch has been the source of premature pump and motor failure in the past. Both the pump and motor recently failed again.
Additionally, the reduced capacity of this facility became a significant production limitation during the drought of 2021.
Discussion: Staff has been planning on rehabilitating this facility when the existing pump and motor reached the end of its service. With the recent failure of these components, and the possibility of another year of drought, staff has begun rehabilitation prior to the onset of the high-demand season. Purchase Order #47600- 02 was issued to Bartley Pump PM, LLC on December 2, 2021, for the teardown, inspection, and rehabilitation of Well #8 in the amount of $28,689.70.
Following rehabilitation of the well casing, a new motor and pump will be installed that will be designed to match post-rehabilitation test results. This will ensure maximum equipment service life, as well as greatly improve energy efficiency.
Recommended Action: Receive notification of Purchase Order #47600-02 issued to Bartley Pump PM, LLC for the teardown, inspection, and rehabilitation of Well #8 in the amount of $28,689.70.
BUDGET AMENDMENT REQUIRED: No
CURRENT BUDGET AMOUNT: 82027111.56120 - $36,059.71
PROPOSED BUDGET AMOUNT: N/A
FINANCING SOURCE: Water Fund
PREVIOUS CONTRACT/PURCHASE ORDER NO.: PO 47600
COORDINATED WITH: Mary Horger
Purchase Order
Purchase
Order #
THIS NUMBER MUST APPEAR ON ALL INVOICES,
PACKAGES AND SHIPPING PAPERS.
Fiscal Year
Vendor Phone Number Vendor Fax Number Buyer Date Ordered Date Required Page of
Delivery must be made within
doors of specified destination.
Item# Description/Part No. Qty UOM Unit Price Extended Price By
Purchasing Supervisor VENDOR COPY PO Total
B
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T
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V
E
N
D
O
R
S
H
I
P
T
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CITY OF UKIAH
ATTN: ACCOUNTS PAYABLE
300 SEMINARY AVENUE
UKIAH, CA 95482
Delivery Reference Freight Method/Terms Department/Location Sales Tax Rate 2022 1 1
47600-02
BARTLEY PUMP PM, LLC
4000 S MOORLAND AVE
SANTA ROSA CA 95407
CITY OF UKIAH - WTP
935 RIVER ROAD
UKIAH CA 95482
707-584-9191 Mary Horger 12/02/2021
N30/FOB UKAIAH WATER PRODUCTION 7.880
$28,689.70
1 PULL PUMP OUT OF WELL #8 AND RUN WELL VIDEO 9460.0 DOLL $1.000 $9,460.00
TO SEE THE INTEGRITY OF THE CASING AND
SCREEN. FURTHER RECOMMENDATIONS TO
FOLLOW.
2 LABOR TO PRE-BRUSH WELL, THEN PERFORM AN 19229.7 DOLL $1.000 $19,229.70
AIRSHOCK TO GET PERFORATIONS OPENED AND
CLEANED, THEN SWAB THE SCREENED AREA AND
BAIL BOTTOM CLEAN, AND PERFORM A POST
VIDEO, PER QUOTE DATED 12/27/2021.
REF REQ E38897
AS PER QUOTE DATED 12/1/21
SUBJECT TO PREVAILING WAGE ADDENDUM,
ATTACHED.
MH 1/3/2022: ADDED LINE 2. WILL GO TO COUNCIL
TO REPORT.
Attachment 1
1 GENERALLY. These Terms and Conditions of
Sale (“Terms and Conditions”) apply to all purchases by City of Ukiah. (Referred to as “Buyer”). The supplier of goods and services under this transaction is herein
referred to as “Seller”. The goods or service purchased are referred to as the “Purchase.”
2. TERMS EXCLUSIVE. Buyer will order the goods
or services described herein only upon the terms and
conditions contained herein. Seller’s acceptance of this order shall occur either through commencement of
performance under this order or acknowledgment of this
order. By accepting this order, Seller waives all terms and conditions contained in its quotation, acknowledgment,
invoice or other documents which are different from or
additional to those contained herein and all such different or additional terms and conditions shall be null and void.
SELLER MAY NOT CHANGE MATERIAL OF
MANUFACTURE, SOURCES OF SUPPLY, MANUFACTURING PROCESS OR LOCATION WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER.
3. INSPECTION. All goods shall be received subject
to Buyer’s inspection and rejection. Defective goods and goods otherwise not conforming to this order shall be held for Seller’s instruction and at Seller’s risk, and if Seller so directs, shall be returned at Seller’s expense. No defective goods shall be replaced without a new purchase order.
Payment by Buyer shall not be construed as an
acceptance of goods. Buyer may return to Seller any non-defective, excess goods within thirty (30) days of receiving them.
4. CHANGES. City may make changes within the
general scope of this order in drawings and specifications for specially manufactured supplies, place of delivery, method of shipment or packing of the order by giving notice to Seller and subsequently confirming such changes in writing. If such changes affect the cost of or the time required for performance of this order, an equitable
adjustment in the price or delivery or both must be made.
No change by Seller is allowed without City’s written
approval. Any claim by Seller for an adjustment under this section must be made in writing within thirty (30) days from the date of receipt by Seller of notification of such change unless City waives this condition in writing. Nothing in this section excuses Seller from proceeding with performance of the order as changed.
5. TERMINATION. City may terminate this order at
any time, either verbally or in writing, with or without cause.
Should termination occur, City will pay Seller as full
performance until such termination the unit or pro rata order price for the performed and accepted portion of the Purchase. City may provide written notice of termination for Seller’s default if Seller refuses or fails to comply with this order. If Seller does not cure such failure within a reasonable time period, or fails to perform the Purchase within the time specified (or allowed by extension), Seller will be liable to City for any excess costs incurred by City.
6. TIME EXTENSION. Time is of the essence City
may extend the time for completion if, in City’s sole
determination, Seller was delayed because of causes
beyond Seller’s control and without Seller’s fault or
negligence. In the event delay was caused by City, Seller’s sole remedy is limited to recovering money actually and necessarily expended by Seller because of the delay; there is no right to recover anticipated profit.
7. REMEDIES CUMULATIVE. City’s rights and
remedies under this order are not exclusive and are in
addition to any rights and remedies provided by law.
8. TITLE. Title to materials and supplies purchased
under this order pass directly from Seller to City upon City’s written acceptance following an actual inspection and City’s opportunity to reject.
9. PAYMENT. City will pay Seller after receiving
acceptable invoices for materials and supplies delivered and accepted or services rendered and accepted. City will not pay cartage, shipping, packaging or boxing expenses unless specified in this order.
10. INDEMNIFICATION. Seller agrees to indemnify and hold harmless from and against any claim, action, damages, costs (including, without limitation, attorney’s fees), injuries, or liability, arising out of the Purchase or the order, or their performance. Should City be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of the Purchase or order, or their performance, Seller will defend City (at City’s request and with counsel
satisfactory to City) and indemnify City for any judgment rendered against it or any sums paid out in settlement or otherwise. For purposes of this section “City” includes City’s officers, elected officials, and employees. This paragraph 9 will survive termination of this order. The requirements as to the types and limits of insurance
coverage to be maintained by Seller, and any approval of such insurance by City, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by Seller pursuant to this order, including, without limitation, to the provisions concerning indemnification.
11. WARRANTY. Seller agrees that the Purchase is
covered by the most favorable commercial warranties the Seller gives to any customer for the same or substantially similar supplies or services, or such other more favorable warranties as is specified in this order. Warranties will be effective notwithstanding any inspection or acceptance of the Purchase by City.
12. ASSIGNMENT. City may assign this order.
Except as to any payment due under this order, Seller may not assign or subcontract the order without City’s written approval. Should City give consent, it will not relieve Seller from any obligations under this order and any transferee or subcontractor will be considered Seller’s agent.
13. INSURANCE. Seller must provide the insurance
indicated on the face sheet of this order.
14. PERMITS. Seller must procure all necessary permits and licenses, and abide by all federal, state, and local laws, for performing this order.
15. INDEPENDENT CONTRACTOR. City and Seller
agree that Seller will act as an independent contractor and will have control of all work and the manner in which it is performed. Seller will be free to contract for similar service to be performed for other employers while under contract with City. Seller is not an agent or employee of City and is not entitled to participate in any pension plan, insurance, bonus or similar benefits City provides for its employees. Any provision in this order that may appear to give City the right to direct Seller as to the details of doing the work or to exercise a measure of control over the work means the
Seller will follow the direction of the City as to end results of the work only.
16. WAIVER. City’s review or acceptance of, or
payment for, work product prepared by Seller under this order will not be construed to operate as a waiver of any rights City may have under this Agreement or of any cause of action arising from Seller’s performance. A waiver by City of any breach of any term, covenant, or condition contained in this order will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this order, whether of the same or different character.
17. INTERPRETATION. This Agreement was drafted
in, and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this agreement will be in Mendocino County.
Agenda Item No: 7.i.
MEETING DATE/TIME: 1/19/2022
ITEM NO: 2022-23
AGENDA SUMMARY REPORT
SUBJECT: Authorize City Manager to Sign Airport Rescue Grant Offer, Grant No. 3-06-0268-021-2022 for Ukiah Municipal Airport in the Amount of $32,000, and Approve Corresponding Budget Amendment(s).
DEPARTMENT: Airport PREPARED BY: Greg Owen, Airport Manager PRESENTER: Greg Owen, Airport Manager
ATTACHMENTS:
1. Grant Agreement
Summary: Council will consider authorizing the City Manager to sign a Federal Aviation Administration Airport Rescue Grant Offer, Grant No. 3-06-0268-021-2022 for the Ukiah Municipal Airport for the amount of $32,000, and approval of corresponding budget amendment(s). These funds will be used to support the airport's operating budget.
Background: Staff has submitted to the FAA an Airport Rescue Grant Application dated November 18, 2021, for a grant of Federal funds. The purpose of this Airport Rescue Grant is to provide eligible sponsors with funding for costs related to operations, personnel, cleaning, sanitization, janitorial services, combating the spread of pathogens at the airport, and debt service payments.
Discussion: This Airport Rescue Grant "Attachment 1 Grant Agreement" is provided in accordance with the American Rescue Plan Act ( “ARP Act”, or “the Act”), Public Law 117-2, as described below, to provide eligible Sponsors with funding for costs related to operations, personnel, cleaning, sanitization, janitorial services, combating the spread of pathogens at the airport, and debt service payments. Airport Rescue Grant amounts to specific airports are derived by legislative formula (See Section 7102 of the Act). The purpose of this Airport Rescue Grant is to prevent, prepare for, and respond to the coronavirus pandemic. Funds provided under this Airport Rescue Grant Agreement must be used only for purposes directly related to the airport. Such purposes can include the reimbursement of an airport’s operational expenses or debt service payments in accordance with the limitations prescribed in the Act.
Grant No. 3-06-0268-021-2022 Airport Rescue Grants may be used to reimburse airport operational expenses directly related to Ukiah Municipal incurred no earlier than January 20, 2020. Airport Rescue Grants also may be used to reimburse a Sponsor’s payment of debt service where such payments occur on or after March 11, 2021. Funds provided under this Airport Rescue Grant Agreement will be governed by the same principles that govern “airport revenue.” New airport development projects not directly related to combating the spread of pathogens may not be funded with this Grant Funding under this Grant for airport development projects to combat the spread of pathogens will be reallocated using an addendum to this Agreement for identified and approved projects.
Recommended Action: Authorize City Manager to sign Airport Rescue Grant Offer, Grant No. 3-06-0268- 021-2022 for Ukiah Municipal Airport in the amount of $32,000, and approve corresponding budget amendment{s}.
BUDGET AMENDMENT REQUIRED: Yes
CURRENT BUDGET AMOUNT: 77700000.43290.18270: $0
PROPOSED BUDGET AMOUNT: 77700000.43290.18270: $32,000
FINANCING SOURCE: FAA
PREVIOUS CONTRACT/PURCHASE ORDER NO.: N/A
COORDINATED WITH:
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1 U.S. Department
of Transportation
Federal Aviation
Administration
Airports Division
Western-Pacific Region
California
FAA SFO ADO
1000 Marina Boulevard
Suite 115
Brisbane, CA 94005
Airport Rescue Grant Transmittal Letter
{{DateTime_es_:signer1:calc(now()):format(date," mmmm d, yyyy")}} Mr. Greg Owen
Airport Manager
City of Ukiah
1403 S. State Street
Ukiah, CA 95482
Dear Mr. Owen:
Please find the following electronic Airport Rescue Grant Offer, Grant No. 3-06-0268-021-2022 for Ukiah Municipal Airport. This letter outlines expectations for success. Please read and follow the instructions carefully.
To properly enter into this agreement, you must do the following:
a. The governing body must provide authority to execute the grant to the individual signing the grant; i.e. the sponsor’s authorized representative.
b. The sponsor’s authorized representative must execute the grant, followed by the attorney’s certification, no later than January 24, 2022 in order for the grant to be valid. c. You may not make any modification to the text, terms or conditions of the grant offer. d. The grant offer must be digitally signed by the sponsor’s legal signatory authority and then routed via email to the sponsor’s attorney. Once the attorney has digitally attested to the grant, an email with the executed grant will be sent to all parties.
Subject to the requirements in 2 CFR §200.305, each payment request for reimbursement under this grant must be made electronically via the Delphi eInvoicing System. Please see the attached Grant Agreement for more information regarding the use of this System. The terms and conditions of this agreement require you draw down and expend these funds within four years.
An airport sponsor may use these funds for costs related to operations, personnel, cleaning, sanitization, janitorial services, combating the spread of pathogens at the airport, and debt service payments. Please refer to the Airport Rescue Grants Frequently Asked Questions for further information.
With each payment request you are required to upload an invoice summary directly to Delphi. The invoice summary should include enough detail to permit FAA to verify compliance with the American Rescue Plan Act (Public Law 117-2). Additional details or invoices may be requested by FAA during the review of your payment requests.
As part of your final payment request, you are required to include in Delphi:
A signed SF-425, Federal Financial Report
A signed closeout report (a sample report is available here).
January 10, 2022
Attachment 1
3-06-0268-021-2022
2 Until the grant is completed and closed, you are responsible for submitting a signed and dated SF-425 annually, due 90 days after the end of each Federal fiscal year in which this grant is open (due December 31 of each year this grant is open).
As a condition of receiving Federal assistance under this award, you must comply with audit requirements as established under 2 CFR part 200. Subpart F requires non-Federal entities that expend $750,000 or more in Federal awards to conduct a single or program specific audit for that year. Note that this includes Federal expenditures made under other Federal-assistance programs. Please take appropriate and necessary action to assure your organization will comply with applicable audit requirements and standards.
I am readily available to assist you and your designated representative with the requirements stated herein. The FAA sincerely values your cooperation in these efforts.
Sincerely,
{{Sig_es_:signer1: signature}}
Laurie J. Suttmeier
Manager
Amy Choi for Laurie Suttmeier (Jan 10, 2022 10:06 PST)
Amy Choi for Laurie Suttmeier
3-06-0268-021-2022
3 U.S. Department
of Transportation
Federal Aviation
Administration
AIRPORT RESCUE GRANT
GRANT AGREEMENT
Part I - Offer
Federal Award Offer Date {{DateTime_es_:signer1:calc(now()):format(date," mmmm d, yyyy")}} Airport/Planning Area Ukiah Municipal Airport
Airport Rescue Grant No. 3-06-0268-021-2022
Unique Entity Identifier 152110466
TO: City of Ukiah
(herein called the "Sponsor")
FROM: The United States of America (acting through the Federal Aviation Administration, herein called the “FAA”)
WHEREAS, the Sponsor has submitted to the FAA an Airport Rescue Grant Application dated November 18, 2021, for a grant of Federal funds at or associated with the Ukiah Municipal Airport, which is included as part of this Airport Rescue Grant Agreement; WHEREAS, the Sponsor has accepted the terms of FAA’s Airport Rescue Grant offer; WHEREAS, in consideration of the promises, representations and assurances provided by the Sponsor, the FAA has approved the Airport Rescue Grant Application for the Ukiah Municipal Airport, (herein called the “Grant” or “Airport Rescue Grant”) consisting of the following:
WHEREAS, this Airport Rescue Grant is provided in accordance with the American Rescue Plan Act ( “ARP Act”, or “the Act”), Public Law 117-2, as described below, to provide eligible Sponsors with funding for costs related to operations, personnel, cleaning, sanitization, janitorial services, combating the spread of pathogens at the airport, and debt service payments. Airport Rescue Grant amounts to specific airports are derived by legislative formula (See Section 7102 of the Act).
WHEREAS, the purpose of this Airport Rescue Grant is to prevent, prepare for, and respond to the coronavirus pandemic. Funds provided under this Airport Rescue Grant Agreement must be used only for purposes directly related to the airport. Such purposes can include the reimbursement of an airport’s operational expenses or debt service payments in accordance with the limitations prescribed in the Act.
January 10, 2022 Page 200 of 856
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4 Airport Rescue Grants may be used to reimburse airport operational expenses directly related to Ukiah Municipal incurred no earlier than January 20, 2020.
Airport Rescue Grants also may be used to reimburse a Sponsor’s payment of debt service where such payments occur on or after March 11, 2021. Funds provided under this Airport Rescue Grant Agreement will be governed by the same principles that govern “airport revenue.” New airport development projects not directly related to combating the spread of pathogens may not be funded with this Grant.
Funding under this Grant for airport development projects to combat the spread of pathogens will be reallocated using an addendum to this Agreement for identified and approved projects.
NOW THEREFORE, in accordance with the applicable provisions of the ARP Act, Public Law 117-2, the representations contained in the Grant Application, and in consideration of (a) the Sponsor’s acceptance of this Offer; and, (b) the benefits to accrue to the United States and the public from the accomplishment of the Grant and in compliance with the conditions as herein provided,
THE FEDERAL AVIATION ADMINISTRATION, FOR AND ON BEHALF OF THE UNITED STATES, HEREBY OFFERS AND AGREES to pay 100% percent of the allowable costs incurred as a result of and in accordance with this Grant Agreement.
Assistance Listings Number (Formerly CFDA Number): 20.106 This Offer is made on and SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
CONDITIONS
1. Maximum Obligation. The maximum obligation of the United States payable under this Offer is $32,000, allocated as follows:
$32,000 ARPA KW2022
2. Grant Performance. This Airport Rescue Grant Agreement is subject to the following Federal award requirements:
a. The Period of Performance:
1. Shall start on the date the Sponsor formally accepts this agreement, and is the date signed by the last Sponsor signatory to the agreement. The end date of the period of performance is 4 years (1,460 calendar days) from the date of acceptance. The period of performance end date shall not affect, relieve, or reduce Sponsor obligations and assurances that extend beyond the closeout of this Grant Agreement.
2. Means the total estimated time interval between the start of an initial Federal award and the planned end date, which may include one or more funded portions, or budget periods. (2 Code of Federal Regulations (CFR) § 200.1)
b. The Budget Period:
1. For this Airport Rescue Grant is 4 years (1,460 calendar days). Pursuant to 2 CFR § 200.403(h), the Sponsor may charge to the Grant only allowable costs incurred during the budget period.
2. Means the time interval from the start date of a funded portion of an award to the end date of that funded portion during which the Sponsor is authorized to expend the funds awarded, including any funds carried forward or other revisions pursuant to § 200.308. c. Close out and Termination.
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5 1. Unless the FAA authorizes a written extension, the Sponsor must submit all Grant closeout documentation and liquidate (pay-off) all obligations incurred under this award no later than 120 calendar days after the end date of the period of performance. If the Sponsor does not submit all required closeout documentation within this time period, the FAA will proceed to close out the Grant within one year of the period of performance end date with the information available at the end of 120 days. (2 CFR § 200.344)
2. The FAA may terminate this Airport Rescue Grant, in whole or in part, in accordance with the conditions set forth in 2 CFR § 200.340, or other Federal regulatory or statutory authorities as applicable.
3. Unallowable Costs. The Sponsor shall not seek reimbursement for any costs that the FAA has determined to be unallowable under the ARP Act.
4. Indirect Costs - Sponsor. The Sponsor may charge indirect costs under this award by applying the indirect cost rate identified in the Grant Application as accepted by the FAA, to allowable costs for Sponsor direct salaries and wages only.
5. Final Federal Share of Costs. The United States’ share of allowable Grant costs is 100%.
6. Completing the Grant without Delay and in Conformance with Requirements. The Sponsor must carry out and complete the Grant without undue delays and in accordance with this Airport Rescue Grant Agreement, the ARP Act, and the regulations, policies, standards, and procedures of the Secretary of Transportation (“Secretary”). Pursuant to 2 CFR § 200.308, the Sponsor agrees to report to the FAA any disengagement from funding eligible expenses under the Grant that exceeds three months or a 25 percent reduction in time devoted to the Grant, and request prior approval from FAA. The report must include a reason for the stoppage. The Sponsor agrees to comply with the attached assurances, which are part of this agreement and any addendum that may be attached hereto at a later date by mutual consent.
7. Amendments or Withdrawals before Grant Acceptance. The FAA reserves the right to amend or withdraw this offer at any time prior to its acceptance by the Sponsor.
8. Offer Expiration Date. This offer will expire and the United States will not be obligated to pay any part of the costs unless this offer has been accepted by the Sponsor on or before January 24, 2022, or such subsequent date as may be prescribed in writing by the FAA.
9. Improper Use of Federal Funds. The Sponsor must take all steps, including litigation if necessary, to recover Federal funds spent fraudulently, wastefully, or in violation of Federal antitrust statutes, or misused in any other manner, including uses that violate this Airport Rescue Grant Agreement, the ARP Act, or other provision of applicable law. For the purposes of this Airport Rescue Grant Agreement, the term “Federal funds” means funds however used or dispersed by the Sponsor that were originally paid pursuant to this or any other Federal grant agreement(s). The Sponsor must return the recovered Federal share, including funds recovered by settlement, order, or judgment, to the Secretary. The Sponsor must furnish to the Secretary, upon request, all documents and records pertaining to the determination of the amount of the Federal share or to any settlement, litigation, negotiation, or other efforts taken to recover such funds. All settlements or other final positions of the Sponsor, in court or otherwise, involving the recovery of such Federal share require advance approval by the Secretary.
10. United States Not Liable for Damage or Injury. The United States is not responsible or liable for damage to property or injury to persons which may arise from, or relate to this Airport Rescue
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6 Grant Agreement, including, but not limited to, any action taken by a Sponsor related to or arising from, directly or indirectly, this Airport Rescue Grant Agreement.
11. System for Award Management (SAM) Registration and Unique Entity Identifier (UEI). a. Requirement for System for Award Management (SAM): Unless the Sponsor is exempted from this requirement under 2 CFR 25.110, the Sponsor must maintain the currency of its information in SAM until the Sponsor submits the final financial report required under this Grant, or receives the final payment, whichever is later. This requires that the Sponsor review and update the information at least annually after the initial registration and more frequently if required by changes in information or another award term. Additional information about registration procedures may be found at the SAM website (currently at http://www.sam.gov). b. Unique entity identifier (UEI) means a 12-character alpha-numeric value used to identify a specific commercial, nonprofit or governmental entity. A UEI may be obtained from SAM.gov at https://sam.gov/SAM/pages/public/index.jsf.
12. Electronic Grant Payment(s). Unless otherwise directed by the FAA, the Sponsor must make each payment request under this agreement electronically via the Delphi eInvoicing System for Department of Transportation (DOT) Financial Assistance Awardees.
13. Air and Water Quality. The Sponsor is required to comply with all applicable air and water quality standards for all projects in this grant. If the Sponsor fails to comply with this requirement, the FAA may suspend, cancel, or terminate this Agreement.
14. Financial Reporting and Payment Requirements. The Sponsor will comply with all Federal financial reporting requirements and payment requirements, including submittal of timely and accurate reports.
15. Buy American. Unless otherwise approved in advance by the FAA, in accordance with 49 United States Code (U.S.C.) § 50101, the Sponsor will not acquire or permit any contractor or subcontractor to acquire any steel or manufactured goods produced outside the United States to be used for any project for which funds are provided under this grant. The Sponsor will include a provision implementing Buy American in every contract.
16. Audits for Sponsors.
PUBLIC SPONSORS. The Sponsor must provide for a Single Audit or program-specific audit in accordance with 2 CFR Part 200. The Sponsor must submit the audit reporting package to the Federal Audit Clearinghouse on the Federal Audit Clearinghouse’s Internet Data Entry System at http://harvester.census.gov/facweb/. Upon request of the FAA, the Sponsor shall provide one copy of the completed audit to the FAA.
17. Suspension or Debarment. When entering into a “covered transaction” as defined by 2 CFR § 180.200, the Sponsor must:
a. Verify the non-Federal entity is eligible to participate in this Federal program by:
1. Checking the excluded parties list system (EPLS) as maintained within the System for Award Management (SAM) to determine if the non-Federal entity is excluded or disqualified; or
2. Collecting a certification statement from the non-Federal entity attesting the entity is not excluded or disqualified from participating; or
3-06-0268-021-2022
7 3. Adding a clause or condition to covered transactions attesting the individual or firm is not excluded or disqualified from participating.
b. Require prime contractors to comply with 2 CFR § 180.330 when entering into lower-tier transactions (e.g., subcontracts).
c. Immediately disclose to the FAA whenever the Sponsor (1) learns the Sponsor has entered into a covered transaction with an ineligible entity, or (2) suspends or debars a contractor, person, or entity.
18. Ban on Texting While Driving.
a. In accordance with Executive Order 13513, Federal Leadership on Reducing Text Messaging While Driving, October 1, 2009, and DOT Order 3902.10, Text Messaging While Driving, December 30, 2009, the Sponsor is encouraged to:
1. Adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while driving when performing any work for, or on behalf of, the Federal government, including work relating to this Airport Rescue Grant or subgrant funded by this Grant.
2. Conduct workplace safety initiatives in a manner commensurate with the size of the business, such as:
A. Establishment of new rules and programs or re-evaluation of existing programs to prohibit text messaging while driving; and
B. Education, awareness, and other outreach to employees about the safety risks associated with texting while driving.
b. The Sponsor must insert the substance of this clause on banning texting while driving in all subgrants, contracts, and subcontracts funded by this Airport Rescue Grant.
19. Trafficking in Persons.
a. You as the recipient, your employees, subrecipients under this Airport Rescue Grant, and subrecipients’ employees may not –
1. Engage in severe forms of trafficking in persons during the period of time that the award is in effect;
2. Procure a commercial sex act during the period of time that the award is in effect; or
3. Use forced labor in the performance of the award or subawards under the Airport Rescue Grant.
b. The FAA as the Federal awarding agency may unilaterally terminate this award, without penalty, if you or a subrecipient that is a private entity –
1. Is determined to have violated a prohibition in paragraph a. of this Airport Rescue Grant Agreement term; or
2. Has an employee who is determined by the agency official authorized to terminate the Airport Rescue Grant Agreement to have violated a prohibition in paragraph a. of this Airport Rescue Grant term through conduct that is either – A. Associated with performance under this Airport Rescue Grant; or
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8 B. Imputed to the subrecipient using the standards and due process for imputing the conduct of an individual to an organization that are provided in 2 CFR Part 180, “OMB Guidelines to Agencies on Government-wide Debarment and Suspension (Nonprocurement),”as implemented by the FAA at 2 CFR Part 1200. c. You must inform us immediately of any information you receive from any source alleging a violation of a prohibition in paragraph a. of this Grant condition during this Airport Rescue Grant Agreement.
d. Our right to terminate unilaterally that is described in paragraph a. of this Grant condition:
1. Implements section 106(g) of the Trafficking Victims Protection Act of 2000 (TVPA), as amended (22 U.S.C. § 7104(g)), and
2. Is in addition to all other remedies for noncompliance that are available to the FAA under this Airport Rescue Grant.
20. Employee Protection from Reprisal.
a. Prohibition of Reprisals —
1. In accordance with 41 U.S.C. § 4712, an employee of a grantee or subgrantee may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in sub-paragraph (a)(2) of this Grant condition, information that the employee reasonably believes is evidence of:
a. Gross mismanagement of a Federal grant;
b. Gross waste of Federal funds;
c. An abuse of authority relating to implementation or use of Federal funds; d. A substantial and specific danger to public health or safety; or e. A violation of law, rule, or regulation related to a Federal grant.
2. Persons and bodies covered: The persons and bodies to which a disclosure by an employee is covered are as follows:
a. A member of Congress or a representative of a committee of Congress; b. An Inspector General;
c. The Government Accountability Office;
d. A Federal employee responsible for oversight or management of a grant program at the relevant agency;
e. A court or grand jury;
f. A management official or other employee of the Sponsor, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct; or
g. An authorized official of the Department of Justice or other law enforcement agency.
3. Submission of Complaint — A person who believes that they have been subjected to a reprisal prohibited by paragraph a. of this Airport Rescue Grant Agreement may submit a complaint regarding the reprisal to the Office of Inspector General (OIG) for the U.S.
Department of Transportation.
4. Time Limitation for Submittal of a Complaint — A complaint may not be brought under this subsection more than three years after the date on which the alleged reprisal took place.
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9 5. Required Actions of the Inspector General — Actions, limitations, and exceptions of the Inspector General’s office are established under 41 U.S.C. § 4712(b).
6. Assumption of Rights to Civil Remedy — Upon receipt of an explanation of a decision not to conduct or continue an investigation by the Office of Inspector General, the person submitting a complaint assumes the right to a civil remedy under 41 U.S.C. § 4712(c).
21. Limitations. Nothing provided herein shall be construed to limit, cancel, annul, or modify the terms of any Federal grant agreement(s), including all terms and assurances related thereto, that have been entered into by the Sponsor and the FAA prior to the date of this Airport Rescue Grant Agreement.
22. Face Coverings Policy. The sponsor agrees to implement a face-covering (mask) policy to combat the spread of pathogens. This policy must include a requirement that all persons wear a mask, in accordance with Centers for Disease Control (CDC) and Transportation Security Administration (TSA) requirements, as applicable, at all times while in all public areas of the airport property, except to the extent exempted under those requirements. This special condition requires the airport sponsor continue to require masks until Executive Order 13998, Promoting COVID-19 Safety in Domestic and International Travel, is no longer effective.
SPECIAL CONDITIONS FOR USE OF AIRPORT RESCUE GRANT FUNDS
CONDITIONS FOR EQUIPMENT -
1. Equipment or Vehicle Replacement. The Sponsor agrees that when using funds provided by this Grant to replace equipment, the proceeds from the trade-in or sale of such replaced equipment shall be classified and used as airport revenue.
2. Equipment Acquisition. The Sponsor agrees that for any equipment acquired with funds provided by this Grant, such equipment shall be used solely for purposes directly related to combating the spread of pathogens at the airport.
3. Low Emission Systems. The Sponsor agrees that vehicles and equipment acquired with funds provided in this Grant:
a. Will be maintained and used at the airport for which they were purchased; and b. Will not be transferred, relocated, or used at another airport without the advance consent of the FAA.
The Sponsor further agrees that it will maintain annual records on individual vehicles and equipment, project expenditures, cost effectiveness, and emission reductions.
CONDITIONS FOR UTILITIES AND LAND -
4. Utilities Proration. For purposes of computing the United States’ share of the allowable airport operations and maintenance costs, the allowable cost of utilities incurred by the Sponsor to operate and maintain airport(s) included in the Grant must not exceed the percent attributable to the capital or operating costs of the airport.
5. Utility Relocation in Grant. The Sponsor understands and agrees that:
a. The United States will not participate in the cost of any utility relocation unless and until the Sponsor has submitted evidence satisfactory to the FAA that the Sponsor is legally responsible for payment of such costs;
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10 b. FAA participation is limited to those utilities located on-airport or off-airport only where the Sponsor has an easement for the utility; and
c. The utilities must serve a purpose directly related to the Airport.
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11 The Sponsor’s acceptance of this Offer and ratification and adoption of the Airport Rescue Grant Application incorporated herein shall be evidenced by execution of this instrument by the Sponsor. The Offer and Acceptance shall comprise an Airport Rescue Grant Agreement, as provided by the ARP Act, constituting the contractual obligations and rights of the United States and the Sponsor with respect to this Grant. The effective date of this Airport Rescue Grant Agreement is the date of the Sponsor's acceptance of this Offer.
Please read the following information: By signing this document, you are agreeing that you have reviewed the following consumer disclosure information and consent to transact business using electronic communications, to receive notices and disclosures electronically, and to utilize electronic signatures in lieu of using paper documents. You are not required to receive notices and disclosures or sign documents electronically. If you prefer not to do so, you may request to receive paper copies and withdraw your consent at any time.
Dated {{DateTime_es_:signer1:calc(now()):format(date," mmmm d, yyyy")}}
UNITED STATES OF AMERICA
FEDERAL AVIATION ADMINISTRATION
{{Sig_es_:signer1: signature}}
(Signature)
{{N_es_:signer1: fullname}}
(Typed Name)
{{*Ttl_es_:signer1: title}}
(Title of FAA Official)
Amy Choi for Laurie Suttmeier (Jan 10, 2022 10:06 PST)
Amy Choi for Laurie Suttmeier
January 10, 2022 Assistant Manager SFO ADO Amy Choi for Laurie Suttmeier Page 208 of 856 3-06-0268-021-2022
12 Part II - Acceptance
The Sponsor does hereby ratify and adopt all assurances, statements, representations, warranties, covenants, and agreements contained in the Airport Rescue Grant Application and incorporated materials referred to in the foregoing Offer under Part I of this Airport Rescue Grant Agreement, and does hereby accept this Offer and by such acceptance agrees to comply with all of the terms and conditions in this Offer and in the Airport Rescue Grant Application and all applicable terms and conditions provided for in the ARP Act and other applicable provisions of Federal law.
Please read the following information: By signing this document, you are agreeing that you have reviewed the following consumer disclosure information and consent to transact business using electronic communications, to receive notices and disclosures electronically, and to utilize electronic signatures in lieu of using paper documents. You are not required to receive notices and disclosures or sign documents electronically. If you prefer not to do so, you may request to receive paper copies and withdraw your consent at any time.
I declare under penalty of perjury that the foregoing is true and correct. 1 Dated {{DateTime_es_:signer2:calc(now()):format(date," mmmm d, yyyy")}} City of Ukiah
(Name of Sponsor)
{{Sig_es_:signer2: signature}}
(Signature of Sponsor’s Designative Official/Representative) By: {{N_es_:signer2: fullname}}
(Type Name of Sponsor’s Designative Official/Representative) Title: {{*Ttl_es_:signer2: title}}
(Title of Sponsor’s Designative Official/Representative) 1 Knowingly and willfully providing false information to the Federal government is a violation of 18 U.S.C.
Section 1001 (False Statements) and could subject you to fines, imprisonment, or both.
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13 CERTIFICATE OF SPONSOR'S ATTORNEY
I, {{N_es_:signer3: fullname}}, acting as Attorney for the Sponsor do hereby certify:
That in my opinion the Sponsor is empowered to enter into the foregoing Grant Agreement under the laws of the State of __California__. Further, I have examined the foregoing Grant Agreement and the actions taken by said Sponsor and Sponsor’s official representative has been duly authorized and that the execution thereof is in all respects due and proper and in accordance with the laws of the said State and the ARP Act. The Sponsor understands funding made available under this Grant Agreement may only be used for costs related to operations, personnel, cleaning, sanitization, janitorial services, and combating the spread of pathogens at the airport incurred on or after January 20, 2020, or for debt service payments that are due on or after March 11, 2021. Further, it is my opinion the foregoing Grant Agreement constitutes a legal and binding obligation of the Sponsor in accordance with the terms thereof.
Please read the following information: By signing this document, you are agreeing that you have reviewed the following consumer disclosure information and consent to transact business using electronic communications, to receive notices and disclosures electronically, and to utilize electronic signatures in lieu of using paper documents. You are not required to receive notices and disclosures or sign documents electronically. If you prefer not to do so, you may request to receive paper copies and withdraw your consent at any time.
Dated at {{DateTime_es_:signer3:calc(now()):format(date," mmmm d, yyyy")}} By:{{Sig_es_:signer3: signature}}
(Signature of Sponsor's Attorney)
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14 AIRPORT RESCUE GRANT ASSURANCES
AIRPORT SPONSORS
A. General.
1. These Airport Rescue Grant Assurances are required to be submitted as part of the application by sponsors requesting funds under the provisions of the American Rescue Plan Act of 2021 (“ARP Act,” or “the Act”), Public Law 117-2. As used herein, the term “public agency sponsor” means a public agency with control of a public-use airport; the term “private sponsor” means a private owner of a public-use airport; and the term “sponsor” includes both public agency sponsors and private sponsors.
2. Upon acceptance of this Airport Rescue Grant offer by the sponsor, these assurances are incorporated into and become part of this Airport Rescue Grant Agreement.
B. Sponsor Certification.
The sponsor hereby assures and certifies, with respect to this Airport Rescue Grant that:
It will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, and requirements as they relate to the application, acceptance, and use of Federal funds for this Airport Rescue Grant including but not limited to the following:
FEDERAL LEGISLATION
a. 49 U.S.C. Chapter 471, as applicable
b. Davis-Bacon Act — 40 U.S.C. 276(a), et. seq.
c. Federal Fair Labor Standards Act — 29 U.S.C. 201, et. seq. d. Hatch Act — 5 U.S.C. 1501, et. seq.2
e. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 Title 42 U.S.C. 4601, et. seq.
f. National Historic Preservation Act of 1966 — Section 106 — 16 U.S.C. 470(f). g. Archeological and Historic Preservation Act of 1974 — 16 U.S.C. 469 through 469c. h. Native Americans Grave Repatriation Act — 25 U.S.C. Section 3001, et. seq. i. Clean Air Act, P.L. 90-148, as amended.
j. Coastal Zone Management Act, P.L. 93-205, as amended. k. Flood Disaster Protection Act of 1973 — Section 102(a) — 42 U.S.C. 4012a. l. Title 49, U.S.C., Section 303, (formerly known as Section 4(f)). m. Rehabilitation Act of 1973 — 29 U.S.C. 794.
n. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin). o. Americans with Disabilities Act of 1990, as amended, (42 U.S.C. § 12101 et seq.), prohibits discrimination on the basis of disability).
p. Age Discrimination Act of 1975 — 42 U.S.C. 6101, et. seq.
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15 q. American Indian Religious Freedom Act, P.L. 95-341, as amended. r. Architectural Barriers Act of 1968 — 42 U.S.C. 4151, et. seq. s. Power plant and Industrial Fuel Use Act of 1978 — Section 403- 2 U.S.C. 8373. t. Contract Work Hours and Safety Standards Act — 40 U.S.C. 327, et. seq. u. Copeland Anti-kickback Act — 18 U.S.C. 874.1.
v. National Environmental Policy Act of 1969 — 42 U.S.C. 4321, et. seq. w. Wild and Scenic Rivers Act, P.L. 90-542, as amended. x. Single Audit Act of 1984 — 31 U.S.C. 7501, et. seq.2 y. Drug-Free Workplace Act of 1988 — 41 U.S.C. 702 through 706. z. The Federal Funding Accountability and Transparency Act of 2006, as amended (Pub. L. 109-282, as amended by section 6202 of Pub. L. 110-252).
EXECUTIVE ORDERS
a. Executive Order 11246 – Equal Employment Opportunity b. Executive Order 11990 – Protection of Wetlands
c. Executive Order 11998 – Flood Plain Management
d. Executive Order 12372 – Intergovernmental Review of Federal Programs e. Executive Order 12699 – Seismic Safety of Federal and Federally Assisted New Building Construction
f. Executive Order 12898 – Environmental Justice
g. Executive Order 14005 – Ensuring the Future Is Made in All of America by All of America's Workers.
FEDERAL REGULATIONS
a. 2 CFR Part 180 – OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement).
b. 2 CFR Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.3, 4
c. 2 CFR Part 1200 – Nonprocurement Suspension and Debarment. d. 28 CFR Part 35 – Discrimination on the Basis of Disability in State and Local Government Services.
e. 28 CFR § 50.3 – U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964.
f. 29 CFR Part 1 – Procedures for predetermination of wage rates.1 g. 29 CFR Part 3 – Contractors and subcontractors on public building or public work financed in whole or part by loans or grants from the United States.1
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16 h. 29 CFR Part 5 – Labor standards provisions applicable to contracts covering Federally financed and assisted construction (also labor standards provisions applicable to non-construction contracts subject to the Contract Work Hours and Safety Standards Act).1 i. 41 CFR Part 60 – Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor (Federal and Federally assisted contracting requirements).1 j. 49 CFR Part 20 – New restrictions on lobbying.
k. 49 CFR Part 21 – Nondiscrimination in Federally-assisted programs of the Department of Transportation - effectuation of Title VI of the Civil Rights Act of 1964. l. 49 CFR Part 23 – Participation by Disadvantage Business Enterprise in Airport Concessions. m. 49 CFR Part 26 – Participation by Disadvantaged Business Enterprises in Department of Transportation Program.
n. 49 CFR Part 27 – Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance.1 o. 49 CFR Part 28 – Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities conducted by the Department of Transportation. p. 49 CFR Part 30 – Denial of public works contracts to suppliers of goods and services of countries that deny procurement market access to U.S. contractors. q. 49 CFR Part 32 – Government-wide Requirements for Drug-Free Workplace (Financial Assistance).
r. 49 CFR Part 37 – Transportation Services for Individuals with Disabilities (ADA). s. 49 CFR Part 41 – Seismic safety of Federal and Federally assisted or regulated new building construction.
FOOTNOTES TO AIRPORT RESCUE GRANT ASSURANCE B
1 These laws do not apply to airport planning sponsors. 2 These laws do not apply to private sponsors.
3 Cost principles established in 2 CFR Part 200 subpart E must be used as guidelines for determining the eligibility of specific types of expenses. 4 Audit requirements established in 2 CFR Part 200 subpart F are the guidelines for audits.
SPECIFIC ASSURANCES
Specific assurances required to be included in grant agreements by any of the above laws, regulations, or circulars are incorporated by reference in this Grant Agreement.
1. Purpose Directly Related to the Airport
It certifies that the reimbursement sought is for a purpose directly related to the airport.
2. Responsibility and Authority of the Sponsor.
a. Public Agency Sponsor:
It has legal authority to apply for this Grant, and to finance and carry out the proposed grant; that an official decision has been made by the applicant’s governing body authorizing the filing of the application, including all understandings and assurances contained therein, and directing
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17 and authorizing the person identified as the official representative of the applicant to act in connection with the application and to provide such additional information as may be required. b. Private Sponsor:
It has legal authority to apply for this Grant and to finance and carry out the proposed Grant and comply with all terms, conditions, and assurances of this Grant Agreement. It shall designate an official representative and shall in writing direct and authorize that person to file this application, including all understandings and assurances contained therein; to act in connection with this application; and to provide such additional information as may be required.
3. Good Title.
It, a public agency or the Federal government, holds good title, satisfactory to the Secretary, to the landing area of the airport or site thereof, or will give assurance satisfactory to the Secretary that good title will be acquired.
4. Preserving Rights and Powers.
a. It will not take or permit any action which would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assurances in this Grant Agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish, or modify any outstanding rights or claims of right of others which would interfere with such performance by the sponsor. This shall be done in a manner acceptable to the Secretary.
b. If the sponsor is a private sponsor, it will take steps satisfactory to the Secretary to ensure that the airport will continue to function as a public-use airport in accordance with this Grant Agreement.
c. If an arrangement is made for management and operation of the airport by any agency or person other than the sponsor or an employee of the sponsor, the sponsor will reserve sufficient rights and authority to insure that the airport will be operated and maintained in accordance Title 49, United States Code, the regulations, and the terms and conditions of this Grant Agreement.
5. Consistency with Local Plans.
Any project undertaken by this Grant Agreement is reasonably consistent with plans (existing at the time of submission of the Airport Rescue Grant application) of public agencies that are authorized by the State in which the project is located to plan for the development of the area surrounding the airport.
6. Consideration of Local Interest.
It has given fair consideration to the interest of communities in or near where any project undertaken by this Grant Agreement may be located.
7. Consultation with Users.
In making a decision to undertake any airport development project undertaken by this Grant Agreement, it has undertaken reasonable consultations with affected parties using the airport at which project is proposed.
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18 8. Pavement Preventative Maintenance.
With respect to a project undertaken by this Grant Agreement for the replacement or reconstruction of pavement at the airport, it assures or certifies that it has implemented an effective airport pavement maintenance-management program and it assures that it will use such program for the useful life of any pavement constructed, reconstructed, or repaired with Federal financial assistance at the airport, including Airport Rescue Grant funds provided under this Grant Agreement. It will provide such reports on pavement condition and pavement management programs as the Secretary determines may be useful.
9. Accounting System, Audit, and Record Keeping Requirements. a. It shall keep all Grant accounts and records which fully disclose the amount and disposition by the recipient of the proceeds of this Grant, the total cost of the Grant in connection with which this Grant is given or used, and the amount or nature of that portion of the cost of the Grant supplied by other sources, and such other financial records pertinent to the Grant. The accounts and records shall be kept in accordance with an accounting system that will facilitate an effective audit in accordance with the Single Audit Act of 1984. b. It shall make available to the Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, for the purpose of audit and examination, any books, documents, papers, and records of the recipient that are pertinent to this Grant. The Secretary may require that an appropriate audit be conducted by a recipient. In any case in which an independent audit is made of the accounts of a sponsor relating to the disposition of the proceeds of a Grant or relating to the Grant in connection with which this Grant was given or used, it shall file a certified copy of such audit with the Comptroller General of the United States not later than six (6) months following the close of the fiscal year for which the audit was made.
10. Minimum Wage Rates.
It shall include, in all contracts in excess of $2,000 for work on the airport funded under this Grant Agreement which involve labor, provisions establishing minimum rates of wages, to be predetermined by the Secretary of Labor, in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5), which contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids for the work.
11. Veteran's Preference.
It shall include in all contracts for work on any airport development project funded under this Grant Agreement which involve labor, such provisions as are necessary to insure that, in the employment of labor (except in executive, administrative, and supervisory positions), preference shall be given to Vietnam-era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans, and small business concerns owned and controlled by disabled veterans as defined in Section 47112 of Title 49, United States Code. However, this preference shall apply only where the individuals are available and qualified to perform the work to which the employment relates.
12. Operation and Maintenance.
a. The airport and all facilities which are necessary to serve the aeronautical users of the airport, other than facilities owned or controlled by the United States, shall be operated at all times in a safe and serviceable condition and in accordance with the minimum standards as may be required or prescribed by applicable Federal, State and local agencies for maintenance and
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19 operation. It will not cause or permit any activity or action thereon which would interfere with its use for airport purposes. It will suitably operate and maintain the airport and all facilities thereon or connected therewith, with due regard to climatic and flood conditions. Any proposal to temporarily close the airport for non-aeronautical purposes must first be approved by the Secretary. In furtherance of this assurance, the sponsor will have in effect arrangements for:
1. Operating the airport's aeronautical facilities whenever required;
2. Promptly marking and lighting hazards resulting from airport conditions, including temporary conditions; and
3. Promptly notifying airmen of any condition affecting aeronautical use of the airport.
Nothing contained herein shall be construed to require that the airport be operated for aeronautical use during temporary periods when snow, flood or other climatic conditions interfere with such operation and maintenance. Further, nothing herein shall be construed as requiring the maintenance, repair, restoration, or replacement of any structure or facility which is substantially damaged or destroyed due to an act of God or other condition or circumstance beyond the control of the sponsor. b. It will suitably operate and maintain noise compatibility program items that it owns or controls upon which Federal funds have been expended.
13. Hazard Removal and Mitigation.
It will take appropriate action to assure that such terminal airspace as is required to protect instrument and visual operations to the airport (including established minimum flight altitudes) will be adequately cleared and protected by removing, lowering, relocating, marking, or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards.
14. Compatible Land Use.
It will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft.
15. Exclusive Rights.
The sponsor shall not grant an exclusive right to use an air navigation facility on which this Grant has been expended. However, providing services at an airport by only one fixed-based operator is not an exclusive right if—
a. it is unreasonably costly, burdensome, or impractical for more than one fixed-based operator to provide the services; and
b. allowing more than one fixed-based operator to provide the services requires a reduction in space leased under an agreement existing on September 3, 1982, between the operator and the airport.
16. Airport Revenues.
a. This Grant shall be available for any purpose for which airport revenues may lawfully be used to prevent, prepare for, and respond to coronavirus. Funds provided under this Airport Rescue Grant Agreement will only be expended for the capital or operating costs of the airport; the local airport system; or other local facilities which are owned or operated by the owner or operator of the airport(s) subject to this agreement and all applicable addendums for costs
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20 related to operations, personnel, cleaning, sanitization, janitorial services, combating the spread of pathogens at the airport, and debt service payments as prescribed in the Act. b. For airport development, 49 U.S.C. § 47133 applies.
17. Reports and Inspections.
It will:
a. submit to the Secretary such annual or special financial and operations reports as the Secretary may reasonably request and make such reports available to the public; make available to the public at reasonable times and places a report of the airport budget in a format prescribed by the Secretary;
b. in a format and time prescribed by the Secretary, provide to the Secretary and make available to the public following each of its fiscal years, an annual report listing in detail:
1. all amounts paid by the airport to any other unit of government and the purposes for which each such payment was made; and
2. all services and property provided by the airport to other units of government and the amount of compensation received for provision of each such service and property.
18. Land for Federal Facilities.
It will furnish without cost to the Federal Government for use in connection with any air traffic control or air navigation activities, or weather-reporting and communication activities related to air traffic control, any areas of land or water, or estate therein, or rights in buildings of the sponsor as the Secretary considers necessary or desirable for construction, operation, and maintenance at Federal expense of space or facilities for such purposes. Such areas or any portion thereof will be made available as provided herein within four months after receipt of a written request from the Secretary.
19. Airport Layout Plan.
a. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, it will keep up to date at all times an airport layout plan of the airport showing:
1. boundaries of the airport and all proposed additions thereto, together with the boundaries of all offsite areas owned or controlled by the sponsor for airport purposes and proposed additions thereto;
2. the location and nature of all existing and proposed airport facilities and structures (such as runways, taxiways, aprons, terminal buildings, hangars and roads), including all proposed extensions and reductions of existing airport facilities;
3. the location of all existing and proposed non-aviation areas and of all existing improvements thereon; and
4. all proposed and existing access points used to taxi aircraft across the airport’s property boundary. Such airport layout plans and each amendment, revision, or modification thereof, shall be subject to the approval of the Secretary which approval shall be evidenced by the signature of a duly authorized representative of the Secretary on the face of the airport layout plan. The sponsor will not make or permit any changes or alterations in the airport or any of its facilities which are not in conformity with the airport layout plan
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21 as approved by the Secretary and which might, in the opinion of the Secretary, adversely affect the safety, utility or efficiency of the airport. b. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, if a change or alteration in the airport or the facilities is made which the Secretary determines adversely affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or off the airport and which is not in conformity with the airport layout plan as approved by the Secretary, the owner or operator will, if requested, by the Secretary (1) eliminate such adverse effect in a manner approved by the Secretary; or (2) bear all costs of relocating such property (or replacement thereof) to a site acceptable to the Secretary and all costs of restoring such property (or replacement thereof) to the level of safety, utility, efficiency, and cost of operation existing before the unapproved change in the airport or its facilities except in the case of a relocation or replacement of an existing airport facility due to a change in the Secretary’s design standards beyond the control of the airport sponsor.
20. Civil Rights.
It will promptly take any measures necessary to ensure that no person in the United States shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in any activity conducted with, or benefiting from, funds received from this Grant. a. Using the definitions of activity, facility, and program as found and defined in §§ 21.23 (b) and
21.23 (e) of 49 CFR Part 21, the sponsor will facilitate all programs, operate all facilities, or conduct all programs in compliance with all non-discrimination requirements imposed by or pursuant to these assurances.
b. Applicability
1. Programs and Activities. If the sponsor has received a grant (or other Federal assistance) for any of the sponsor’s program or activities, these requirements extend to all of the sponsor’s programs and activities.
2. Facilities. Where it receives a grant or other Federal financial assistance to construct, expand, renovate, remodel, alter, or acquire a facility, or part of a facility, the assurance extends to the entire facility and facilities operated in connection therewith.
3. Real Property. Where the sponsor receives a grant or other Federal financial assistance in the form of, or for the acquisition of, real property or an interest in real property, the assurance will extend to rights to space on, over, or under such property. c. Duration
The sponsor agrees that it is obligated to this assurance for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the assurance obligates the sponsor, or any transferee for the longer of the following periods:
1. So long as the airport is used as an airport, or for another purpose involving the provision of similar services or benefits; or
2. So long as the sponsor retains ownership or possession of the property. d. Required Solicitation Language
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22 It will include the following notification in all solicitations for bids, Requests for Proposals for work, or material under this Grant and in all proposals for agreements, including airport concessions, regardless of funding source:
“The City of Ukiah, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that for any contract entered into pursuant to this advertisement, disadvantaged business enterprises and airport concession disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award.”
e. Required Contract Provisions.
1. It will insert the non-discrimination contract clauses requiring compliance with the acts and regulations relative to non-discrimination in Federally-assisted programs of the DOT, and incorporating the acts and regulations into the contracts by reference in every contract or agreement subject to the non-discrimination in Federally-assisted programs of the DOT Acts and regulations.
2. It will include a list of the pertinent non-discrimination authorities in every contract that is subject to the non-discrimination acts and regulations.
3. It will insert non-discrimination contract clauses as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a sponsor.
4. It will insert non-discrimination contract clauses prohibiting discrimination on the basis of race, color, national origin, creed, sex, age, or handicap as a covenant running with the land, in any future deeds, leases, license, permits, or similar instruments entered into by the sponsor with other parties:
A. For the subsequent transfer of real property acquired or improved under the applicable activity, grant, or program; and
B. For the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, grant, or program.
C. It will provide for such methods of administration for the program as are found by the Secretary to give reasonable guarantee that it, other recipients, sub-recipients, subgrantees, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the acts, the regulations, and this assurance.
D. It agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the acts, the regulations, and this assurance.
21. Foreign Market Restrictions.
It will not allow funds provided under this Grant to be used to fund any activity that uses any product or service of a foreign country during the period in which such foreign country is listed by the United States Trade Representative as denying fair and equitable market opportunities for products and suppliers of the United States in procurement and construction.
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23 22. Policies, Standards and Specifications.
It will carry out any project funded under an Airport Rescue Grant in accordance with policies, standards, and specifications approved by the Secretary including, but not limited to, current FAA Advisory Circulars for AIP projects, as of November 18, 2021.
23. Access By Intercity Buses.
The airport owner or operator will permit, to the maximum extent practicable, intercity buses or other modes of transportation to have access to the airport; however, it has no obligation to fund special facilities for intercity buses or for other modes of transportation.
24. Disadvantaged Business Enterprises.
The sponsor shall not discriminate on the basis of race, color, national origin or sex in the award and performance of any DOT-assisted contract covered by 49 CFR Part 26, or in the award and performance of any concession activity contract covered by 49 CFR Part 23. In addition, the sponsor shall not discriminate on the basis of race, color, national origin or sex in the administration of its Disadvantaged Business Enterprise (DBE) and Airport Concessions Disadvantaged Business Enterprise (ACDBE) programs or the requirements of 49 CFR Parts 23 and 26. The sponsor shall take all necessary and reasonable steps under 49 CFR Parts 23 and 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts, and/or concession contracts. The sponsor’s DBE and ACDBE programs, as required by 49 CFR Parts 26 and 23, and as approved by DOT, are incorporated by reference in this agreement. Implementation of these programs is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the sponsor of its failure to carry out its approved program, the Department may impose sanctions as provided for under Parts 26 and 23 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1936 (31 U.S.C. 3801).
25. Acquisition Thresholds.
The FAA deems equipment to mean tangible personal property having a useful life greater than one year and a per-unit acquisition cost equal to or greater than $5,000. Procurements by micropurchase means the acquisition of goods or services for which the aggregate dollar amount does not exceed $10,000, unless authorized in accordance with 2 CFR § 200.320. Procurement by small purchase procedures means those relatively simple and informal procurement methods for securing goods or services that do not exceed the $250,000 threshold for simplified acquisitions.
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24 Current FAA Advisory Circulars Required for Use in AIP Funded and PFC Approved Projects
View the most current Series 150 Advisory Circulars (ACs) for Airport Projects at http://www.faa.gov/airports/resources/advisory_circulars and http://www.faa.gov/regulations_policies/advisory_circulars
Agenda Item No: 7.j.
MEETING DATE/TIME: 1/19/2022
ITEM NO: 2022-25
AGENDA SUMMARY REPORT
SUBJECT: Approve the Purchase of Mobile Data Terminals (MDT) for the Ukiah Valley Fire Authority (UVFA) in the Amount of $173,830.11 for the Initial Three Years, and Approve Corresponding Budget Amendment.
DEPARTMENT: Fire PREPARED BY: Eric Singleton, Battalion Chief PRESENTER: Doug Hutchison, Fire Chief
ATTACHMENTS:
1. RadioMobile CAL FIRE Case Study 11-2019
2. RadioMobile (SourceWell-Quote)
Summary: The Council will consider the purchase of Mobile Data Terminals (MDT's) from RadioMobile for the amount of $173,830.11 and approval of corresponding budget amendment.
Background: To maintain safety as a top priority, the Ukiah Valley Fire Authority would like to purchase Mobile Data Terminals(MDT's), which will provide security in multiple ways:
Communications from unit to unit, and unit to dispatch center. Reduce routine radio traffic (i.e., incident acknowledgment, response, on-scene, clear, etc.,) allowing for additional incident dispatch or priority/pertinent traffic to be relayed. Provide the location of every unit in the fleet via GPS, Satellite, and Cellular; allowing the closest unit to be sent, which will save valuable time when responding to emergencies, in comparison to the current system that assigns a unit to a zone.
System is also utilized by CalFire
Using GPS & satellites will allow tracking of the units in real-time, giving the ability to better coordinate offensive and defensive fire strategies & tactics. Internet accessibility, emergency incidents are considered highly dynamic and fluid situations.
Providing Staff with the most up-to-date information available to them when faced with situations ranging from Haz-mat, rescues (High/Low angle), confined, water, fire, and medical, will ensure quicker and more efficient responses.
Data includes hundreds of pre-plans and floor plans constructed by the prevention office.
See CalFire case study (Attachment 1.)
Discussion: This item was built into this year's fiscal budget, with the stipulation of the annexation (District overlay of the City) being approved. The original budgeted amount was reduced, pending the annexation, with detailed notes that reduced budget item amounts are to be considered for restoration if the annexation successfully passed.
With the approval of the annexation, the UVFA would like to move forward with the purchase. The total firstyear cost for all units and hardware is $120,652.07, including tax and shipping. Years two and three will be an additional $26,589.02 per year to meet Radio Mobile's three-year commitment requirement, resulting in a total amount of $173,830.11 for the full three years (See Attachment 2).
RadioMolie is the only provider capable of integrating both the current dispatch system CAD, as well as interface
with CalFire's MDT service. The purchase was split between the UVFA general fund (Fund 105) and the enterprise Ambulance fund (Fund 710).
Staff is recommending to approve the purchase of Mobile Data Terminals in the amount of $173,830.11 from RadioMobile, and approve the corresponding budget amendment.
Recommended Action: Approve the purchase of Mobile Data Terminals in the amount of $173,830.11 from RadioMobile, and approve the corresponding budget amendment.
BUDGET AMENDMENT REQUIRED: Yes
CURRENT BUDGET AMOUNT: 71021100.54330.18271: $19,100; 71021100.54320.18271: $3,250; 10521210.54330.18271: $10,023;10521210.54320.18271: $20,000 PROPOSED BUDGET AMOUNT: 71021100.54330.18271: $19,100; 71021100.54320.18271: $20,976.01; 10521210.54330.18271: $78,302.07; 10521210.54320.18271 $55,452.03 FINANCING SOURCE: New Funding
PREVIOUS CONTRACT/PURCHASE ORDER NO.: N/A
COORDINATED WITH: Doug Hutchison, Fire Chief
CASE STUDY
Leading the Way in Fire Apparatus Connectivity
and Location Accuracy for Fire Responders
How CAL FIRE implemented new technology to improve safety and efficiency The California Department of Forestry & Fire Protection is not your typical fire department. Better known as CAL FIRE, the agency provides fire protection services across more than 31 million acres of privately-owned wildlands in the nation’s most populous state. In addition to those responsibilities, CAL FIRE’s thousands of firefighters provide all-hazard emergency services—responding to medical emergencies, auto accidents, hazmat incidents and more—in 36 of the state’s 58 counties. The 812 fire stations operated by CAL FIRE are organized in 21 administrative units that each have their own computer-aided dispatch (CAD) system and connectivity challenges. One area might have great 4G coverage, while another is so remote that cellular communication is impossible. To overcome those obstacles, CAL FIRE set out to increase operational efficiency, safety, and connectivity in two ways:
The Need
CAL FIRE researched countless technology options, but kept running into walls, including inflexible contract rules and an overall inability to provide a total solution for their connectivity and location accuracy needs.
Then CAL FIRE discovered RadioMobile, a San Diego-based company whose clients include Los Angeles Fire Department and Los Angeles County Fire Department.
“RadioMobile was so willing to find a total solution, and they allowed us to do a proof of concept with them before ever purchasing anything, which was great,“ says Dan Marksbury, CAL FIRE’s Chief Technology Officer. This was an important step in allowing CAL FIRE to realize its goal of increased dispatch, response efficiency and on-scene accountability.
After additional research, CAL FIRE decided to install the Patriot All-In-One mobile data computer in over 1,100 of their frontline vehicles.
By using the Patriot MDC along with technology that provides connectivity over LTE/4G, satellite, and CAL FIRE’s private land mobile radio (LMR)-based mobile data system (using narrowband frequencies), each vehicle was integrated into the AVL system.
The application can also run
on tablets and other devices.
The communications center
can now see exactly where
responding vehicles are
instead of guessing where
they might be within their
assigned service area,
allowing dispatchers to send
the closest available unit
every time.
As a CAL FIRE vehicle drives through an area, the system automatically finds a connection with 4G; when 4G is not available, the application (IQ Mobile) running on the mobile data computer (MDC) intelligently connects through the narrowband system or via satellite as a last option to always maintain data connectivity to the dispatch center.
Beyond knowing exactly where a vehicle is at the time of dispatch, the ability to track a vehicle as they respond through urban, suburban and rural environments on the vehicle location system, is invaluable, according to CAL FIRE. A dispatcher or incident commander on a large-scale incident can provide turn-by-turn directions in remote or unfamiliar areas if needed, increasing the efficiency of any response. Crew members also have the incident detail and up-to-date information at their fingertips and no longer have to rely on hand-written notes scribbled onto scraps of paper as they are being dispatched; the address and other potential life-saving information is displayed on the Patriot’s screen along with a live map that routes them to the scene. With the entire map database contained within the MDC, the crew tracks their own movements and can also
backtrack (breadcrumb) out of unfamiliar or low visibility areas even if network connectivity is lost.
The Solution
1. Create seamless communications connectivity for their entire fleet of fire apparatus.
2. Equip all frontline vehicles with automatic vehicle location (AVL) technology that functions in all 31 million acres of service area.
Patriot All-in-One MDC
Patriot A-i-O MDC | Side Profile | User Interface
ATTACHMENT 1
CASE STUDY
Leading the Way in Fire Apparatus Connectivity
and Location Accuracy for Fire Responders
The collaboration between CAL FIRE and RadioMobile has
resulted in a new level of on-scene and whole-system situational awareness across the entire state. “The Patriot allows us to see where resources are while on a fire scene, and that is huge from an accountability standpoint,” shared Battalion Chief Matt Damon.
And that visibility using real-time GPS and AVL technology helps CAL FIRE achieve its overarching goal: to increase the safety for responders and the people they protect.
The Solution (continued)
CAL FIRE is well on its way to accomplishing its key technology goals through this innovative partnership. “The high level of commitment and customer service by RadioMobile makes me confident this is the right solution for CAL FIRE,” says Damon.
CAL FIRE’s advancements in communications and connectivity are only just beginning. CAL FIRE is working on new interoperability solutions that will allow fire personnel to communicate with other outside agencies, especially during major events like wildfires.
As with any implementation process—especially for a
statewide agency separated into 21 departments, each with its own unique set of circumstances—CAL FIRE faced challenges along the way. “For example, our vehicles don’t use shore power like a typical city fleet,” Marksbury explains. “So, when you’re dealing with systems that are designed to use the station as a power source to retain settings like sound and screen brightness, you run into some issues.”
The CAL FIRE and RadioMobile implementation team worked together to address issues such as not having electrical connections when in the station and others unique to each of the agency’s units. Successful implementation of a system in an agency this size takes collaboration and creativity.
Overcoming Challenges
Now having accurate and very timely location, status and incident information automatically via data, much less voice traffic is needed, the benefits are huge.
Patriot All-in-One MDC
Change to- IQ Locator AVL and Incident Tracking
To: Ukiah Valley Fire Authority
(CAL FIRE MEU Schedule A)
Item Part No. Qty U/M Description MSRP Retail Sourcewell Extended 1 PATR-3 11 ea Patriot Mobile Data Computer, "All in One" Includes; 1TB SSD, 16GB RAM, Multi-Touch Screen, 3.5"
Industrial SBC, 12.1" Display, 5-yr warr.
$ 3,624.50 $ 3,295.00 $ 3,189.56 $ 35,085.16
2 508-1610-64 11 ea OS, License, WIN10 Pro, 64 BIT
(optional)
$ 187.00 $ 170.00 $ 164.56 $ 1,810.16
3 170-4428 4 ea Battery Backup Module (Saver) for MDC
(optional)
$ 181.50 $ 165.00 $ 159.72 $ 638.88
4 508-1710-6 11 ea Ruggedized Keyboard with 6ft Cable, USB (optional)
$ 302.50 $ 275.00 $ 266.20 $ 2,928.20
5 508-1320-VP-SW2F-8-2461
508-1320-VB-181
11 ea MDC Mounting Hardware
Includes: 8" Upper Pole w/flange, monitor & Keyboard mount, Mount, Universal Drill-Down, Vertical Base
$ 324.50 $ 295.00 N/A $ 3,245.00
6 CP-MA3-0900600M 11 ea Cradlepoint COR IBR900 LTE Router *1 Incl: Single embedded LTE Advanced 600 Mbps LTE/HSPA+
modem, WiFi, GPS, DC Cable, ltd lifetime warranty while under NetCloud Service Plan, 3-Yr NetCloud Mobile Essentials $ 1,119.00 $ 1,119.00 N/A $ 12,309.00
7 AG-AP-MMF-CCWWG 11 ea Airgain MULTIMAX FV 5in1 SharkFin Antenna Includes: 2xLTE, 2xWiFi, GNSS, 2.4/5GHz, Bolt Mount,
15' cable, 3-yr warr., Black
$ 346.50 $ 315.00 $ 304.92 $ 3,354.12
8 270-5042-15 11 ea Ethernet Cable
LTE Router-Patriot
$ 20.90 $ 19.00 $ 18.39 $ 202.31
9 170-SAT-FLEXCOM 5 ea Flexcom Satellite Terminal
Includes 2-way messaging capability
$ 1,529.00 $ 1,390.00 $ 1,345.52 $ 6,727.60
10 170-POE-FLEXCOM-DC 5 ea Flexcom PoE Injector:
DC 9-36V --> DC
$ 88.00 $ 80.00 $ 77.44 $ 387.20
11 170-ETH10-FLEXCOM 5 ea Flexcom Ethernet Cable
POE, 10m
$ 88.00 $ 80.00 $ 77.44 $ 387.20
12 170-SAT-FLEXCOM 2 ea Flexcom Satellite Terminal
Includes 2-way messaging capability
$ 1,529.00 $ 1,390.00 $ 1,345.52 $ 2,691.04
13 170-POE-FLEXCOM-DC 2 ea Flexcom PoE Injector:
DC 9-36V --> DC
$ 88.00 $ 80.00 $ 77.44 $ 154.88
14 170-ETH10-FLEXCOM 2 ea Flexcom Ethernet Cable
POE, 10m
$ 88.00 $ 80.00 $ 77.44 $ 154.88
15 CP-MA3-0900600M 2 ea Cradlepoint COR IBR900 LTE Router *1 *2 Incl: Single embedded LTE Advanced 600 Mbps LTE/HSPA+
modem, WiFi, GPS, DC Cable, ltd lifetime warranty while under NetCloud Service Plan, 3-Yr NetCloud Mobile Essentials $ 1,119.00 $ 1,119.00 N/A $ 2,238.00
16 AG-AP-MMF-CCWWG 2 ea Airgain MULTIMAX FV 5in1 SharkFin Antenna Includes: 2xLTE, 2xWiFi, GNSS, 2.4/5GHz, Bolt Mount,
15' cable, 3-yr warr., Black
$ 346.50 $ 315.00 $ 304.92 $ 609.84
Mobile Equipment for iPad: Satellite / LTE
Mobile Equipment for MDC: MDC / LTE / Satellite
Quotation No. Q220113-1
Date: January 13, 2022
Sourcewell Contracts: 042021-RDO
051321-RDO
System Quote (Sourcewell)
MDC - LTE - Satellite - AVL - Mobile App - IQ Flex
RadioMobile Inc.
8801 Kenamar Drive
San Diego, CA 92121
858.530.1060
ATTN: Fire Chief Doug Hutchison
1500 South State Street
Ukiah, CA 95482
*1 3-Year NetCloud Mobile Essentials Renewal = $540 /device (after initial term expiration). *1 3-Year NetCloud Mobile Essentials Renewal = $540 /device (after initial term expiration). '*2 Router required for satellite terminal interface
Ukiah Valley Fire Authority
Mendocino Unit (MEU) Schedule A
1 | 3 January 2022
ATTACHMENT 2
17 S708-LIC-2100-8.1-M 11 ea
annual
License, IQ Mobile Software (Windows)
CAL FIRE Schedule A
($25 /device/month)
$ 330.00 $ 300.00 $ 290.40 $ 3,194.40
18 S708-LIC-2100-IQT-M 7 ea
annual
License, IQ Tablet Software (iOS)
CAL FIRE Schedule A
($25 /device/month)
$ 330.00 $ 300.00 $ 290.40 $ 2,032.80
19 S708-LIC-IQMSL-M 18 ea
annual
License, IQ Mobile Server Lite AVL Interface to CAL FIRE ($22 /vehicle-device /month)
$ 290.40 $ 264.00 $ 255.55 $ 4,599.94
20 S708-LIC-IQMSL-INT-M 18 ea
annual
License, IQ Mobile Server Lite Device Interface to CAL FIRE ($36 /MSaaS license /month)
$ 475.20 $ 432.00 $ 418.18 $ 7,527.17
21 700-SAT-INT-ORB-M 7 ea
annual
License, Satellite device interface to satellite service gateway
($4 /satellite terminal /month)
$ 52.80 $ 48.00 $ 46.46 $ 325.25
22 700-LIC-IQMSL-IQL-M 1 ea
annual
License, IQ Locator Software (map)
($11 /seat/month)
$ 145.20 $ 132.00 $ 127.78 $ 127.78
23 700-SAT-FLEXCOM10-1 7 ea
annual
10 MB Satellite Service Plan (per device), 1-Year Term1 ($108 /month). If data usage exceeds 10MB; $15 /MB
$ 1,425.60 $ 1,296.00 $ 1,254.53 $ 8,781.70
24 700-SAT-FLEXCOM5-1 optional ea
annual
5 MB Satellite Service Plan (per device), 1-Year Term1
($65 /month). If data usage exceeds 5MB; $18 /MB
$ 858.00 $ 780.00 $ 755.04 $ -
25 RM-SVR-IQMSL 1 ea Onboarding: IQ Flex Configuration, Resource Provisioning, Account Setup
(one time per billable agency)
$ 11,000.00 $ 10,000.00 $ 9,680.00 $ 9,680.00
26 P606-Project Mgmt 1 Lot Project Management, Admin Support, Documentation $ 5,500.00 $ 5,000.00 $ 4,840.00 $ 4,840.00 27 RM-IQLSEAT-SETUP 1 ea IQ Locator Software Setup $ 1,100.00 $ 1,000.00 $ 968.00 $ 968.00 28 Installation-AVL 0 ea Installation Training
1st Device (LTE Router/Antenna or Sat)
$ 935.00 $ 850.00 $ 822.80 $ -
29 Installation-Patriot 0 ea Installation Training
Patriot MDC
$ 550.00 $ 500.00 $ 484.00 $ -
30 Installation-ANT 0 ea Installation Training
2nd Device (Satellite Terminal/Antenna)
$ 165.00 $ 150.00 $ 145.20 $ -
31 TRAINING optional Lot Formal Training Services (per class) $ 8,250.00 $ 7,500.00 $ 7,260.00 $ - 32 TRAINING optional ea Informal Training Services (In-vehicle) $ 165.00 $ 150.00 $ 145.20 $ - 33 TRAVEL 0 Lot Travel and living expense
Onsite services; install training
$ 1,100.00 $ 1,100.00 N/A $ -
Professional Services
Mobile Software-as-a-Service (MSaaS): iPad (iOS)
Satellite Service Plan
Mobile Software-as-a-Service (MSaaS): MDC (Windows)
IQ Flex Lite Server-as-a-Service (LSaaS)
Ukiah Valley Fire Authority
Mendocino Unit (MEU) Schedule A
2 | 3 January 2022
$ 67,074.83
$ 5,848.64
$ 3,194.40
$ 2,032.80
$ 12,580.13
$ 8,781.70
$ 15,488.00
$ 115,000.50
$ 5,651.57
$ 795.00
$ 120,652.07
$ 88,411.47
$ 26,589.02
NOTES:
First Year Subtotal
Tax (7.875%)
First Year Total
Professional Services (one-time)
Pricing Summary
Prepared by: Ron Lyons
Prepared by: [email protected]
Prepared by: 619.855.7041
Mobile Software-as-a-Service for MDC Subtotal (annual recurring) Mobile Software-as-a-Service for iPad Subtotal (annual recurring) Lite Server-as-a-Service Subtotal (annual recurring)
Satellite Service Plan (annual recurring)
Total one-time (pre-tax)
Hardware, professional services
Total recurring annual
Software licenses
First Year Summary
Shipping / Handling
Payment terms: 1) 25% with PO
Payment terms: 2) Milestones upon receipt
3-year minimum subscription term
Prices are effective Jan 1, 2022 and are valid for 60 days Shipping to be included on final invoice
1.5% interest per month charged on balances over 30 days Services through the Lite Server are intended for use by Schedule A agencies within jurisdiction of this Unit only.
Mobile Equipment for iPad Subtotal (one-time)
Mobile Equipment for MDC Subtotal (one-time)
Ukiah Valley Fire Authority
Mendocino Unit (MEU) Schedule A
3 | 3 January 2022
Agenda Item No: 7.k.
MEETING DATE/TIME: 1/19/2022
ITEM NO: 2022-27
AGENDA SUMMARY REPORT
SUBJECT: Report the Emergency Purchase of all Materials and Labor for the Traffic Signal Control Cabinets Replacement at the Intersections of State & Standley and State & Perkins Streets from DC Electric Group in the Amount of $58,935.00.
DEPARTMENT: Public Works PREPARED BY: Seth Strader, Buyer I PRESENTER: Tim Eriksen, Director of Public Works/City
Engineer
ATTACHMENTS:
1. DC Quote
2. Attachment 2 - PO
Summary: Council will receive a report of the acquisition of an emergency purchase of two traffic signal cabinet replacements from DC Electric Group for the amount of $58,935.00.
Background: In November 2021, City staff identified a problem with the design of the traffic signal control mechanisms at the intersections of State Street and Perkins Street and Standley Street. The existing controllers that were planned to be reused do not adequately adapt to the new hardware and software that were installed as part of the Streetscape Project. Note, supply chain issues had previously hampered the full installation of the system prior to the identification of the problems with the cabinet .
Discussion: City staff and the contractors involved in the Streetscape Project reviewed DC Electric Group’s proposal and decided that it was the most economical and timely solution to get the two intersections operating correctly. Please see Attachment 1. An emergency Purchase Order (Attachment 2) was created and provided to DC Electric Group, due to the need to get the traffic signals operational as soon as possible and without further delays.
Recommended Action: Receive Report for the Emergency Purchase of all Materials and Labor for the Traffic Signal Control Cabinets Replacement at the Intersections of State & Standley and State & Perkins Streets from DC Electric Group in the Amount of $58,935.00.
BUDGET AMENDMENT REQUIRED: No
CURRENT BUDGET AMOUNT: 12024200.80230.18019: $58,935
PROPOSED BUDGET AMOUNT: N/A
FINANCING SOURCE: N/A
PREVIOUS CONTRACT/PURCHASE ORDER NO.: 47585
COORDINATED WITH: Tim Eriksen, Director of Public Works/City Engineer
ATTACHMENT 1
Purchase Order
Purchase
Order #
THIS NUMBER MUST APPEAR ON ALL INVOICES,
PACKAGES AND SHIPPING PAPERS.
Fiscal Year Page of
Delivery must be made within
doors of specified destination.
RECEIVING COPY PO Total
B
I
L
L
T
O
V
E
N
D
O
R
S
H
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P
T
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Vendor Phone Number Vendor Fax Number Buyer Date Ordered Date Required Item# Description/Part No. Qty UOM Unit Price Extended Price
CITY OF UKIAH
ATTN: ACCOUNTS PAYABLE
300 SEMINARY AVENUE
UKIAH, CA 95482
Delivery Reference Freight Method/Terms Department/Location Sales Tax Rate 2022 1 1
47585-00
DC ELECTRIC GROUP INC
PO BOX 7525
COTATI CA 94931
CITY OF UKIAH - CIVIC CENTER
300 SEMINARY AVENUE
UKIAH CA 95482
Mary Williamson 11/18/2021 12/31/2021
JASON BENSON UKIAH / NET 30 PUBLIC WORKS DEPARTMENT 0.000 $58,935.00
1 ALL LAOBOR, MATERIALS AND EQUIPMENT TO 1.0 EACH $58,935.000 $58,935.00
PERFORM THE WORK AS LISTED ON THE ATTACHED
QUOTE AT 2 LOCATIONS: N. STATE & STANDLEY
AND N. STATE AND E. PERKINS
120.12.12.24.242.2420.24200.80230.18254 $58,935.00
REQ #E32827
PER QUOTE DATED 11/16/2021, JOB NAME:
REPLACE TWO (2) TRAFFIC SIGNAL CABINETS AND
CONTROLLERS
WORK PERFORMED WILL BE SUBJECT TO
PREVAILING WAGE ADDENDUM ATTACHMENT #A,
DATED 11/18/2021
ATTACHMENT 2
Agenda Item No: 7.l.
MEETING DATE/TIME: 1/19/2022
ITEM NO: 2022-1220
AGENDA SUMMARY REPORT
SUBJECT: Approval of a Professional Service Contract with GHD for Flood Mapping Review Support in the Amount Not to Exceed $17,000, and Corresponding Budget Amendment.
DEPARTMENT: Public Works PREPARED BY: Tim Eriksen, Public Works Director/City Engineer PRESENTER: Tim Eriksen, Public Works Director/City Engineer ATTACHMENTS:
1. GHD Proposal - FEMA Flood Mapping Review
Summary: The City Council will consider given an approval of a professional service contract with GHD for flood mapping review support in the amount not to exceed $17,000, and consider approval of a corresponding budget amendment.
Background: In 2020, the Federal Emergency Management Agency (FEMA) began the process of updating the flood plain elevations throughout the City of Ukiah. The first preliminary results were reported to the City Engineering team in 2021. The results were radically different than what currently exists in the City, the implications of which could have significant impacts on development and insurance rates throughout the city. Since that time, in order to protect the interests and investments of the community, City Staff has worked on solutions with FEMA staff to review the study results and discuss contradictions with observed historic flood events in the City. In short, City Staff have been concerned about the fact that the FEMA study does not seem to reflect what City Staff has witnessed in the City. The Engineering Department has searched for experts in the hydraulic field in order to assist in the review of the FEMA results.
Discussion: The Engineering Staff discussed this issue with experts in the hydraulic field with GHD Engineering. Staff also discussed this approach with FEMA and both agree that the additional expert review and engagement is going to be helpful to this process. GHD provided a proposal for this review (Attachment 1). GHD will be able to start immediately and FEMA will share their flood models with our experts for a more robust review of this model that the Engineering Staff is questioning. As part of the scope of work, GHD will prepare technical memo for staff and Council review. This will be a high-level review with recommendations for further study and collaboration as needed.
This item was unforeseen and was not included in the 21/22 fiscal year budget. Staff is asking for a budget amendment for this work.
Recommended Action: Approve the Professional Service Contract with GHD for Flood Mapping Review Support in the Amount Not to Exceed $17,000, and Approval of Corresponding Budget Amendment.
BUDGET AMENDMENT REQUIRED: Yes
CURRENT BUDGET AMOUNT: 10024210.52100: $0
PROPOSED BUDGET AMOUNT: 10024210.52100: $17,000
FINANCING SOURCE: 100 Fund Balance
PREVIOUS CONTRACT/PURCHASE ORDER NO.: N/A
COORDINATED WITH:
The Power of Commitment
2021 FEMA Flood Mapping Review Support
2235 Mercury Way, Suite 150
Santa Rosa, CA 95407
USA
www.ghd.com
20 May 2021
Tim Eriksen, PE
Director of Public Works/City Engineer
City of Ukiah
Public Works Department
300 Seminary Avenue
Ukiah, CA 95482-5400
2021 FEMA Flood Mapping Review Support
Dear Mr. Eriksen
GHD is pleased to provide this proposal for professional services in support of the evaluation of the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) updated Flood Insurance Rate Map (FIRM) panels and Flood Insurance Study (FIS) reports for Mendocino County. FEMA Risk Analysis Branch Chief for Region IX, Alison Kerns, sent a letter to the City of Ukiah (City) Mayor, Honourable Juan Orozco, dated February 4, 2021 to notify an update on the FEMA FIRM mapping. In the letter, FEMA requested that the City respond to the update through review and comment by April 18, 2021, with the caveat that there will be additional opportunities to provide feedback on the Special Flood Hazard Area delineations before being finalized.
To support the City to respond to the FEMA notification on the mapping update, GHD proposed to providing feedback by comparing the preliminary 2021 models and mapping to the effective 2011 versions. The mapping comparison review includes:
– Coordination with key stakeholders
– Obtain preliminary hydrologic and hydraulic models, and available supporting Geographic Information System (GIS) files
– Compare floodplain mapping within an ArcGIS platform and identify changes between 2011 and 2021 mapping
– Investigate changes in hydrologic and hydraulic modelling and analysis – Document the findings and recommendations in a technical memorandum (TM) This will be a high-level review with recommendations for further study and collaboration as needed.
Based on our understanding of the City needs, and our experience to similar supporting task, the following is a GHD proposed scope of service to support the City to review the FEMA mapping update.
Task 1: Project Management
GHD will conduct monthly progress and coordination meetings with the City. We will document meetings by providing an agenda and meeting summary, as well as potential handouts and preparation of power point slides as required for each meeting. The anticipated project meetings include:
– Kick-off meeting.
– Monthly progress and coordination meetings.
It has been assumed that all meetings will be virtual using Microsoft Teams or other platform that the City prefers and all documents will be provided to the City in electronic form.
ATTACHMENT 1
The Power of Commitment
2021 FEMA Flood Mapping Review Support 2
Task 2: Stakeholder Coordination
GHD will identify and engage stakeholders including FEMA, STARR II, Mendocino County (County) and the City. The intent of this task will be to gain insight into different perspectives, an understanding of the timeline, and coordinate review and commenting to provide feedback to FEMA. We anticipate that the level of effort will include three (3) meetings with FEMA and STARR II and one (1) meeting with the County. We will document meetings by providing an agenda, meeting summary, and sign-in sheet, as well as potential handouts and preparation of power point slides as required for each meeting. The anticipated project meetings include:
– Meeting with FEMA and STARR II to set the timeline and gather materials. – Meeting with FEMA and STARR II to discuss initial findings. – Meeting with the County to gain County perspective and intent, and to coordinate mapping review efforts.
– Meeting with FEMA and STARR II to discuss review findings and recommendations.
It has been assumed that all meetings will be virtual using Microsoft Teams or other platform that the City prefers and all documents will be provided to the City in electronic form.
Task 3: Hydrologic, Hydraulic Modelling Review and GIS Mapping The effective 2011 FIS and SFHA will be compared to the 2021 and any discrepancies investigated through a detailed review of preliminary modelling versus assumptions used in the effective modelling. The analysis will include an inventory of information reviewed and recommendations for resolving any discrepancies. It is noted that no new modelling or analysis will be conducted (review only).
Task 4: Reporting
GHD will prepare a draft TM and a final TM. The final TM will be completed after review and comment from the City. It has been assumed that all comments will be incorporated into one revision round.
Project Team
The scope of work will be conducted by the Hydrologic and Hydraulic Engineering Team with the following team members proposed for this project. Raymond Wong will be responsible as the Project Manager and provide technical supervision and resourcing for the project. Steve Allen will act as the Project Director ensuring that all ISO 9001 checks and balances have been completed. Paul Glenn will be our Project Engineer to provide technical review on the hydrology and hydraulic analysis, and floodplain mapping.
Matt Kennedy will be our client manager and will be available as needed to provide additional support and coordination.
An introduction of our Hydrologic and Hydraulic Engineering Team is summarized in the following table:
The Power of Commitment
2021 FEMA Flood Mapping Review Support 3
Steve Allen, PE - Project Director
Steven Allen is a proud, third generation native of the North Coast bringing over 24 years of experience to our team, overseeing projects involving hydrology, hydraulics, fluvial geomorphology, floodplain design, channel restoration, wetland mitigation construction, stream bank protection, bioengineering techniques, stormwater management and flood control, open channel water conveyance, grading plans, erosion and sediment control design and plans, construction services, and regulatory compliance in sensitive environments. Steven has served in a high-level leadership capacity for all of restoration experience on the North Coast (notably leading our West Coast Water Restoration Group) and has led habitat restorations, enhancements, and passage improvements for agencies throughout Northern California, such as the BCRAA, the Humboldt County RCD, the California Water Service Company (CalWater), CalTrout, the California Coastal Conservancy (CCC), Alameda County Water District, and California Department of Fish & Wildlife (CDFW), as well as for such cities as Trinidad, Fortuna, and Eureka, and local tribal entities.
Raymond Wong, PhD, PE, LEED AP, CFM - Project Manager
Dr. Raymond Wong is an ASFPM Certified Floodplain Manager specializing in water resources engineering including urban flood protection, stream restoration, and watershed planning and management. His technical emphasis includes hydrology, hydraulic, geomorphology, and numerical modeling. Raymond is a proven technical leader, managing multi-discipline teams to deliver timely and high-quality services to clients. He has consulted on numerous storm drainage floodplain coupled studies and modeling projects, developed and advised on over $200 million of Capital Improvement Projects (CIP) for his clients. Raymond received his honor undergraduate degree at the University of Toronto and graduate degrees at Stanford University and University of California - Berkeley. His research work studied flood control projects and watershed programs in the San Francisco Bay Area, Los Angeles Area, Milwaukee, Toronto, Beijing, and Singapore, and he has presented at conferences and workshops across the US and internationally, such as in France and China.
Paul Glenn, PE, PG - Project Engineer
Paul is a project manager, civil engineer, and hydrogeologist with over 22 years of experience in delivering water resources related projects. His skills are specialized in stormwater and water quality, surface water, and groundwater assessments including hydrological and hydraulic analysis; stormwater and water quality master planning and design; flood mitigation alternatives and design; groundwater flow and contaminant transport analysis; groundwater dewatering, injection, and remediation design; and geotechnical engineering. As part of assessment and evaluations, Paul has developed significant experience in hydrologic, hydraulic, and water quality modeling for both surface water and groundwater environments. In 2017, Paul was designated as a Subject-Matter Expert (SME) technical review representative on behalf of the Federal Emergency Management Agency (FEMA) responsible for the review of hydrology and hydraulics as well as levee/floodwall designs related to letters of map revision (LOMR) and conditional letters of map revisions (CLOMR).
The Power of Commitment
2021 FEMA Flood Mapping Review Support 4
Project Fee and Schedule
We anticipate that all tasks can be completed within three months after receiving notice to proceed.
GHD proposes a time-and-materials fee not to exceed $17,000 to complete the review. The attached fee table outline the proposed fee and staff hour estimates for each task.
We welcome the opportunity to work with you on this important study, and look forward to contributing to its success. Should you have any questions, please do not hesitate to contact me.
Sincerely,
GHD
Raymond Wong, PhD, PE, CFM, LEED AP
Project Manager
650.867.3304
[email protected]
City of Ukiah
2021 FEMA Flood Mapping Review Support
5/20/2021 Project Director Project Manager Project Engineer Engineer Staff Engineer GIS Specialist Admin Hours Labor Subtotal Total $275 $265 $245 $185 $145 $135 $95
Task 1 - Project Management 1 4 7 0 0 0 0 12 $3,050 $3,050 $3,050 Kick-off Meeting 1 2 3 6 $1,540 $1,540 $1,540
Monthly Progress Meetings 2 4 6 $1,510 $1,510 $1,510
Task 2 - Stakeholder Coordination 0 8 8 0 0 0 0 16 $4,080 $4,080 $4,080 Four (4) Meetings 8 8 16 $4,080 $4,080 $4,080
Task 3 - Hydrologic, Hydraulic Modeling Review and GIS Mapping 2 2 9 5 7 8 0 33 $6,305 $6,305 $6,305 Review 1 1 5 5 7 8 27 $4,785 $4,785 $4,785
Recommendations 1 1 4 6 $1,520 $1,520 $1,520
Task 4 - Reporting 2 2 6 3 0 2 2 17 $3,565 $3,565 $3,565 Draft and Final TMs 2 2 6 3 2 2 17 $3,565 $3,565 $3,565 GRAND TOTAL 5 16 30 8 7 10 2 78 $17,000 $17,000 $17,000
Agenda Item No: 11.a.
MEETING DATE/TIME: 1/19/2022
ITEM NO: 2022-22
AGENDA SUMMARY REPORT
SUBJECT: Conduct a Public Hearing and Consider Adopting Respective Resolutions Authorizing Lease Revenue Bonds, Series 2022 to Renovate the City Corporation Yard and Construct Improvements to Various City Streets (This item was continued from December 15, 2021.) DEPARTMENT: Finance PREPARED BY: Dan Buffalo, Finance Director PRESENTER: Dan Buffalo, Finance Director
ATTACHMENTS:
1. 1 Ukiah City Reso- Lease
2. 2 Ukiah Authority Reso- Issue Bonds
3. 3 Site Lease - Ukiah
4. 4 Lease Agreement - Ukiah
5. 5 Indenture - Ukiah
6. 6 Assignment Agmt - Ukiah
7. 7 POS (Ukiah LRBs)
8. 8 Bond Purchase Agreement (Piper Sandler)
Summary:
The City Council will consider adopting respective resolutions authorizing lease revenue bonds, Series 2022 to renovate the City Corporation Yard and construct improvements to various city streets. The terms and the amounts presented in this report are subject to change. This item has been placed on the agenda to allow Council the ability to consider authorization should it be deemed warranted.
Background: The City has developed a capital financing strategy to take advantage of current municipal financial market rates to engage in and complete certain capital projects at a lower cost than other ordinary alternatives. It intends to issue debt to finance these projects, funded primarily by the general fund, most notably resources derived from Measure Y. Proceeds from the Lease Revenue Bonds, Series 2022 (the “Bonds”) will be used to renovate the City’s Corporation Yard and construct improvements to various city streets.
The Corporation Yard is the base of operations for the City Fleet and Plant Maintenance Facility, Street Maintenance Crew, Water and Wastewater Maintenance Crew, and Electric Utility Maintenance Crew. The estimated renovation cost is $15 million.
The streets projects primarily consist of improvements to certain streets, rights-of-way reconstruction, and related underground utility projects, as follows: Dora Street: reconstruct Mill to Grove streets and overlay Upper Luce Avenue to Mill Street; Gobbi Street: reconstruct from Highway 101 to Dora Street; Main Street:
reconstruct from Gobbi to Norton streets; Perkins Street: Main Street to Hwy. 101; Dora and State Streets:
overlay Beacon Lane to Washington Avenue; Clara Avenue: reconstruct/overlay from State Street to North Orchard Avenue; and Low Gap Road: reconstruct/overlay from State to Bush Streets. The estimated streets project cost is $30 million ($20.7 million for streets and $9.3 million for street utilities).
The City has expressed its intention to issue municipal tax-exempt bonds to pay the costs associated with renovating the City’s Corporation Yard and constructing improvements to various city streets.
City staff worked with its municipal advisor (NHA Advisors, LLC) to develop a financing plan and engage bond counsel (Jones Hall), an underwriter (Piper Sandler), and other parties to complete the financing.
The Ukiah Public Financing Authority (the “Authority”) will be used as the conduit entity to assist in the financing as the counterparty to the various legal agreements and as issuer of the Bonds in an aggregate amount of not-to-exceed Forty-Eight Million Dollars ($48,000,000). It is anticipated that the Corporation Yard component of the Bonds will be repaid over a 30-year term, the utilities component repaid over a 20-year term, and the streets component repaid over a 10-year term. As a result, annual debt service on the Bonds is estimated to be approximately $3.4 million through FY 2031-32, approximately $2.1 million from FY 2032-33 through FY 2032-33, and approximately $1.05 million through the remaining term of the Bonds (FY 2051-52).
A public hearing on this item was scheduled on December 15, 2021 originally, but was continued to this meeting, January 19, 2022. Staff informed Council that a potential funding opportunity for streets had presented itself and needed further evaluation. Through the CalTrans Local Partnership Program the City may have an opportunity to leverage existing City funds (currently planned for encumbrance against a bond issue) as a match for state grant funding. As of the date of this report, staff is still waiting on word from CalTrans on the City's eligibility and, following that, what funding would be available. This item may require an additional continuance to a date and time certain on February 2, 2022.
Discussion: The Financing Documents are being presented to the City Council as “form-only documents.” The final form of the documents will be produced at this time because the exact amounts, dates, and certain other information will not be known until the actual sale date. The resolutions (Attachments #1 and #2) authorize and direct certain City and Authority officers and Staff respectively to finalize the Financing Documents as and when appropriate, and to do all things necessary to provide for the issuance of the Bonds.
If the final terms for any reason should fall outside of expected parameters, Staff will return for further direction before finalizing the transaction.
The Financing Documents, and a brief description of each, is as follows:
Attachment #3. Site Lease: This is the agreement between the City and Authority, which provides the mechanism of leasing the Leased Assets, respectively, to the Authority so that they can be leased back pursuant to the respective Lease Agreements.
Attachment #4. Lease Agreement: This agreement provides for the lease of the Leased Assets, respectively, back to the City in exchange for Lease Payments commensurate with the debt service schedule for the Bonds.
Under the Lease Agreement, the City is pledging its General Fund to make the annual Lease Payments for the life of the Bonds.
The Lease Agreement, among other things, provides the following:
• That the City must include Lease Payments due each Fiscal Year in each corresponding annual budget and make the necessary annual appropriations for all such Lease Payments. • That the City must, at its sole cost and expense, keep and maintain the Site and Facilities in a clean, safe, and good condition and repair.
• That the City shall have the option at any time to substitute other real property in place of the Site and Facilities (i.e., the City has the right to substitute the collateral of the lease transaction), provided that the City is able to first satisfy all of the requirements set forth in Section 3 of the Lease Agreement. • That the City must procure and maintain throughout the term of the financing, the insurance set forth in Section 5 of each Lease Agreement.
• That the obligation of the City to pay Lease Payments shall be abated during any period in which by reason
of any damage, destruction or condemnation there is substantial interference with the use and occupancy of the Leased Assets or any portion thereof by the City.
• That upon termination or expiration of a Lease Agreement, and the first date upon which the respective Bonds are no longer outstanding, all right, title and interest in and to the respective Leased Asset shall vest in the City.
• That the Authority covenants that, prior to the discharge of a Lease Agreement and the corresponding series of Bonds, it will diligently maintain its status as a joint powers authority under the laws of the State of California, and will not engage in any activities inconsistent with the purposes for which the Authority is organized.
Attachment #5. Indenture of Trust: This agreement provides for execution and delivery of the Bonds in exchange for proceeds in the par amount of the Bonds, and further lays out the covenants and specifics of the Bonds, as well as the Trustee’s duties, repayment mechanisms, default and remedies provisions, and Bondholder’s associated rights and remedies.
Attachment #6. Assignment Agreement: This agreement provides the terms and conditions under which the Authority assigns the City’s Lease Payments to the Trustee, for ultimate payment to the Bondholders.
Attachment #7. Preliminary Official Statement: The offering document that discloses to prospective investors certain information that would aid in and investors decision to purchase the Bonds. The current version of the Official Statement (OS) as attached to this staff report is the Preliminary Official Statement. The OS outlines the terms of the sale of the Bonds, security for the Bonds, interest rate, obligations of the City and Authority, information about the City, and potential risks of purchasing the Bonds.
Attachment #8. Bond Purchase Agreement: In this agreement, the underwriter (Piper Sandler) agrees to purchase all the Bonds provided that the terms and conditions set forth therein are satisfied. Piper Sandler will then sell the Bonds to investors.
TIMING:
Assuming approval of the resolutions by the City and the Authority, City Staff and its financing team will deliver a credit rating presentation to S&P Global Ratings (S&P) in mid-December. S&P will provide a public credit rating for the Bonds. Upon receipt of the credit rating, Staff anticipates that the Bonds will be sold to investors in mid-January, at which time, a final interest rate will be locked. Delivery of funds is expected in late January.
FINANCIAL IMPACT:
The annual debt service on the Bonds is estimated to be approximately $3.4 million through FY 2031-32, approximately $2.1 million from FY 2032-33 through FY 2032-33, and approximately $1.05 million through the remaining term of the Bonds (FY 2051-52).
GOOD FAITH ESTIMATES:
The following information consists of estimates that have been provided by the Municipal Advisor (NHA Advisors, LLC) and has been represented by such party to have been provided in good faith:
1. True Interest Cost of the Bonds: 2.80%
2. Finance Charge of the Bonds (sum of all fees/charges paid to third parties): $456,325
3. Net Proceeds of the Bonds to be Received (net of finance charges, reserves and capitalized interest, if any): $45,025,000
4. Total Payment Amount through Maturity of the Bonds: $65,252,941 The foregoing constitute good faith estimates only. The principal amount of the Bonds, the true interest cost of the Bonds, the finance charges thereof, the amount of proceeds received therefrom and total payment amount with respect thereto may differ from such good faith estimates due to: (a) the actual date of the sale of the Bonds being different than the date assumed for purposes of such estimates; (b) the actual principal amount of Bonds sold being different from the estimated amount used for purposes of such estimates; (c) the actual amortization of the Bonds being different than the amortization assumed for purposes of such estimates; (d) the actual market interest rates at the time of sale of the Bonds being different than those estimated for purposes of such estimates; (e) other market conditions; or (f) alterations in the City’s financing plan, or a combination of such factors.
The actual date of sale of the Bonds and the actual principal amount of Bonds sold will be determined by the City based on a variety of factors. The actual interest rates borne by the Bonds may be subject to change from what is presented above and that may have an impact on the amortization of the Bonds.
Recommended Action: Adopt resolutions authorizing the issuance of lease revenue bonds and authorizing the City Manager to execute all related documents for the renovation of the City Corporation Yard and improvements to various City streets.
BUDGET AMENDMENT REQUIRED: N/A
CURRENT BUDGET AMOUNT: N/A
PROPOSED BUDGET AMOUNT: N/A
FINANCING SOURCE: N/A
PREVIOUS CONTRACT/PURCHASE ORDER NO.: N/A
COORDINATED WITH: NHA Advisors
RESOLUTION 2022-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH AUTHORIZING A
LEASE FINANCING AND APPROVING THE ISSUANCE AND SALE OF LEASE
REVENUE BONDS BY THE UKIAH PUBLIC FINANCING AUTHORITY TO FINANCE
PUBLIC CAPITAL IMPROVEMENTS, AND APPROVING RELATED DOCUMENTS
AND OFFICIAL ACTIONS RELATED THERETO
WHEREAS, the City of Ukiah desires to renovate its Corporation Yard and construct improvements to various City streets (collectively, the “Project”); and WHEREAS, the Ukiah Public Financing Authority (the “Authority”) was formed to, among other things, assist the City with financing public capital improvements, including the Project; and
WHEREAS, in order to provide financing for the Project, the City has agreed to lease certain real property, consisting of city streets (the “Leased Property”), to the Authority as provided in a Site Lease, as defined herein; and
WHEREAS, in order to fund its payment obligation under the Site Lease, the Authority proposes to issue and sell its Lease Revenue Bonds, Series 2022 (Capital Projects) (the “Bonds”) under Article 4 of Chapter 5, Division 7, Title 1 of the Government Code of the State of California, commencing with Section 6584 of said Code (the “Bond Law”); and WHEREAS, in order to secure the payments of principal of and interest on the Bonds, the Authority proposes to lease the Leased Property back to the City under a Lease Agreement (the “Lease Agreement”), under which the City is obligated to pay semiannual lease payments as rental for the Leased Property, and the Authority will assign substantially all of its rights under the Lease Agreement to The Bank of New York Mellon Trust Company, National Association, as trustee for the Bonds; and WHEREAS, to provide for development of the most favorable debt structure for the City and to ensure the most favorable reception in the marketplace for the Bonds, the City has requested the Authority to sell the Bonds through a negotiated sale pursuant to the terms of a Bond Purchase Agreement (the “Bond Purchase Agreement”) between the Authority, the City and Piper Sandler , as underwriter (the “Underwriter”); and WHEREAS, for purposes of the sale of the Bonds, the City has caused to be prepared an Official Statement describing the Bonds, the preliminary form of which is on file with the City Clerk and the Council, with the aid of their staff, have undertaken such review of the Official Statement as hereinafter described as is necessary to assure proper disclosure of all material facts relating to the Bonds that are within the personal knowledge of Council members and the staff; and
WHEREAS, as required by Section 6586.5 of the California Government Code, the City has caused publication of a notice of a public hearing on the financing of the public capital improvements included within the Project once at least five (5) days prior to the hearing in a newspaper of general circulation in the City; and
Attachment 1
-2-
WHEREAS, the Council held a public hearing at which all interested persons were provided the opportunity to speak on the subject of financing such public capital improvements; and
WHEREAS, the information required to be obtained and disclosed by the City Council related to the Bonds pursuant to Government Code Section 5852.1 is set forth in the staff report accompanying this Resolution; and
WHEREAS, the Council wishes at this time to approve all proceedings of the City relating to the foregoing;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ukiah, as follows:
Section 1. The Council hereby approves the issuance of the Bonds by the Authority under the Bond Law in a maximum principal amount not to exceed $48,000,000, for the purpose of financing the Project. The Council hereby finds that issuance of the Bonds by the Authority for the purpose of financing the Project will result in significant public benefits of the type described in Section 6586 of the California Government Code, including, but not limited to, a more efficient delivery of City services to residential and commercial developments within the City and demonstrable savings in effective interest rate, bond preparation, bond underwriting and/or bond issuance costs.
Section 2. The Council hereby approves each of the following agreements required for the issuance and sale of the Bonds, in substantially the respective forms on file with the City Clerk together with any changes therein or additions thereto deemed advisable by the Mayor, Vice Mayor, City Manager, Finance Director, or a designee appointed by such person (each, an “Authorized Officer”), whose execution thereof shall be conclusive evidence of the approval of any such changes or additions. An Authorized Officer is hereby authorized and directed for and on behalf of the City to execute, and the City Clerk is hereby authorized and directed to attest, the final form of each such agreement, as follows:
• Site Lease, between the City as lessor and the Authority as lessee, under which the City leases the Leased Property to the Authority in consideration of the payment of an upfront amount which will be applied by the City to the Project;
• Lease Agreement, between the Authority as lessor and the City as lessee, under which the Authority leases the Leased Property back to the City and the City agrees to pay semiannual lease payments to provide revenues with which to pay principal of and interest on the Bonds when due; and
• Continuing Disclosure Certificate, to be executed by the City for the purpose of providing annual financial information and notice of certain enumerated events to holders and beneficial owners of the Bonds.
Section 3. The Council hereby approves the negotiated sale of the Bonds by the Authority to the Underwriter. The Bonds shall be sold pursuant to the terms and provisions of the Bond Purchase Agreement among the Authority, the City and the Underwriter in Attachment 1
-3-
substantially the form on file with the City Clerk together with any changes therein or additions thereto deemed advisable by an Authorized Officer. The principal amount of the principal obligation of the City under the Lease Agreement shall not exceed $48,000,000, the true interest cost of the Bonds shall not exceed 3.25% and the Underwriter’s discount shall not exceed 0.7%.
Section 4. The Council hereby approves the preliminary Official Statement describing the Bonds in substantially the form on file with the City Clerk. An Authorized Officer is hereby authorized and directed to approve any changes in or additions to said preliminary Official Statement, and to execute an appropriate certificate stating the City’s determination that the preliminary Official Statement (together with any changes therein or additions thereto) has been deemed nearly final within the meaning of Rule 15c2-12 of the Securities Exchange Act of 1934. Distribution of the preliminary Official Statement by the Underwriter is hereby approved. An Authorized Officer is hereby authorized and directed to approve any changes in or additions to a final form of said Official Statement, and the execution thereof by an Authorized Officer shall be conclusive evidence of approval of any such changes and additions. The Council hereby authorizes the distribution of the final Official Statement by the Underwriter. The final Official Statement shall be executed on behalf of the City by an Authorized Officer.
Section 5. The firm of NHA Advisors LLC is hereby retained as municipal advisor to the City in connection with the issuance and sale of the Bonds by the Authority. An Authorized Officer is authorized to execute an agreement with said firm in a form as approved by an Authorized Officer, as necessary.
Section 6. The firm of Jones Hall, A Professional Law Corporation, is hereby retained as bond counsel and disclosure counsel to the City in connection with the issuance and sale of the Bonds by the Authority. An Authorized Officer is authorized to execute an agreement with said firm in a form as approved by an Authorized Officer, as necessary.
Section 7. The Authorized Officers, the City Attorney, the City Clerk and all other officers of the City are each authorized and directed on behalf of the City to make any and all leases, assignments, certificates, requisitions, agreements, notices, consents, instruments of conveyance or termination, warrants and other documents, which they or any of them deem necessary or appropriate in order to consummate any of the transactions contemplated by the agreements and documents approved under this Resolution. An Authorized Officer may revise the identity of the Leased Property (including by adding thereto) as necessary in order to accomplish the purposes of this Resolution. Whenever in this Resolution any officer of the City is authorized to execute or countersign any document or take any action, such execution, countersigning or action may be taken on behalf of such officer by any person designated by such officer to act on his or her behalf in the case such officer is absent or unavailable.
Attachment 1
-4-
Section 8. This Resolution shall take effect immediately upon its passage and adoption. * * * * * * * * *
PASSED AND ADOPTED by the City Council of the City of Ukiah on __________, 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
__________________________
Jim Brown, Mayor
ATTEST:
__________________________
Kristine Lawler, City Clerk
Attachment 1
RESOLUTION NO. PFA 2022-____
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE UKIAH PUBLIC
FINANCING AUTHORITY AUTHORIZING THE ISSUANCE AND SALE OF LEASE
REVENUE BONDS TO FINANCE PUBLIC CAPITAL IMPROVEMENTS, AND
APPROVING RELATED DOCUMENTS AND OFFICIAL ACTIONS RELATED
THERETO
WHEREAS, the Ukiah Public Financing Authority (the “Authority”) was formed to, among other things, assist the City of Ukiah (the “City”) with financing public capital improvements, including capital projects of the City; and WHEREAS, the City desires to renovate its Corporation Yard and construct improvements to various City streets (collectively, the “Project”); and WHEREAS, in order to provide financing for the Project, the City has agreed to lease certain real property, consisting of certain city streets (the “Leased Property”), to the Authority as provided in a Site Lease, as defined herein; and WHEREAS, in order to fund its payment obligation under the Site Lease, the Authority proposes to issue and sell its Lease Revenue Bonds, Series 2022 (Capital Projects) (the “Bonds”) under Article 4 of Chapter 5, Division 7, Title 1 of the Government Code of the State of California, commencing with Section 6584 of said Code (the “Bond Law”); and WHEREAS, in order to secure the payments of principal of and interest on the Bonds, the Authority proposes to lease the Leased Property back to the City under a Lease Agreement (the “Lease Agreement”), under which the City is obligated to pay semiannual lease payments as rental for the Leased Property, and the Authority will assign substantially all of its rights under the Lease Agreement to The Bank of New York Mellon Trust Company, National Association, as trustee for the Bonds; and WHEREAS, to provide for development of the most favorable debt structure for the City and to ensure the most favorable reception in the marketplace for the Bonds, the City has requested the Authority to sell the Bonds through a negotiated sale pursuant to the terms of a Bond Purchase Agreement (the “Bond Purchase Agreement”) between the Authority, the City and Piper Sandler & Co. as underwriter (the “Underwriter”); and WHEREAS, for purposes of the sale of the Bonds, the City has caused to be prepared an Official Statement describing the Bonds, the preliminary form of which is on file with the Secretary and the Board of Directors, with the aid of their staff, have undertaken such review of the Official Statement as hereinafter described as is necessary to assure proper disclosure of all material facts relating to the Bonds that are within the personal knowledge of members of the Board of Directors and the staff; and WHEREAS, as required by Section 6586.5 of the California Government Code, the City has caused publication of a notice of a public hearing on the financing of the public capital improvements included within the Project once at least five (5) days prior to the hearing in a newspaper of general circulation in the City; and Attachment 2
- 2 -
WHEREAS, the City Council of the City held a public hearing at which all interested persons were provided the opportunity to speak on the subject of financing such public capital improvements; and
WEREAS, the information required to be obtained and disclosed by the Board of Directors related to the Bonds pursuant to Government Code Section 5852.1 is set forth in the staff report accompanying this Resolution; and
WHEREAS, the Board wishes at this time to approve all proceedings of the Authority relating to the foregoing.
NOW, THEREFORE, IT IS HEREBY DETERMINED AND RESOLVED BY THE
BOARD OF DIRECTORS OF THE UKIAH PUBLIC FINANCING AUTHORITY AS FOLLOWS:
Section 1. The Board of Directors hereby authorizes the issuance of the Bonds under the Bond Law in a maximum principal amount not to exceed $48,000,000, for the purpose of financing the Project. The Bonds shall be issued under the Bond Law and the Indenture of Trust that is approved below.
Section 2. The Board hereby approves each of the following agreements required for the issuance and sale of the Bonds, in substantially the respective forms on file with the Secretary together with any changes therein or additions thereto deemed advisable by the Chair, Vice Chair, Executive Director, Treasurer, or a designee appointed by such person (each, an “Authorized Officer”), whose execution thereof shall be conclusive evidence of the approval of any such changes or additions. Such changes or additions may include, but is not limited to, providing that payment of the Bonds be insured by a financial guaranty policy from a bond insurance company and/or secured by a reserve surety policy, if in the judgment of an Authorized Officer such insurance and/or reserve surety policy is in the best interest of the Authority. An Authorized Officer is hereby authorized and directed for and on behalf of the Authority to execute, and the Secretary is hereby authorized and directed to attest, the final form of each such agreement, as follows:
• Indenture of Trust, between the Authority and The Bank of New York Mellon Trust Company, National Association, as trustee (the “Trustee”), setting forth the terms and provisions relating to the Bonds; • Site Lease, between the City as lessor and the Authority as lessee, under which the City leases the Leased Property to the Authority in consideration of the payment of an upfront amount which will be applied by the City to the Project;
• Lease Agreement, between the Authority as lessor and the City as lessee, under which the Authority leases the Leased Property back to the City and the City agrees to pay semiannual lease payments to provide revenues with which to pay principal of and interest on the Bonds when due; and
Attachment 2
- 3 -
• Assignment Agreement, between the Authority and the Trustee, whereby the Authority assigns certain of its rights under the Lease Agreement to the Trustee for the benefit of the Bond owners.
Section 3. The Board of Directors hereby authorizes and directs the negotiated sale of the Bonds to the Underwriter. The Bonds shall be sold pursuant to the terms and provisions of the Bond Purchase Agreement among the Authority, the City and the Underwriter in substantially the form on file with the Secretary together with any changes therein or additions thereto deemed advisable by an Authorized Officer. The principal amount of the Bonds and related principal obligation of the Authority under the Site Lease Agreement shall not exceed $48,000,000, the true interest cost of the Bonds shall not exceed 3.25% and the Underwriter’s discount shall not exceed 0.7%.
Section 4. The Board of Directors hereby approves the preliminary Official Statement describing the Bonds in substantially the form on file with the Secretary. An Authorized Officer is hereby authorized and directed to approve any changes in or additions to said preliminary Official Statement and, if requested by the Underwriter, to execute an appropriate certificate stating the Authority’s determination that the preliminary Official Statement (together with any changes therein or additions thereto) has been deemed nearly final within the meaning of Rule 15c2-12 of the Securities Exchange Act of 1934.
Distribution of the preliminary Official Statement by the Underwriter is hereby approved.
An Authorized Officer is hereby authorized and directed to approve any changes in or additions to a final form of said Official Statement, and the execution thereof by an Authorized Officer shall be conclusive evidence of approval of any such changes and additions. The Board of Directors hereby authorizes the distribution of the final Official Statement by the Underwriter. The final Official Statement shall be executed on behalf of the Authority by the Chair or an Authorized Officer.
Section 5. The Authorized Officers, the General Counsel to the Authority, the Secretary and all other officers of the Authority are each authorized and directed on behalf of the Authority to make any and all leases, assignments, certificates, requisitions, agreements, notices, consents, instruments of conveyance or termination, warrants and other documents, which they or any of them deem necessary or appropriate in order to consummate any of the transactions contemplated by the agreements and documents approved under this Resolution. An Authorized Officer may revise the identity of the Leased Property (including by adding thereto) as necessary to accomplish the purposes of this Resolution. Whenever in this resolution any officer of the Authority is authorized to execute or countersign any document or take any action, such execution, countersigning or action may be taken on behalf of such officer by any person designated by such officer to act on his or her behalf if such officer is absent or unavailable.
Section 6. This Resolution shall take effect immediately upon its passage and adoption. * * * * * * * * *
THE FOREGOING RESOLUTION WAS PASSED AND ADOPTED by the Board of Directors of the Ukiah Public Financing Authority at a regular meeting held on this _____________, 2022 by the following roll call vote:
AYES:
Attachment 2
- 4 -
NOES:
ABSENT:
ABSTAIN:
__________________________
Jim Brown, Chair of the Ukiah Public
Financing Authority
ATTEST:
__________________________
Kristine Lawler, Secretary of the Ukiah Public Financing Authority Attachment 2
Jones Hall Draft 1.11.22
SITE LEASE
Dated as of February 1, 2022
between the
CITY OF UKIAH,
as lessor
and the
UKIAH PUBLIC FINANCING AUTHORITY,
as lessee
Relating to
$______________
Ukiah Public Financing Authority
Lease Revenue Bonds, Series 2022
(Capital Projects)
Attachment 3
SITE LEASE
This SITE LEASE (this “Site Lease”), dated for convenience as of February 1, 2022, is between the CITY OF UKIAH, a municipal corporation duly organized and existing under the laws of the State of California, as lessor, which acquired a portion of the Leased Property as the City of Ukiah, California, a municipal corporation (a political subdivision organized and existing under the laws of the State of California) (the “City”), and the UKIAH PUBLIC FINANCING AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the State of California, as lessee (the “Authority”).
BACKGROUND:
1. The City is proceeding to reconstruct its corporation yard and construct improvements to various City streets (collectively, the “Project”).
2. In order to provide funds to finance a portion of the costs of the Project, the City has agreed to lease the real property more particularly described in Appendix A attached hereto and by this reference incorporated herein, consisting of streets in the City (the “Leased Property”) to the Authority under this Site Lease, pursuant to which the Authority agrees to make an initial rental payment (as described herein, the “Site Lease Payment”) which is sufficient to provide funds for such purposes.
3. The Authority has authorized the issuance of its Ukiah Public Financing Authority Lease Revenue Bonds, Series 2022 (Capital Projects) in the aggregate principal amount of $__________ (the “Bonds”) under an Indenture of Trust dated as of February 1, 2022 (the “Indenture”), between the Authority and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), for the purpose of providing the funds to enable the Authority to pay the Site Lease Payment to the City in accordance with this Site Lease.
4. In order to provide revenues which are sufficient to enable the Authority to pay debt service on the Bonds, the Authority has agreed to lease the Leased Property back to the City under a Lease Agreement dated as of February 1, 2022 (the “Lease”), which has been executed concurrently herewith, under which the City has agreed to pay semiannual Lease Payments as the rental for the Leased Property thereunder.
5. The lease payments made by the City under the Lease have been assigned by the Authority to Trustee for the security of the Bonds under an Assignment Agreement dated as of February 1, 2022, between the Authority as assignor and the Trustee as assignee, which has been executed concurrently herewith.
Attachment 3
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AGREEMENT:
In consideration of the above premises and of the mutual promises and covenants herein contained and for other valuable consideration, the parties hereto do hereby agree as follows:
SECTION 1. Lease of Property to Authority. The City hereby leases the Leased Property to the Authority and the Authority hereby leases the Leased Property from the City, on the terms and conditions hereinafter set forth.
SECTION 2. Term; Possession. The term of this Site Lease commences on the Closing Date and ends on the date on which the Indenture is discharged in accordance with Section 13.01 thereof, but under any circumstances not later than April 1, _____.
The provisions of this Section 2 are subject in all respects to any other provisions of this Site Lease relating to the termination hereof.
SECTION 3. Rental. The Authority shall pay to the City as and for rental of the Leased Property hereunder, the sum of $_________ (the “Site Lease Payment”). The Site Lease Payment is due and payable upon the issuance of the Bonds and the execution and delivery hereof, and will be paid from the proceeds of the Bonds. The Authority and the City hereby find and determine that the total amount of the Site Lease Payment does not exceed the fair market value of the leasehold interest in the Leased Property which is conveyed hereunder by the City to the Authority. No other amount of rental is due and payable by the Authority for the use and occupancy of the Leased Property under this Site Lease.
As provided in the Indenture, a portion of the proceeds of the Bonds will be applied to make the Site Lease Payment by depositing the full amount thereof into the Project Fund which is held and administered by the City under the Indenture. Amounts on deposit in the Project Fund shall be disbursed by the City from time to time for the purpose of paying Project Costs in accordance with the Indenture.
SECTION 4. Leaseback to City. The Authority shall lease the Leased Property back to the City under the Lease.
SECTION 5. Assignments and Subleases. Unless the City is in default under the Lease, the Authority may not assign its rights under this Site Lease or sublet all or any portion of the Leased Property, except as provided in the Assignment Agreement and in the Lease, without the prior written consent of the City.
SECTION 6. Substitution or Release of Property. If the City exercises its option under Section 3.3 of the Lease to substitute property for the Leased Property in whole or in part, such substitution shall also operate to substitute property for the Leased Property which is leased hereunder. If the City exercises its option under Section 3.4 of the Lease to release a portion of the Leased Property from the Lease, such substitution shall also operate to release such portion of the Leased Property hereunder. The description of the Leased Property which is leased under the Lease shall conform at all times to the description of the Leased Property which is leased hereunder.
SECTION 7. Right of Entry. The City reserves the right for any of its duly authorized representatives to enter upon the Leased Property, or any portion thereof, at Attachment 3
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any reasonable time to inspect the same or to make any repairs, improvements or changes necessary for the preservation thereof.
SECTION 8. Termination. The Authority agrees, upon the termination of this Site Lease, to quit and surrender the Leased Property in the same good order and condition as the Leased Property was in at the time of commencement of the term hereof, reasonable wear and tear excepted, and agrees that all buildings, improvements and structures then existing upon the Leased Property shall remain thereon and title thereto shall vest thereupon in the City for no additional consideration.
SECTION 9. Default. If the Authority defaults in the performance of any obligation on its part to be performed under the terms of this Site Lease, which default continues for 30 days following notice and demand for correction thereof to the Authority, the City may exercise any and all remedies granted by law, except that no merger of this Site Lease and of the Lease shall be deemed to occur as a result thereof and no such remedy may include termination hereof; provided, however, that so long as the Lease remains in effect, the Lease Payments payable by the City under the Lease shall continue to be paid to the Trustee.
SECTION 10. Quiet Enjoyment. The Authority at all times during the term of this Site Lease shall peaceably and quietly have, hold and enjoy all of the Leased Property, subject to the provisions of the Lease and subject only to Permitted Encumbrances (as that term is defined in the Lease).
SECTION 11. Waiver of Personal Liability. All liabilities under this Site Lease on the part of the Authority are solely corporate liabilities of the Authority as a public entity, and the City hereby releases each and every member and officer of the Authority of and from any personal or individual liability under this Site Lease. No member or officer of the Authority or its governing board shall at any time or under any circumstances be individually or personally liable under this Site Lease for anything done or omitted to be done by the Authority hereunder.
SECTION 12. Taxes. The City covenants and agrees to pay any and all assessments of any kind or character and also all taxes, including possessory interest taxes, levied or assessed upon the Leased Property and any improvements thereon.
SECTION 13. Eminent Domain. If the whole or any part of the Leased Property or any improvements thereon is taken by eminent domain proceedings, the interest of the Authority shall be recognized and is hereby determined to be the amount of the then unpaid Lease Payments payable under the Lease and the balance of the award, if any, shall be paid to the City.
SECTION 14. Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Site Lease shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Site Lease shall be affected thereby, and each provision of this Site Lease shall be valid and enforceable to the fullest extent permitted by law.
Attachment 3
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SECTION 15. Notices. Any notice, request, complaint, demand or other communication under this Site Lease shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or by telecopy, telex or other form of telecommunication, at its number set forth below. Notice shall be effective either (a) upon transmission by telecopy, telex or other form of telecommunication, (b) 48 hours after deposit in the United States mail, postage prepaid, or (c) in the case of personal delivery to any person, upon actual receipt. The City, the Authority and the Trustee may, by written notice to the other parties, from time to time modify the address or number to which communications are to be given hereunder.
If to the City City of Ukiah
or the Authority: Attention: Finance Director
300 Seminary Avenue
Ukiah, CA 95482
If to the Trustee: The Bank of New York Mellon Trust Company, N.A.
Attention: Corporate Trust Administration
333 S. Hope Street, Suite #2525
Los Angeles, California 90071
SECTION 16. Amendment of this Site Lease. The Authority and the City may at any time amend or modify any of the provisions of this Site Lease, but only (a) with the prior written consent of the Owners of a majority in aggregate principal amount of the Outstanding Bonds; or (b) without the consent of any of the Bond Owners, but only if such amendment or modification is for any one or more of the following purposes:
(i) to make cure any ambiguity, or to cure, correct or supplement any defective provision contained herein, or in any other respect whatsoever as the Authority and the City may deem necessary or desirable, provided that, in the opinion of Bond Counsel, such modifications or amendments do not materially adversely affect the interests of the Owners of the Bonds;
(ii) to amend any provision hereof relating to the Tax Code, to any extent whatsoever but only if and to the extent such amendment will not adversely affect the exclusion from gross income of interest on the Bonds under the Tax Code, in the opinion of Bond Counsel; (iii) to conform to any amendment of the Indenture which is made thereto in accordance with Section 9.01 of the Indenture; or (iv) for the purpose of effectuating any substitution or release of property under Section 6.
SECTION 17. Governing Law. This Site Lease shall be construed in accordance with and governed by the laws of the State of California.
SECTION 18. Third Party Beneficiary. The Trustee is hereby made a third party beneficiary under this Site Lease with all rights of a third party beneficiary.
Attachment 3
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SECTION 19. Binding Effect. This Site Lease inures to the benefit of and is binding upon the Authority, the City and their respective successors and assigns, subject, however, to the limitations contained herein.
SECTION 20. Section Headings. All section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision of this Site Lease.
SECTION 21. Execution in Counterparts. This Site Lease may be executed in any number of counterparts, each of which shall be deemed to be an original but all together shall constitute but one and the same lease. It is also agreed that separate counterparts of this Site Lease may be separately executed by the Authority and the City, all with the same force and effect as though the same counterpart had been executed by both the Authority and the City.
SECTION 22. Defined Terms. All capitalized terms used herein and not otherwise defined have the respective meanings given those terms in the Indenture.
Attachment 3
[Signature Page to Site Lease dated as of February 1, 2022] IN WITNESS WHEREOF, the City and the Authority have caused this Site Lease to be executed by their respective officers thereunto duly authorized, all as of the day and year first above written.
UKIAH PUBLIC FINANCING AUTHORITY
as Lessor
By:
Daniel Buffalo
Treasurer
CITY OF UKIAH
as Lessee
By:
Daniel Buffalo
Finance Director
Attachment 3
A-1
APPENDIX A
DESCRIPTION OF THE LEASED PROPERTY
The Leased Property consists of that certain real property, together with all fixtures, equipment or other improvements located upon the real property, except as to the library as excluded below, situated in the City of Ukiah, County of Mendocino, State of California, described as follows:
[[All City Streets]]
Attachment 3
Jones Hall Draft 1.11.22
LEASE AGREEMENT
Dated as of February 1, 2022
between the
UKIAH PUBLIC FINANCING AUTHORITY,
as lessor
and the
CITY OF UKIAH,
as lessee
Relating to
$______________
Ukiah Public Financing Authority
Lease Revenue Bonds, Series 2022
(Capital Projects)
Attachment 4
-iTABLE OF CONTENTS
ARTICLE I:
DEFINITIONS; RULES OF INTERPRETATION:
SECTION 1.1. Definitions ....................................................................................................................2 SECTION 1.2. Interpretation................................................................................................................ 2 ARTICLE II:
COVENANTS, REPRESENTATIONS AND WARRANTIES:
SECTION 2.1. Covenants, Representations and Warranties of the City .............................................3 SECTION 2.2. Covenants, Representations and Warranties of the Board..........................................4 ARTICLE III:
DEPOSIT AND APPLICATION OF FUNDS; SUBSTITUTION
AND RELEASE OF PROPERTY
SECTION 3.1. Deposit of Moneys .......................................................................................................5 SECTION 3.2. Acquisition and Construction of Project .......................................................................5 SECTION 3.3. Substitution of Property................................................................................................6 SECTION 3.4. Release of Property .....................................................................................................6 ARTICLE IV:
LEASE OF LEASED PROPERTY; TERM OF THIS LEASE;
LEASE PAYMENTS:
SECTION 4.1. Lease of Leased Property............................................................................................7 SECTION 4.2. Term.............................................................................................................................7 SECTION 4.3. Lease Payments ..........................................................................................................7 SECTION 4.4. Source of Payments; Covenant to Budget and Appropriate ........................................8 SECTION 4.5. Additional Rental Payments.........................................................................................9 SECTION 4.6. Quiet Enjoyment ..........................................................................................................9 SECTION 4.7. Title ..............................................................................................................................9 ARTICLE V:
MAINTENANCE; TAXES; INSURANCE; AND OTHER
MATTERS:
SECTION 5.1. Maintenance, Utilities, Taxes and Assessments........................................................10 SECTION 5.2. Modification of Leased Property ................................................................................10 SECTION 5.3. Liability Insurance ......................................................................................................11 SECTION 5.4. Property Insurance.....................................................................................................11 SECTION 5.5. Insurance Net Proceeds; Form of Policies.................................................................11 SECTION 5.6. Installation of City’s Personal Property ......................................................................12 SECTION 5.7. Advances ...................................................................................................................12 ARTICLE VI:
DAMAGE, DESTRUCTION AND EMINENT DOMAIN; USE OF
NET PROCEEDS:
SECTION 6.1. Application of Net Proceeds.......................................................................................12 SECTION 6.2. Termination or Abatement Due to Eminent Domain ..................................................12 SECTION 6.3. Abatement Due to Damage or Destruction................................................................13 ARTICLE VII:
OTHER COVENANTS OF THE CITY:
SECTION 7.1. Disclaimer of Warranties............................................................................................13 SECTION 7.2. Access to the Leased Property ..................................................................................13 SECTION 7.3. Release and Indemnification Covenants ...................................................................14 SECTION 7.4. Assignment and Subleasing by the City ....................................................................14 SECTION 7.5. Amendment Hereof....................................................................................................15 Attachment 4
-iiSECTION 7.6. Tax Covenants...........................................................................................................16 SECTION 7.7. Continuing Disclosure ................................................................................................16 ARTICLE VIII:
EVENTS OF DEFAULT AND REMEDIES:
SECTION 8.1. Events of Default Defined ..........................................................................................17 SECTION 8.2. Remedies on Default .................................................................................................17 SECTION 8.3. No Remedy Exclusive................................................................................................18 SECTION 8.4. Agreement to Pay Attorneys' Fees and Expenses.....................................................18 SECTION 8.5. No Additional Waiver Implied by One Waiver............................................................18 SECTION 8.6. Application of Proceeds .............................................................................................18 SECTION 8.7. Trustee and Bond Owners to Exercise Rights ...........................................................18 ARTICLE IX:
PREPAYMENT OF LEASE PAYMENTS:
SECTION 9.1. Security Deposit.........................................................................................................19 SECTION 9.2. Prepayment................................................................................................................19 SECTION 9.3. Mandatory Prepayment From Net Proceeds of Insurance or Eminent Domain.......................................................................................................................19 SECTION 9.4. Credit for Amounts on Deposit...................................................................................20 ARTICLE X:
MISCELLANEOUS:
SECTION 10.1. Notices .......................................................................................................................20 SECTION 10.2. Binding Effect.............................................................................................................20 SECTION 10.3. Severability ................................................................................................................20 SECTION 10.4. Net-net-net Lease ......................................................................................................20 SECTION 10.5. Third Party Beneficiary...............................................................................................20 SECTION 10.6. Further Assurances and Corrective Instruments .......................................................21 SECTION 10.7. Execution in Counterparts..........................................................................................21 SECTION 10.8. Applicable Law...........................................................................................................21 SECTION 10.9. Board and City Representatives ................................................................................21 SECTION 10.10. Captions.....................................................................................................................21
APPENDIX A DESCRIPTION OF THE LEASED PROPERTY
APPENDIX B SCHEDULE OF LEASE PAYMENTS
Attachment 4
LEASE AGREEMENT
This LEASE AGREEMENT (this “Lease”), dated for convenience as of February 1, 2022, is between the UKIAH PUBLIC FINANCING AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the State of California, as lessor (the “Authority”), and the CITY OF UKIAH, a municipal corporation duly organized and existing under the laws of the State of California, as lessee (the “City”).
BACKGROUND:
1. The City is proceeding to reconstruct its corporation yard and construct improvements to various City streets (collectively, the “Project”).
2. In order to provide funds to finance a portion of the costs of the Project, the City has agreed to lease the real property more particularly described in Appendix A attached hereto and by this reference incorporated herein, consisting of streets in the City (the “Leased Property”) to the Authority under a Site Lease dated as of February 1, 2022 which has been executed concurrently herewith (the “Site Lease”), under which the Authority agrees to make an initial rental payment (the “Site Lease Payment”) which is sufficient to provide funds for such purposes. The Leased Property is also subject to a lease entered into by the City (the “2020 Lease”) in connection with the Authority’s Lease Revenue Bonds, Series 2020A and Taxable Lease Revenue Bonds, Series 2020B, outstanding in the combined principal amount of $52,250,000 (the “2020 Bonds”).
3. The Authority has authorized the issuance of its Ukiah Public Financing Authority Lease Revenue Bonds, Series 2022 (Capital Projects) in the aggregate principal amount of $__________ (the “Bonds”) under an Indenture of Trust dated as of February 1, 2022 (the “Indenture”), between the Authority and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), and under the provisions of Article 4 of Chapter 5, Division 7, Title 1 of the Government Code of the State of California, commencing with Section 6584 of said Code (the “Bond Law”), for the purpose of providing the funds to enable the Authority to pay the Site Lease Payment to the City in accordance with the Site Lease.
4. In order to provide revenues which are sufficient to enable the Authority to pay debt service on the Bonds, the Authority has agreed to lease the Leased Property back to the City under this Lease, under which the City agrees to pay semiannual Lease Payments as the rental for the Leased Property hereunder.
5. The lease payments made by the City under this Lease have been assigned by the Authority to the Trustee for the security of the Bonds under an Assignment Agreement dated as of February 1, 2022, between the Authority as assignor and the Trustee as assignee, which has been executed concurrently herewith.
6. The City and the Authority have found and determined that all acts and proceedings required by law necessary to make this Lease, when executed by the City and the Authority, the valid, binding and legal obligations of the City and the Authority, Attachment 4
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and to constitute this Lease a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Lease have been in all respects duly authorized.
AGREEMENT:
In consideration of the material covenants contained in this Lease, the parties hereto hereby formally covenant, agree and bind themselves as follows:
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
SECTION 1.1. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms in this Lease have the respective meanings given them in the Indenture.
SECTION 1.2. Interpretation.
(a) Unless the context otherwise indicates, words expressed in the singular includes the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and includes the neuter, masculine or feminine gender, as appropriate.
(b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and do not affect the meaning, construction or effect hereof.
(c) All references herein to “Articles,” “Sections” and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Lease; the words “herein,” “hereof,” “hereby,” “hereunder” and other words of similar import refer to this Lease as a whole and not to any particular Article, Section or subdivision hereof.
Attachment 4
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ARTICLE II
COVENANTS, REPRESENTATIONS AND WARRANTIES
SECTION 2.1. Covenants, Representations and Warranties of the City. The City makes the following covenants, representations and warranties to the Authority and the Trustee as of the date of the execution and delivery of this Lease:
(a) Due Organization and Existence. The City is a municipal corporation duly organized and validly existing under the laws of the State of California, has full legal right, power and authority under the laws of the State of California to enter into the Site Lease and this Lease and to carry out and consummate all transactions contemplated hereby, and by proper action the City has duly authorized the execution and delivery of the Site Lease and this Lease.
(b) Due Execution. The representatives of the City executing the Site Lease and this Lease have been fully authorized to execute the same under a resolution duly adopted by the City Council of the City. (c) Valid, Binding and Enforceable Obligations. The Site Lease and this Lease have been duly authorized, executed and delivered by the City and constitute the legal, valid and binding obligations of the City enforceable against the City in accordance with their respective terms. (d) No Conflicts. The execution and delivery of the Site Lease and this Lease, the consummation of the transactions therein and herein contemplated and the fulfillment of or compliance with the terms and conditions thereof and hereof, do not and will not conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under any applicable law or administrative rule or regulation, or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, lease, contract or other agreement or instrument to which the City is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the City, which conflict, violation, breach, default, lien, charge or encumbrance would have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site Lease and this Lease or the financial condition, assets, properties or operations of the City. (e) Consents and Approvals. No consent or approval of any trustee or holder of any indebtedness of the City or of the voters of the City, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority is necessary in connection with the execution and delivery of the Site Lease and this Lease, or the consummation of any transaction therein and herein contemplated, except as have been obtained or made and as are in full force and effect.
(f) No Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court or federal, state, municipal or other governmental Attachment 4
-4-
authority pending or, to the knowledge of the City after reasonable investigation, threatened against or affecting the City or the assets, properties or operations of the City which, if determined adversely to the City or its interests, would have a material and adverse effect upon the consummation of the transactions contemplated by or the validity of the Site Lease and this Lease, or upon the financial condition, assets, properties or operations of the City, and the City is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site Lease and this Lease or the financial conditions, assets, properties or operations of the City.
SECTION 2.2. Covenants, Representations and Warranties of the Authority. The Authority makes the following covenants, representations and warranties to the City and the Trustee as of the date of the execution and delivery of this Lease:
(a) Due Organization and Existence. The Authority is a public body corporate and politic duly organized and existing under the Bond Law and under the laws of the State of California; has power to enter into this Lease, the Site Lease, the Assignment Agreement and the Indenture; is possessed of full power to own and hold, improve and equip real and personal property, and to lease the same; and has duly authorized the execution and delivery of each of the aforesaid agreements and such agreements constitute the legal, valid and binding obligations of the Authority, enforceable against the Authority in accordance with their respective terms.
(b) Due Execution. The representatives of the Authority executing this Lease, the Site Lease, the Assignment Agreement and the Indenture are fully authorized to execute the same pursuant to official action taken by the governing body of the Authority.
(c) Valid, Binding and Enforceable Obligations. This Lease, the Site Lease, the Assignment Agreement and the Indenture have been duly authorized, executed and delivered by the Authority and constitute the legal, valid and binding agreements of the Authority, enforceable against the Authority in accordance with their respective terms.
(d) No Conflicts. The execution and delivery of this Lease, the Site Lease, the Assignment Agreement and the Indenture, the consummation of the transactions herein and therein contemplated and the fulfillment of or compliance with the terms and conditions hereof, do not and will not conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under any applicable law or administrative rule or regulation, or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, lease, contract or other agreement or instrument to which the Authority is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Authority, which conflict, violation, breach, Attachment 4
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default, lien, charge or encumbrance would have consequences that would materially and adversely affect the consummation of the transactions contemplated by this Lease, the Site Lease, the Assignment Agreement and the Indenture or the financial condition, assets, properties or operations of the Authority.
(e) Consents and Approvals. No consent or approval of any trustee or holder of any indebtedness of the Authority, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority is necessary in connection with the execution and delivery of this Lease, the Site Lease, the Assignment Agreement or the Indenture, or the consummation of any transaction herein or therein contemplated, except as have been obtained or made and as are in full force and effect.
(f) No Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court or federal, state, municipal or other governmental authority pending or, to the knowledge of the Authority after reasonable investigation, threatened against or affecting the Authority or the assets, properties or operations of the Authority which, if determined adversely to the Authority or its interests, would have a material and adverse effect upon the consummation of the transactions contemplated by or the validity of this Lease, the Site Lease, the Assignment Agreement or the Indenture, or upon the financial condition, assets, properties or operations of the Authority, and the Authority is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by this Lease, the Site Lease, the Assignment Agreement or the Indenture or the financial conditions, assets, properties or operations of the Authority.
ARTICLE III
DEPOSIT AND APPLICATION OF FUNDS; SUBSTITUTION
AND RELEASE OF PROPERTY
SECTION 3.1. Deposit of Moneys. On the Closing Date, the Authority will cause the proceeds of sale of the Bonds to be deposited with the Trustee. The Trustee shall deposit those proceeds in accordance with Section 3.01 of the Indenture.
SECTION 3.2. Acquisition and Construction of Project. As provided in Section
3.02 of the Indenture, a portion of the proceeds of sale of the Bonds will be applied to pay the Site Lease Payment to the City in accordance with Section 3 of the Site Lease.
The Site Lease Payment shall be deposited into the Project Fund, which is established under the Indenture, to be disbursed for the purpose of paying Project Costs. Upon the completion of the Project, the City shall file a Written Certificate of the City with the Trustee, which Written Certificate shall identify the amount (if any) to be retained in the Project Fund to pay remaining Project Costs.
Attachment 4
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SECTION 3.3. Substitution of Property. The City has the option at any time and from time to time, to substitute other real property (the “Substitute Property”) for the Leased Property or any portion thereof (the “Former Property”), upon satisfaction of all of the following requirements which are hereby declared to be conditions precedent to such substitution:
(a) No Event of Default has occurred and is continuing. (b) The City has filed with the Authority and the Trustee sufficient memorialization of an amendment of this Lease, the Site Lease and the Assignment Agreement, which adds the legal description of the Substitute Property to Appendix A and deletes therefrom the legal description of the Former Property.
(c) The City has certified in writing to the Authority and the Trustee that the Substitute Property serves the municipal purposes of the City and constitutes property which the City is permitted to lease under the laws of the State of California, and has been determined to be important to the proper, efficient and economic operation of the City and to serve a proper governmental function of the City.
(d) The Substitute Property does not cause the City to violate any of its covenants, representations and warranties made herein.
(e) The City has filed with the Authority and the Trustee a written certificate of the City or other written evidence stating that the estimated fair rental value of the Leased Property following the substitution will be at least equal to the aggregate principal amount of the Bonds then outstanding, and that the useful life of the Substitute Property at least extends to the stated termination date of this Lease.
Upon the satisfaction of all such conditions precedent, the Term of this Lease will thereupon end as to the Former Property and commence as to the Substitute Property, and all references to the Former Property will apply with full force and effect to the Substitute Property. The City is not entitled to any reduction, diminution, extension or other modification of the Lease Payments whatsoever as a result of any substitution of property under this Section. The Authority and the City will execute and deliver all documents required to discharge the Site Lease, this Lease and the Assignment Agreement of record against the Former Property and to cause the Substitute Property to become subject to all of the terms and conditions of the Site Lease, this Lease and the Assignment Agreement.
SECTION 3.4. Release of Property. The City has the option at any time and from time to time to release any portion of the Leased Property from this Lease (the “Released Property”) provided that the City has satisfied all of the following requirements which are hereby declared to be conditions precedent to such release:
(a) No Event of Default has occurred and is continuing.
Attachment 4
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(b) The City has filed with the Authority and the Trustee, and caused to be recorded in the office of the Mendocino County Recorder, sufficient memorialization of an amendment of this Lease, the Site Lease and the Assignment Agreement, which removes the Released Property therefrom. (c) The City has certified in writing to the Authority and the Trustee that the value of the property which remains subject to this Lease following such release is at least equal to the then outstanding principal amount of the Bonds, and the fair rental value of the property which remains subject to this Lease following such release is at least equal to the Lease Payments thereafter coming due and payable hereunder.
Upon the satisfaction of all such conditions precedent, the Term of this Lease will thereupon end as to the Released Property. The City is not entitled to any reduction, diminution, extension or other modification of the Lease Payments whatsoever as a result of such release. The Authority and the City shall execute and deliver all documents required to discharge the Site Lease, this Lease and the Assignment Agreement of record against the Released Property.
ARTICLE IV
LEASE OF LEASED PROPERTY; TERM OF THIS LEASE;
LEASE PAYMENTS
SECTION 4.1. Lease of Leased Property. The Authority hereby leases the Leased Property to the City and the City hereby leases the Leased Property from the Authority, upon the terms and conditions set forth in this Lease.
SECTION 4.2. Term. The Term of this Lease commences on the Closing Date and ends on the date on which the Indenture is discharged in accordance with Section
10.01 thereof, but under any circumstances not later than April 1, ______. The provisions of this Section are subject to the provisions of Section 6.2 relating to abatement and the taking in eminent domain of the Leased Property in whole or in part.
SECTION 4.3. Lease Payments.
(a) Obligation to Pay. Subject to the provisions of Sections 6.2 and 6.3 and the provisions of Article IX, the City agrees to pay to the Authority, its successors and assigns, the Lease Payments in the respective amounts specified in Appendix B attached to this Lease, to be due and payable in immediately available funds on the Interest Payment Dates immediately following each of the respective Lease Payment Dates specified in Appendix B, and to be deposited by the City with the Trustee on each of the Lease Payment Dates specified in Appendix B. Any amount held in the Bond Fund, the Interest Account and the Principal Account on any Lease Payment Date (other than amounts resulting from the prepayment of the Lease Payments in part but not in whole under Article IX, and amounts required for payment of past due principal or interest on any Bonds not presented for payment) will be credited towards the Lease Payment then required to be paid hereunder. The City is not required to deposit any Lease Payment with the Trustee on any Lease Payment Date if the amounts then held in Attachment 4
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the Bond Fund, the Interest Account and the Principal Account are at least equal to the Lease Payment then required to be deposited with the Trustee. The Lease Payments payable in any Rental Period are for the use of the Leased Property during that Rental Period.
(b) Effect of Prepayment. If the City prepays all Lease Payments in full under Section 9.2, the City’s obligations under this Section will thereupon cease and terminate.
If the City prepays the Lease Payments in part but not in whole under Section 9.2, the principal components of the remaining Lease Payments will be reduced in integral multiples of $5,000 among Lease Payment Dates on a basis which corresponds to the principal maturities of the Bonds which are redeemed thereby; and the interest component of each remaining Lease Payment will be reduced by the aggregate corresponding amount of interest which would otherwise be payable with respect to the Bonds thereby redeemed under Section 4.01 of the Indenture. (c) Rate on Overdue Payments. If the City fails to make any of the payments required in this Section, the payment in default will continue as an obligation of the City until the amount in default has been fully paid, and the City agrees to pay the same with interest thereon, from the date of default to the date of payment at the highest rate of interest on any Outstanding Bond.
(d) Fair Rental Value. The aggregate amount of the Lease Payments and Additional Rental Payments coming due and payable during each Rental Period constitute the total rental for the Leased Property for such Rental Period, and are payable by the City in each Rental Period for and in consideration of the right of the use and occupancy of, and the continued quiet use and enjoyment of the Leased Property during each Rental Period. The parties hereto have agreed and determined that the total Lease Payments represent the fair rental value of the Leased Property. In making that determination, consideration has been given to the estimated value of the Leased Property, other obligations of the City and the Authority under this Lease, the uses and purposes which may be served by the Leased Property and the benefits therefrom which will accrue to the City and the general public.
(e) Assignment. The City understands and agrees that all Lease Payments have been assigned by the Authority to the Trustee in trust, under the Assignment Agreement, for the benefit of the Owners of the Bonds, and the City hereby assents to such assignment. The Authority hereby directs the City, and the City hereby agrees to pay to the Trustee at its Office, all payments payable by the City under this Section and all amounts payable by the City under Article IX.
SECTION 4.4. Source of Payments; Covenant to Budget and Appropriate. The Lease Payments are payable from any source of available funds of the City, subject to the provisions of Section 6.3. The City covenants to take all actions required to include the Lease Payments in each of its budgets during the Term of this Lease and to make the necessary appropriations for all Lease Payments and Additional Rental Payments.
The foregoing covenant of the City contained constitutes a duty imposed by law and each and every public official of the City is required to take all actions required by law in the performance of the official duty of such officials to enable the City to carry out and perform the covenants and agreements in this Lease agreed to be carried out and performed by the City.
Attachment 4
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SECTION 4.5. Additional Rental Payments. In addition to the Lease Payments, the City shall pay when due the following amounts of Additional Rental Payments in consideration of the lease of the Leased Property by the City from the Authority hereunder:
(a) All fees and expenses incurred by the Authority in connection with or by reason of its leasehold estate in the Leased Property, when due; (b) All reasonable compensation to the Trustee for all services rendered under the Indenture and for all reasonable expenses, charges, costs, liabilities, legal fees and other disbursements incurred in and about the performance of its powers and duties under the Indenture;
(c) The reasonable fees and expenses of such accountants, consultants, attorneys and other experts as may be engaged by the Authority or the Trustee to prepare audits, financial statements, reports, opinions or provide such other services required under this Lease or the Indenture; (d) Amounts coming due and payable as Excess Investment Earnings in accordance with Section 7.6(e); and
(e) The reasonable out-of-pocket expenses of the Authority in connection with the execution and delivery of this Lease or the Indenture, or in connection with the issuance of the Bonds, including but not limited to any and all expenses incurred in connection with the authorization, sale and delivery of the Bonds, or incurred by the Authority in connection with any litigation which may at any time be instituted involving this Lease, the Bonds, the Indenture or any of the other documents contemplated hereby or thereby, or otherwise incurred in connection with the administration of this Lease.
SECTION 4.6. Quiet Enjoyment. Throughout the Term of this Lease, the Authority shall provide the City with quiet use and enjoyment of the Leased Property and the City will peaceably and quietly have and hold and enjoy the Leased Property, without suit, trouble or hindrance from the Authority, except as expressly set forth in this Lease. The Authority will, at the request of the City and at the City’s cost, join in any legal action in which the City asserts its right to such possession and enjoyment to the extent the Authority may lawfully do so. Notwithstanding the foregoing, the Authority has the right to inspect the Leased Property as provided in Section 7.2.
SECTION 4.7. Title. Upon the termination of this Lease (other than under Section
8.2(b) hereof), all right, title and interest of the Authority in and to the Leased Property transfers to and vests in the City. The Authority shall take any and all steps and execute and record any and all documents reasonably required by the City to consummate any such transfer of title.
Attachment 4
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ARTICLE V
MAINTENANCE; TAXES; INSURANCE; AND OTHER MATTERS
SECTION 5.1. Maintenance, Utilities, Taxes and Assessments. Throughout the Term of this Lease, as part of the consideration for the rental of the Leased Property, all improvement, repair and maintenance of the Leased Property are the responsibility of the City, and the City will pay for or otherwise arrange for the payment of all utility services supplied to the Leased Property, which may include, without limitation, janitor service, security, power, gas, telephone, light, heating, water and all other utility services, and will pay for or otherwise arrange for the payment of the cost of the repair and replacement of the Leased Property resulting from ordinary wear and tear or want of care on the part of the City or any assignee or sublessee thereof. In exchange for the Lease Payments herein provided, the Authority agrees to provide only the Leased Property. The City waives the benefits of subsections 1 and 2 of Section 1932, Section 1933(4) and Sections 1941 and 1942 of the California Civil Code, but such waiver does not limit any of the rights of the City under the terms of this Lease.
The City shall also pay or cause to be paid all taxes and assessments of any type or nature, if any, charged to the Authority or the City affecting the Leased Property or the respective interests or estates therein; provided that with respect to special assessments or other governmental charges that may lawfully be paid in installments over a period of years, the City shall pay only such installments as are required to be paid during the Term of this Lease as and when the same become due.
The City may, at its expense and in its name, in good faith contest any such taxes, assessments, utility and other charges and, in the event of any such contest, may permit the taxes, assessments or other charges so contested to remain unpaid during the period of such contest and any appeal therefrom unless the Authority notifies the City that, in its reasonable opinion, by nonpayment of any such items the interest of the Authority in the Leased Property will be materially endangered or the Leased Property or any part thereof will be subject to loss or forfeiture, in which event the City shall promptly pay such taxes, assessments or charges or provide the Authority with full security against any loss which may result from nonpayment, in form satisfactory to the Authority and the Trustee.
SECTION 5.2. Modification of Leased Property. The City has the right, at its own expense, to make additions, modifications and improvements to the Leased Property or any portion thereof. All additions, modifications and improvements to the Leased Property will thereafter comprise part of the Leased Property and become subject to the provisions of this Lease. Such additions, modifications and improvements may not in any way damage the Leased Property, or cause the Leased Property to be used for purposes other than those authorized under the provisions of state and federal law; and the Leased Property, upon completion of any additions, modifications and improvements made thereto under this Section, must be of a value which is not substantially less than the value thereof immediately prior to the making of such additions, modifications and improvements. The City will not permit any mechanic’s or other lien to be established or remain against the Leased Property for labor or materials furnished in connection with any remodeling, additions, modifications, improvements, repairs, renewals or replacements made by the City under this Section; except that if any such lien is established and the City first notifies or causes to be notified the Authority of the City’s Attachment 4
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intention to do so, the City may in good faith contest any lien filed or established against the Leased Property, and in such event may permit the items so contested to remain undischarged and unsatisfied during the period of such contest and any appeal therefrom and shall provide the Authority with full security against any loss or forfeiture which might arise from the nonpayment of any such item, in form satisfactory to the Authority. The Authority will cooperate fully in any such contest, upon the request and at the expense of the City.
SECTION 5.3. Liability Insurance. The City shall maintain or cause to be maintained throughout the Term of this Lease, a standard commercial general liability insurance policy or policies in protection of the Authority, the City, and their respective members, officers, agents, employees and assigns. Said policy or policies shall provide for indemnification of said parties against direct or contingent loss or liability for damages for bodily and personal injury, death or property damage occasioned by reason of the operation of the Leased Property. Such policy or policies shall provide coverage in such liability limits and be subject to such deductibles as the City deems adequate and prudent. Such insurance may be maintained as part of or in conjunction with any other insurance coverage carried by the City, and may be maintained in whole or in part in the form of self-insurance by the City, subject to the provisions of Section 5.4, or in the form of the participation by the City in a joint powers agency or other program providing pooled insurance. The proceeds of such liability insurance must be applied toward extinguishment or satisfaction of the liability with respect to which paid.
SECTION 5.4. Property Insurance. The City shall procure and maintain, or cause to be procured and maintained, throughout the Term of this Lease, insurance against loss or damage to all improvements situated on the Leased Property. To the extent the Leased Property does not include streets, such insurance shall be in an amount at least equal to the lesser of (a) 100% of the replacement value of the insured buildings, or (b) 100% of the aggregate principal amount of the Outstanding Bonds. Such insurance must, as nearly as practicable, cover loss or damage by explosion, windstorm, riot, aircraft, vehicle damage, smoke and such other hazards as are normally covered by such insurance, and must include earthquake insurance if available at reasonable cost from reputable insurers in the judgment of the City. Such insurance may be subject to such deductibles as the City deems adequate and prudent. Such insurance may be maintained as part of or in conjunction with any other insurance coverage carried by the City, and may be maintained in whole or in part in the form of the participation by the City in a joint powers agency or other program providing pooled insurance; provided that such insurance may not be maintained by the City in the form of self-insurance. The Net Proceeds of such insurance must be applied as provided in Section 6.1.
SECTION 5.5. Insurance Net Proceeds; Form of Policies. Each policy of insurance maintained under Section 5.4 must name the Trustee as loss payee so as to provide that all proceeds thereunder are payable to the Trustee. The City shall pay or cause to be paid when due the premiums for all insurance policies required by this Lease. All such policies shall provide that the Trustee is given 30 days’ notice of each expiration, any intended cancellation thereof or reduction of the coverage provided thereby. The Trustee has no responsibility for the sufficiency, adequacy or amount of any insurance or self-insurance herein required and is fully protected in accepting payment on account of such insurance or any adjustment, compromise or settlement of any loss.
Attachment 4
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SECTION 5.6. Installation of City’s Personal Property. The City may at any time and from time to time, in its sole discretion and at its own expense, install or permit to be installed other items of equipment or other personal property in or upon the Leased Property. All such items shall remain the sole property of the City, in which neither the Authority nor the Trustee has any interest, and may be modified or removed by the City at any time, provided that the City must repair all damage to the Leased Property resulting from the installation, modification or removal of any such items. Nothing in this Lease prevents the City from purchasing or leasing items to be installed under this Section under a lease or conditional sale agreement, or subject to a vendor’s lien or security agreement, as security for the unpaid portion of the purchase price thereof, so long as no such lien or security interest attaches to any part of the Leased Property.
SECTION 5.7. Advances. If the City fails to perform any of its obligations under this Article V, the Authority may (but is not required to) take such action as it deems necessary to cure such failure, including the advancement of money, and the City shall repay all such advances as Additional Rental Payments hereunder, with interest at the rate set forth in Section 4.3(c).
ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN; USE OF NET
PROCEEDS
SECTION 6.1. Application of Net Proceeds. The Trustee, as assignee of the Authority under the Assignment Agreement, has the right to receive all Net Proceeds.
As provided in the Indenture, the Trustee will deposit all Net Proceeds in the Insurance and Condemnation Fund to be applied as set forth in Section 5.07 of the Indenture.
SECTION 6.2. Termination or Abatement Due to Eminent Domain. (a) If the Leased Property is taken permanently under the power of eminent domain or sold to a government threatening to exercise the power of eminent domain, the Term of this Lease thereupon ceases as of the day possession is taken. (b) If less than all of the Leased Property is taken permanently and the remainder is useable for the City’s purposes, or if the Leased Property is taken temporarily, under the power of eminent domain, then:
(i) this Lease continues in full force and effect with respect thereto and does not terminate by virtue of such taking, and the parties waive the benefit of any law to the contrary, and
(ii) the Lease Payments are subject to abatement in an amount determined by the City such that the resulting Lease Payments represent fair consideration for the use and occupancy of the remaining usable portions of the Leased Property.
Notwithstanding the foregoing, there shall be no abatement of the Lease Payments under this Section 6.2 in the event and to the extent that amounts in the Attachment 4
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Insurance and Condemnation Fund, the Bond Fund or the Reserve Fund are available to pay Lease Payments which would otherwise be abated, it being hereby declared that such proceeds and amounts constitute special funds for the payment of the Lease Payments.
SECTION 6.3. Abatement Due to Damage or Destruction. The Lease Payments are subject to abatement during any period in which by reason of damage or destruction (other than by eminent domain which is hereinbefore provided for) there is substantial interference with the use and occupancy by the City of the Leased Property or any portion thereof. The Lease Payments are subject to abatement in an amount determined by the City, such that the resulting Lease Payments represent fair consideration for the use and occupancy of the remaining usable portions of the Leased Property not damaged or destroyed. Such abatement will continue for the period commencing with such damage or destruction and ending with the substantial completion of the work of repair or reconstruction. In the event of any such damage or destruction, this Lease continues in full force and effect and the City waives any right to terminate this Lease by virtue of any such damage and destruction.
Notwithstanding the foregoing, there shall be no abatement of the Lease Payments under this Section 6.3 in the event and to the extent that amounts in the Insurance and Condemnation Fund, the Bond Fund or the Reserve Fund are available to pay Lease Payments which would otherwise be abated, it being hereby declared that such proceeds and amounts constitute special funds for the payment of the Lease Payments.
The abatement of Lease Payments hereunder in accordance with the terms hereof shall not constitute an Event of Default (as defined in Section 8.1) hereunder.
ARTICLE VII
OTHER COVENANTS OF THE CITY
SECTION 7.1. Disclaimer of Warranties. THE AUTHORITY MAKES NO
AGREEMENT, WARRANTY OR REPRESENTATION, EITHER EXPRESS OR
IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE
CONTEMPLATED BY THE CITY OF THE LEASED PROPERTY OR ANY PORTION
THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE LEASED PROPERTY OR ANY PORTION THEREOF. THE CITY
ACKNOWLEDGES THAT THE AUTHORITY IS NOT A MANUFACTURER OF ANY
PORTION OF THE LEASED PROPERTY OR A DEALER THEREIN, THAT THE CITY
LEASES THE LEASED PROPERTY AS-IS, IT BEING AGREED THAT ALL OF THE AFOREMENTIONED RISKS ARE TO BE BORNE BY THE CITY. The Authority has no liability for incidental, indirect, special or consequential damages, in connection with or arising out of this Lease for the existence, furnishing, functioning or use of the Leased Property by the City.
SECTION 7.2. Access to the Leased Property. The City agrees that the Authority and any Authorized Representative of the Authority, and the Authority’s successors or Attachment 4
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assigns, have the right at all reasonable times to enter upon and to examine and inspect the Leased Property or any part thereof. The City further agrees that the Authority, any Board Representative and the Authority’s successors or assigns may have such rights of access to the Leased Property or any component thereof as reasonably necessary to cause the proper maintenance of the Leased Property if the City fails to perform its obligations hereunder; provided, however, that neither the Authority nor any of its assigns has any obligation to cause such proper maintenance.
SECTION 7.3. Release and Indemnification Covenants. The City agrees to indemnify the Authority, the Trustee and their respective officers, agents, successors and assigns, against all claims, losses and damages, including legal fees and expenses, arising out of any of the following:
(a) the use, maintenance, condition or management of, or from any work or thing done on the Leased Property by the City,
(b) any breach or default on the part of the City in the performance of any of its obligations under this Lease,
(c) any negligence or willful misconduct of the City or of any of its agents, contractors, servants, employees or licensees with respect to the Leased Property,
(d) any intentional misconduct or negligence of any sublessee of the City with respect to the Leased Property,
(e) the acquisition, construction, improvement and equipping of the Leased Property, or the authorization of payment of the costs thereof, or (f) the acceptance and performance of the duties of the Trustee under the Indenture and under this Lease.
The rights of the Authority and the Trustee and the obligations of the City under this Section 7.3 shall survive the termination of this Lease or the resignation or removal of the Trustee.
No indemnification is made under this Section or elsewhere in this Lease for willful misconduct or negligence under this Lease by the Authority, the Trustee or their respective officers, agents, employees, successors or assigns.
SECTION 7.4. Assignment and Subleasing by the City. This Lease may not be assigned by the City, other than to an entity which succeeds to the interests of the City as a municipal corporation. The City may sublease the Leased Property, or any portion thereof, subject to all of the following conditions:
(a) This Lease and the obligation of the City to make Lease Payments hereunder must remain obligations of the City.
(b) The City must, within 30 days after the delivery thereof, furnish or cause to be furnished to the Authority and the Trustee a true and complete copy of such sublease.
Attachment 4
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(c) No such sublease by the City may cause the Leased Property to be used for a purpose which is not authorized under the provisions of the laws of the State of California.
(d) The City must furnish to the Authority and the Trustee a written opinion of Bond Counsel stating that such sublease does not cause the interest components of the Lease Payments to become included in gross income for purposes of federal income taxation or to become subject to personal income taxation by the State of California.
SECTION 7.5. Amendment Hereof. The Authority and the City may at any time amend or modify any of the provisions of this Lease, but only: (a) with the prior written consents of the Owners of a majority in aggregate principal amount of the Outstanding Bonds; or (b) without the consent of the Trustee or any of the Bond Owners, but only if such amendment or modification is for any one or more of the following purposes:
(i) to add to the covenants and agreements of the City contained in this Lease, other covenants and agreements thereafter to be observed, or to limit or surrender any rights or power herein reserved to or conferred upon the City;
(ii) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, to conform to the original intention of the City and the Authority; (iii) to modify, amend or supplement this Lease in such manner as to assure that the interest on the Bonds remains excluded from gross income under the Tax Code;
(iv) to amend the description of the Leased Property to reflect accurately the property originally intended to be included therein, or in connection with any substitution or release of property under Sections 3.3 or 3.4; (v) to obligate the City to pay additional amounts of rental for the use and occupancy of the Leased Property, but only if (A) such additional rent payments are pledged or assigned for the payment of any bonds, notes or other obligations the proceeds of which are applied to finance or refinance the acquisition or construction of any real or personal property for which the City is authorized to expend funds subject to its control, (B) the City has obtained an appraisal or other evidence that the value of the Leased Property is at least equal to the aggregate principal amount of the Outstanding Bonds and all such other bonds, notes, leases or other obligations, and (C) the City has filed with the Trustee written evidence that the amendments made under this clause (v) will not of themselves cause a reduction or withdrawal of any rating then assigned to the Bonds; (vi) in any other respect whatsoever as the Authority and the City deem necessary or desirable, if in the opinion of Bond Counsel such Attachment 4
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modifications or amendments do not materially adversely affect the interests of the Owners of the Bonds.
No such modification or amendment may (a) extend or have the effect of extending any Lease Payment Date or reducing any Lease Payment or any premium payable upon the prepayment thereof, without the express consent of the Owners of the affected Bonds, or (b) modify any of the rights or obligations of the Trustee without its written assent thereto.
SECTION 7.6. Tax Covenants.
(a) Private Business Use Limitation. The City shall assure that the proceeds of the Bonds are not used in a manner which would cause the Bonds to satisfy the private business tests of Section 141(b) of the Tax Code or the private loan financing test of Section 141(c) of the Tax Code.
(b) Federal Guarantee Prohibition. The City may not take any action or permit or suffer any action to be taken if the result of the same would be to cause the Bonds to be “federally guaranteed” within the meaning of Section 149(b) of the Tax Code. (c) No Arbitrage. The City may not take, or permit or suffer to be taken by the Trustee or otherwise, any action with respect to the proceeds of the Bonds or of any other obligations which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the Closing Date, would have caused the Bonds to be “arbitrage bonds” within the meaning of Section 148(a) of the Tax Code.
(d) Maintenance of Tax Exemption. The City shall take all actions necessary to assure the exclusion of interest on the Bonds from the gross income of the Owners of the Bonds to the same extent as such interest is permitted to be excluded from gross income under the Tax Code as in effect on the Closing Date. (e) Rebate of Excess Investment Earnings to United States. The City shall calculate or cause to be calculated the Excess Investment Earnings in all respects at the times and in the manner required under the Tax Code. The City shall pay the full amount of Excess Investment Earnings to the United States of America in such amounts, at such times and in such manner as may be required under the Tax Code.
Such payments shall be made by the City from any source of legally available funds of the City, and shall constitute Additional Rental Payments hereunder.
The City shall keep or cause to be kept, and retain or cause to be retained for a period of six years following the retirement of the Bonds, records of the determinations made under this subsection (e). In order to provide for the administration of this subsection (e), the City may provide for the employment of independent attorneys, accountants and consultants compensated on such reasonable basis as the City may deem appropriate. The Trustee has no duty or obligation to monitor or enforce compliance by the City of any of the requirements under this subsection (e).
SECTION 7.7. Continuing Disclosure. The City shall comply with and carry out all of the provisions of the Continuing Disclosure Certificate executed by the City as of the Closing Date, as originally executed and as it may be amended from time to time in Attachment 4
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accordance with its terms. Notwithstanding any other provision of this Lease, failure of the City to comply with such Continuing Disclosure Certificate will not constitute an Event of Default, although any Participating Underwriter (as that term is defined in such Continuing Disclosure Certificate) or any Owner or beneficial owner of the Bonds may take such actions as may be necessary and appropriate to compel performance by the City of its obligations under this Section, including seeking mandate or specific performance by court order.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default Defined. Any one or more of the following events constitute an Event of Default hereunder:
(a) Failure by the City to pay any Lease Payment or other payment required to be paid hereunder at the time specified herein.
(b) Failure by the City to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in the preceding subsection (a), for a period of 30 days after written notice specifying such failure and requesting that it be remedied has been given to the City by the Authority or the Trustee. If in the reasonable opinion of the City the failure stated in the notice can be corrected, but not within such 30 day period, the failure will not constitute an Event of Default if the City commences to cure the failure within such 30 day period and thereafter diligently and in good faith cures the failure in a reasonable period of time.
(c) The filing by the City of a voluntary petition in bankruptcy, or failure by the City promptly to lift any execution, garnishment or attachment, or adjudication of the City as a bankrupt, or assignment by the City for the benefit of creditors, or the entry by the City into an agreement of composition with creditors, or the approval by a court of competent jurisdiction of a petition applicable to the City in any proceedings instituted under the provisions of the Federal Bankruptcy Code, as amended, or under any similar acts which may hereafter be enacted.
SECTION 8.2. Remedies on Default. Whenever any Event of Default has happened and is continuing, the Authority may exercise any and all remedies available under law or granted under this Lease to collect the amounts then due and thereafter to become due hereunder or to enforce any other of its rights hereunder, except as provided herein. Notwithstanding anything herein or in the Indenture to the contrary, (a) neither the Authority nor the Trustee may accelerate the Lease Payments or otherwise declare any Lease Payments not then in default to be immediately due and payable (the Authority hereby expressly waives the right to receive any amount from the City pursuant to Section 1951.2 of the California Civil Code to accelerate payment of the Lease Payments) and (b) the Authority shall have no right to re-lease any portion of the Leased Property that constitutes the roadway portion of a City street. Each covenant hereof to Attachment 4
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be kept and performed by the City is expressly made a condition and upon the breach thereof the Authority may exercise any and all rights granted hereunder; except that no termination of this Lease may be effected either by operation of law or acts of the parties hereto, except only in the manner herein expressly provided.
SECTION 8.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority is intended to be exclusive and every such remedy is cumulative and in addition to every other remedy given under this Lease or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon the occurrence of any Event of Default impairs any such right or power or operates as a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority to exercise any remedy reserved to it in this Article VIII it is not necessary to give any notice, other than as expressly required in this Article VIII or by law.
SECTION 8.4. Agreement to Pay Attorneys’ Fees and Expenses. If the Authority or the City defaults under any of the provisions of this Lease and the nondefaulting party employs attorneys or incurs other expenses for the collection of moneys or the enforcement or performance or observance of any obligation or agreement on the part of the defaulting party herein contained, the defaulting party will on demand therefor pay to the nondefaulting party the reasonable fees of such attorneys and such other expenses so incurred by the nondefaulting party.
SECTION 8.5. No Additional Waiver Implied by One Waiver. If the Authority or the City breaches any agreement in this Lease and thereafter the other party waives the breach, such waiver is limited to the particular Breach so waived and does not operate to waive any other breach hereunder.
SECTION 8.6. Application of Proceeds. All net proceeds received from a re-lease of the Leased Property under this Article VIII, and all other amounts derived by the Authority or the Trustee as a result of the occurrence of an Event of Default, must be paid to and applied by the Trustee in accordance with Section 7.03 of the Indenture.
SECTION 8.7. Trustee and Bond Owners to Exercise Rights. Such rights and remedies as are given to the Authority under this Article VIII have been assigned by the Authority to the Trustee under the Assignment Agreement for the benefit of the Bond Owners, to which assignment the City hereby consents. The Trustee and the Bond Owners shall exercise such rights and remedies in accordance with the Indenture.
Attachment 4
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ARTICLE IX
PREPAYMENT OF LEASE PAYMENTS
SECTION 9.1. Security Deposit. Notwithstanding any other provision of this Lease, the City may on any date secure the payment of the Lease Payments allocable to the Leased Property in whole or in part by depositing with the Trustee an amount of cash which, together with other available amounts on deposit in the funds and accounts established under the Indenture, is either:
(a) sufficient to pay such Lease Payments, including the principal and interest components thereof, in accordance with the Lease Payment schedule set forth in Appendix B, or
(b) invested in whole or in part in non-callable Federal Securities in such amount as will, in the opinion of an independent certified public accountant, together with interest to accrue thereon and together with any cash which is so deposited, be fully sufficient to pay such Lease Payments when due under Section 4.3(a), as the City instructs at the time of said deposit.
If the City makes a security deposit under this Section with respect to all unpaid Lease Payments, and notwithstanding the provisions of Section 4.2, (a) the Term of this Lease will continue, (b) all obligations of the City under this Lease, and all security provided by this Lease for said Lease Payments, will thereupon cease and terminate, excepting only the obligation of the City to make, or cause to be made all of said Lease Payments from such security deposit, and (c) under Section 4.7, title to the Leased Property will vest in the City on the date of said deposit automatically and without further action by the City or the Authority. Said security deposit constitutes a special fund for the payment of Lease Payments in accordance with the provisions of this Lease.
SECTION 9.2. Prepayment. The City has the option to prepay the principal components of the Lease Payments in as described under Section 4.01(a) of the Indenture. Such prepayment price shall be deposited by the Trustee in the Redemption Fund to be applied to the redemption of Bonds under Section 4.01(a) of the Indenture.
The City shall give written notice to the Authority and the Trustee of its intention to prepay the Lease Payments under this Section at least 45 days prior to the prepayment date, or such shorter period of time as may be acceptable to the Trustee in its sole discretion, such notice being solely for the convenience of the Trustee. Additionally, this Lease is subject to extraordinary mandatory prepayment as described under Section
4.01(c) of the Indenture.
SECTION 9.3. Mandatory Prepayment From Net Proceeds of Insurance or Eminent Domain. The City shall prepay the principal components of the Lease Payments allocable to the Leased Property in whole or in part on any date, from and to the extent of any Net Proceeds of insurance award or eminent domain award with respect to the Leased Property theretofore deposited in the Redemption Fund for that purpose under Article VI hereof and Section 5.07 of the Indenture. Such Net Proceeds, to the extent remaining after payment of any delinquent Lease Payments, will be credited towards the City’s obligations under this Section and applied to the corresponding redemption of Bonds under Section 4.01 of the Indenture on the next available redemption date.
Attachment 4
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SECTION 9.4. Credit for Amounts on Deposit. If the principal components of the Lease Payments are prepaid in full under this Article IX, such that the Indenture is discharged by its terms as a result of such prepayment, at the written election of the City filed with the Trustee any or all amounts then on deposit in the Bond Fund (and the accounts therein) or the Reserve Fund will be credited towards the amounts then required to be so prepaid.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Notices. Any notice, request, complaint, demand or other communication under this Lease shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or by facsimile transmission or other form of telecommunication, at its number set forth below. Notice shall be effective either (a) upon transmission by facsimile transmission or other form of telecommunication, (b) 48 hours after deposit in the United States of America first class mail, postage prepaid, or (c) in the case of personal delivery to any person, upon actual receipt. The Authority, the City or the Trustee may, by written notice to the other parties, from time to time modify the address or number to which communications are to be given hereunder.
If to the City City of Ukiah
or the Authority: Attention: Finance Director
300 Seminary Avenue
Ukiah, CA 95482
If to the Trustee: The Bank of New York Mellon Trust Company, N.A.
Attention: Corporate Trust Administration
333 S. Hope Street, Suite #2525
Los Angeles, California 90071
100 Pine Street, Suite 3200
San Francisco, California 94111
SECTION 10.2. Binding Effect. This Lease inures to the benefit of and binds the Authority, the City and their respective successors and assigns.
SECTION 10.3. Severability. If any provision of this Lease is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof.
SECTION 10.4. Net-net-net Lease. This Lease is deemed and construed to be a “net-net-net lease” and the City hereby agrees that the Lease Payments are an absolute net return to the Authority, free and clear of any expenses, charges or set-offs whatsoever.
SECTION 10.5. Third Party Beneficiary. The Trustee is hereby made a third party beneficiary hereunder with all rights of a third party beneficiary.
Attachment 4
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SECTION 10.6. Further Assurances and Corrective Instruments. The Authority and the City shall, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Leased Property hereby leased or intended so to be or for carrying out the expressed intention of this Lease.
SECTION 10.7. Execution in Counterparts. This Lease may be executed in several counterparts, each of which is an original and all of which constitute but one and the same instrument.
SECTION 10.8. Applicable Law. This Lease is governed by and construed in accordance with the laws of the State of California.
SECTION 10.9. Board and City Representatives. Whenever under the provisions of this Lease the approval of the Authority or the City is required, or the Authority or the City is required to take some action at the request of the other, such approval or such request shall be given for the Authority and for the City by an Authorized Representative thereof, and any party hereto may conclusively rely upon any such approval or request.
SECTION 10.10. Captions. The captions or headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Section of this Lease.
Remainder of page intentionally left blank. Signatures on next page.
Attachment 4
[Signature Page to Lease Agreement dated as of February 1, 2022] IN WITNESS WHEREOF, the Authority and the City have caused this Lease to be executed in their respective names by their duly authorized officers, all as of the date first above written.
UKIAH PUBLIC FINANCING AUTHORITY
as Lessor
By:
Daniel Buffalo
Treasurer
CITY OF UKIAH
as Lessee
By:
Daniel Buffalo
Finance Director
Attachment 4
A-1
APPENDIX A
DESCRIPTION OF THE LEASED PROPERTY
The Leased Property consists of that certain real property, together with all fixtures, equipment or other improvements located upon the real property, except as to the library as excluded below, situated in the City of Ukiah, County of Mendocino, State of California, described as follows:
[[All City Streets]]
Attachment 4
B-1
APPENDIX B
SCHEDULE OF LEASE PAYMENTS
Lease
Payment Date *
Principal
Component
Interest
Component
Aggregate
Lease Payment
Annual
Aggregate
Lease Payment
4/1/22
6/30/22
10/1/22
4/1/23
6/30/23
10/1/23
4/1/24
6/30/24
10/1/24
4/1/25
6/30/25
10/1/25
4/1/26
6/30/26
10/1/26
4/1/27
6/30/27
10/1/27
4/1/28
6/30/28
10/1/28
4/1/29
6/30/29
10/1/29
4/1/30
6/30/30
10/1/30
4/1/31
6/30/31
10/1/31
4/1/32
6/30/32
10/1/32
4/1/33
6/30/33
10/1/33
4/1/34
6/30/34
10/1/34
4/1/35
6/30/35
10/1/35
4/1/36
6/30/36
10/1/36
4/1/37
6/30/37
10/1/37
4/1/38
6/30/38
Attachment 4
B-2
10/1/38
4/1/39
6/30/39
10/1/39
4/1/40
6/30/40
10/1/40
4/1/41
6/30/41
10/1/41
4/1/42
6/30/42
10/1/42
4/1/43
6/30/43
10/1/43
4/1/44
6/30/44
10/1/44
4/1/45
6/30/45
10/1/45
4/1/46
6/30/46
10/1/46
4/1/47
6/30/47
10/1/47
4/1/48
6/30/48
10/1/48
4/1/49
6/30/49
10/1/49
4/1/50
6/30/50
10/1/50
4/1/51
6/30/51
TOTAL
* Lease Payment Dates are the 5th Business Day immediately preceding each date listed in the schedule.
Attachment 4
Jones Hall Draft 1.11.22
INDENTURE OF TRUST
Dated as of February 1, 2022
between
UKIAH PUBLIC FINANCING AUTHORITY
and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
as Trustee
Authorizing the Issuance of
$_______________
Ukiah Public Financing Authority
Lease Revenue Bonds, Series 2022
(Capital Projects)
Attachment 5
-iTABLE OF CONTENTS
ARTICLE I:
DEFINITIONS; RULES OF CONSTRUCTION:
Section 1.01. Definitions ...........................................................................................................3 Section 1.02. Authorization .......................................................................................................3 Section 1.03. Interpretation.......................................................................................................3 ARTICLE II:
THE BONDS:
Section 2.01. Authorization of Bonds........................................................................................4 Section 2.02. Terms of the Bonds.............................................................................................4 Section 2.03. Transfer and Exchange of Bonds .......................................................................5 Section 2.04. Book-Entry System .............................................................................................6 Section 2.05. Registration Books..............................................................................................8 Section 2.06. Form and Execution of Bonds.............................................................................8 Section 2.07. Bonds Mutilated, Lost, Destroyed or Stolen........................................................8 ARTICLE III:
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS:
Section 3.01. Issuance of the Bonds ........................................................................................9 Section 3.02. Application of Proceeds of Sale of Bonds...........................................................9 Section 3.03. Establishment and Application of Costs of Issuance Fund.................................9 Section 3.04. Establishment and Application of Project Fund. ...............................................10 Section 3.05. Validity of Bonds ...............................................................................................10 ARTICLE IV:
REDEMPTION OF BONDS:
Section 4.01. Terms of Redemption .......................................................................................11 Section 4.02. Selection of Bonds for Redemption ..................................................................12 Section 4.03. Notice of Redemption; Rescission ....................................................................12 Section 4.04. Partial Redemption of Bonds ............................................................................12 Section 4.05. Effect of Redemption ........................................................................................12 ARTICLE V:
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF
PRINCIPAL AND INTEREST:
Section 5.01. Security for the Bonds; Bond Fund...................................................................13 Section 5.02. Allocation of Revenues .....................................................................................13 Section 5.03. Application of Interest Account .........................................................................14 Section 5.04. Application of Principal Account........................................................................14 Section 5.05. Reserve Fund ...................................................................................................14 Section 5.06. Application of Redemption Fund.......................................................................15 Section 5.07. Insurance and Condemnation Fund..................................................................15 Section 5.08. Investments.......................................................................................................16 Section 5.09. Valuation and Disposition of Investments .........................................................17 ARTICLE VI:
COVENANTS OF THE AUTHORITY
Section 6.01. Punctual Payment.............................................................................................19 Section 6.02. Extension of Payment of Bonds........................................................................19 Attachment 5
-iiSection 6.03. Against Encumbrances .....................................................................................19 Section 6.04. Power to Issue Bonds and Make Pledge and Assignment ...............................19 Section 6.05. Accounting Records..........................................................................................19 Section 6.06. Limitation on Additional Obligations..................................................................20 Section 6.07. Tax Covenants..................................................................................................20 Section 6.08. Enforcement of Lease.......................................................................................20 Section 6.09. Waiver of Laws .................................................................................................21 Section 6.10. Further Assurances...........................................................................................21 Section 6.11. Maintenance of Existence.................................................................................21 ARTICLE VII:
EVENTS OF DEFAULT AND REMEDIES:
Section 7.01. Events of Default...............................................................................................22 Section 7.02. Remedies Upon Event of Default......................................................................22 Section 7.03. Application of Revenues and Other Funds After Default ..................................23 Section 7.04. Trustee to Represent Bond Owners .................................................................23 Section 7.05. Limitation on Bond Owners' Right to Sue .........................................................24 Section 7.06. Absolute Obligation of Board ............................................................................24 Section 7.07. Termination of Proceedings ..............................................................................24 Section 7.08. Remedies Not Exclusive...................................................................................25 Section 7.09. No Waiver of Default.........................................................................................25 Section 7.10. Notice to the Bond Owners of Default...............................................................25 ARTICLE VIII:
THE TRUSTEE:
Section 8.01. Duties, Immunities and Liabilities of Trustee ....................................................26 Section 8.02. Merger or Consolidation....................................................................................27 Section 8.03. Liability of Trustee.............................................................................................27 Section 8.04. Right to Rely on Documents .............................................................................30 Section 8.05. Preservation and Inspection of Documents ......................................................30 Section 8.06. Compensation and Indemnification...................................................................30 Section 8.07. Accounting Records and Financial Statements ................................................31 ARTICLE IX:
MODIFICATION OR AMENDMENT HEREOF:
Section 9.01. Amendments Permitted ....................................................................................32 Section 9.02. Effect of Supplemental Indenture......................................................................33 Section 9.03. Endorsement of Bonds; Preparation of New Bonds .........................................33 Section 9.04. Amendment of Particular Bonds .......................................................................34 ARTICLE X:
DEFEASANCE:
Section 10.01. Discharge of Indenture......................................................................................35 Section 10.02. Discharge of Liability on Bonds.........................................................................35 Section 10.03. Deposit of Money or Securities with Trustee ....................................................36 Section 10.04. Unclaimed Funds ..............................................................................................36 ARTICLE XI:
MISCELLANEOUS:
Section 11.01. Liability of Authority Limited to Revenues .........................................................37 Section 11.02. Limitation of Rights to Parties and Bond Owners .............................................37 Attachment 5
-iiiSection 11.03. Funds and Accounts .........................................................................................37 Section 11.04. Waiver of Notice; Requirement of Mailed Notice ..............................................37 Section 11.05. Destruction of Bonds.........................................................................................37 Section 11.06. Severability of Invalid Provisions ......................................................................37 Section 11.07. Notices ..............................................................................................................38 Section 11.08. Evidence of Rights of Bond Owners .................................................................38 Section 11.09. Disqualified Bonds ............................................................................................39 Section 11.10. Money Held for Particular Bonds ......................................................................39 Section 11.11. Waiver of Personal Liability...............................................................................39 Section 11.12. Successor Is Deemed Included in All References to Predecessor...................39 Section 11.13. Execution in Several Counterparts ...................................................................39 Section 11.14. Payment on Non-Business Day ........................................................................40 Section 11.15. Governing Law..................................................................................................40
APPENDIX A DEFINITIONS
APPENDIX B FORM OF BOND
Attachment 5
INDENTURE OF TRUST
This INDENTURE OF TRUST (this “Indenture”), dated for convenience as of February 1, 2022, is between the UKIAH PUBLIC FINANCING AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the State of California (the “Authority”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, a national banking association organized and existing under the laws of the United States of America, with a corporate trust office in San Francisco, California, being qualified to accept and administer the trusts hereby created (the “Trustee”).
BACKGROUND:
1. The City is proceeding to reconstruct its corporation yard and construct improvements to various City streets (collectively, the “Project”).
2. In order to provide funds to finance a portion of the costs of the Project, the City has agreed to lease the real property more particularly described in Appendix A attached hereto and by this reference incorporated herein, consisting of streets in the City (the “Leased Property”) to the Authority under a Site Lease dated as of February 1, 2022 (the “Site Lease”), under which the Authority agrees to make an initial rental payment (the “Site Lease Payment”) which is sufficient to provide funds for such purposes.
3. The Authority has authorized the issuance of its Ukiah Public Financing Authority Lease Revenue Bonds, Series 2022 (Capital Projects) in the aggregate principal amount of $______________ (the “Bonds”) under this Indenture and under the provisions of Article 4 of Chapter 5, Division 7, Title 1 of the Government Code of the State of California, commencing with Section 6584 of said Code (the “Bond Law”), for the purpose of providing the funds to enable the Authority to pay the Site Lease Payment to the City in accordance with the Site Lease.
4. In order to provide revenues which are sufficient to enable the Authority to pay debt service on the Bonds, the Authority has agreed to lease the Leased Property back to the City under a Lease Agreement dated as of February 1, 2022 (the “Lease”), under which the City has agreed to pay semiannual Lease Payments as the rental for the Leased Property thereunder.
5. The lease payments made by the City under the Lease have been assigned by the Authority to the Trustee for the security of the Bonds under an Assignment Agreement dated as of February 1, 2022, between the Authority as assignor and the Trustee as assignee.
6. In order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and to secure the payment of the principal thereof, premium (if any) and interest thereon, the Authority has authorized the execution and delivery of this Indenture.
7. The Authority has found and determines, and hereby affirms, that all acts and proceedings required by law necessary to make the Bonds, when executed by the Attachment 5
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Authority, authenticated and delivered by the Trustee and duly issued, the valid, binding and legal special obligations of the Authority, and to constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Indenture have been in all respects duly authorized.
AGREEMENT:
In order to secure the payment of the principal of and the interest and redemption premium (if any) on all the Outstanding Bonds under this Indenture according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Owners thereof, and for other valuable considerations, the receipt of which is hereby acknowledged, the Authority and the Trustee do hereby covenant and agree with one another, for the benefit of the respective Owners from time to time of the Bonds, as follows:
Attachment 5
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ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms defined in Appendix A attached to this Indenture have the respective meanings specified in that Appendix when used in this Indenture.
SECTION 1.02. Authorization. Each of the parties hereby represents and warrants that it has full legal authority and is duly empowered to enter into this Indenture, and has taken all actions necessary to authorize the execution hereof by the officers and persons signing it.
SECTION 1.03. Interpretation.
(a) Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to include the neuter, masculine or feminine gender, as appropriate.
(b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof.
(c) All references herein to “Articles,” “Sections” and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Indenture; the words “herein,” “hereof,” “hereby,” “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof.
Attachment 5
-4-
ARTICLE II
THE BONDS
SECTION 2.01. Authorization of Bonds. The Authority has reviewed all proceedings heretofore taken and has found, as a result of such review, and hereby finds and determines that all things, conditions and acts required by law to exist, happen or be performed precedent to and in connection with the issuance of the Bonds do exist, have happened and have been performed in due time, form and manner as required by law, and the Authority is now duly empowered, under each and every requirement of law, to issue the Bonds in the manner and form provided in this Indenture.
The Authority hereby authorizes the issuance of Bonds in the aggregate principal amount of $___________ under the Bond Law for the purposes of providing funds to pay the Site Lease Payment to the City and thereby provide funds to finance the Project. The Bonds are authorized and issued under, and are subject to the terms of, this Indenture and the Bond Law. The Bonds are designated as the “Ukiah Public Financing Authority Lease Revenue Bonds, Series 2022 (Capital Projects).”
SECTION 2.02. Terms of the Bonds.
(a) Payment Provisions. The Bonds shall be issued in fully registered form without coupons in denominations of $5,000 or any integral multiple thereof, so long as no Bond has more than one maturity date. The Bonds shall mature on April 1 in each of the years and in the amounts, and bear interest (calculated on the basis of a 360-day year of twelve 30-day months) at the rates, as follows:
Maturity Date
(April 1)
Principal
Amount
Interest
Rate
Interest on the Bonds is payable from the Interest Payment Date next preceding the date of authentication thereof unless:
Attachment 5
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(a) a Bond is authenticated on or before an Interest Payment Date and after the close of business on the preceding Record Date, in which event it will bear interest from such Interest Payment Date, (b) a Bond is authenticated on or before the first Record Date, in which event interest thereon will be payable from the Closing Date, or (c) interest on any Bond is in default as of the date of authentication thereof, in which event interest thereon will be payable from the date to which interest has been paid in full, payable on each Interest Payment Date.
Interest is payable on each Interest Payment Date to the persons in whose names the ownership of the Bonds is registered on the Registration Books at the close of business on the immediately preceding Record Date, except as provided below. Interest on any Bond which is not punctually paid or duly provided for on any Interest Payment Date is payable to the person in whose name the ownership of such Bond is registered on the Registration Books at the close of business on a special record date for the payment of such defaulted interest to be fixed by the Trustee, notice of which is given to such Owner by first-class mail not less than 10 days prior to such special record date.
The Trustee will pay interest on the Bonds by check of the Trustee mailed by first class mail, postage prepaid, on each Interest Payment Date to the Owners of the Bonds at their respective addresses shown on the Registration Books as of the close of business on the preceding Record Date. At the written request of the Owner of Bonds in an aggregate principal amount of at least $1,000,000, which written request is on file with the Trustee as of any Record Date, the Trustee will pay interest on such Bonds on each succeeding Interest Payment Date by wire transfer in immediately available funds to such account of a financial institution within the United States of America as specified in such written request, which written request will remain in effect until rescinded in writing by the Owner. The Trustee will pay principal of the Bonds in lawful money of the United States of America by check of the Trustee upon presentation and surrender thereof at the Office of the Trustee.
SECTION 2.03. Transfer and Exchange of Bonds.
(a) Transfer. Any Bond may, in accordance with its terms, be transferred, upon the Registration Books, by the person in whose name it is registered, in person or by a duly authorized attorney of such person, upon surrender of such Bond to the Trustee at its Office for cancellation, accompanied by delivery of a written instrument of transfer in a form acceptable to the Trustee, duly executed. The Trustee shall collect from the transferee any tax or other governmental charge on the transfer of any Bonds under this Section 2.03. Whenever any Bond or Bonds shall be surrendered for transfer, the Authority shall execute and the Trustee shall authenticate and deliver to the transferee a new Bond or Bonds of like series, interest rate, maturity and aggregate principal amount in authorized denominations. The Authority shall pay the cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any transfer of Bonds. Prior to any transfer of a Bond outside the book-entry system (including, but not limited to, the initial transfer outside the book-entry system) the transferor shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to Attachment 5
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comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045, as amended. The Trustee shall conclusively rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information. (b) Exchange. The Bonds may be exchanged at the Office of the Trustee for a like aggregate principal amount of Bonds of other authorized denominations and of the same series, interest rate and maturity. The Trustee shall collect from the transferee any tax or other governmental charge on the exchange of any Bonds under this subsection (b). The Authority shall pay the cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any exchange of Bonds. (c) Limitations. The Trustee may refuse to transfer or exchange, under the provisions of this Section 2.03, any Bonds selected by the Trustee for redemption under Article IV, or any Bonds during the period established by the Trustee for the selection of Bonds for redemption.
SECTION 2.04. Book-Entry System.
(a) Original Delivery. The Bonds will be initially delivered in the form of a separate single fully registered bond (which may be typewritten) for each maturity of the Bonds. Upon initial delivery, the Trustee shall register the ownership of each Bond on the Registration Books in the name of the Nominee. Except as provided in subsection (c), the ownership of all of the Outstanding Bonds shall be registered in the name of the Nominee on the Registration Books.
With respect to Bonds the ownership of which shall be registered in the name of the Nominee, the Authority and the Trustee has no responsibility or obligation to any Depository System Participant or to any person on behalf of which the Nominee holds an interest in the Bonds. Without limiting the generality of the immediately preceding sentence, the Authority and the Trustee has no responsibility or obligation with respect to (i) the accuracy of the records of the Depository, the Nominee or any Depository System Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Depository System Participant or any other person, other than a Bond Owner as shown in the Registration Books, of any notice with respect to the Bonds, including any notice of redemption, (iii) the selection by the Depository of the beneficial interests in the Bonds to be redeemed if the Authority elects to redeem the Bonds in part, (iv) the payment to any Depository System Participant or any other person, other than a Bond Owner as shown in the Registration Books, of any amount with respect to principal, premium, if any, or interest on the Bonds or (v) any consent given or other action taken by the Depository as Owner of the Bonds. The Authority and the Trustee may treat and consider the person in whose name each Bond is registered as the absolute owner of such Bond for the purpose of payment of principal of and premium, if any, and interest on such Bond, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers of ownership of such Bond, and for all other purposes whatsoever. The Trustee shall pay the principal of and the interest and premium, if any, on the Bonds only to the respective Owners or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge all obligations with respect to payment of principal of and interest and premium, if any, on the Bonds to the extent of the sum or sums so paid. No person other than a Bond Owner shall receive a Bond evidencing the obligation of the Authority to make payments of Attachment 5
-7-
principal, interest and premium, if any, under this Indenture. Upon delivery by the Depository to the Authority of written notice to the effect that the Depository has determined to substitute a new Nominee in its place, and subject to the provisions herein with respect to Record Dates, such new nominee shall become the Nominee hereunder for all purposes; and upon receipt of such a notice the Authority shall promptly deliver a copy of the same to the Trustee.
(b) Representation Letter. In order to qualify the Bonds for the Depository’s book-entry system, the Authority shall execute and deliver to such Depository a letter representing such matters as shall be necessary to so qualify the Bonds. The execution and delivery of such letter shall not in any way limit the provisions of subsection (a) above or in any other way impose upon the Authority or the Trustee any obligation whatsoever with respect to persons having interests in the Bonds other than the Bond Owners. Upon the written acceptance by the Trustee, the Trustee shall agree to take all action reasonably necessary for all representations of the Trustee in such letter with respect to the Trustee to at all times be complied with. In addition to the execution and delivery of such letter, the Authority may take any other actions, not inconsistent with this Indenture, to qualify the Bonds for the Depository’s book-entry program.
(c) Transfers Outside Book-Entry System. If either (i) the Depository determines not to continue to act as Depository for the Bonds, or (ii) the Authority determines to terminate the Depository as such, then the Authority shall thereupon discontinue the bookentry system with such Depository. In such event, the Depository shall cooperate with the Authority and the Trustee in the issuance of replacement Bonds by providing the Trustee with a list showing the interests of the Depository System Participants in the Bonds, and by surrendering the Bonds, registered in the name of the Nominee, to the Trustee on or before the date such replacement Bonds are to be issued. The Depository, by accepting delivery of the Bonds, agrees to be bound by the provisions of this subsection (c). If, prior to the termination of the Depository acting as such, the Authority fails to identify another Securities Depository to replace the Depository, then the Bonds shall no longer be required to be registered in the Registration Books in the name of the Nominee, but shall be registered in whatever name or names the Owners transferring or exchanging Bonds shall designate, in accordance with the provisions hereof.
If the Authority determines that it is in the best interests of the beneficial owners of the Bonds that they be able to obtain certificated Bonds, the Authority may notify the Depository System Participants of the availability of such certificated Bonds through the Depository. In such event, the Trustee will issue, transfer and exchange Bonds as required by the Depository and others in appropriate amounts; and whenever the Depository requests, the Trustee and the Authority shall cooperate with the Depository in taking appropriate action (y) to make available one or more separate certificates evidencing the Bonds to any Depository System Participant having Bonds credited to its account with the Depository, or (z) to arrange for another Securities Depository to maintain custody of a single certificate evidencing such Bonds, all at the Authority’s expense. (d) Payments to the Nominee. Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of the Nominee, all payments with respect to principal of and interest and premium, if any, on such Bond and all notices with respect to such Bond shall be made and given, respectively, as provided in the letter described in subsection (b) of this Section or as otherwise instructed by the Depository.
Attachment 5