HomeMy WebLinkAboutAgenda Packet - December 06, 2010 - CC i
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AGENDA
REGULAR MEETING OF THE CITY COUNCIL, AND
THE REDEVELOPMENT AGENCY
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AZUSA AUDITORIUM MONDAY, DECEMBER 6, 2010
213 EA T FOOTHILL BOULEVARD 6:30 P.M.
AZUSA CITY COUNCIL
JOSEPH R. ROCHA
MAYOR
KEITH HANKS ANGEL CARRILLO
COU IILMEMBER COUNCILMEMBER
URIEL E. MACIAS ROBERT GONZALES
COU OLMEMBER MAYOR PRO-TEM
NOTIC—i TO THE PUBLIC
Copies 0 rstaff reports or other written documentation relating to each item of business referred to on the Agenda
are on j1h a in the Office of the City Clerk and are available for public inspection at the City Library.
Persons who wish to speak during the Public Participation portion ofthe Agenda, shall fill out a card requesting to
speak ah shall submit it to the City Clerkprior to the start ofthe City Council meeting. When called, each person
may address any item on or off the agenda during the public participation.
6:30 P.iVI.
CEREMONIAL
Certifi ale of Recognition to Mr. Bill Baca Field Representative to Senator Gloria Romero
Certificates of Recognition to SCMAF-San Gabriel Valley and SCMAF Federation B Division Girls Volleyball
Champions
Certif Imes of Recognition to the Pee Wee Football Team Champions 2010
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CLOSED SESSION
1. CONFERENCE WITH LABOR NEGOTIATOR(Gov. Code Sec. 54957.6)
Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and City
Manager Delach
Organizations AMMA, SEIU, APOA, APMA and ACEA
2. REAL PROPERTY NEGOTIATIONS (Gov. Code Sec. 54956.8)
Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff
Under Negotiation: Price and Terms of Payment
a. ENTERPRISE PROPERTY
Address: 229 S. Azusa Avenue (APN 8614-014-056, 057 and 058)
Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff
Negotiating Parties: City of Azusa and City of Azusa Redevelopment Agency
Any person wishing to comment on any of the Closed Session items listed above may do so now.
7:30 P.M. - REGULAR MEETING OF THE CITY COUNCIL.
1. Call to Order
2. Pledge to the Flag
3. Invocation - Father Gustavo Castillo of Saint Frances of Rome Church
A. PUBLIC PARTICIPATION
(Person/Group shall be allowed to speak without interruption up to five (5)minutes maximum time, subject
to compliance with applicable meeting rules. Questions to the speaker or responses to the speaker's
questions or comments shall be handled after the speaker has completed his/her comments. Public
Participation will be limited to sixty (60) minutes time.)
B. REPORTS, UPDATES, AND ANNOUNCEMENTS FROM STAFF/COUNCIL
C. SCHEDULEDITEM
1. PUBLIC HEARING - GENERAL PLAN AMENDMENT(GPA-2010-02)TO UPDATE THE CITY
OF AZUSA HOUSING ELEMENT.
RECOMMENDED ACTION:
Open the Public Hearing;receive testimony,close the Hearing. Waive further reading and adopt Resolution
No. 10-C89, approving General Plan Amendment (GPA) 2010-02, adopting the City of Azusa Housing
Element Update as an amendment to the Housing Element of the City of Azusa General Plan and approve a
Negative Declaration as the appropriate environmental document.
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2. BUSINESS LICENSE REVOCATION HEARING— GREATER CHOICE
! RECOMMENDED ACTION:
1Waive further reading and adopt Resolution No. 10-C90,revoking Business License number 027288 due to
Traudulent statements and unlawful business activity.
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3. INTRODUCTION AND FIRST READING OF AN ORDINANCE OF THE CITY COUNCIL
APPROVING A POWER SALES AGREEMENT BETWEEN THE CITY AND THE SOUTHERN
CALIFORNIA PUBLIC POWER AUTHORITY FOR THE LA PAZ SOLAR TOWER PROJECT
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IXCOMMENDED ACTION:
Naive further reading, introduce, and conduct first reading of the proposed Ordinance.
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4. RESOLUTION APPROVING AND ADOPTING AMENDED APPENDIX OF THE CONFLICT OF
IiNTEREST CODE PURSUANT TO THE 2010 MANDATORY REVIEW AND FILED BIENNIAL
NOTICE.
RECOMMENDED ACTION:
Live further reading and adopt Resolution No. 10-C91, approving and adopting an amended appendix of
the Conflict of Interest Code pursuant to the Political Reform Act of 1974.
5. COUNCIL REQUEST FOR INFORMATION REGARDING POTENTLAL DEVELOPMENT CODE
AMENDMENT TO ADDRESS INCONSISTENCIES BETWEEN PERSONAL SERVICES AND
IUSINESS SERVICES IN THE DOWNTOWN TOWN CENTER
R ECOMMENDED ACTION:
Clive direction to staff regarding a potential City initiated Development Code Amendment.
D. QONSENT CALENDAR
e Consent Calendar adopting the printed recommended actions will be enacted with one vote. If
ouncilmembers or Staff wish to address any item on the Consent Calendar individually, it will be
considered under SPECIAL CALL ITEMS.
1. APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF NOVEMBER IS 2010 AND .
THE SPECIAL MEETINGS F OCTOBER 25 AND NOVEMBER 22 2010
COMMENDED ACTION:
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prove Minutes as written.
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2. HUMAN RESOURCES ACTION ITEMS. t
RECOMMENDED ACTION:
Approve Personnel Action Requests in accordance with the City of Azusa Civil Service Rules and applicable
Memorandum of Understanding(s).
3. CITY TREASURER'S REPORT AS OF OCTOBER 31, 2010.
RECOMMENDED ACTION:
Receive and file the Report.
4. CONTRACT WITH BENCHMARK RESOURCES AS A MINING CONSULTANT FOR VARIOUS
REVIEWS ASSOCIATED WITH SMARA (SURFACE MINING AND RECLAMATION ACT)
COMPLIANCE.
RECOMMENDED ACTION:
Approve Benchmark Resources to provide consultant services for various reviews associated with SMARA
compliance, as well as biennial monitoring of the Fish Canyon/Azusa Rock mine conditions of Approval,
and authorize the City Manager to execute the City's standard professional services agreement for three
years in the amount not to exceed $110,000.
5. AUTHORIZATION TO SOLICIT REQUEST FOR PROPOSALS (RFP's) — TRAFFIC SIGNAL
MAINTENANCE AND EQUIPMENT SERVICES
RECOMMENDED ACTION:
Authorize staff to solicit proposals for Traffic Signal Maintenance and Equipment Services.
6. CIP PROJECT NO. 6611OH: NOTICE OF COMPLETION FOR TARGET PEDESTRIAN
IMPROVEMENTS PROJECT.
RECOMMENDED ACTION:
Approve a Notice of Completion for the following project and authorize staff to file the Notice of
Completion with the Los Angeles County Clerk: Target Pedestrian Improvements Project No. 661 l0H —
$348,831.82— Sully-Miller Contracting Company, Brea, CA 92821
7. PURCHASE OF EVIDENCE INVENTORY MANAGEMENT SYSTEM.
RECOMMENDED ACTION:
Authorize purchase of Evidence Inventory Management System from File OnQ (Evidence on Q), Inc. of
Seattle, WA in the total amount of $38,795.90. Approve purchase based on competitive bid process
completed by San Diego Data Processing Corporation(SDDPC),they purchasing system for the San Diego
PD (Purchase Order No. pending — based on SDDPD RFP dated 8-6-10). This "piggyback" purchase is
authorized by AMC Section 2-523(E) when the competitive bid process has already been completed.
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8. ERTIFICATION OF ENVIRONMENTAL CONSULTING FIRMS FOR ENVIRONMENTAL
DOCUMENT PREPARATION.
KECOMMENDED ACTION:
Certify the list of firms to provide consultant services for various environmental reviews associated with
projects being processed through the City.
9. MENDMENT TO ROYAL COACHES AUTO BODY AND TOWING FRANCHISE
AGREEMENT FOR TOW TRUCK SERVICES WITH THE CITY.
RECOMMENDED ACTION:
Approve amending Section 15 (B)(2)of the non-exclusive franchise agreement between the City of Azusa
aVd Royal Coaches Auto Body and Towing as described in Amendment "A" (attached).
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10. SUSPENSION OF STREET SWEEPING DURING CHRISTMAS EVE AND NEW YEARS EVE.
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RECOMMENDED ACTION:
Suspend street sweeping service on Christmas Eve and New Years Eve.
11. AZUSA MIDDLE MANAGERS ASSOCIATION(AMMA)CONTRACT EFFECTIVE AUGUST 1
2610 THROUGH JULY 31, 2011.
RECOMMENDED ACTION:
Adopt Resolution No. 10-C92, approving the Azusa Middle Management Association (AMMA) contract
dlated August 1, 2010 through July 31, 2011.
12. ZUSA POLICE OFFICERS ASSOCIATION CONTRACT (AUGUST 1 2010 THRU JULY 31
2(615) AND RELATED MATTERS AS INDICATED
RECOMMENDED ACTION•
a. Adopt Resolution No. 10-C93, amending the Rules and Regulations Relating to Employer-Employee
Relations
b. Adopt Resolution Nos. 10-C94 and 10-C95, amending Employer Paid Member Contributions
c.Adopt Resolution No. 10-C96, approving the Azusa Police Officers Association(APOA)Memorandum
Df Understanding dated August 1, 2010 through July 31, 2015
13.(WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE CITY
!RECOMMENDED ACTION:
A opt Resolution No. 10-C97.
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RECESS AS THE CITY COUNCIL AND CONVENE AS THE AZUSA REDEVELOPMENT AGENCY �
E. AGENCY SCHEDULED ITEMS
1. ATLANTIS GARDENS PROJECT - DEVELOPER SELECTION
RECOMMENDED ACTION:
Redevelopment Agency Board take the following Minute Actions:
a. Accept the recommendation of the Agency's Ad Hoc Affordable Housing Subcommittee to select Mercy
Housing ("Developer") as the developer for the Atlantis Gardens Project.
b. Direct the Executive Director to commence negotiations with Developer for an Affordable Housing
Agreement ("Agreement") and to bring said Agreement back to the Agency for approval.
c. Direct the Executive Director to commence the entitlement process for the Atlantis Gardens Project
concurrent with the negotiation of the Agreement and in accordance with the proposal submitted by
Developer and reviewed by the Agency's Ad Hoc Affordable Housing Subcommittee.
d. Approve the attached Consultant Request for Proposal for Environmental Analysis for the Atlantis
Gardens Affordable Housing Project ("RFP") and authorize the Executive Director to circulate said
RFP to qualified firms.
F. AGENCY CONSENT CALENDAR
The Consent Calendar adopting the printed recommended actions will be enacted with one vote. If
Boardmembers or Staff wish to address any item on the Consent Calendar individually, it will be
considered under SPECIAL CALL ITEMS.
1. APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF NOVEMBER 15. 2010.
RECOMMENDED ACTION:
Approve Minutes as written.
2. AGENCY TREASURER'S REPORT AS OF OCTOBER 31, 2010.
RECOMMENDED ACTION:
Receive and file the Report.
3, WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE AGENCY.
RECOMMENDED ACTION:
Adopt Resolution No. 10-R37.
RECESS AS THE REDEVELOPMENT AGENCY AND RECONVENE AS THE AZUSA CITY COUNCIL
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G. ORDINANCES/SPECIAL RESOLUTIONS
1. NN ORDINANCE P OF THE CITY COUNCIL OF THE CITY OF AZUSA AMENDING
CHAPTER 74 OF THE AZUSA MUNICIPAL CODE BY ADDING SECTION 74-439.1
1PR�OHIBITING SLEEPING IN VEHICLE.
kXCOMMENDED ACTION
Waive further reading andadopt Ordinance No. 10-08, prohibiting sleeping in vehicle on public and private
property.
H. ADJOURNMENT
1. Idjourn.
UPCOMING MEETINGS:
Dece Ibir 20, 2010, City Council Meeting— 6:30 p.m. Azusa Auditorium.
Januar 41 2011 (Tuesday) City Council Meeting—6:30 p.m. Azusa Auditorium.
January 18, 2011 (Tuesday) City Council Meeting—6:30 p.m. Azusa Auditorium.
January 4, 2011, Utility Board Meeting - 6:30 p.m. Light and Water Conference Room.
In complmnce with Government Code Section 54957.5, agenda materials are available for inspection by members of t/te
public at die following locations. Azusa City Clerk's Office-213 E. Foothill Boulevard,Azusa City Library- 729 N.Dalton
Avenue, and Azusa Police Department Lobby- 725 N.Alameda,Azusa, California.
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In comnlihnce with theAmericans with Disabilities Act,ifyou need special assistance to participate in a city meeting,please
contactith�City Clerk at 626-812-5229. Notification three(3) working days prior to the meeting when special services are
needed will assist staff in assuring that reasonable arrangements can be made to provide access to the meeting.
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12/06/1,0 - 7 -
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SCHEDULEDITEM
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10: HONORABLE MAYOR, MEMBERS OF THE CITY COUNCIL
FROM: KURT CHRISjVEN, ECONOMIC AND COMMUNITY DEVELOPMENT
DIRECTOR C/fill Vim`j"r\
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VI F.M. DELACH, CITY MANAGER`/
DATE: DECEMBER 6, 2010
SUBJECT: GENERAL PLAN AMENDMENT (GPA-2010-02) TO UPDATE THE CITY OF AZUSA
HOUSING ELEMENT
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RECOMMENDATION
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Staf recommends that the City Council approve General Plan Amendment (GPA) 2010-02 to adopt the
City�of Azusa Housing Element Update as an amendment to the Housing Element of the City of Azusa
Gen ral Plan and approve a Negative Declaration as the appropriate environmental document.
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BACKGROUND
InIF bruary of 2008 the City Council authorized the City Manager to enter into a professional services
agrel ment with Ho. -Ireland, Inc., for the preparation of the State mandated update to the City's
Housing Element of the General Plan. In March of 2008 the City's Housing Element consultant, Hogle-
Ireland, began drafting the Housing Element update.
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A joint public study session with the Planning Commission and City Council was held on June 29, 2009, to
review the Draft Housing Element and receive public, Planning Commission, and City Council feedback.
Comments received at that meeting were incorporated into a revised Draft Housing Element document,
which was submitted to the State Department of Housing and Community Development (HCD) for the
Stato's review in July 2009. HCD responded in September 2009, requesting clarifications and more
information, as well as some revisions to the Draft Housing Element text. The document was revised
accordingly and the City received a letter from HCD April 20, 2010, stating that the Housing Element was
in icompliance with State housing law.
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The City consulted with California Native American tribes that were on the contact list maintained by the
Native American Heritage Commission, consistent with SB 18. No comments on the Draft Housing
Ell lent or requests for detailed consultation were received.
Following this effort, the City circulated an Initial Study and Negative Declaration, which reviewed the
potential environmental impacts associated with adoption and implementation of the Draft 2008-2014
Housing Element. During the 30-day comment period that ended on October 15, 2010, one comment was
received, from the California Public Utilities Commission (CPUC). The CPUC requested additional
language in the Housing Element relating to traffic studies and mitigation measures for grade separations.
These measures were determined by staff to be outside of the scope of the Housing Element and more
appropriately addressed through zoning; as such, no changes to the Housing Element were made.
Once the City and stakeholder review of the Housing Element Update document was completed in
compliance with State Housing Element law, staff presented the proposed General Plan Amendment and
Negative Declaration to the Planning Commission on October 27, 2010, for a recommendation to City
Council on the adoption of the 2008-2014 Housing Element Update. The Planning Commission voted to
continue the public hearing to November 10, 2010, in order to allow additional time to review the
documents. Subsequent to this, one additional comment letter was received from a member of the public
(Attachment C).
On November 10, 2010, the Planning Commission adopted Resolution No. 2010-25, recommending that
the City Council approve General Plan Amendment (GPA-2010-02) to adopt the City of Azusa Housing
Element Update as an amendment to the Housing Element of the City of Azusa General Plan, and approve
a Negative Declaration as the appropriate environmental document.
DISCUSSION
The purpose of the Housing Element is to plan for the City's housing needs of all income levels, including
very low-, low-, moderate-, and above moderate-income levels. Housing Element law requires cities to
adequately plan for their existing and projected housing needs, including their share of the regional housing
needs, by creating policies and adopting land use plans and the regulatory structure that provide
opportunities for housing development. The Housing Element provides a comprehensive approach to
planning for adequate residential development sites and housing assistance programs. The Housing
Element is one of the seven State-required elements of the General Plan, and requires review by the
California Department of Housing and Community Development (HCD) for consistency with Housing
Element law.
The Draft 2008-2014 Housing Element represents an update of the Azusa General Plan 2000-2005 Housing
Element (extended by State legislation to cover through June 30, 2008). Housing Elements must be
updated periodically, consistent with State law. The planning period for this Housing Element is from July
1, 2008 to June 30, 2014. State law requires that all Housing Elements address four key topics: 1) housing
needs, 2) governmental, environmental, and other constraints to the development of housing, 3) land and
financial resources available to facilitate housing construction and maintenance, and 4)planning. Analysis
of these topics provides the foundation for preparation of a Housing Element.
CONCLUSION
The 2008-2014 Housing Element update and the Initial Study/Negative Declaration documents were
prepared with consideration given to public comments received as well as extensive consultation and
collaboration with HCD. With the adoption of the 2008-2014 Housing Element update; the City's Housing
Element will be in compliance with State Housing Element Law. The Planning Commission has reviewed
the documents, and has recommended the City Council approve General Plan Amendment (GPA-2010-02)
toiadopt the City of Azusa Housing Element Update as an amendment to the Housing Element of the City
of Azusa General Plan, and to approve the prepared Negative Declaration as the appropriate environmental
document.
FIS I
AL IMPACT
The,e will be no fiscal impact to the City associated with this action.
ATTACHMENTS:
Draft City Council Resolution
B. Oct. 27, 2010 Planning Commission Staff Report
C. Nov. 10, 2010 Planning Commission Staff Report and Comment Letter
Initial Study/Negative Declaration
E. 2008-2014 Housing Element Update
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Attachment A
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA
APPROVING GENERAL PLAN AMENDMENT NO. GPA-2010-02
2008-2014 HOUSING ELEMENT UPDATE
WHEREAS, State law requires all city and county general plans to include a housing
element, and further requires that the housing element be updated regularly to reflect current
conditions and legal requirements; and
WHEREAS, the City of Azusa has an adopted General Plan which includes a certified
Housing Element adopted by the City Council on December 3, 2001; and
WHEREAS,cities and counties within the Southern California Association of Governments
region are required to have an updated housing element covering the 2008-2014 planning period;
and
WHEREAS, the Draft 2008-2014 Housing Element has been reviewed by the State
Department of Housing and Community Development and found to be in compliance with State
Law; and
WHEREAS, the Planning Commission of the City of Azusa, has given notice thereof as
required by law,held a public hearing on November 10, 2010, for a City initiated amendment to the
General Plan, General Plan Amendment No. GPA-2010-02, to adopt the 2008-2014 Housing
Element Update; and
WHEREAS, the Planning Commission has carefully considered all pertinent testimony and
the staff report offered in the case as presented at the public hearing; and
WHEREAS, the City Council of the City of Azusa, has given notice thereof as required by
law,held a public hearing on December 6,2010, fora City initiated amendment to the General Plan,
General Plan Amendment No. GPA-2010-02,to adopt the 2008-2014 Housing Element Update;
and
WHEREAS, the City Council has carefully considered all pertinent testimony and the staff
report offered in the case as presented at the public hearing.
NOW,THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1. CE A:The City of Azusa City Council hereby finds,based on consideration of
the whole record before it, including the City's local CEQA Guidelines and Thresholds of
Significance, the Initial Study and documents incorporated therein, the proposed Negative
Declaration, comments received thereon, and testimony heard at the public hearing, as follows:
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1. Review Period: the City provided a public review period for the Negative Declaration that
was not less than 30 days, commencing on September 15, 2010 and ending on October 15,
2010. During the public review period, the City received written comments concerning the
Negative Declaration and included the comments and responses thereto as a part of
Attachment D, the Initial Study/Negative Declaration; and
2. Compliance with Law That the Initial Study and Negative Declaration were prepared,
processed, and noticed in accordance with the California Environmental Quality Act(Public
Resources Code Section 21000 et seq.), the CEQA Guidelines (14 California Code of
Regulations Section 15000 et seq.) and the Local CEQA Guidelines and Thresholds of
Significance adopted by the City of Azusa; and
3. Independent Judgment: That the Negative Declaration reflects the independent judgment
and analysis of the City; and
4. No Significant Effect: There is no substantial evidence that the proposed project will have a
significant effect on the environment.
5. The City Council hereby approves said Negative Declaration,
SECTION 2. GENERAL PLAN: The City Council hereby finds that the General Plan
Amendment is compatible with the objectives, policies, and general plan land use programs
specified in the General Plan for theCityof Azusa in that:
I. The City of Azusa has officially adopted a General Plan.
2. The goals, policies, and programs in the Draft 2008-2014 Housing Element,are compatible
with the objectives, policies, general land uses,and programs specified in the General Plan.
3. Draft 2008-2014 Housing Element is internally consistent and is consistent with the other
elements of the General Plan because the goals, policies, and programs are interrelated and
are intended to work together.
4. The General Plan Amendment will not adversely affect the public health,safety,and welfare
in that the goals, policies, and programs in the Draft 2008-2014 Housing Element are
consistent with the other elements ofthe General Plan, including but not limited to the Land
Use Element.
SECTION 3. DEVELOPMENT CODE:That in accordance with Section 88.51.080 of the
Azusa Municipal Code,the City Council hereby approves and adopts said General Plan Amendment
based on the following findings:
A. That the proposed amendment is in the public interest,and there will be a community
benefit resulting from the amendment;
The proposed Housing Element Update is in the public interest and
will benefit the community by encouraging the City's participation in
programs that provide home ownership opportunities for families;
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facilitating the development of housing for all income levels,
including very low-, low-, moderate-, and above moderate-income
levels for the 2008-2014 planning period. The Housing Element
Update identifies housinggoals andpolicies to address the city'sfair
share ofthe regional housing needs, while encouraging improvement
and enhancement of existing residential neighborhoods throughout
the city.
B. That the proposed amendment is consistent with the other goals, policies, and
objectives of the General Plan:
The proposed Housing Element Update is consistent with the goals,
policies, and objectives of the current General Plan in that it
E encourages a balanced approach to meeting housing needs that
include both owners and renters and emphasizes maintaining and
i enhancing the quality of existing housing and residential
neighborhoods in the city. The Housing Element is internally
consistent with other land use goals and policies of the General Plan,
and maintains specific goals and policies that are aimed at not only
maintaining and improving Azusa's established neighborhoods, but
also achieving mixed-use development along select commercial
corridors and adjacent to the future light rail stations.
C. That the proposed amendment will not conflict with the provisions of the
Development Code, subdivision regulations, or any applicable specific plan;
The proposed Housing Element Update contains goals, policies, and
implementation programs related to the development and rehabilitation of
housing throughout the City, that for the most part are consistent with the
current Development Code ordinance, subdivision regulations, and
existing specific plans. New requirements under State law will be met
through the addition of new housing programs, which will require
amendments to the Development Code in order to allow for the provision of
emergency (homeless) shelters as a permitted use in at least one zone
within the city, a new density bonus provision for affordable housing,
inclusion of parcel consolidation incentives within mixed-use areas,
including rounding up when calculating allowable units. The proposed
Housing Element Update will not conflict with the City's
Development Code or State Housing Law, once these subsequent
Development Code Amendmems are carried out.
D. In the event that the proposed amendment is a change to the Land Use policy map,
that the amendment will not adversely affect surrounding properties:
The proposed General Plan Amendment involves the adoption of an
updated Housing Element,and does not include a change to the Land
RESOLUTION NO.
GENERAL PLAN AMENDMENT NO. GPA-2010-02
Use policy map.
SECTION 4: Based on the aforementioned findings,the City Council does hereby approve
the 2008-2014 Housing Element, General Plan Amendment No. GPA-2010-02.
SECTION 5: The City Clerk shall certify to the adoption of this resolution.
PASSED, APPROVED AND ADOPTED this 6`h day of December, 2010.
MAYOR
ATTEST:
CITY CLERK
I HEREBY CERTIFY that the foregoing Resolution No. was duly adopted
by the City Council of the City of Azusa at a regular meeting thereof, held on the day
of 2010, by the following vote of Council:
AYES:COUNCILMEMBERS:
NOES:COUNCILMEMBERS:
ABSENT:COUNCILMEMBERS:
ABSTAIN:COUNCILMEMBERS:
City Clerk
APPROVED AS TO FORM
City Attorney
Attachment B
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AGENDA ITEM
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TO: CHAIRMAN AND PLANNING COMMISSIONERS
FROM: KIMBERLY PILMER, ASSISTANT PLANNER
VIA: KURT CHRISTIANSEN, DIRECTOR OF ECONOMIC AND COMMUNITY
DEVELOPMENT
DATE: OCTOBER 27, 2010
SUBJECT: GENERAL PLAN AMENDMENT (GPA-2010-02) TO UPDATE THE CITY
OF AZUSA HOUSING ELEMENT
RECOMMENDATION
Staff recommends that the Planning Commission adopt Resolution No. 2010-25, recommending
that the City Council approve General Plan Amendment (GPA-2010-02) to adopt the City of
Azusa Housing Element Update as an amendment to the Housing Element of the City of Azusa
General Plan and approve a Negative Declaration as the appropriate environmental document.
BACKGROUND
The purpose of the Housing Element is to plan for the City's housing needs of all income levels.
including very low-, low-, moderate-, and above moderate-income levels. Housing Element law
requires cities to adequately plan for their existing and projected housing needs, including their
share of the regional housing needs, by creating policies and adopting land use plans and the
regulatory structure that provide opportunities for housing development. The Housing Element
provides a comprehensive approach to planning for adequate residential development sites and
housing assistance programs. The Housing Element is one of the seven State-required elements of
the General Plan, and requires review by the California Department of Housing and Community
Development(HCD) for consistency with Housing Element law.
The Draft 2008-2014 Housing Element represents an update of the Azusa General Plan 2000-2005
Housing Element (extended by State legislation to cover through June 30, 2008). Housing
Elements must be updated periodically, consistent with State law. The planning period for this
Housing Element is from July 1, 2008 to June 30, 2014. State law requires that all Housing
Elements address four key topics: 1) housing needs, 2) governmental, environmental, and other
constraints to the development of housing, 3) land and financial resources available to facilitate
housing construction and maintenance, and 4) planning. Analysis of these topics provides the
foundation for preparation of a Housing Element.
• Planning Commission 10-27-2010
2008-2014 Housing Element Update
Page 2 of 5
DISCUSSION
Community Needs Assessment
The Housing Element profiles community demographics and examines the housing needs of various
demographic groups, including owners and renters, lower-income households, overcrowded
households, the elderly, special needs groups, and the homeless, among others.
Constraints Analysis
The Housing Element also identifies constraints to the production of new housing, including
market, governmental. environmental, and infrastructure constraints. By identifying these
constraints, the City recognizes possible barriers to housing development and can adopt policies and
programs in the Housing Element to remove or significantly reduce those barriers.
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Housing Resources
The Housing Resources portion focuses on those opportunities available to the City to
accommodate and facilitate housing production as required by State law. The most critical
component is the sites inventory, which examines locations available to support new housing
development for persons of all income categories.
HCD determines regional housing needs based on the Department of Finance population projections
and regional population forecasts used in preparing regional transportation plans; these projections
are then allocated to each region. HCD requires the Southern California Association of
Governments (SCAG) to develop a regional housing plan to meet the existing housing needs and
projected housing needs for the six-county SCAG region.
SCAG is responsible for developing the Regional Housing Needs Plan that summarizes regional
housing needs for both existing conditions and a five-year planning period. The core component of
the Plan is the Regional Housing Needs Assessment. or RHNA. The RHNA allocates each city's
fair share of the regional housing needs by income levels: very low-, low-, moderate-, and above
moderate-income. As determined by SCAG, Azusa's fair share of the regional housing needs for the
period of 2008-2014 is 745 new housing units, as outlined below.
% of
County Total Housing Percentage of
Income Group MFI Units Allocated Units
Very Low 0-50% 184 25%
Low 51-80% 115 15%
Moderate 81-120% 124 17%
Above Moderate 120%+ 323 43%
Total 745 100%
Note: MFI means median family income.
The City is not obligated to construct the housing units identified in the RHNA as needed to meet
housing demand; rather, the City must demonstrate that land capacity is available in Azusa to satisfy
the RHNA requirements within the planning period.
C'\Documents and Settings\azusauserl\DeskmiAF-II PC Staf repon.doe
Planning Commission 10-27-2010
2008-2014 Housing Element Update
Page 3 of 5
State law outlines how capacity should be demonstrated based on the allowable density of each site
identified. In 2004, AB 2348 established a default density, 30 units per acre, which the State
determined would feasibly result in affordable housing production. Cities that have zoning districts
that allow 30 units or more per acre are not obligated to prove that available zoning can facilitate the
construction of lower-income housing. The highest density permitted by the Azusa Development
Code occurs within areas designated as Districts, which allow up to 27 units per acre. The Housing
Element has provided analysis to show that this density is adequate to support the development of
affordable housing in Azusa given the comparably lower cost of land and lower cost of housing in
the City relative to surrounding communities. Further, the Element indicates that the City's
willingness to allow the construction of senior housing at a density of up to 40 units per acre will
provide incentives for such new housing. Through the identification of units that have been
approved or built, as well as available vacant and underutilized land (land that is developed at less
than its maximum density potential), the Housing Element demonstrates that sufficient sites are
available in Azusa to achieve the RHNA.
Housing Plan
The Housing Element identifies housing goals and policies to address the housing needs for housing
rehabilitation and new construction. The goals and policies are implemented through a series of
housing programs. Azusa's housing goals, policies, and programs address the following five areas:
A) Maintain and preserve the existing affordable housing stock.
B) Assist in the development of affordable housing.
C) Remove constraints to housing development.
D) Identify adequate sites to achieve a variety and diversity of housing.
E) Promote equal housing opportunity.
Most implementation programs included in this Housing Element are consistent with the existing
Housing Element's programs to support first-time homebuyer programs, promote housing
rehabilitation, and maintain available sites to support new housing development. New housing
programs that are included in this update are required by State law and/or respond to State HCD
comments and include:
• Amending the Development Code to incorporate a revised density bonus ordinance that
offers bonuses of between 20 and 35 percent for the provision of affordable housing,
depending on the amount and type provided, consistent with revised Government Code
§65915.
• Amending the Development Code to include emergency (homeless) shelters as a permitted
use (i.e. the use does not require a discretionary approval) in a zone in the City, consistent
with Senate Bill 2. Consider zones including the West End Industrial District, which
currently permits emergency shelters with a Use Permit. Also amend the Development
Code to establish definitions, performance standards, and siting regulations for transitional
and supportive housing development and single-room occupancy developments (SRO).
Both of these measures are required by recently amended State law (Government Code
§65583[a][4]). Development Code Amendments reflecting these State requirements will be
C\Documents and Settings\azusauser I\DesktopT-11 PC StafTreport.doe
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brought back to the Planning Commission in a timely manner in order to achieve
consistency between the General Plan and Development Code.
• Revising the Development Code to include incentives for consolidation of parcels in mixed-
use areas, including rounding up when calculating allowable units.
• Delivering, in accordance with Government Code §65589.7, immediately following City
Council adoption, deliver a copy of the 2008-2014 Housing Element to all public agencies
or private entities that provide water or sewer services to properties within Azusa.
• Creating a process or regulations for making requests for reasonable accommodation to land
use and zoning decisions and procedures regulating the siting, funding, development and
use of housing for people with disabilities, consistent with the Fair Housing Act, as
amended in 1988.
• Implementing an outreach plan to establish outreach protocol for housing-related issues,
such as Housing Element updates and homelessness initiatives. Reach out to the community
regarding housing topics in general, as well as with regard to specific new developments.
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• Establishing a process through plan check to identify new projects that are proposed on sites
listed in the Housing Element sites inventory, and compare projected residential density
with project proposals.
• Encouraging the development of affordable housing by pursuing the Atlantis Gardens
project.
Housing Element Process
A joint public study session with the Planning Commission and City Council was held on .lune 29,
2009, to review the Draft Housing Element and receive public, Planning Commission, and City
Council feedback. Comments received at that meeting were incorporated into a revised Draft
Housing Element, which was submitted to HCD for the State's review in July 2009. HCD
responded in September 2009, requesting clarifications and more information, as well as some
revisions to the Draft Housing Element text. The document was revised accordingly and the City
received a letter from HCD April 20, 2010, stating that the Housing Element was in compliance
with State housing law.
The City consulted with California Native American tribes that were on the contact list maintained
by the Native American Heritage Commission, consistent with SB 18. No comments on the Draft
Housing Element or requests for detailed consultation were received.
Following this effort, the City circulated an Initial Study and Negative Declaration, which reviewed
the potential environmental impacts associated with adoption and implementation of the Draft 2008-
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2014 Housing Element. During the 30-day comment period that ended on October 15, 2010, one
comment was received, from the California Public Utilities Commission. The Commission
requested additional language in the Housing Element relating to traffic studies and mitigation
measures for grade separations. These measures were determined by staff to be outside of the scope
of the Housing Element and more appropriately addressed through zoning; as such, no changes to
the Housing Element were made.
CONCLUSION
The Planning Commission is the advisory body to the City Council, making recommendations on
proposed General Plan Amendments. Staffs recommendation follows extensive consultation and
collaboration with HCD and regional stakeholders. , Staff recommends that the Planning
Commission find that the 2008-2014 Housing Element Update could not have a significant effect on
the environment and adopt Resolution No. 2010-25, recommending that the City Council adopt a
Negative Declaration as the appropriate environmental document and recommending approval of
General Plan Amendment GPA-2010-02 to adopt the City of Azusa Housing Element Update as an
amendment to the Housing Element of the City of Azusa General Plan,
ATTACHMENTS
A. Draft Resolution No. 2010-25
B. HCD Letter(Housing Element compliance with State Law)
C. 2008-2014 Draft Housing Element
D. Draft Initial Study/Negative Declaration
CMocumems and SeningsWusauseri Oesktop\Fl I PC Staf mport.doc
Exhibit A
RESOLUTION NO. 2010-25
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF AZUSA RECOMMENDING TO THE AZUSA CITY
COUNCIL APPROVAL OF AN AMENDMENT TO THE
HOUSING ELEMENT OF THE GENERAL PLAN CASE NO.
GPA-2010-02,TO ADOPTTHE 2008-2014 HOUSING ELEMENT
UPDATE AND ADOPT A NEGATIVE DECLARATION AS THE
APPROPRIATE ENVIRONMENTAL DETERMINATION.
WHEREAS, State law requires all city and county general plans to include a housing
element, and further requires that the housing element be updated regularly to reflect current
conditions and legal requirements; and
WHEREAS, the City of Azusa has an adopted General Plan which includes a certified
Housing Element adopted by the City Council on December 3, 2001; and
WHEREAS,cities and counties within the Southern California Association of Governments
region are required to have an updated housing element covering the 2008-2014 planning period;
and
WHEREAS, the Draft 2008-2014 Housing Element has been reviewed by the State
Department of Housing and Community Development and found to be in compliance with State
Law; and
WHEREAS, on October 14, 2010, the City gave public notice of the consideration of
General Plan Amendment GPA-2010-02 by advertising in a newspaper ofgeneral circulation and on
October 18,2010 notices were mailed to parties and stakeholders who have requested to be notified
regarding the City's Housing Element; and
WHEREAS, on October 27, 2010, the Planning Commission held a duly-noticed public
hearing and considered evidence prepared by staff and the City Attorney's office and public
testimony concerning the proposed 2008-2014 Housing Element;
NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF AZUSA DOES
RESOLVE, DETERMINE, FIND AND ORDER AS FOLLOWS:
SECTION 1. CEQA: The City of Azusa Planning Commission hereby finds, based on
consideration of the whole record before it, including the City's local CEQA Guidelines and
Thresholds of Significance, the Initial Study and documents incorporated therein, the proposed
Negative Declaration, comments received thereon, and testimony heard at the public hearing, as
follows:
1. Review Period: the City provided a public review period for the Negative Declaration that
was not less than 30 days, commencing on September 15, 2010 and ending on October 15,
2010. During the public review period, the City received written comments concerning the
1
Resolution No. 2010-25
Page 2 of 4
Negative Declaration and included the comments and responses thereto as a part of
Attachment D, the Initial Study/Negative Declaration; and
2. Compliance with Law: That the Initial Study and Negative Declaration were prepared,
processed,and noticed in accordance with the California Environmental Quality Act(Public
Resources Code Section 21000 et seq.), the CEQA Guidelines (14 California Code of
Regulations Section 15000 et seq.) and the Local CEQA Guidelines and Thresholds of
Significance adopted by the City of Azusa; and
3. Independent Judgment: That the Negative Declaration reflects the independent judgment
and analysis of the City; and
4. No Significant Effect: There is no substantial evidence that the proposed project will have a
significant effect on the environment.
SECTION 2. GENERAL PLAN: The Planning Commission hereby finds that the General
Plan Amendment is compatible with the objectives, policies, and general plan land use programs
specified in the General Plan for the City of Azusa in that:
1. The City of Azusa has officially adopted a General Plan.
2. The goals, policies,and programs in the Draft 2008-2014 Housing Element, are compatible
with the objectives, policies, general land uses,and programs specified in the General Plan.
3. Draft 2008-2014 Housing Element is internally consistent and is consistent with the other
elements of the General Plan because the goals, policies, and programs are interrelated and
are intended to work together.
4. The General Plan Amendment will not adversely affect the public health, safety,and welfare
in that the goals, policies, and programs in the Draft 2008-2014 Housing Element are
consistent with the other elements of the General Plan, including but not limited to the Land
Use Element.
SECTION 3. DEVELOPMENT CODE: That in accordance with Section 88.51.080.F of the
Azusa Development Code, it is found that the project would not unreasonably interfere with the use
or enjoyment of property in the vicinity, and would not adversely affect the public peace, health,
safety or general welfare. The Planning Commission hereby recommends approval and adoption of
said General Plan Amendment based on the following findings:
I. The proposed amendment is in the public interest, and there will be a community benefrt
resulting from the amendment:
The proposed Housing Element Update is in the public interest and will benefit the community
by encouraging the City's participation in programs that provide home ownership opportunities
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for families; facilitating the development of housing for all income levels, including very low-,
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Resolution No. 2010-25
Page 3 of
low-, moderate-, and above moderate-income levels for the 2008-2014 planning period. The
Housing Element Update identifies housing goals and policies to address the city's fair share of
the regional housing needs, while encouraging improvement and enhancement of existing
residential neighborhoods throughout the city.
2. The proposed amendment is consistent with the other goals,policies, and objectives of the
General Plan.
The proposed Housing Element Update is consistent with the goals, policies,and objectives of
the current General Plan in that it encourages a balanced approach to meeting housing needs that
include both owners and renters and emphasizes maintaining and enhancing the quality of
existing housing and residential neighborhoods in the city. The Housing Element is internally
consistent with other land use goals and policies of the General Plan, and maintains specific
goals and policies that are aimed at not only marinating and improving Azusa's established
neighborhoods, but also achieving mixed-use development along select commercial corridors
and adjacent to the future light rail station.
3. The proposed amendment will not conflict with provisions of the Development Code,
subdivision regulations, or any applicable specific plan; and.
The proposed Housing Element Update contains goals, policies, and implementation programs
related to the development and rehabilitation of housing throughout the City, that for the most
part are consistent with the current Development Code ordinance, subdivision regulations, and
existing specific plans. New requirements under State law will be met through the addition
of new housing programs, which will require amendments to the Development Code in order to
allow for the provision of emergency(homeless) shelters as a permitted use in at least one zone
within the city, a new density bonus provision for affordable housing, inclusion of parcel
consolidation incentives within mixed-use areas, including rounding up when calculating
allowable units. The proposed Housing Element Update will not conflict with the City's
Development Code or State Housing Law, once these subsequent Development Code
Amendments are carried out.
4. In the event that the proposed amendment is a change to the land use policy map, that the
amendment will not adversely affect surrounding properties.
The proposed General Plan Amendment involves the adoption of an updated Housing Element.
and does not include a change to the Land Use policy map.
SECTION 4: Based on the aforementioned findings, the Planning Commission does hereby
recommend to the City of Azusa City Council,approval of General Plan Amendment GPA-2010-02
for the adoption of the 2008-2014 Housing Element Update and Negative Declaration.
SECTION 5: The Secretary shall certify to the adoption of this resolution.
ADOPTED AND APPROVED the 27`" day of October, 2010.
Resolution No.2010-25
Page 4 of 4
AZ_USA PLANNING COMMISSION CHAIRMAN
I herebv certify that the foregoing is a true copy ofa resolution adopted by the Planning Commission
of the City of Azusa at a regular meeting thereof held on the 27'h day of October, 2010, by the
following vote of the Planning Commission:
AYES:
NOES:
ABSENT:
ABSTAIN:
AZUSA PLANNING COMMISSION SECRETARY
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Exhibit B
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G
rfEQRNIA *ION ANI)HOUSING A. NCV - -ARNOLD SCHWAR7_FNFGGFR Gavernor
DEPART MENT OF HOUSING AND U—MMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
1800 Too 952053 Suite 430 0'
P.O.Boz 952053 fl 1^
Sacramento,CA 94252-2053
(916)323-,177!FAX(916)327-2643
v✓ww.hctl.ca.gov
Aril 20, 2010
Mr. Kurt Christiansen, Director
Economic
of Azusa
and Community Development AP 2
C � 2010
213 E. Foothill Blvd.
Azusa, CA 91702
Dear Mr. Christiansen:
RE: Review of the City of Azusa's Revised Draft Housing Element
Thank you for submitting Azusa's revised draft housing element received for review on
March 26, 2010 with revisions received on April 7 and April 19, 2010. The Department
is required to review draft housing elements and report the findings to the locality
pursuant to Government Code Section 65585(b). Telephone conversations with you,
Mr. Conal McNamara, Assistant Economic and Community Development Director,
Ms. Kim Pilmer, Assistant Planner, and Ms. Genevieve Sharrow, the City's consultant,
facilitated the review.
The revised draft element addresses the statutory requirements described in the
Department's September 24, 2009 review. For example, the element now
demonstrates adequate sites to accommodate the City's regional housing need and
includes a complete analysis of potential government constraints. The Department's
finding of adequate sites to address the regional housing need for lower-income
households considered both the redevelopment opportunities identified in Appendix B
and the planned net units resulting from the Atlantis Gardens project. As a result, the
draft element will comply with State housing element law (Article 10.6 of the
Government Code) when adopted and submitted to the Department, pursuant to
Government Code Section 55585(g).
The Department commends Azusa for its commitment to provide housing affordable to
lower-income households through the implementation of the Atlantis Gardens project.
We appreciate the cooperation and assistance provided by Ms. Sharrow throughout the
course of the review and look forward to receiving Azusa's adopted housing element.
For any questions or additional assistance, please contact Melinda Benson, of our staff,
at (916) 445-5307.
Sincerely,
Cathy E. Qjeswell
Deputy Di ector
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COMMENTS, CORRECTIONS, AND RECOMMENDATIONS
TO THE FINAL DRAFT OF
THE 2008-20014 CITY OF AZUSA HOUSING ELEMENT PLAN
By Jorge V. Rosales, Azusa Resident
Thlere are 12,600 households in Azusa, of which 44% or 5550 are considered lower income households,
6500 or 51.6% are Special Needs households, and 3800 or about 30% are overcrowded. There are over
3100 elderly persons or about 8% of the population and 9100 persons or about 22% of the population
ilth some type of disability.Yet in 10 years only four lower income units have been built in Azusa.
aIble 27 of the 2008-2014 requires the construction of 745 units per SCAG criteria, of which 299 should
be lower income units. In the H. E. the City is already taking credit for 1065 units already completed or
approved since 01/01/2006, of which only 132 units have been completed. However only one of the
uriits completed or approved is of lower income and 11 for moderate income. The balance of the units
�orlapproximately 1050 units are all Market rate or Above Moderate Income units.
O� page 26 it states that 148 units in two housing developments (Alosta Gardens-60 units and Azusa
Park Apartments-88 units) are risk of expiring Section 8 Contracts in October and September 2009,
respectively. What is the status of these affordable and subsidized units?
Oh page 62, it states that the 9 condominiums and 4000 square feet of retail space at 809 E. Gladstone
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ore completed in 2009.That is not true.The property is still vacant and fenced.
On page 62 and 63 there is a list of major projects with planning approval. The 73 units at
Dalton/Foothill don't have a developer and no construction permits have been issued. For the 102 units
at!Citrus Crossing, it states that "construction is anticipated to begin in 2010." 1 don't think this will occur
between now and the end of the year. Are the Building Permits for this project still active? At Rosedale,
o1!the 750 units approved since 2006, how many have been plan checked and permitted? As of January
1 2010 all projects without a permit or expired permits will be required to comply with the new 2010
Building Codes recently adopted by the City.
On page 64, it states that the City hopes to identify a Developer in 2010 for the "new" housing
development at the Atlantis gardens site. Do you think this will occur before the end of the year?
It states on page 73 that the Redevelopment areas generate between$1.28 and$1.42 Million in housing
s t aside funds annually. Does that mean that since 2000 to date between $12.8 and $14.2 million
dollars have been generated? This does not include the nearly $10 Million generated from the sale of
Hiousing Bonds in 2007 or 2008. Besides vacant property what has been accomplished with the $23-24
Million dollars of Housing Set Aside Funds?
Also on page 73 it states that the "Redevelopment Agency has proposed to develop a 20-unit assisted
living complex for seniors." Could you please expand on this proposal and where it is being considered
t be sited?
Comments to 2008-14 Housing Element Final Draft Page 1
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It is stated on page 73 that the "Redevelopment Agency is exploring to purchase affordable housing
I for Senior Housing in the Downtown North Area. Please expand on this and indicate with who
antl where these units will be located.
Also on page 73 it states that Azusa works with a variety of non-profit developers and community
development organizations to facilitate the production of affordable housing units. Developers and
organizations, including TELACU, Habitat for Humanity, So Cal Housing, National CORE, and SCHP. The
Housing Element should expand on when Azusa worked with these groups and on which projects?
page numbers 74-75, the H.E. under Financial Resources states that the City has access to Federal,
State and Local sources such as CDBG funds for acquisition or disposition of real estate and relocation,
II
City of Industry Funds, and approximately$1.36 million in 20%set-aside funds annually. The H.E. should
and as to how much funding has been received from each of these sources and what was
accomplished with them.
r� page 80, Table 50-Summary of 2000-2005 H.E. Quantified Objectives, it states that the goal was to
bulIild 677 units of which 318 or 47%of the units were to be for lower income. Only 6 lower income units
2re built during this period or 1.9% of the required lower income units. Yet it is indicated that a 93%
success rate was accomplished when in reality the success rate was only 54% because 312 lower income
units were not built.
(A(cording to Table 50, 150 of the 175 of the projected single family rehabilitation objectives were
completed or an 86% success rate. That's good. It would be more meaningful if the total amount of
fuHding for this program as well as the average amount per property were indicated, including the type
ofi rehabilitation projects funded. The Single or Multi-family Rental Housing Rehabilitation Program was
not as successful,with only a 20%success rate or 15 of the projected 75 units.
Page 81 makes reference to the Home Buyer Program for New Construction. Is this the same or part of
thce First Time Home Buyer Program for existing houses?
Page 83 makes reference to an Inclusionary Housing Ordinance which has not been implemented since
2000 because a "NEXUS Study has not been completed." What is a "NEXUS Study?" It seems that many
o I portunities to integrate affordable units within market rate projects have not been taken advantage
this due to lack of implementing a policy for this program that the Department of Housing and Urban
ZIelopment has deemed successful under their HOPE VI New Housing Program.
OIhI page 87, besides the limited amount of CDBG funding for Affordable Housing, what other sources
a I d how much did the City receive annually from 2000 to present? How much of all sources have been
earmarked for home buying or major rehabilitation?
Oln page 83, what is the source of funds for the Single family Rehabilitation Program? Is there an
established maximum or a minimum per household for this program? What is the total amount of
funding made available since 2000 under this program?
It states on page 84 of the H.E. that there has been no funding made available for multi-family housing
acquisition and rehabilitation between 2000 and 2008. It states that for the 2008-2014 H.E. the
Comments to 2008-14 Housing Element Final Draft Page 2
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�pram will be revised to pursue funding." How and when will the program be revised? What type of
U, will be sought for this program?
For the 2008-2014 Housing Plan-Long Term Housing Goals and Short Term policies:
PROGRAM 1: Single Family Rehabilitation Program. It anticipates the issuance or 25 grants or loans for
the six year period or 150 total. How much are the grants for? What differentiates the issuance of a
grant from a loan?
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PR OGRM 2: Multi-Family Acquisition and Rehabilitation Program: The program makes reference to the
La Paloma project in 1998. Has there been any other project or efforts to seek developers for this
program since then? How much Redevelopment Agency Set-Aside funding is available for this program?
PROGRAM 4: Neighborhood Improvement Zone Program: When was the last time this type of program
W
s implemented in Azusa? Are there any neighborhoods currently identified in need of this type of
pri gram? How much Redevelopment Set-Aside funding is available for this type of program? With the
amount of funding ($600k per year) that the City gets in CDBG funding, it is almost impossible to fund
this type of program.
PROGRAM 6: First Tome Homebuyer Program:This is an excellent program; however I'm concerned that
the assistance levels are too high at up to $140,000. Perhaps the amount level should be reconsidered
(given today's house prices. Second, I'm also concerned that the 5 participants per year between 2008-14
is inflated given that no funding was approved in the 2009-10 and 2010-11 budgets., so only 5 or 6
families have been assisted since 2008. Is there any Redevelopment Set-Aside available for the 2011-12
budget?
PIOGRAM 7: Affordable Housing Funding Sources: Has the City ever participated or implemented any
a ordable housing developments under this program since 2000? Has the City ever received any City of
Industry Funds?
PROGRAM 11: Senior Housing: Part of the objective under his program states, "Focus a portion of
redevelopment Set-Aside Funds toward the development of senior housing." Are there currently any set
-aside funds for this program? How much more will be allocated per fiscal year?
PIROGRAM 12: Inclusionary Housing: I would also call this program, Mixed-Finance housing which would
allow mixing public, private, and non-profit funds to develop and operate housing developments. New
developments may be made up of a variety of housing types: rental, homeownership, private,
subsidized, and even public housing.These new communities are built for residents with a wide range of
it comes, and are designed to fit into the surrounding community. It is my opinion that this program
should have been implemented a long time ago, encouraging housing developers to comply with this
type of Ordinance, similar to what the City of Los Angeles has had for years and known as the 15%
Ordinance, where lower income units can be built within market-rate or above moderate income
( developments. I look forward to having this program in place in 2011.
Comments to 2008-14 Housing Element Final Draft Page 3
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PROGRAM 14: Density Bonuses: It states that the Development Code will be amended in 2010 to
inclorporate the allowance of density bonuses for the provision of affordable housing per Government
Cotte. Will this be reviewed by the Planning Commission and approved by the City Council before the
end of the year?
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PRII GRAM 1S: Extremely Low Income and Special Needs Housing: This has been one of the most failing
prbgrams in the past, mainly because not many of these much needed types of housing have been built.
The biggest obstacles have been that the City has not pushed for this type of housing or sought funding
to build it, even though 44% of the Azusa households are of lower income or that over 51% of the
household require Special needs Housing or are overcrowded. I hope that in the near future the City
doles start applying for Federal and state funds in direct support of building these much needed types of
oiusing.
PROGRAM 17: Outreach Plan: I really look forward to the implementation of an outreach plan in 2011 to
establish protocol for housing-related issues, such as Housing Element updates and homelessness
initiatives. Reach out to the community regarding housing topics in general, as well as with regard to
I ongoing, pending, and new housing or mixed-use developments.
(
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Comments to 2008-14 Housing Element Final Draft Page 4
(11W
OF
U lk �rr:�ix
"lab°'..� r . *n.. .-'�U.'a
AGENDA ITEM
TO: THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
F M: ALAN KREIMEIER, DIRECTOR OF ADMINISTRATIVE SERVICES/CFO
VIA: FRAN DELACH, CITY MANAGER*
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DA E: DECEMBER 6,2010
SUBJECT: BUSINESS LICENSE REVOCATION HEARING —GREATER CHOICE
RECiOMMENDATION
It ;is recommended that City Council revoke business license number 027288 due to fraudulent
statements and unlawful business activity.
BACLKGROUND
O I pril 8, 2010 license 027288 was issued to Daniel Yi for a general retail store at 113 E.
Newburgh Street. The license was issued subject to statements made by the applicant to the
Business License and Planning Divisions that the business activity would be retail sale of general
merchandise. Prior to the opening of the business, Daniel Yi transferred ownership to Dany H.
Lee,
F Ill wing an extensive criminal investigation by the Azusa Police Department narcotic unit, the
btisi1 tess and two other residences were the subject of a search warrant executed on November 1,
2010. During the search, over 5 lbs of marijuana and hash was recovered, a firearm and over
$410K in cash along with a hidden room containing a safe. The business had surveillance cameras
on the entire perimeter and electronic door locks to control entry and movement along with all
windows and doors having security bars on them.
Polile narcotic detectives clearly determined the business operated to sell marijuana illegally and
arreslted Daniel Yi, Dany Lee and two other adults on felony narcotic violations. The case is
cul Ltly under review by the Los Angeles County District Attorney's Office for criminal
fil nks) consideration.
Staff has concluded that false and misleading statements were provided by the applicant at the
time of application in order to obtain a business license and that the business has been operated
in I i lation of local and federal laws.
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EXHIBIT "A"
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[ATTACH RESOLUTION]
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SECTION 3. License Revocation. Based upon the findings and declarations
contained in this resolution, the City Council of the City of Azusa hereby revokes the business
license of Greater Choice located at 113 E. Newburgh Street, Azusa, California 91702. Further,
the City Council finds and determines the Greater Choice business to be a public nuisance.
SECTION 5. Effective Date. This Resolution and Order shall become effective
upon its adoption.
PASSED, APPROVED AND ADOPTED this 6th day of December 2010.
Joseph R. Rocha
Mayor
AT EST:
Vera Mendoza _
Cit} Clerk
RiP B\MXM\668622.1
MEMORANDUM
Date: November 17, 2010
To: Francis M. Delach, Cite Manager
From: Andre-tv J. Cawtc, Revenue Supervisor
Subject: Request to Suspend Business License 027288 Pending Revocation Hearing.
On November 3`d 2010 at approximately 4:30PM I received a telephone call from Sergeant
Sam Fleming of the Azusa Police Department. Sergeant Fleming stated that the business
own as "Greater Choice" located at 113 E. Newburgh Street had been the subject of a
search warrant. During the search marijuana, weapons and cash were seized.
The dispensing or sale of marijuana is not a permitted use pursuant to Section 18-31 AMC
hnd staff believes that the business owner obtained his license by fraudulent means.
kMC Section 18-21 (Attached) contains the provisions for suspending and revocation of
business licenses. You are hereby requested to suspend the business license for Greater
�hoice pursuant to violation of Sections 18-21(1), (2), (3), (4) &: (5).
TAMC Section 18-21(e) states: "The city manager shall also have the power to suspend any
license upon his determination that grounds for revocation exist, pending determination by
the city council that the license should be revoked or suspended."
II Francis M. Delach, City Manager of The. City of Azusa; hereby order the immediate
suspension of Business License No. 027288 pending a revocation hearing before the city
council.
-bV k4, C4`— Date: November 17`h 2010.
�ancis M. Delach; City Manager
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18-21 -Revocation and suspension of licenses.
(a)
Every license granted under this chapter or any ordinance is granted and
used by all parties receiving or using the license subject to the express
condition that the city council may revoke the license at any time when it
is determined by the city council that:
(1)
Any state of facts exists upon which it would be authorized to deny
(2) an application for such license or permit, if required;
The person to whom such license was issued or any of his agents,
servants or employees or any other person in charge of or
employed about the business for which the license was issued
has violated any of the conditions of the license or permit, if any,
(3) or terms of this Code or of any law of the state;
(4) The license or permit was obtained by fraudulent representations;
The holder thereof is an unfit person to be trusted with the
privileges granted by the license or has conducted his business in
an immoral or disorderly manner or has failed to make every
reasonable effort to maintain order among his customers and
(5) patrons and to prevent violations of law by them; or
(b) The business has been so conducted as to be a public nuisance.
No license shall be revoked without giving the holder thereof an
opportunity to appear before the city council and be heard in his own
behalf. The city council shall cause a notice of such hearing to be given to
the holder of such license at a time not less than five days before the
hearing. At the time set for the hearing or at the date to which the hearing
may be continued by the city council, the holder of the license may be
heard and may present any facts to show why such license shall not be
revoked, and the city council shall hear statements from other persons
who may attend the hearing and present reasons why the license should
or should not be revoked. The city council may, If it so desires, place
under oath and question any person before it. The city council may end
the hearing when it is convinced that no public good will result from its
continuance. At the end of the hearing or at any time within 30 days
thereafter, the city council shall determine from the facts produced at the
hearing and from any other facts in its possession whether or not the
license should be revoked and shall make its order accordingly and may
make such order conditional upon the doing or not doing of any act by the
holder of the license or his agents or servants which the city council
deems for the public good.
(c)
On the revocation of the license no part of the money in the hands of the
city shall be returned, but such license fee shall be forfeited to the city.
Notice of such revocation shall be given to the license holder by the
business license officer.
(d)
A license may be suspended for such time and subject to such conditions
as the city council may impose in the same manner and for the same
reasons that a license may be revoked.
(e)
The city manager shall also have the power to suspend any license upon
his determination that grounds for revocation exist, pending determination
by the city council that the license should be revoked or suspended.
(Code 1971, § 5.08.170; Ord. No. 98-09, §2, 6-15-98)
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SCHEDULED ITEM
0: HONORABLE MAYOR AND MEMBERS OF THE CITY CIL
FROM: GEORGE F. MORROW, DIRECTOR OF UTILITIES
I
IA: F.M. DELACH, CITY MANAGER
ATE: DECEMBER 6, 2010 l 1,
SUBJECT: INTRODUCTION AND FIRST READING OF AN ORDINANCE OF THE
CITY COUNCIL APPROVING A POWER SALES AGREEMENT BETWEEN
THE CITY AND THE SOUTHERN CALIFORNIA PUBLIC POWER
AUTHORITY FOR THE LA PAZ SOLAR TOWER PROJECT
RECOMMENDATION
lit is recommended that the City Council introduce and conduct first reading of the proposed
tt1rdinance.
XECUTIVE SUMMARY
The proposed "first-of-its-kind" solar project will provide an additional 2.5% of renewable
�nergy to the City when operational in late 2014. There is no cost/obligation to Azusa other than
the commitment to purchase green energy from the plant at an attractive contractually set price.
The average price for this energy in today's dollars will be less than $60/MWH using a 4%
discount rate (Azusa's average price of power supply today is about $90/MWH). The project
�eveloper is responsible for all risks/costs of constructing the project with monetary penalties if
various milestones and performance objectives are not met.
(BACKGROUND
Azusa Light & Water continues to explore renewable energy opportunities to achieve the
renewable energy targets. Recent renewable requirements established by the California Air
Resources Board require 20% renewables in 2012, 24% in 2015, 28% in 2018 and 33% in 2020.
AL&W expects to be at a 20% renewable level for 2010 and is in the process of exploring other
renewable projects for operation in 2012 and beyond.
jrhe La Paz Solar Thermal Tower Project has been proposed by EnviroMission Inc. It is based on
la concept of heat convection whereby gases, as air, when warmed up, move from a cooler/higher
pressure and density volume to a warmer/lower pressure and density volume. EnviroMission,
Inc. is an Australian company with a U.S. subsidiary, EnviroMission (USA) based in Phoenix,
Arizona.
This proposed project would consist of three major elements: a circular, umbrella shaped, solar
heat collector, a thermal chimney, and up to 32 electric generators coupled to wind turbines
propelled by the fast moving air. When heated by the sun, the air under the umbrella shaped
collector would rush toward the highest point of the collector to eventually "escape" through the
solar chimney mounted at the center of the collector. Rushing air would propel the turbines
placed radially around the circumference of the chimney. Please consult the conceptual diagram
below:
Tower exit:warm air
1
"hot; relatively cool
ambient air
�° \
da. =temperature difference:
et.
4 density difference
pressure difference
up-draught
collector entry; greenhouse effect
ambient air
Since the projects power production would be a function of solar insolation, the anticipated
daily energy production level of the project would closely follow a typical shape of Southern
California load demand.
PROJECT ALLOCATIONS
A number of Southern California Public Power Authority members are interested in obtaining power
from the La Paz Project and are seeking approval of their governing bodies:
Azusa 2 MW
Anaheim 10 MW
Burbank 27 MW
Glendale 12 MW
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Imperial Irrigation District 15 MW
Pasadena 10 MW
Riverside 25 MW
Total 101 MW
The proposed La Paz project will be sited in Arizona, in close proximity to the California state
border, and interconnected-to the transmission system operated by Western Area Power
Administration (Western). Electric power from the project would be contractually delivered to
§CPPA members via Western's transmission to the Marketplace substation and/or McCullough
ubstations in southern Nevada. Azusa has rights at accept power at these locations.
The physical scale of the La Paz Solar Tower project will be unparalleled. The chimney or tower
Mrbe over 2000 feet tall (300 feet wide) and the solar collector (greenhouse) could encompass
ver 30 km'. A smaller prototype was built in Spain in 1982 with an output of 50 KW, a tower of
bout 660 feet tall (33 feet in width) and a,solar collector area of about 11 acres. While La Paz
WI be the first-of-its-kind at full scale (200 MW), the concept for the project is not particularly
Comp]ex being composed of a solar greenhouse, a tower, and 32 wind turbine-generators.
The risk of this project to Power Purchasers, like Azusa, is very limited. A Purchaser's obligation
J
s simply to buy the electricity produced by the solar plant at the contractually specified price.
fhe developer (EnviroMission), on the other hand, has pledged to meet various development
ijrtilestones and plant performance objectives and will post Letters of Credit as security for those
promises.
I
Y COMMERCIAL TERMS
The highlights of the proposed transaction are as follows:
1. Electric Capacity: 200 MW— SCPPA's subscription is expected to be for approximately 'h of the
facility capacity(101 MW). SCPPA may increase this amount so long as any portion of the facility
1�apacity remains unsubscribed.
1.
Expected Capacity Factor: 60%
3. Price:
a. For production up to 63% annual capacity factor, the price of delivered energy is
$95.50/MWh for the first fifteen years and then increases by$1/MWh each year thereafter.
b. For production greater than 63% annual capacity factor in any year, the price is reduced by
40%.
Guaranteed Energ: If there is a failure to achieve at least a 48%annual capacity factor starting in
the third year of operation, SCPPA can terminate the contract after two years of consecutive non-
I�erformance
5. Commercial Operations Date or COD: late 2014
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6. Term: 30 years to Dec. 31, 2045
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7. Facilitv Location: La Paz County, Arizona
8, Delivery Point(s): Southern Nevada (where Azusa has rights to deliver to CA)
9. Ongoing Performance Guarantee & Security: A $15 million security fund (prorated based on the
SCPPA subscription level) will be established at commercial operation to provide funds to ensure
seller compliance with various performance parameters as specified in the agreement.
10. Milestone Dates & Security (Secured by Line of Credit): the developer must meet the following
milestones by the indicated date or the indicated sums (prorated by SCPPA's share of the project)
will be owed to SCPPA for missing that particular milestone date. For example, if SCPPA subscribes
for 50% of the project and construction is not started by Nov 1, 2012, SCPPA would receive $1.5
million and the agreement/project would be terminated.
a. Financing -Nov. 1, 2011 - $0.75 million
b. Permit -Feb. 1, 2011 - $1 million
c. Transmission Interconnection - May 1, 2012 - $2 million
d. Construction Start -Nov. 1, 2012 - $3 million
e. COD - Nov. 1, 2014 - $15 million
11. Equity Option (s):
a. SCPPA will have the option to purchase its share of the facility after ten years at fair
market value.
b. SCPPA will have the option to purchase a second facility on comparable terms with
standard escalators.
12. Favored Nation: Any deal term that the developer enters into with an entity other than SCPPA,
for a period longer than two years in duration, will also be offered to SCPPA.
CONTRACT
There are four (4) agreements related to SCPPA's participation in the project:
SCPPA would execute three (3) agreements with project developer EnviroMission Inc. - a Power
Purchase Agreement, Project Purchase Option Agreement with an attached Participation
Agreement, and a Project Operation and Maintenance Agreement. The SCPPA Board has
already voted to approve and have SCPPA Executive Director execute these three agreements.
Each SCPPA member participating in the project would execute a Power Sales Agreement
with SCPPA related to the project.
DISCUSSION
Azusa needs to procure more renewable energy to fulfill its mid to longer term mandated RPS
goals. The overall commercial terms of the project, including the price, are the most favorable
terms offered in response to recent SCPPA RFP for renewable energy where over 90 proposals
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were received.
I
lthough the associated technology of a solar thermal chimney is not fully developed yet, the
I I egotiated business arrangement by SCPPA members terms is such that "no money is at risk" if
he project fails or proves to be difficult to develop.
I
e averldge present value price for La Paz energy is S57 per MWH assuming a 60% annual
capacity factor and a uniform 4% discount rate over the 30 yr term of the PPA (or $65/MWH at a
b% discount rate). Given that the bulk of project power will be produced in the peak and mid
Leak periods, this is a favorable price compared to other renewable technologies available today.
IAzusa's current participation level is 2 MW of the 200 MW project. Assuming performance
objectives are met by the project; renewable energy from La Paz would represent about 2.5% of
zusa's retail load.
FISCAL IMPACT
The La Paz project will require no capital contribution. Azusa would only pay for actual energy
received at the contract stipulated prices. The projected annual cost, based on the anticipated
project output, would be about $1 million per year for the first 15 years increasing approximately
I% thereafter until the 30 year contract is fulfilled.
5
9
ORDINANCE NO. -
AN ORDINANCE OF THE COUNCIL OF THE CITY OF AZUSA
APPROVING THE POWER SALES AGREEMENT BETWEEN THE
CITY AND THE SOUTHERN CALIFORNIA PUBLIC POWER
AUTHORITY FOR THE LA PAZ SOLAR TOWER PROJECT
WHEREAS, pursuant to the provisions relating to the joint exercise of powers found in
Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, as amended
(the "Joint Powers Act'), the City of Azusa (the "City") and certain other public bodies
(collectively, the "Members") have entered into a Joint Powers Agreement, as amended (the
"Joint Powers Agreement'), which creates the Southern California Public Power Authority
("SCPPA"), a public entity separate and apart from the Members; and
WHEREAS, pursuant to the terms of the Joint Powers Act and the Joint Powers
Agreement, SCPPA has the power, for the purpose of promoting, maintaining and operating
electric generation and transmission on behalf of its Members, to plan, develop, contract for,
finance, acquire, design, undertake, own, construct, operate and administer projects involving
systems, methodologies and programs for the acquisition, supply, procurement and delivery of
secure, long-term reliable supplies of renewable electric energy and to cause such projects to be
planned, developed, contracted for, financed, acquired, designed, constructed, operated,
maintained, and administered and to provide by agreement for the performance and carrying out
of any such activities; and
WHEREAS, the City has need for a long-term source of renewable energy to satisfy
City's renewable portfolio standard requirements and desires to ensure the reliable delivery of
solar energy to fulfill a portion of these requirements; and
WHEREAS, SCPPA and certain of its Members, to wit, currently the Cities of Anaheim,
Azusa, Burbank, Glendale, Pasadena and Riverside and the Imperial Irrigation District
(collectively, the "Project Participants") have investigated the feasibility of the purchase of solar
electric capacity and energy and the acquisition and development of solar energy and related
facilities in order to provide a long-term supply of renewable energy to meet a portion of the
electrical generation needs of the Project Participants while also helping them meet policy and
regulatory goals for increasing the amount of electricity obtained from renewable energy
resources; and
WHEREAS. SCPPA and the Project Participants have identified a solar energy facility
known as the La Paz Solar Tower Project (the "Project'), that will be owned by EnviroMission
(USA), Inc., a Delaware corporation ("EnviroMission") and an affiliate of EnviroMission
Limited. The Project is to have a nameplate capacity of 200 MW and is to be located in western
La Paz County, Arizona. The Project will include the siting, construction and installation of the
solar tower facility containing, among other things, thirty-two 6.25 MW pressure-staged turbine
generators. SCPPA desires to acquire a major portion of the electric capacity and energy of the
Project from EnviroMission, and each Project Participant desires to obtain electric capacity and
associated energy and environmental attributes of the Project from SCPPA pursuant to a La Paz
t
Iolar Tower Project Power Sales Agreement between SCPPA and such Project Participant (the
kk Power Sales Agreement'); and
WHEREAS, SCPPA proposes to enter into a Power Purchase Agreement with
EnviroMission (the "Power Purchase Agreement') to provide, among other things, for the
�urchase by SCPPA of approximately 101 MW of capacity and associated energy and
environmental attributes from the Project. The form of the Power Purchase Agreement is
attached as an Appendix to the Power Sales Agreement; and
WHEREAS, the Power Purchase Agreement also provides for SCPPA and
EnviroMission to enter into an Option Agreement providing SCPPA with options to purchase a
ercentage ownership interest in the Project equivalent to the percentage of the capacity of the
Project purchased by SCPPA under the Power Purchase Agreement. Exhibits to the Option
Agreement include the forms of a Participation Agreement (the "Participation Agreement') and a
Project Operation and Maintenance Agreement (the "Project O&M Agreement') which are to be
entered into by SCPPA with EnviroMission if SCPPA exercises its purchase option. The
Participation Agreement and the Project O&M Agreement provide for the management and
operation of the Project by SCPPA and EnviroMission as co-owners; and
WHEREAS, in the event that it exercises its option to purchase such ownership interest
in the; Project, SCPPA would issue its bonds to finance the cost of acquisition of such ownership
interest; and
WHEREAS, the Power Sales Agreement provides for the purchase by a Project
Participant from SCPPA of a designated amount of Project capacity and the associated energy
and environmental attributes, whether such purchase be from the capacity and associated energy
and environmental attributes of the Project purchased by SCPPA under the Power Purchase
Agreement, or, if SCPPA exercises its option to purchase the ownership interest in the Project,
from the capacity and associated energy and environmental attributes supplied from SCPPA's
ownership interest in the Project. Under the terms of each Power Sales Agreement the
designated amount of a Project Participant's Capacity Amount, Output Entitlement Share or Cost
Share (as defined therein) may be increased or decreased by up to 50% but only subject to the
conditions set forth in the Power Sales Agreement, including the approval by the representative .
of such Project Participant on the Project Coordinating Committee established pursuant to the
Power Sales Agreement (the "Project Coordinating Committee") and the approval of the SCPPA
Board of Directors; and
WHEREAS, for its purchase of Project capacity and associated energy and environmental
attributes, a Project Participant is to pay to SCPPA on a take or pay basis its share of SCPPA's
costs with respect to the Project (including debt service on SCPPA bonds if SCPPA should
acquire the ownership interest in the Project), all in accordance with the terms of the Power Sales
Agreement; and
WHEREAS, there has been submitted to this Council the form of the Power Sales
Agreement by and between SCPPA and the City of Azusa for the purchase of 2 MWs of Project
capacity and associated energy (subject to adjustment in accordance with the terms of the Power
Sales Agreement), including as an Appendix thereto, the form of the Power Purchase Agreement
2
with the form of Option Agreement attached as Appendix J to the Power Purchase Agreement
and the forms of the Participation Agreement and Project O&M Agreement attached as Exhibits
to the Option Agreement (the "Azusa Power Sales Agreement'); and
WHEREAS, the Council of the City of Azusa finds and determines that it is in the best
interests of the City and its residents to purchase Project capacity and the associated energy and
environmental attributes from SCPPA pursuant to the Azusa Power Sales Agreement.
NOW THEREFORE, the City Council of the City of Azusa does hereby ordain as
follows:
1. The Council hereby approves the Azusa Power Sales Agreement, including all
Appendices and attachments thereto, between the City and SCPPA with respect to the La Paz
Solar Tower Project, in substantially the form submitted to the Council.
2. The Director of Utilities of Azusa Light & Water is hereby authorized to execute
and deliver the Azusa Power Sales Agreement, with such changes, insertions and omissions as
shall be approved by the Director of Utilities (such approval to be conclusively evidenced by
such execution), and the City Clerk is hereby authorized to attest to such execution.
3. The Director of Utilities of Azusa Light & Water is further authorized to execute
and deliver any and all other documents and instruments and to do and cause to be done any and
all acts and things necessary or advisable for carrying out the responsibilities and transactions
under the Azusa Power Sales Agreement as contemplated by this Ordinance, which shall include,
without limitation, (i) authorization for the Director of Utilities to direct the representative of the
City appointed to the Project Coordinating Committee to approve adjustments of the Project
capacity to be purchased by the City as provided for under the Azusa Power Sales Agreement (or
to approve such adjustment himself or herself, should the Director of Utilities be the City's
appointed representative to the Project Coordinating Committee), and (ii) authorization to
execute and deliver any agreements, documents and instruments necessary to carry out the City's
participation and responsibilities under the Azusa Power Sales Agreement. In addition, the
Director of Utilities is further authorized to procure, on such terms and conditions as the Director.
of Utilities deems advantageous to the City, energy, capacity, transmission services and ancillary
services necessary or useful for purposes of firming, shaping, regulating, transmitting and
delivering to the City's electric system the Project energy purchased by the City from SCPPA.
4. Should the Director of Utilities of Azusa Light & Water be absent or otherwise
not available to execute and deliver the agreements, documents or instruments or to carry out the
other responsibilities provided by or authorized in this Ordinance, then he or she may designate,
in writing, a representative act in his or her stead.
5. If any part of this Ordinance is held to be invalid for any reason, such decision
shall not affect the validity of the remaining portion of this Ordinance, and this City Council
hereby declares that it would have passed the remainder of this Ordinance, if such invalid portion
thereof has been deleted.
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6. Pursuant to Section 54241 of the Government Code of the State of California, this
rdinance is subject to the provisions for referendum applicable to the City.
7. This City Council shall certify to the enactment of this Ordinance and shall cause
this Ordinance to be published in accordance with Section 54242 of the Government Code of the
State of California.
8. Unless a petition shall be filed requiring that this Ordinance be submitted to
referendum, thirty (30) days from and after its enactment, this Ordinance shall take effect and be
it full force, in the manner provided by law.
PASSED AND ADOPTED this day of 12011.
Joseph R. Rocha,
Mayor of the City of Azusa
4
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF AZUSA )
I, Vera Mendoza, CMC, City Clerk of the City of Azusa, do hereby certify that the
foregoing Ordinance No. was regularly introduced and placed upon its first
reading at a regular meeting of the City Council on the day of 2010.
That thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City
Council on the day of 2011 by the following vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
Vera Mendoza, CMC, City Clerk
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11/20/2010 EXECUTION COPY
LA PAZ SOLAR TOWER PROJECT
POWER SALES AGREEMENT
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
CITY OF AZUSA, CALIFORNIA
Dated as of November 1, 2010
90187821.2
TABLE OF CONTENTS
Page
1. PARTIES ........................................................................................................................... 1
2. RECITALS, CONSTRUCTION AND PRELIMINARY MATTERS............................. 1
3. AGREEMENT................................................................................................................... 9
4. DEFINITIONS...................................................................................................................9
4.1 Agreement..............................................................................................................9
4.2 Effective Date........................................................................................................ 9
4.3 [Intentionally Omitted] .......................................................................................... 9
4.4 Cost of Acquisition................................................................................................ 9
4.5 Delivery Point Output Cost Share........................................................................ 13
4.6 Indenture Cost Share............................................................................................ 13
4.7 Total Monthly Costs ............................................................................................ 13
4.8 Power Purchase Agreement Total Monthly Costs............................................... 14
4.9 Ownership Total Monthly Costs.......................................................................... 15
4.10 Project Cost Share................................................................................................ 18
4.11 Transmission Services Cost Share....................................................................... 18
5. PURCHASE AND SALE OF OUTPUT AND THE ROLES AND
OBLIGATIONS OF SCPPA AND THE PROJECT PARTICIPANTS.......................... 18
5.1 Purchase and Sale of Output Entitlement Share.................................................. 18
5.2 Output and Deliverables ...................................................................................... 19
5.3 Project Manager................................................................................................... 20
5.4 Adoption of Annual Budget................................................................................. 20
5.5 Reports.................................................................................................................21
5.6 Records and Accounts.......................................................................................... 21
5.7 Provide Information.............................................................................................21
5.8 Consultants and Advisors Available.................................................................... 21
5.9 Deposit of Insurance Proceeds.............................................................................21
5.10 Compliance with Federal Tax Law Requirements...............................................22
6. COORDINATING COMMITTEE.................................................................................. 22
6.1 Establishment and Authorization of the Coordinating Committee......................22
6.2 Coordinating Committee Responsibilities...........................................................24
6.3 Management Decisions and the Role of Board of Directors ...............................29
6.4 Periodic Audits..................................................................................................... 31
6.5 Additional Committees........................................................................................ 32
6.6 Written Record.....................................................................................................32
6.7 Change in Representative ....................................................................................32
6.8 Costs of Consultants ............................................................................................ 32
6.9 Representative's Expenses................................................................................... 32
6.10 Inaction by Committee.........................................................................................32
6.11 Compliance with Indenture..................................................................................33
90187821.2 j
TABLE OF CONTENTS
(continued)
Page
6.12 Compliance with the Power Purchase Agreement and Transmission
Arrangements....................................................................................................... 33
6.13 Delegation............................................................................................................ 33
7. CHARGES AND BILLINGS........................................................................................... 33
7.1 Power Purchase Agreement Monthly Costs & Billing Statement....................... 33
7.2 Ownership Monthly Costs & Billing Statement.................................................. 34
7.3 Adoption of Alternative Billing Statement Procedures....................................... 36
7.4 Disputed Monthly Billing Statement................................................................... 36
7.5 Reconciliation of Monthly Costs......................................................................... 36
7.6 Other or Additional Cost Reconciliation Mechanisms........................................ 37
7.7 Interest on Late Payments.................................................................................... 37
7.8 Prepayment of Monthly Costs ............................................................................. 37
7.9 Costs or Expenses Incurred for Sole Benefit of Purchaser.................................. 38
7.10 Credit, or other Payment Attributable to a Specific Project Participant.............. 38
8. UNCONDITIONAL PAYMENT OBLIGATIONS; RATE COVENANT;
AUTHORIZATIONS; CONFLICTS; LITIGATION...................................................... 38
8.1 Unconditional Payment Obligation...................................................................... 38
8.2 Source of Payments.............................................................................................. 39
8.3 Rate Covenant...................................................................................................... 39
8.4 Authorizations...................................................................................................... 39
8.5 Conflicts............................................................................................................... 39
8.6 Litigation..............................................................................................................40
9. OTHER TERMS AND SERVICES ................................................................................40
9.1 Delivery Procedures......................................:......................................................40
9.2 Other Services and Transmission From Points of Delivery.................................40
9.3 Energy Services ...................................................................................................40
9.4 Actions Respecting Facility Purchase..................................................................41
9.5 Balancing Agent and Dynamic Scheduling.........................................................41
9.6 Transfer of Environmental Attributes to Project Participants..............................42
10. FEDERAL TAX LAW REQUIREMENTS ....................................................................42
10.1 Purchaser to Provide Information Relevant to Compliance with Federal
Tax Law Requirements........................................................................................42
10.2 Compliance with Federal Tax Law Requirements...............................................42
10.3 SCPPA to Issue Rules. Procedures and Protocols...............................................42
11. PROJECT SPECIFIC MATTERS AND PROJECT PARTICIPANT RIGHTS
AND OBLIGATIONS UNDER PROJECT AGREEMENTS ........................................43
11.1 Rights and Obligations under the Project Agreements........................................43
11.2 Acquisition of the Facility by SCPPA.................................................................43
90187821.2 ii
TABLE OF CONTENTS
(continued)
Page
11.3 Special Payment Obligations in Advance of the Issuance of Bonds ..................44
12. PLEDGE OF PAYMENTS.............................................................................................45
13. ISSUANCE OF BONDS ................................................................................................. 45
13.1 Issuance of Bonds................................................................................................45
13.2 Additional Bonds.................................................................................................45
13.3 Refunding Bonds .................................................................................................46
13.4 Opinions of Counsel ............................................................................................46
13.5 Redemption or Payment of Bonds....................................................................... 46
13.6 Bond-Related Documents.................................................................................... 46
14. EXCESS BOND PROCEEDS.........................................................................................46
15. NONPERFORMANCE AND PAYMENT DEFAULT..................................................47
15.1 Nonperformance by Purchaser.............................................................................47
15.2 Notice of Payment Default................................................................................... 47
15.3 Cured Payment Default........................................................................................ 48
15.4 Failure to Cure Payment Default .........................................................................48
15.5 Treatment of the Defaulting Project Participant's Project Rights and
Obligations upon Payment Default of Defaulting Project Participant................. 48
15.6 Elimination or Reduction of Payment Obligations..............................................50
15.7 Use of Operating Reserve Account...................................................................... 51
15.8 Use and Replenishment of Debt Service Reserve Fund(s).................................. 51
15.9 Step-Up Invoices.................................................................................................. 51
15.10 Application of Moneys Received from Step-Up Invoices Relating to the
Project.................................................................................................................. 52
15.11 Application of Moneys Received from Default Invoices.................................... 53
15.12 Application of Moneys Received from Compliance Payments........................... 53
15.13 Application of Moneys Received from Sale of SCPPA Facility Output............. 54
15.14 Limitation on Cure Period ................................................................................... 54
16. CHARACTER, CONTINUITY OF SERVICE............................................................... 54
16.1 Outages, Interruptions and Curtailment of Energy Deliveries............................. 54
16.2 Uncontrollable Forces.......................................................................................... 56
17. SEVERAL OBLIGATION; LIABILITY........................................................................ 56
17.1 Project Participants' Obligations Several ............................................................ 56
17.2 No Liability of SCPPA, Directors, Officers, Etc.; SCPPA Directors,
Officers, Employees, Project Manager Not Individually Liable......................... 56
17.3 Extent of Exculpation; Enforcement of Rights.................................................... 57
17.4 Determination or Enforcement of Rights............................................................. 57
17.5 No Relief From Insurer's Obligations ................................................................. 57
17.6 No General Liability of SCPPA........................................................................... 58
90187821.2 ill
TABLE OF CONTENTS
(continued)
Page
18. RESTRICTIONS ON DISPOSITION............................................................................. 58
18.1 Limitations Concerning Private Use.................................................................... 58
18.2 Restrictions on Elimination of Payment Obligations........................................... 58
18.3 Restrictions on Disposition of Purchasers Entire System .................................. 59
18.4 Successors and Assigns........................................................................................ 59
19. REIMBURSEMENT OF PROJECT DEVELOPMENT COSTS ................................... 59
20. EFFECTIVE DATE, TERM AND EXPIRATION......................................................... 60
20.1 Effective Date; Execution in Counterparts.......................................................... 60
20.2 Termination Conditions....................................................................................... 60
20.3 Expiration............................................................................................................. 60
20.4 Transfer of SCPPA Interest ................................................................................. 60
20.5 Termination of Agreement before Expiration Date.............................................61
21. REVISION OF APPENDICES B AND C....................................................................... 61
21.1 Revision of Appendices B and C......................................................................... 61
21.2 Agreement Subject to the Indenture .................................................................... 62
21.3 Comply With the Indenture ................................................................................. 62
22. SEVERABILITY............................................................................................................. 63
23. CONDITIONS TO TERMINATION OR AMENDMENT ............................................ 63
23.1 No Adverse Effect................................................................................................ 63
23.2 Rights Among Project Participants...................................................................... 63
23.3 Continuing Compliance with Federal Tax Law Requirements............................ 63
24. REPRESENTATION AND GOVERNING LAW.......................................................... 63
25. ARBITRATION AND ATTORNEYS' FEES ................................................................ 64
26. PURCHASER'S CONTRACT ADMINISTRATOR...................................................... 64
27. NOTICES......................................................................................................................... 64
28. AMENDMENTS ............................................................................................................. 64
APPENDICES
A — DEFINITIONS...............................................................................................................A-1
B — SCHEDULE OF PROJECT PARTICIPANTS CAPACITY AMOUNTS,
OUTPUT ENTITLEMENT SHARES, PROJECT COST SHARES, POINTS
OFDELIVERY ............................................................................................................. B-1
90187821.2 iv
TABLE OF CONTENTS
Page
C — SCHEDULE OF PROJECT PARTICIPANTS DELIVERY POINT OUTPUT
COST SHARES, TRANSMISSION SERVICES COST SHARES, POINT OF
INTERCONNECTION ALLOCABLE SHARES, INDENTURE COST
SHARES ........................................................................................................................ C-1
D — OPINION OF COUNSEL TO PROJECT PARTICIPANTS........................................D-1
E — OPINION OF COUNSEL TO SCPPA...........................................................................E-1
F — POWER PURCHASE AGREEMENT BETWEEN SOUTHERN
CALIFORNIA PUBLIC POWER AUTHORITY AND ENVIROMISSION
(USA) INC. DATED AS OF NOVEMBER 1, 2010......................................................F-I
90187821.2 V
LA PAZ SOLAR TOWER PROJECT
POWER SALES AGREEMENT
1. PARTIES. This La Paz Solar Tower Project Power Sales Agreement (this
"Agreement'), is dated for convenience as of the I" day of November, 2010, by and
between the SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY, a joint
powers agency and a public entity organized under the laws of the State of California,
hereinafter designated as "SCPPA," created under the provisions of the Act, and the
CITY OF AZUSA, CALIFORNIA, a municipal corporation organized and existing under
the laws of the State of California. The CITY OF AZUSA is also periodically designated
in this Agreement as "Azusa" or as "Purchaser," or, depending upon context, as "Project
Participant." Azusa and SCPPA are also sometimes herein referred to individually as a
"Party" and together as the "Parties." In addition, Azusa and the other members of
SCPPA participating in the Project may be referred to collectively, in this Agreement, as
"Project Participants."
2. RECITALS, CONSTRUCTION AND PRELIMINARY MATTERS. The Recitals
set forth herein and the facts, which follow, are incorporated into this Agreement by
reference for all purposes. The facts and the circumstances of the Parties contained in the
Recitals, among others, represent the background and framework for this Agreement, the
aim and purpose of this Agreement and the intendments of the Parties with respect
thereto. This Agreement has been reviewed by attorneys for both Parties and shall not be
interpreted with reference to the rules of construction providing for construction against a
Party responsible for drafting or creating a particular provision or section, but should
instead be interpreted in a manner which broadly carries forth the goals and objectives of
the Parties as expressed herein. References to "Sections," "Annexes," "Appendices,"
"Schedules" and "Exhibits" shall be to Sections. Annexes, Appendices, Schedules and
Exhibits, as the case may be, of this Agreement unless otherwise specifically provided.
Section headings in this Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose nor given any
substantive effect. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. The use herein
of the word "include" or "including", when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to the specific items
or matters set forth immediately following such word or to similar items or matters,
whether or not nonlimiting language (such as "without limitation' or "but not limited to"
or words of similar import) is used with reference thereto, but rather shall be deemed to
refer to all other items or matters that fall within the broadest possible scope of such
general statement, term or matter. This Agreement is made with reference to the
following facts among others:
2.1 SCPPA was created pursuant to provisions contained in the Joint Exercise
of Powers Act found in Chapter 5 of Division 7 of Title 1 of the
Government Code of California, as amended from time to time (the
"Act'), by its members, which are municipalities and an irrigation district
90187821.2 1
that supply, among other things, electrical energy, in the State of
California, for the purpose of jointly and cooperatively undertaking the
planning, financing, development, acquisition, construction, improvement,
betterment, operation, and maintenance, of projects for the generation or
transmission of electric ' energy, including the development and
implementation of systems and frameworks for the acquisition and -
delivery of secure, long-term reliable supplies of renewable electric
energy.
2.2 Pursuant to the terms of the Act, SCPPA has the power, for the purpose of
promoting, maintaining and operating electric generation and
transmission, to plan, develop, contract for, finance, acquire, design,
undertake, own, construct, manage, operate, maintain and administer
projects involving systems, methodologies and programs for the
acquisition, supply procurement and delivery of secure, long-term reliable
supplies of renewable electric energy and to cause such projects to be
planned, developed, contracted for, financed, acquired, designed,
undertaken, constructed, managed, operated, maintained and administered
and to provide by agreement for the performance and carrying out of any
such activities.
2.3 Purchaser is a chartered California municipality which provides electric
energy to its citizens through its municipally owned electric system.
Purchaser is one of the parties to the SCPPA Joint Powers Agreement and
is one of the eleven founding member municipalities which formed
SCPPA. Since the initial creation of SCPPA pursuant to the Joint Powers
Agreement, Purchaser has acted, in part; through SCPPA's Board of
Directors to carry out generation, transmission and other projects through
SCPPA.
2.4 During the past decade Purchaser and other SCPPA members have
experienced the imposition of a substantial number of new environmental
laws, rules, regulations and policies and revised resource requirements
which have effectively required Purchaser and other SCPPA members to
shift generation assets and increasingly turn to and rely upon renewable
forms of energy generation, including solar energy technologies, systems
and facilities, as a significant part of the generation resource portfolio
necessary and appropriate to their electric systems. This shift to
renewable energy including solar generation has created an ever-
increasing need for the development of secure long-term arrangements for
the acquisition of solar energy resources and the delivery of energy from
solar generation facilities so that the Project Participants will be able to
carry out their objectives to reliably supply their customers with
renewable electric energy. The acquisition for the Project Participants of
the resources and output of the solar energy generation facility reflected
herein, including the procurement of the energy from this facility by way
of the Power Purchase Agreement and the accompanying facility purchase
901878212 2
option and the associated ancillary provisions for acquisition and delivery
of the resources and output of the facility and the benefits of its associated
lines, substations, interconnections, leases, licenses, contract rights,
clearances, permits, entitlements and other assets and infrastructure, has
been carried forth at the request of the Project Participants to assist the
Project Participants in their endeavors to meet their required renewable
electric energy resource goals.
2.5 Over the course of the past several years members of SCPPA have
investigated means and methods by which to acquire renewable energy
generation resources and secure necessary long-term reliable supplies of
renewable electric energy, including energy generated by facilities
employing solar energy based technologies, to carry forth their generation
responsibilities to their citizens.
2.6 To facilitate the appropriate review and due diligence studies necessary to
carry forth an effective program for the development of renewable
resources SCPPA created the "Renewable Electric Energy Resource
Project' to be carried forth between SCPPA and those SCPPA members
desiring to participate in this renewable energy oriented project under
SCPPA's Joint Powers Aereement.
2.7 To further the aims of the proposed Renewable Electric Energy Resource
Project, on January 19, 2006 the SCPPA Board of Directors approved
Resolution 2006-2 which declared its intention to reimburse certain
renewable resource expenditures from the proceeds of future financings,
as required by United States Department of Treasury Regulations section
1.150-2.
2.8 Thereafter on March 17, 2006 the SCPPA Board of Directors by way of
Resolution 2006-13 found and declared the proposed Renewable Electric
Energy Resource Project to be an official SCPPA Study Project pursuant
to the SCPPA Joint Powers Agreement and authorized the execution of a
development agreement for the Renewable Electric Energy Resource
Project among SCPPA and the SCPPA members participating in this
Study Project.
2.9 During the ensuing time frame following the creation of the Renewable
Electric Energy Resource Project the Board of Directors approved certain
additional resolutions declaring its intention to reimburse certain
renewable resource expenditures from the proceeds of further future
financings, as required by United States Department of Treasury
Regulations section 1.150-2.
2.10 In pursuit of the goals of the Renewable Electric Energy Resource Project
SCPPA has issued Requests for Proposals for potential renewable electric
resources to address SCPPA member renewable energy needs, and the
90187821.2 3
Purchaser and other participants in the Renewable Electric Energy
Resource Project have identified potential solar energy generation
resources which are being developed in La Paz County, Arizona. This
solar energy project has been denominated as the La Paz Solar Tower
Project. The La Paz Solar Tower Project is being developed by
EnviroMission (USA),Inc., a Delaware Corporation which in turn is a
wholly owned subsidiary of EnviroMission Limited, a corporation formed
in Australia. The La Paz Solar Tower Project entails a generating facility
to be situated on an approximately 5700 acre site consisting principally of
Arizona state lands
2.11 At the time of the formation of this Agreement, the Power Purchase
Provider as the developer and owner of the La Paz Solar Tower Project
has undertaken to develop, construct and operate, and pursuant to the
Power Purchase Agreement to sell to SCPPA a portion of the output from
the La Paz Solar Tower Project (the developed "Facility," as further
described herein). The Facility, when fully developed, is contemplated to
entail a solar power generating facility with an expected nameplate
capacity of 200MW. The Facility is to be situated in western La Paz
County along Arizona State Route 95 between the towns of Parker and
Quartzite. The Power Purchase Provider's project development
responsibilities will involve, among other things, the siting, construction,
and installation of this solar tower facility. The facility is anticipated to
contain thirty-two (32) 6.25 MW pressure-staged turbines. The turbines
are to be mounted in 2x2 banks of four at the base of the generation
facility. The interconnected grid from the facility is projected to include
either one 230kv or 500kv substation interconnected by a 230kv or 500kv
transmission line that will in turn provide access to the transmission
system of the Western Area Power Administration. This project, to be
developed by EnviroMission (USA) Inc., is contemplated to entail the
solar generation facility, designated portions of the infrastructure
facilities, transmission tie line, substation, SCADA system equipment,
related communication lines, access roads, operations, maintenance and
storage facilities, and other equipment, materials, and improvements
associated with such facilities. The Facility which is slated to provide
energy to the Project Participants includes all structures or improvements
erected on the portion of the state land lease dedicated thereto, all
alterations thereto or replacements thereof, all fixtures, attachments,
appliances, equipment, machinery, and other articles attached thereto or to
the extent used in connection therewith, and all spare parts which may
from time to time be incorporated or installed in or attached thereto, all
related contracts and agreements for services or for real or personal
property or goods related thereto, all real or personal property owned,
easement granted upon or related thereto, and all other real and tangible
and intangible personal property leased or owned by the developer to the
extent associated with the Project and placed upon or used in connection
with the generation of electricity from the Project.
90187821.2 4
2.12 The Project Participants desire to obtain the SCPPA Facility Output and
also to put into place certain acquisition alternatives under which SCPPA
would be provided the ability to exercise an option to purchase or acquire
the Facility or a portion thereof or to otherwise succeed to the ownership
of the Facility or a portion thereof as well as related resources. It is the
intention of the Project Participants, as well, to provide a means by which
the Project Participants may secure such transmission and delivery
resources as may be necessary to transmit, move or exchange the energy
from the Facility as directed by the respective Project Participants.
2.13 To carry forth the Project goals, Purchaser and the other participants in the
Renewable Electric Energy Resource Project have carried out extensive
investigations into the advisability of the methodology for the acquisition
of the long-term reliable supply of renewable electric energy from the
Facility provided for through the Power Purchase Agreement for the
purpose of carrying forth the goals of achieving a continuing systematic
source of renewable electric energy.
2.14 The Project Participants have examined numerous alternatives. Based
upon the investigations by Purchaser and the other participants in the
Renewable Electric Energy Resource Project, the Project Participants
have determined that, in the case of the La Paz Solar Tower Project, the
purchase of solar energy under and pursuant to the provisions of the
Power Purchase Agreement, together with the alternatives for acquisition
of the Facility which are provided for in the Power Purchase and Security
Agreements, provides the most desirable commercial structure by which
to best achieve the Project Participants' renewable energy needs and best
satisfy the continuing requirements of the Project Participants' respective
renewable portfolio standards.
2.15 The Project Participants have participated in the negotiation of a power
purchase agreement and related agreements, arrangements and
mechanisms for the procurement of the SCPPA Facility Output of this La
Paz County, Arizona solar generation facility by way of a transaction
through which SCPPA will purchase the SCPPA Facility Output of this
electric generation facility and will pay for SCPPA Facility Output,
Replacement Energy, Excess Energy, Capacity Rights, Environmental
Attributes and any other SCPPA Facility Output in connection with the
delivery of the same, and which also provide certain acquisition
alternatives under which SCPPA would be entitled to exercise an option
to, purchase or acquire the Facility or an ownership interest therein or to
otherwise succeed to the ownership in the Facility, its various
interconnections, its associated transmission arrangements, its resources,
its liabilities, its leases, contracts, permits, services and other related
facility assets, rights and entitlements. In addition the Project Participants
and SCPPA have further carried forth due diligence investigations and
9018782L2 5
plans and measures by which to provide appropriate Project financing in
connection with such potential acquisitions.
2.16 Purchaser and the other Project Participants have also examined and
analyzed alternative methodologies and structures for the potential
acquisition of solar generation to determine the most reliable framework
with the best pricing attributes to provide the best value to. each Project
Participant's respective renewable generation portfolio. Purchaser and the
other Project Participants have concluded that with respect to the La Paz
Solar Tower Project, . the methodology posed by way of the Power
Purchase and Security Agreements set forth herein provides the Project
Participants with the most desirable means to achieve secure reliable long-
term supplies of solar generation.
2.17 The Project Participants have concluded that the purchase of solar
generation under the Power Purchase Agreement and the potential option
to purchase solar generation facilities contemplated through the Power
Purchase Agreement and related agreements and the structure, design and
planned methodologies contemplated herein, as part of the Project, will
materially assist the Project Participants in carrying out their critical
operating and business objectives to provide a long-term supply of solar
energy for. the generation needs of the Project Participants. SCPPA,
Anaheim, Azusa, Burbank, Colton, Glendale, IID, Pasadena, Riverside
anticipate that the SCPPA Facility Output produced by the Project will be
utilized to serve the Project Participants' renewable energy needs within
their respective service areas and will materially assist each respective
utility in meeting its renewable portfolio standard.
2.18 To carry forth the objectives set forth herein, the Parties acknowledge,
authorize and agree that SCPPA (i) is entering into the Power Purchase
Agreement with EnviroMission (USA) Inc., an affiliate of EnviroMission
Limited, which will provide, in part, for the purchase of SCPPA Facility
Output from the Facility (ii) may enter into amendments of the Power
Purchase Agreement as approved by the Coordinating Committee and the
Board of Directors and (iii) in addition, will enter into other Power
Purchase and Security Agreements which, along with other applicable
provisions of the Power Purchase Agreement, will provide SCPPA with
certain purchase rights as well as a mortgage, liens and security interests
with respect to the Project and certain related facilities and property, all as
shall inure to SCPPA for and on behalf of the Project Participants in
accordance with each Project Participant's Output Entitlement Share and
Output Cost Share, including all of the rights, benefits and entitlements
and all of the duties, obligations, and liabilities under the Power Purchase
and Security Agreements accruing through SCPPA, including the receipt
of SCPPA Facility Output under and pursuant to the terms of the Power
Purchase Agreement and this Agreement and (iv) may enter into such
Project Agreements and such amendments to such Project Agreements as
90187821.2 6
the Coordinating Committee and the Board of Directors may from time to
time approve.
2.19 In order to secure the performance of the Power Purchase Provider in
connection with all of its obligations and requirements under the Power
Purchase and Security Agreements, SCPPA has endeavored to provide for
various legal mechanisms including Security Instruments and other
contractual provisions under which SCPPA is entitled to exercise certain
remedial rights and assurances, cure rights and foreclosure rights in order
to assure the provision of electric energy by the Facility to satisfy the
requirements of the Power Purchase Agreement. It is the intention of the
Parties that the Project Participants, under the Power Sales Agreements,
shall be reposed with the rights, benefits, liabilities, obligations and risks
accruing to SCPPA pursuant to the provisions of these instruments in
accordance with each Project Participant's Output Entitlement Share and
Output Cost Share.
2.20 Purchaser has need for a long-term source of renewable energy to satisfy
Purchaser's renewable portfolio standard requirements and desires to
ensure the reliable delivery of solar powered electric energy generation to
fulfill this requirement. Purchaser desires that SCPPA proceed with
arrangements providing for the economic design, structuring, financing,
Acquisition, development, implementation, operation and administration
of the Project to procure such a long-term supply of secure renewable
solar powered electric generation. To assist in meeting such future
renewable generation needs, Purchaser has determined that it is desirable
to enter into this Agreement to procure such renewable generation.
2.21 The Purchaser and the other Project Participants desire and intend through
the Power Sales Agreements to provide for certain potential acquisition
alternatives for SCPPA's purchase of the Facility or an ownership interest
therein, including certain options under the Power Purchase and Security
Agreements.
2.22 SCPPA will take or cause to be taken all reasonable steps necessary to
cause to be secured, such contracts, instruments, rights and entitlements
and all such governmental entitlements, permits, licenses and approvals as
are necessary for SCPPA to secure the benefits of the Project, and will
then proceed as appropriate with, all measures necessary for the economic
design, structuring, financing, Acquisition, development, implementation,
operation and administration of the Project, including, where applicable
and in accordance with this Agreement, the potential purchase of all or
any portion of the Project. To the extent provided through the Project
Agreements, SCPPA will carry forth those measures as directed by
Purchaser and the other Project Participants, associated with the operation
and maintenance of those interests and facilities designated as part of the
Project to provide a secure source of renewable energy for Purchaser and
901878212 7
the other Project Participants contracting with SCPPA therefor pursuant to
the terms and conditions of the Project Agreements.
2.23 The Purchaser and the other Project Participants may desire to finance
certain costs required for the Acquisition, financing, and development of
the Project by way of funds raised through the issuance by SCPPA of
Bonds. Except as otherwise provided herein, each Project Participant shall
be solely responsible for its respective associated debt obligations,
including but not limited to the repayment of its share of the Bonds, as
provided in each Project Participant's Power Sales Agreement.
2.24 In accordance with the directions of the Project Participants and the
determination of the Board of Directors SCPPA will finance the costs of
acquiring and developing the Project or an ownership interest therein,
including the acquisition of all or any portion of the Project, either
pursuant to the Power Purchase Agreement or otherwise, through the
issuance of Bonds. In addition, in the event certain other conditions
should occur under which SCPPA shall determine to, and be provided
opportunity to, purchase the Facility or an ownership interest therein
pursuant to the Power Purchase and Security Agreements or otherwise
acquire ownership in the Facility, it is anticipated that SCPPA will issue
Bonds for the purpose of financing the costs thereof. To pay the costs of
acquiring, financing, and developing the Project, SCPPA will enter into
the Power Sales Agreements with the Project Participants which, among
other things, will provide for the payment of all debt service associated
with the Bonds. In order to enable SCPPA to issue Bonds it is necessary
for SCPPA to have binding agreements with the Project Participants to
pay all of SCPPA's costs associated with the Project, and all payments
required to be made in accordance with the applicable provisions of the
Power Sales Agreements entered into by the Project Participants,
including payments required to be made under this Agreement, may be
pledged by SCPPA as security for the payment of the applicable Bonds,
and the interest thereon, subject to the application thereof to such purposes
and on such terms as provided in the Indenture and as required by the Act.
SCPPA shall further provide for the administration, operation and
maintenance of the Project if acquired by it through the application of the
payments required to be made by the Project Participants to SCPPA in
accordance with the provisions of the Power Sales Agreements.
2.25 In order to enable SCPPA to carry out the activities necessary to the
planning, economic design, structuring, financing, Acquisition,
development, implementation, operation and administration of the Project
on behalf of the Project Participants, it is necessary for SCPPA to have
binding agreements with both Purchaser and the other Project Participants
in the Project and to employ those payments made under the respective
Power Sales Agreements for the purpose of securing and paying for the
rights, services, entitlements and deliverables contemplated by each of the
90187821.2 $
Project Participants. SCPPA shall provide for the further investigation,
implementation, administration, operation and maintenance of the Project
if acquired by it through the application of the payments required to be
made pursuant to the Power Sales Agreements in accordance with their
provisions.
2.26 To the extent that SCPPA should finance any costs of acquisition of the
Project with Bonds that are subject to any Federal Tax Law Requirements,
it is necessary that both the Purchaser and the other Project Participants be
unconditionally obligated to comply with such Federal Tax Law
Requirements as determined and directed by SCPPA until such time as
any such Bonds have been fully paid or redeemed and discharged.
2.27 Each Project Participant shall pay from its electric revenue fund, including
any and all legally available electric system reserves, all amounts payable
to SCPPA under its Power Sales Agreement, including but not limited to
its Monthly Costs and all other costs, and such payments shall constitute
an operating expense of the Project Participant's electric utility.
3. AGREEMENT. For and in consideration of the premises and the mutual covenants and
agreements hereinafter set forth. and in order to pay SCPPA for its costs of Purchaser's
share of the SCPPA Facility Output and in the event SCPPA acquires the Facility or an
ownership interest therein to pay SCPPA for Purchaser's share of SCPPA's costs of
administration, operation, maintenance and other related costs of the Facility or an
ownership interest therein and debt service on SCPPA's Bonds issued therefor, and the
maintenance of reserves under the Indenture securing such Bonds, the Parties agree as
herein set forth.
4. DEFINITIONS. Appendix A to this Agreement sets forth definitions of certain terms
used in this Agreement. The terms defined in Appendix A and this Section 4, whether in
the singular or plural, unless specifically provided otherwise, when used herein or in the
Appendices hereto and initially capitalized, shall have the meaning ascribed thereto in
said Appendix A or as set out below:
4.1 Agreement. This Agreement, as it may be amended, modified or
supplemented from time to time.
4.2 Effective Date. The date described in Section 20.1 hereof.
4.3 [Intentionally Omitted]
4.4 Cost of Acquisition. The Cost of Acquisition shall equal the sum of the
amounts described in Sections 4.4.1 through 4.4.18. SCPPA shall apply, as
a credit against the Cost of Acquisition, a proportionate share of all
receipts, revenues and other moneys received by it from the sale, if any, of
surplus equipment, materials, supplies or goods all if and to the extent held
in or paid into (without duplication) Funds, and as provided for in the
Indenture.
90187821.2 9
4.4.1 All costs associated with acquisition of the Facility or an
ownership interest therein and its resources pursuant to the Power
Purchase Agreement and for acquiring the Facility and its
associated resources pursuant to any purchase option or
requirement or pursuant to the purchase of rights, interests or
options through any applicable Facility Credit Agreement or any
other agreement, including, if applicable, any other agreement
relating to any security in the Facility or an ownership interest
therein or any assignment or consent to assignment, including the
purchase of the Facility at any foreclosure sale or taking a deed
in-lieu-of foreclosure, or otherwise purchasing the Facility or an
ownership interest therein pursuant to any provisions in any of the
Power Purchase and Security Agreements, including without
limitation the following costs, as applicable: (i) the cost of
acquiring the Facility or an ownership interest therein pursuant to
the Power Purchase and Security Agreements, (ii) the cost of
purchasing the Facility, as applicable, through any foreclosure
sale or by way of any Security Instrument, (iii) the cost of
planning, designing, acquiring, constructing, mitigating impacts,
installing, and developing the Project or any Capital
Improvements or any portion thereof, (iv) the cost of the exercise
of cure rights or enforcement of rights with respect to any default
by the Power Purchase Provider or any other counterparty under
any agreements, mortgages, leases or other instruments relating to
or affecting the Project, (v) the cost of contracting for and
facilitating the delivery of the output of the Project at the
prescribed Point of Delivery or other prescribed location, (vi) the
cost, where applicable, of placing the Project into operation,
concluding, terminating and decommissioning (as applicable) the
Project, obtaining governmental approvals, certificates, permits,
assurances, entitlements and licenses relating to the Project,
including, where necessary, environmental entitlements,
clearances or credits, heretofore or hereafter paid or incurred by
SCPPA, (vii) all costs, expenses, obligations and liabilities
associated with exercising all performance rights, options,
benefits, entitlements, duties, liabilities and obligations under the
Project Agreements, (viii) to the extent deemed appropriate by the
Coordinating Committee, the cost of procurement of rights
associated with interconnection, transmission, and the
dispatching, scheduling and delivery of energy and for otherwise
facilitating the sale, disposition, movement, taking and
accounting for energy (including planning and design costs) and
(ix) the cost of those measures taken for the benefit of, and in
connection with, the Project that the Coordinating Committee
determines shall be included within this Section 4.4.1.
90187821.2 10
4.4.2 All costs and expenses for investigation and development of the
Project, for performance studies, for feasibility studies, economic
studies, diurnal, barometric and meteorological studies, for
modeling and planning, for examination of legal, environmental
and regulatory issues and for securing of legal, environmental or
regulatory approvals, for energy cost modeling, project modeling
or projections, economic analyses, diurnal, barometric and
meteorological forecasts and weather analyses, as well as costs
for leases, lease options, lease related rights, land, land rights,
land options, resources, turbines, facilities, regulatory
developments, geographic, diurnal, barometric and
meteorological investigation and analysis, and, if applicable,
engineering, consultants, experts' fees, contractors' fees,
processing fees, labor, materials, equipment, utility services and
supplies, and legal fees and financing costs relating to and in
connection with the Project.
4.4.3 The costs and expenses incurred in the issuance and sale of
bonds, notes, certificates of participation, commercial paper or
other evidences of indebtedness (tax-exempt or taxable) from
time to time issued, the proceeds of which have been used or will
be required to be applied to one or more purposes for which
Bonds could be issued, including, without limitation, legal,
accounting, engineering, consulting, financing, technical, fiscal
agent and underwriting costs, fees and expenses, bond discount,
insurance, rating agency fees, and all other costs and expenses
incurred in connection with the authorization, sale and issuance of
the Bonds.
4.4.4 Interest accruing in whole or in part on Bonds for such period as
SCPPA may reasonably determine to be necessary in accordance
with the provisions of the Indenture.
4.4.5 To the extent not included in Total Monthly Costs, the cost of any
administrative, regulatory or judicial proceeding or any litigation
associated with the Power Purchase and Security Agreements or
other Project Agreement, or any aspect of the operation,
management or administration of the Project or in connection
therewith.
4.4.6 To the extent not included in Total Monthly Costs, all costs
incurred by SCPPA related to the acquisition of resources,
agreements, facilities and supplies for solar energy acquisition,
procurement, interconnection, transmission, sale, dispatching,
scheduling, movement and delivery and all other incidental costs
necessary for and in connection with the Project.
90187921.2 11
4.4.7 Training and testing costs, which are properly allocable to the
cost of acquisition and development of the Project.
4.4.8 All costs of insurance, if any, applicable to the development of
and in connection with the Project.
4.4.9 All costs relating to injury or damage claims or judgments paid by
SCPPA in connection with the acquisition, development or
implementation of the Project less proceeds of insurance, if any.
4.4.10 To the extent not included in Total Monthly Costs, legally
required or permitted federal, state and local taxes relating to the
Project.
4.4.11 All other costs incurred by SCPPA and properly allocable to the
planning, design, acquisition and development of the Project,
including, without limitation, all legal fees relating to the Project
(including, but not limited to, legal fees incurred by SCPPA in the
development or preparation of Project Agreements or in the
enforcement of any provision or provisions of the Project
Agreements).
4.4.12 The working capital requirements and reserves in such amounts
as shall be required during development of the Project and for
placing the Project in operation as deemed reasonably necessary .
by the Board of Directors, and as may be provided or required in
the Indenture, and such additional amounts of working capital and
reserves, as maybe established pursuant to the Indenture.
4.4.13 Interest accrued in whole or in part on Bonds prior to and during
development of the Project or during any time period as SCPPA
may reasonably determine necessary for placing the Project or
any component thereof in operation in accordance with the
provisions of the Indenture.
4.4.14 The deposit or deposits from the proceeds of Bonds issued to
finance such costs in any Fund established pursuant to the
Indenture to meet the Project Debt Service reserve requirements
for the Bonds.
4.4.15 Without duplication with respect to amounts otherwise provided
in this Section 4.4, the deposit or deposits from the proceeds of
Bonds issued to finance such costs in any other Funds established
pursuant to the Indenture which deposit or deposits are required
or permitted by the Indenture.
90187821.2 12
4.4.16 The payment of principal, premium, if any, and interest when due
(whether at the maturity of principal or at the due date of interest
or upon redemption) of any note or other evidence of
indebtedness, if any should exist, which is issued in anticipation
of Bonds for the purpose of financing the Cost of Acquisition.
4.4.17 All costs required to be paid to the Project Manager pursuant to
any applicable agreement for project management which are
applied or are to be applied thereunder to the payment of the Cost
of Acquisition.
4.4.18 Without duplication, all other costs (including incidental
financing costs and the costs of issuance of Bonds) financed by
the issuance of Bonds (i) pursuant to Section 13 of this
Agreement, (ii) for procurement of rights associated with the
acquisition, production, generation, transmission, interconnecting,
balancing, shaping, firming and delivery and for otherwise
facilitating the dispatching, scheduling, disposition, movement,
taking and accounting for SCPPA Facility Output (including
planning and design costs) relating to, or for the benefit of, the
Project that the Board of Directors determines shall be included
within this Section 4.4.18, (iii) the acquisition of the Facility or an
ownership interest therein or the rights and interests under any of
the Power Purchase and Security Agreements; and (iv) any
amounts required to be paid pursuant to section 148 of the
Internal Revenue Code.
4.5 Delivery Point Output Cost Share. As to any Project Participant for each
Power Supply Year during the term of the Power Purchase Agreement, the
applicable percentage share, as set forth for such Project Participant in
Appendix C hereof, of the Delivery Output Point cost component with
respect to such Project Participant's Designated Point of Delivery. The
Delivery Point Output Cost Share of such Project Participant may be
adjusted in connection with a revision of Appendix C as provided in
Section 21.1.
4.6 Indenture Cost Share. As to any Project Participant for each Power
Supply Year; the applicable percentage share, as set forth for such Project
Participant in Appendix C hereof, of the Indenture cost component. The
Indenture Cost Share of such Project Participant may be adjusted in
connection with a revision of Appendix C as provided in Section 21.1.
4.7 Total Monthly Costs. All of SCPPA's costs to the extent not paid from
the proceeds of Bonds, certificates of participation, commercial paper,
notes or other evidences of indebtedness issued in anticipation of Bonds,
resulting from SCPPA's contracting for, providing for, accommodating,
acquiring, and facilitating the Project, and from its administration,
90187821.2 13
ownership, operation and maintenance of and renewal and replacement of
any facility, service or other element or component of the Project,
including costs arising under any of the Power Purchase and Security
Agreements or other Project Agreements. SCPPA shall apply, as a credit
against Total Monthly Costs, any receipts, revenues and other moneys
received by SCPPA from surplus equipment, materials, supplies or assets
relating to the Project sold prior to the date of Commercial Operation for
the benefit of SCPPA (not otherwise applied as a credit against the Cost of
Acquisition as provided in Section 4.4) and any other amounts to be so
applied as provided in the Indenture. Total Monthly Costs shall, as
applicable, consist of (i) the Operating cost component (described in
Section 4.9..1), (ii) the Delivery Point Output cost component(described in
Section 4.8.1), (iii) the Transmission Services cost component (described
in Section 4.9.2), (iv) the PPA General and Administrative cost
component (described in Section 4.8.2), (v) the Ownership General and
Administrative cost component (described in Section 4.9.3), (vi) a Reserve
Fund cost component (described in Sections 4.8.3 and 4.9.4, (vii) the
Indenture cost component (described in Section 4.9.5), and (viii) a
Supplementary Services cost component to the extent SCPPA incurs such
cost (described in Sections 4.8.4 and 4.9.6), and Total Monthly Costs shall
include, but not be limited to, the items of cost and expense referred to in
the Power Purchase and Security Agreements, the Ownership Participation
and Related Agreements and this Section 4.7 that are accrued or paid by
SCPPA during each Month of each Power Supply Year. In the event any
Power Supply Year shall consist of fewer than twelve Months, the fraction
set forth in Sections 4.8.2, 4.9.1, 4.9.3 and 4.9.5(b) shall be adjusted
accordingly and, in the event of any revision of the Annual Budget after
the commencement of any Power Supply Year, the amount determined
pursuant to said Sections shall be appropriately adjusted so that any
increase or decrease in the portion of the Annual Budget applicable to said
Sections shall be evenly apportioned over the remaining Months of such
Power Supply Year.
4.8 Power Purchase Agreement Total Monthly Costs. The cost components
of Total Monthly Costs during the term of the Power Purchase Agreement
shall consist of the following:
4.8.1 The Delivery Point Output cost component of the Total
Monthly Costs for each Month with respect to each of the
respective Points of Delivery shall consist of the costs of the
SCPPA Facility Output or Replacement Energy, as calculated
at the applicable Energy Prices therefor, as delivered at such
Point of Delivery during such Month.
4.8.2 The PPA General and Administrative cost component of the
Total Monthly Costs for each Month shall consist of one-
twelfth of the administrative and general costs with respect to
9018782 11 14
the Project, including (i) legal fees, costs relating to litigation
(including disbursements and other amounts paid as a result of
such litigation), insurance costs (including amounts to fund any
self-insurance program), overhead costs, any taxes required to
be paid by SCPPA with respect to SCPPA Facility Output or
the Project, (ii) all expenses incurred in enforcing the Power
Purchase Agreement and other Power Purchase and Security
Agreements, and (iii) all costs related to the conducting of the
business of SCPPA with respect to the Project, including the
applicable portion of salaries, fees for legal, engineering,
financial and other services, all other costs attributable to
miscellaneous and incidental expenses in connection with the
administration of the Project, and all other expenses properly
related to the conduct of such affairs of SCPPA.
4.8.3 The Reserve Fund cost component of the Total Monthly Costs
shall consist of the monthly costs associated with a Project
Participant's Project Cost Share that is necessary to establish
and maintain the Reserve Funds at the level deemed prudent
and appropriate by the Coordinating Committee and the
SCPPA Board of Directors.
4.8.4 The Supplementary Services cost component of the Total
Monthly Costs shall consist of all monthly costs incurred by
SCPPA, if any, in connection with the transmission,
dispatching, scheduling, firming, balancing, or delivery of and
otherwise facilitating the disposition, movement, crediting and
accounting for a Purchaser's Output Entitlement Share from its
Designated Point of Delivery to one or more specified delivery
point(s) as determined by such Purchaser pursuant to Sections
9.2 and 9.5.
4.9 Ownership Total Monthly Costs. In the event that SCPPA acquires the
Facility or an ownership interest therein, commencing with such
Acquisition by SCPPA, the cost components of Total Monthly Costs shall
consist of the following:
4.9.1 The Operating cost component of the Total Monthly Costs for each
Month shall consist of one-twelfth of the costs of all Operating
Work, operating expenses, and all costs relating to, contracting for,
providing for, managing, administering, producing, procuring,
transporting and delivering of the SCPPA Facility Output during
such Power Supply Year, including, but not limited to, as applicable,
ordinary operation and maintenance costs or other operation and
maintenance costs payable by SCPPA and, where applicable, costs
of repairs, replacements, reconstitution and reconstruction of the
Project (that are not included in any Cost of Acquisition), any other
90187821.2 15
costs payable by SCPPA in connection with SCPPA Facility Output;
provided that the Operating cost component shall not include the
Transmission Services cost component as set forth in Section 4.9.2.
4.9.2 The Transmission Services cost component of Total Monthly
Costs foi each Month and with respect to the Transmission
Services applicable to the delivery of SCPPA Facility Output
from the Point of Interconnection to each respective Point of
Delivery, the costs of such Transmission Services, together
with the associated Transmission Losses. for such Month.
4.9.3 The Ownership General and Administrative cost component of
Total Monthly Costs for each Month shall consist of one-
twelfth of the administrative and general costs (exclusive of
costs included in the Operating cost component set forth in
Section 4.9.1 above) with respect to the Project, including (i)
legal fees, costs relating to litigation (including disbursements
and other amounts paid as a result of such litigation), insurance
costs (including amounts to fund any self-insurance program),
overhead costs, taxes required to be paid by SCPPA with
respect to the Project and any other costs payable by SCPPA in
connection with SCPPA Facility Output, (ii) all expenses
incurred in enforcing the Ownership Participation and Related
Agreements and the expenses of enforcing the applicable
covenants and provisions of the ground leases, leasehold
interests, rights-of-way, estates and other interests and property
associated with the Facility or an ownership interest therein,
including all expenses of foreclosure or otherwise perfecting
any property interest or security interest in the Facility, and (iii)
all costs related to the conducting of the business of SCPPA
with respect to the Project, including the applicable portion of
salaries, fees for legal, engineering, financial and other
services, all other costs attributable to miscellaneous and
incidental expenses in connection with the administration of the
Project and all other expenses properly related to the conduct of
such affairs of SCPPA; provided that the Ownership General
and Administrative cost component shall not include the
Transmission Services cost component as set forth in Section
4.9.2.
4.9.4 The Reserve Fund cost component of Total Monthly Costs
shall consist of the monthly cost associated with a Project
Participant's Project Cost Share that is necessary to establish
and maintain the Reserve Funds at the level deemed prudent
and appropriate by the Coordinating Committee and the
SCPPA Board of Directors; provided, however, that to the
extent such a Reserve Fund cost component of Total Monthly
90187821.2 16
Costs are paid by the Project Participants pursuant to the
Indenture cost component of Total Monthly Costs, the Project
Participants shall be credited for that amount of the monthly
Reserve Fund cost component so paid by Project Participants
which is contained in such monthly Indenture cost component.
4.9.5 The Indenture cost component of Total Monthly Costs, as
applicable, shall consist of
(a) The amount, without duplication, which SCPPA is
required under the Indenture to pay with respect to Debt
Service or to pay or deposit during such Month into
Funds established by the Indenture for Debt Service and
for any Debt Service reserve requirements for the Bonds
or for operating and other reserve requirements,
including replenishment (the timing of which shall be in
accordance with the provisions of this Agreement and
the Indenture) of any reserves drawn down as a result of
a failure of a Project Participant to pay all or any portion
of its share of Monthly Costs;
(b) One-twelfth of the amount (not otherwise included
under any item in this Section 4.9 hereof) which SCPPA
is required under the Indenture to pay or deposit during
such Power Supply Year into any other Fund
established by the Indenture, including, without
limitation, any amounts required to make up a
deficiency in any Fund required or permitted by the
Indenture;
(c) The amount of fees, expenses or other charges
incurred or payable by SCPPA under the Indenture; and
(d) Any rebate amount owed to the federal government.
4.9.6 The Supplementary Services cost component of the Total Monthly
Costs shall consist of all monthly costs incurred by SCPPA, if any,
and to the extent not included in Section 4.9.1 or Section 4.9.2, in
connection with services for transmission, dispatching, scheduling,
tagging, firming, balancing, swapping, exchanging or delivery and
for otherwise facilitating the disposition, movement, taking,
receiving, crediting and accounting for the SCPPA Facility Output
provided for under this Agreement. The Supplementary Services
cost component of the Total Monthly Costs shall also entail all
monthly costs incurred by SCPPA, if any, which are necessary to
move or otherwise handle Purchaser's Output Entitlement Share
from its Designated Point of Delivery to one or more specified
90187821.2 17
delivery point(s) as determined by Purchaser pursuant to
Sections 9.2 and 9.5.
4.10 Proiect Cost Share. For any Power Supply Year and as to any particular
Project Participant, the share (expressed as a percentage), as set forth in
Appendix B of this Agreement, attributable to such Project Participant
with respect to Monthly Costs as provided in Section 7.1 and Section 7.2
hereof, other than financing and refinancing related costs associated with
the Project. The Project Cost Share of such Project Participant may be
adjusted in connection with a revision of Appendix B as provided in
Section 21.1.
4.11 Transmission Services Cost Share. As to any particular Project
Participant, in the event that SCPPA shall acquire the Facility or an
ownership interest therein, for each Power Supply Year commencing upon
such acquisition, the applicable percentage share, as set forth for such
Project Participant in Appendix C hereof, of the Transmission Services
cost component with respect to the delivery of such Project Participant's
Point of Interconnection Allocable Share of SCPPA Facility Output, less
applicable Transmission Losses, from the Point of Interconnection to such
Project Participant's Designated Point of Delivery. The Transmission
Services Cost Share of such Project Participant may be adjusted in
connection with a revision of Appendix C as provided in Section 21.1.
5. PURCHASE AND SALE OF OUTPUT AND THE ROLES AND OBLIGATIONS
OF SCPPA AND THE PROJECT PARTICIPANTS.
5.1 Purchase and Sale of Output Entitlement Share. In accordance with the
terms and conditions of this Agreement, commencing on the earliest of
(i) the date SCPPA is obligated to pay any portion of the costs of the
Project, (ii) the date upon which SCPPA first incurs or accrues costs
associated with the issuance of any Bonds, (iii) the effective date of the
Power Purchase Agreement, or (iv) the date of the first delivery of energy
to Purchaser pursuant to this Agreement, and continuing through the term
of this Agreement, except as otherwise provided herein, SCPPA shall
provide Purchaser its Output Entitlement Share of any and. all products,
rights, and benefits, whether tangible or intangible received or obtained by
SCPPA with respect to the Project, including without limitation SCPPA
Facility Output or, if applicable, Replacement Energy, at Purchaser's
Designated Point of Delivery, and Purchaser shall be responsible for and
pay its applicable Cost Share of any and all costs, liabilities and
obligations associated with the acquisition of such products, rights, and
benefits, which shall include without limitation all costs, liabilities and
obligations associated with SCPPA Facility Output or Replacement
Energy, as applicable, under the Power Purchase Agreement and any other
applicable Project Agreement, or associated with the purchase and
operation of the Facility upon any purchase or acquisition of the Facility
90187821.2 18
or an ownership interest therein by SCPPA, including purchase or
acquisition of any rights pursuant to the Power Purchase and Security
Agreements and any other applicable Project Agreement, and all costs,
credits, liabilities and obligations under the Indenture or Bonds issued by
SCPPA to finance the Project or any portion or component thereof, any
Cost of Acquisition, or any Capital Improvements.
5.2 Output and Deliverables. During the term of the Power Purchase
Agreement, SCPPA shall purchase and provide and Purchaser shall
purchase from SCPPA and receive its Output Entitlement Share of the
SCPPA Facility Output or Replacement Energy as delivered at
Purchaser's Designated Point of Delivery in accordance with the Power
Purchase Agreement. In the event that SCPPA shall acquire the Facility
or an ownership interest therein, from and after such Acquisition SCPPA
shall allocate at the Point of Interconnection the Purchaser's Point of
Interconnection Allocable Share, as set forth in Appendix C of this
Agreement, of the SCPPA Facility Output as delivered to the Point of
Interconnection and shall deliver or cause the delivery of such allocated
share of SCPPA Facility Output, less applicable Transmission Losses, to
Purchaser at its Designated Point of Delivery, and Purchaser shall
purchase and receive such SCPPA Facility Output delivered to its
Designated Point of Delivery as its Output Entitlement Share of such
SCPPA Facility Output. To the extent permitted by the Power Purchase
and Security Agreements, the applicable Project Agreements, or otherwise
determined by the Coordinating Committee or the Board of Directors,
SCPPA will endeavor to take such actions or implement such measures as
may be necessary or desirable for the utilization, maintenance or
preservation of the rights and interests of the Project Participants in the
Project including, if appropriate, such enforcement actions or other
measures as the Coordinating Committee or the Board of Directors deems
to be in the Project Participants' best interests. To the extent not
inconsistent with the Power Purchase and Security Agreements or other
applicable Project Agreements, SCPPA may also be reposed with
responsibilities for planning, designing, financing, developing, acquiring,
insuring, contracting for, administering, operating and maintaining the
Project to effectuate the delivery and sale of such share of SCPPA Facility
Output or Replacement Energy, as applicable, to Purchaser. To the extent
such services are available and can be carried forth in accordance with the
Power Purchase and Security Agreements or other applicable Project
Agreements, SCPPA shall also provide such other services, as approved
by the Coordinating Committee or the Board of Directors, as may be
deemed necessary to secure the benefits and/or satisfy the obligations
associated with the Power Purchase and Security Agreements or other
applicable Project Agreements. SCPPA shall use its best efforts, on behalf
of Purchaser and the other Project Participants, to secure the benefits of
the transactions contemplated under the Power Purchase and Security
Agreements or other applicable Project Agreements including, if
90157821.2 19
appropriate, SCPPA's acquisition of the Facility or an ownership interest
therein and its associated resources, as well as the delivery of the SCPPA
Facility Output or Replacement Energy, as applicable, contemplated by
this Agreement, and shall endeavor to maintain and secure the rights and
benefits accruing to SCPPA through the Power Purchase and Security
Agreements and the other applicable Project Agreements in accordance
with Purchaser's Output Entitlement Share. SCPPA is authorized to
exercise the powers vested in SCPPA pursuant to the Act, its Joint Powers
Agreement and this Agreement, as agent for Purchaser to fully carry forth
Purchaser's objectives in the Project as set forth herein.
5.3 Project Manager. SCPPA or its designee or designees shall act as Project
Manager to develop, operate, maintain and administer the Project, or cause
the Project to be developed, operated, maintained and administered,
through any development, operating, project management or agency
agreement or, as applicable, through the Power Purchase Agreement.
5.4 Adoption of Annual Budget. The Annual Budget and any amendments to
the Annual Budget shall be prepared and approved in accordance with
Sections 5.4.1 or 5.4.2, respectively.
5.4.1 SCPPA will prepare and submit to Purchaser a proposed Annual
Budget at least 60 days prior to the beginning of each Power Supply
Year. In connection with the preparation of the Annual Budget,
SCPPA shall incorporate therein the Operating Budget (including an
energy production costs budget and where appropriate a provision
for the payment of costs of renewals, replacements or other costs of
acquisition and development which are not being financed by
proceeds of Bonds or other sources) for such Power Supply Year as
prepared by the Project Manager and approved by the Coordinating
Committee. Purchaser and the other Project Participants may then
submit to SCPPA, at any time until the Annual Budget is adopted,
any matters or suggestions relating to the Annual Budget. SCPPA
shall adopt the Annual Budget not less than 30 nor more than 60
days prior to the beginning of such Power Supply Year and shall
cause copies of such adopted Annual Budget to be delivered to each
Project Participant; provided, however, the Annual Budget for the
first Power Supply Year shall be prepared, considered, adopted and
delivered in the most practicable manner available prior to
Commercial Operation of the Facility. As required from time to
time during any Power Supply Year after seven days written notice
to each Project Participant, SCPPA may, pursuant to the foregoing
provisions for adopting the Annual Budget, adopt an amended
Annual Budget for and applicable to such Power Supply Year for the
remainder of such Power Supply Year.
5.4.2 Any adjustment, and any other or further mechanism for adjustment,
as may be required to address the variability of costs of operation of
90187821.2 20
the Project at any time during the Power Supply Year or the
variability of or addition to any other Annual Budget component,
may be incorporated into the Annual Budget as provided above, or
any amendment to an Annual Budget at any time during any Power
Supply Year upon the seven days written notice to each Project
Participant as set forth in Section 5.4.1.
5.5 Reports. SCPPA will prepare and issue to Purchaser and the other Project
Participants the following reports each quarter of a Power Supply Year:
5.5.1 Financial and operating statement relating to the Project.
5.5.2 Variance report comparing the costs in the Annual Budget versus
actual costs, and the status of other cost-related issues with respect to
the Project.
5.6 Records and Accounts. SCPPA will keep, or cause to be kept, accurate
records and accounts of each of the properties and facilities comprising the
Project as well as of the operations relating to the Project, all in a manner
similar to accepted accounting methodologies associated with similar
projects. All transactions of SCPPA relating to the Project with respect to
each Fiscal Year shall be subject to an annual audit. Purchaser shall have
the right at its own expense to examine and copy the records and accounts
referred to above on reasonable notice during regular business hours.
5.7 Provide Information. Purchaser agrees to supply SCPPA, upon request,
with such information, documentation and certifications as SCPPA shall
reasonably determine to be requisite to and necessary or desirable for the
design, financing, refinancing, development, operation, administration,
maintenance and ongoing activities of the Project, including information
reasonably available to allow SCPPA to respond to requests for such
information from any federal, state or local regulatory body or other
authority.
5.8 Consultants and Advisors Available. SCPPA shall make available to the
Coordinating Committee at the latter's request, all consultants and
advisors, including, but not limited to, financial advisors, Bond Counsel
and Tax Counsel, that are retained by SCPPA, and such consultants and
advisors shall be authorized to consult with and advise the Coordinating
Committee on Project matters.
5.9 -Deposit of Insurance Proceeds. Except as otherwise may be required by
any of the Project Agreements and unless otherwise provided by the
Coordinating Committee, SCPPA promptly shall deposit with the Project
Trustee or Lender any insurance proceeds received by SCPPA as a result
of injury or damage to any insured interest attributable to any component
or all or any portion of the Project. All insurance proceeds collectible by
SCPPA as a result of an insured event affecting the Project shall be
90197821.2 21
applied as directed by SCPPA (which directions shall be in accordance
with any applicable provisions of the Indenture).
5.10 Compliance with Federal Tax Law Requirements. Notwithstanding
anything to the contrary in this Agreement, SCPPA and the Purchaser
shall each take all actions necessary to comply in all respects with the
Federal Tax Law Requirements applicable to any Bonds and shall refrain
from taking any action that would result in or cause non-compliance with
the Federal Tax Law Requirements applicable to any Bonds.
6. COORDINATING COMMITTEE.
6.1 Establishment and Authorization of the Coordinating Committee. The
Coordinating Committee is hereby established and duly authorized to act
on behalf of the Project Participants as provided in this Section 6 for the
purpose of (i) providing coordination among, and information to, the
Project Participants and SCPPA, (ii) the administration of the Power
Purchase Agreement, (iii) the administration of the Project Agreements,
(iv) the administration of any operating agreement or any maintenance
agreement, (v) otherwise making any recommendations to the Board of
Directors regarding the administration of the Project and any acquisitions
related thereto, (vi) execution of the Coordinating Committee
responsibilities set forth in Section 6.2 hereof, including the various
financial, administrative, and technical matters which may arise from time
to time in connection with the Project or the administration and operation
thereof, and such further developments as may need to be addressed,
(vii) making recommendations to the Board of Directors in connection
with the exercise of any option, or other acquisition alternative, to
purchase the Facility or any ownership interest therein under and pursuant
to any of the Power Purchase and Security Agreements, including the
purchase of rights and interests under the Facility Credit Agreements or
under any arrangement or agreement with the Facility Lender or under any
consents or assignments or any agreements relating thereto, and taking
foreclosure action (or deed in-lieu-of foreclosure) under and pursuant to
any of the Security Instruments or purchasing the Facility at foreclosure
sale or otherwise; provided, however that any decision as to exercise of an
option to purchase the Facility or an ownership interest therein or taking
any such foreclosure action or such purchase at a foreclosure sale shall be
subject to the approval of the Board of Directors, (viii) exercising any cure
rights with respect to any default by the Power Purchase Provider under
any agreements, deeds of trust, leases or other instruments and
(ix) execution of the Coordinating Committee responsibilities set forth in
Section 6.2 hereof, including the various financial, administrative, and
technical matters which may arise from time to time in connection with
the Project or the administration and operation thereof, and such further
developments as may need to be addressed. The Coordinating Committee
shall consist of one representative from each Project Participant. Each
90187821.2 22
Project Participant shall be entitled to cast a vote equal to its Project Cost
Share as set forth in Appendix B hereof. SCPPA shall be entitled to one
non-voting representative. SCPPA and Purchaser shall, within 30 days
after SCPPA has entered into the Power Sales Agreement between SCPPA
and Purchaser, give notice to SCPPA and any other Project Participant, of
its representative on the Coordinating Committee. Alternate
representatives may be appointed by similar written notice to act on the
Coordinating Committee, or on any subcommittee established by the
Coordinating Committee or by the Board of Directors, in the absence of
the regular representative or to act on specified occasions with respect to
specified matters. An alternate representative may attend all meetings of
the Coordinating Committee but may vote only if the representative for
whom she/he serves as alternate is absent. No Project Participant's
representative shall exercise any greater authority than permitted by the
Project Participant or Project Participants, which she/he represents. The
chairperson of the Coordinating Committee ("Chairperson") shall be a
representative of the Project Manager. The Chairperson shall be
responsible for calling and presiding over meetings of the Coordinating
Committee. The Chairperson or SCPPA shall promptly call a meeting of
the Coordinating Committee at the request of any representative in a
manner and to the extent permitted by law. For the purpose of conducting
meetings, a quorum shall exist so long as SCPPA's representative and the
representative of at least a majority of the Project Participants shall be
present. Except as may otherwise be provided in an agreement to which
all of the Project Participants agree, all actions taken by the Coordinating
Committee shall require an affirmative vote of Project Participants having
Project Cost Shares aggregating at least eighty percent (80%) of the total
Project Cost Shares. Notwithstanding the forgoing, however, if a
proposed action before the Coordinating Committee or the Board of
Directors relates solely to the interests of a single Project Participant and
such Project Participant determines, in good faith, that such proposed
action will not adversely affect, economically or otherwise, such Project
Participant, such Project Participant agrees that it shall not unreasonably
withhold its affirmative vote with respect to such proposed action. Should
the Coordinating Committee address any determination to exercise the
Project Purchase Option all Project Participants shall be given notice of
any such proposed action, and the views of any Project Participant
desiring to so provide its views to the Coordinating Committee, shall be
considered prior to a vote on the proposed action. Unless the Board of
Directors shall otherwise determine to require a majority vote pursuant to
the terns of the Joint Powers Agreement, all actions with respect to the
Project taken by the SCPPA Board of Directors shall require an
affirmative vote of at least eighty percent (80%) of the Project Votes (as
defined in SCPPA's Joint Powers Agreement, dated as of November 1,
1980, as amended from time to time) cast thereon. Purchaser
acknowledges and agrees that SCPPA, through the Coordinating
90187821.2 23
Committee or the Board of Directors, as applicable, may from time to time
enter into applicable Project Agreements or amendments of and
supplements to the applicable Project Agreements (in accordance with
their respective terms) and that, except as provided herein or as otherwise
provided by resolution of the Board of Directors, SCPPA will not be
required to obtain the consent or approval of Purchaser in connection with
any such Project Agreement or supplement or amendment, provided that
any such amendment shall be approved by the Coordinating Committee or
the Board of Directors in the manner provided by this Agreement.
Conducting of Coordinating Committee meetings and actions taken by the
Coordinating Committee may be taken by vote given in an assembled
meeting or by telephone, video conferencing, telegraph, telex, letter, e-
mail or by any combination thereof, to the extent permitted by law.
6.2 Coordinating Committee Responsibilities. The Coordinating Committee
shall have the following responsibilities:
6.2.1 Provide liaison between SCPPA and the Project Participants at the
management or other levels with respect to Acquisition, further
developments, operation and ongoing administration of the Project,
and maintain a liaison between the Project Participants and all
other SCPPA members with respect to the Project, and where the
Coordinating Committee deems it appropriate, maintain a liaison
with the counterparties to any Project Agreements and with any
other entities or utilities engaged in or in connection with other
renewable energy projects.
6.2.2 If any desired Project design, feasibility or planning studies or
activities which are to be completed by SCPPA have not been
completed by the Effective Date of this Agreement, oversee, as
appropriate, the continuation and completion of such Project
design, feasibility or planning studies or activities.
6.2.3 Exercise general supervision over any subcommittee established
pursuant to Section 6.5.
6.2.4 Review, develop, discuss, and, if appropriate, recommend, modify
or approve all budgets and revisions thereof prepared and
submitted by SCPPA or the Project Manager pursuant to any
applicable agreement.
6.2.5 Review, develop, discuss, and, if appropriate, modify, approve or
otherwise act upon any systems or procedures for adjustment of the
Annual Budget or any alternative methodologies for budgeting or
billing as set forth in Section 5 and Section 7 of this Agreement.
90187821.2 24
6.2.6 Carry out all other actions reposed in the Coordinating Committee
with respect to budgeting and billing as set forth in Section 5 and
Section 7 of this Agreement.
6.2.7 Review, discuss and attempt to resolve any disputes among the
Project Participants or the parties to any Project Agreements
including, without limitation, the Power Purchase Provider, the
counterparties under the Power Purchase and Security Agreements,
the Lease, the Security Instruments, any rights-of-way with respect
to the Project, any agreement providing for any interest in real
estate with respect to the Project, any common facilities
agreements, any transmission provider, any La Paz County
officials or representatives, any community organizations, or any
other counterparty with respect to any Project Agreement relating
to the Project.
6.2.8 Make recommendations to the Project Manager, the Board of
Directors or to the counterparties to any of the Project Agreements,
as appropriate, with respect to the development, operation and
ongoing administration of the Project.
6.2.9 Upon the request of the Project Participants affected thereby,
acting by and through their respective representatives on the
.Coordinating Committee and in coordination with SCPPA's Board
of Directors, adopt a resolution approving the revisions of
Appendix B and Appendix C, as applicable, of this Agreement as
provided in Section 21.1.
6.2.10 Review, develop, and if appropriate, modify and approve rules,
procedures and protocols for the administration of the Project or
Project Agreements, including rules, procedures and protocols for
the management of the costs of the Facility or an ownership
interest therein and the scheduling, handling, tagging, dispatching
and crediting of SCPPA Facility Output and the handling and
crediting of Environmental Attributes associated with the Facility.
6.2.11 Review, develop, and if appropriate modify and approve rules,
procedures and protocols for the monitoring, inspection and the
exercise of due diligence activities in connection with the
Acquisitions relating to the Project and the operation of the
Facility.
6.2.12 Review, and, if appropriate, modify, approve or otherwise act
upon, the form or content of any written statistical, administrative,
or operational reports, solar energy related data, electric generation
information, solar energy production data, diurnal, barometric and
meteorological information, solar tower and turbine mechanical
90187821.2 25
and technical information, facility reliability data, transmission
information, forecasting scheduling, dispatching, tagging, parking,
firming, shaping, exchanging, balancing, movement, or other
delivery information, climate and weather related matters, cloud
conditions, regulatory matters or requirements, and other
information and other similar records or matters pertaining to the
Project which are furnished to the Coordinating Committee by the
Project Manager, the counterparties to Project Agreements,
experts, consultants or others.
6.2.13 In coordination with the Board of Directors, review, and, if
appropriate, recommend, modify or approve rules, procedures, and
protocols as provided in Section 10.3.
6.2.14 Review, and, if appropriate, modify, approve or otherwise act
upon, practices and procedures as formulated by the Project
Manager or, if applicable, the counterparty to any Project
Agreement, to be followed by the Project Participants for, among
other things, the production, scheduling, tagging, transmission,
delivery, firming, balancing, exchanging, crediting, tracking,
monitoring, remarketing, sale or disposition of SCPPA Facility
Output.
6.2.15 Review, modify and approve, if necessary, the schedule of planned
activities formulated by the Project Manager or the counterparty
with respect to the performance of any Project Agreement,
including the policies for selection and utilization of contractors
and consultants included in the budgets with respect to the Project.
In formulating and approving such schedules, consideration may
be given, if possible, to each Project Participant's electric system
conditions, which may prevail during such planned activities
6.2.16 Review, and, if appropriate, recommend, modify, approve or
otherwise act with respect to the exercise of SCPPA's rights under
Section 11.6 or 11.8 of the Power Purchase Agreement or review,
recommend, approve or otherwise act with respect to the
procurement of resources in connection with any New Facility or
any Additional Facility under Section 11.6 or 11.8, respectively, of
the Power Purchase Agreement.
6.2.17 In connection with the Lease, review, exercise, or otherwise act
upon any cure rights under Section 11.5 or Section 13.7 of the
Power Purchase Agreement or take such other action under the
Power Purchase Agreement or the Power Purchase and Security
Agreements, or otherwise, in connection with the Lease as may be
deemed to be in SCPPA's interest or otherwise appropriate.
901878212 26
6.2.18 Review, modify, approve or otherwise act upon any proposed
change to the milestone schedule or to any Milestone under the
Power Purchase Agreement as the Coordinating Committee shall
deem to be desirable, appropriate or otherwise in SCPPA's
interest. The Coordinating Committee may impose such other
terms, conditions or qualifications upon any such action as the
Coordinating Committee shall deem appropriate.
6.2.19 Review, approve or otherwise act upon any proposed extension of
any date set forth in Appendix I of the Power Purchase Agreement
or of any Milestone Date under the Power Purchase Agreement
which, in the discretion of the Coordinating Committee, may be
appropriate, desirable or othenvise in SCPPA's interest. The
Coordinating Committee may impose other conditions or
qualifications upon the grant of any such extension as the
Coordinating Committee shall deem appropriate.
6.2.20 Review and act upon any present, potential or possible future
anticipated failure to deliver Guaranteed SCPPA Energy under the
Power Purchase Agreement in such manner as the Coordinating
Committee shall deem appropriate.
6.2.21 Act upon such recommended changes, as the Coordinating
Committee shall deem appropriate as set forth in Section 15.5 of
the Power Sales Agreements. Such changes as may occur in such
manner with respect to Appendix B and Appendix C herein shall
be considered an element of the administration of this Agreement
and shall be deemed an amendment of this Agreement and shall
not require the consent of the Parties hereto.
6.2.22 Review, and if appropriate, approve, recommend, modify or
otherwise act upon any matters or issues associated with Operating
Work and any other matters or issues which may arise in the
operation, maintenance or administration of the Project.
6.2.23 Review, and if appropriate, recommend, modify or approve
practices and procedures formulated by the Project Manager or by
any counterparty to any Project Agreements giving due recognition
to the needs of all Project Participants.
6.2.24 Review and act upon any matters involving any Security and
Assignment Agreement, including but not limited to the Milestone
Security, the Performance Security, the Mortgage and any
guarantee or letter of credit delivered to or for the benefit of
SCPPA by the Power Purchase Provider or any other counterparty
to any Project Agreement in connection with the Project, and take
90187821.2 27
such actions or make such recommendations as may be appropriate
or desirable in connection therewith.
6.2.25 Review, and, if appropriate, recommend, modify or approve
practices and procedures formulated by the Project Manager or any
counterparty with respect to any Project Agreement, and when
requested by a Project Participant review, and, if appropriate,
recommend, modify or approve those matters associated with any
of the Points of Delivery or any other point or points designated for
delivery of energy, delivery arrangements, transmission contracts,
or other Project Agreements.
6.2.26 Review, and, if appropriate, recommend, modify or approve
policies or programs formulated by the Project Manager, any
counterparty under any Project Agreement or any other Person for
the exchange of energy from the Facility.
6.2.27 Review, and, if appropriate, recommend, modify, or approve
policies or programs formulated by the Project Manager or any
counterparty under any Project Agreement for determining or
estimating the solar energy resources or the values, quantities,
volumes or costs of renewable energy from the Facility.
6.2.28 Review, modify or approve recommendations of the Project
Manager or counterparties made pursuant to the provisions of any
Project Agreement.
6.2.29 Review, modify and approve all Cost of Acquisition and costs of
Operating Work and submit to the Board of Directors any budget
revisions or other provisions for the payment or financing thereof.
6.2.30 Review, modify and approve SCPPA's insurance program with
respect to the Project (as applicable) including, without limitation,
the establishment of any self-insurance program and the maximum
amount or amounts of any uninsured claim that the Project
Manager may settle without prior approval of the Coordinating
Committee.
6.2.31 Review, modify and where appropriate, recommend or approve the
implementation of metering technologies and methodologies
appropriate for the delivery, accounting for, transferring and
crediting of SCPPA Facility Output to the respective Points of
Delivery or from any of the Points of Delivery to other points or
destinations, as applicable.
6.2.32 Review, modify and where appropriate, recommend or approve the
implementation of practices and procedures to carry forth the
90187821.2 28
provisions of Section 9 herein, as may be applicable with respect to
any of the Project Participants.
6.2.33 Identify, or develop criteria to identify, contracts or agreements
relating to work or Operating Work that shall be deemed to be
Major Contracts under any applicable project management or
operating agreement.
6.2.34 Review, and to the extent permitted by this Agreement or any other
relevant agreement relating to the Project, modify and approve or
disapprove the specifications, vendors' proposals, bid evaluations,
form of final agreement, or any other matters with respect to Major
Contracts.
6.2.35 Review, modify or approve recommendations, including
recommendations of the Project Manager with respect to actions,
disposition or use, if any, relating to Acquisition activities.
6.2.36 Perform such other functions and duties as may be provided for.
under this Agreement. the Power Purchase Agreement, the Power
Purchase and Security Agreements, the Ancillary Documents, the
Interconnection Contracts, the Lease, the Security Instruments, any
real estate instruments relating to the Facility or any other
applicable Project Agreement, or as may otherwise be appropriate
or beneficial to the Project.
6.3 Management Decisions and the Role of Board of Directors. The rights
and obligations of SCPPA under the Project Agreements shall be subject
to the ultimate control at all times of the Board of Directors. Purchaser
and the other Project Participants shall be entitled to participate in the
decisions of the Board of Directors with respect to SCPPA's rights and
interests in the Facility and the Project as provided in Section 6.1 herein.
SCPPA through the Board of Directors shall have, in addition to the duties
and responsibilities set forth elsewhere in this Agreement, the following
duties and responsibilities, among others:
6.3.1 Future Developments. The Board of Directors shall provide
liaison among the Project Participants at the management level
with respect to the direction of the Project and future developments
arising out of the Power Purchase and Security Agreements,
including any purchase or acquisition of the Facility or any portion
thereof and shall carry out those measures necessary to address
such developments, including any purchase or acquisition of the
Facility or any portion thereof.
6.3.2 Dispute Resolution. The Board of Directors shall endeavor to
review, discuss and attempt to resolve any disputes among SCPPA,
9018782L2 29
the Project Participants and the counterparties under the Project
Agreements relating to the Project, the operation and management
of the Facility and SCPPA rights and interests in the Facility.
6.3.3 Scheduling procedures. When recommended by the Coordinating .
Committee, or when otherwise appropriate, the Board of Directors
shall act upon and approve or modify the practices and procedures
to be followed by the Project Participants for the scheduling,
delivering, controlling and allocating SCPPA Facility Output
associated with the Project.
6.3.4 Project Agreements. The Board of Directors shall have the
authority to approve the Project Agreements and to review modify
and approve, as appropriate, all amendments, modifications and
supplements to the Project Agreements.
6.3.5 Capital Improvements. The Board of Directors shall review,
modify and. approve if appropriate all Capital Improvements and
Acquisitions undertaken with respect to the Project and all
financing arrangements for such Capital Improvements or
Acquisitions. The Board of Directors shall approve those budgets
or other provisions for the payments associated with the Project
and the financing for any development or Acquisitions associated
with the Project.
6.3.6 Committees. The Board of Directors shall exercise such review,
direction or oversight as may be appropriate with respect to the
Coordinating Committee and any other committees established
pursuant to the Project Agreements.
6.3.7 Bond issuance. The Board of Directors shall have authority to
approve any and all of the following: ,(1) each issuance of SCPPA
indebtedness relating to the Project, (2) each supplement or
amendment to the Indenture relating to the Project, (3) the Bonds
issued to finance the purchase or acquisition of the Facility or any
portion thereof, any New Facility or Additional Facility or any
portion thereof, any Acquisition, any Capital Improvements, or any
costs related to the exercise or enforcement by SCPPA of its rights
with respect to any agreements, Mortgages, deeds of trust, leases or
other Power Purchase and Security Agreements relating to or
affecting the Project, or the purchase of rights and interests under
the Facility Credit Agreements, or other Acquisitions to carry out
the objectives of the Project, (4) the selection of underwriters for
each series of Bonds, (5) the manner and timing of marketing
(including of the manner of sale), amount, interest rates and other
terms and conditions of each series of SCPPA indebtedness
90187821.2 30
associated with the Project, and (6) any other action necessary or
appropriate to carry forth Section 13 of this Agreement.
6.3.8 Budeetine. The Board of Directors shall review, modify and
approve each Annual Budget and the revisions thereto in
accordance with Section 5.4 of this Agreement.
6.3.9 Federal Tax Law Requirements. With respect to any Bonds, the
Board of Directors, in consultation with Bond Counsel or Tax
Counsel, shall develop and promulgate rules, procedures, and
protocols, including the development and maintenance of relevant
information and reporting procedures, and shall provide direction
to the Purchaser and the other Project Participants with respect to
the Federal Tax Law Requirements.
6.3.10 Revision of Appendices B and C. In coordination with the
Coordinating Committee adopt a resolution approving the
revisions of Appendix B and Appendix C, as applicable, of this
Agreement as provided in Section 21.1.
6.3.11 Other Matters. The Board of Directors is authorized to perform
such other functions and duties, including oversight of those
matters and responsibilities addressed by the Coordinating
Committee, as may be provided for under this Power Sales
Agreement and under the other Project Agreements, or as may
otherwise be appropriate.
6.4 Periodic Audits. The Board of Directors or the Coordinating Committee
may arrange for the annual audit under Section 5.6 of this Agreement by
certified accountants, selected by SCPPA and experienced in electric
generation or electric utility accounting, of the books and accounting
records of SCPPA, and where deemed appropriate the Project Manager (if
other than SCPPA), the Power Purchase Provider (to the extent provided
under any of the Power Purchase and Security Agreements) and any other
counterparty under any Project Agreement to the extent allowable, and
any cost reimbursable consultant or cost reimbursable contractor relevant
to the Acquisition, development, administration or operation of the
Project, and such audit shall be completed and submitted to SCPPA as
soon as reasonably practicable after the close of the Fiscal Year. SCPPA
shall promptly furnish to Purchaser and the other Project Participants
copies of all audits. No more frequently than once every calendar year, a
Project Participant may, at its sole cost and expense, audit or cause to be
audited the books and cost records of SCPPA, the Project Manager (if
other than SCPPA), the counterparty under any Project Agreement to the
extent so provided in the applicable Project Agreement, and any cost
reimbursable consultant or cost reimbursable contractor relevant to the
Acquisition, development, administration or operation of the Project.
90187921.2 31
6.5 Additional Committees. The Coordinating Committee, or the Board of
Directors, as appropriate, may establish as needed subcommittees
including, but not limited to, auditing, legal, financial, engineering,
mechanical, weather, geologic, diurnal, barometric, meteorologic,
operating, insurance, community relations, governmental relations,
environmental and public information subcommittees. The authority,
membership, and duties of any subcommittee shall be established by the
Coordinating Committee or Board of Directors; provided, however, such
authority, membership or duties shall not conflict with the provisions of
any of the Project Agreements. Each such subcommittee shall be initially
responsible to the Coordinating Committee.
6.6 Written Record. All actions, resolutions, determinations and reports made
by the Coordinating Committee as required by this Agreement shall be set
forth in a written record or its minutes.
6.7 Change in Representative. Each Project Participant shall promptly give
written notice to the other Project Participants and SCPPA of any changes
in the designation of its representative on the Coordinating Committee or
any subcommittee, and SCPPA shall promptly give written notice to the
other Project Participants of any changes in the designation of its
representative on the Coordinating Committee or any subcommittee.
6.8 Costs of Consultants. Costs (or the applicable portion thereof) of
consultants and others employed or appointed by the Coordinating
Committee to perform the duties required hereunder, to the extent the
Coordinating Committee is authorized to so employ or appoint, shall be
included in the Cost of Acquisition or Total Monthly Costs, as
appropriate, and shall be billed to SCPPA or the Project Manager (if other
than SCPPA).
6.9 Representative's Expenses. Any expenses incurred by any representative
of any Project Participant or group of Project Participants serving on the
Coordinating Committee or any other committee in connection with
his/her duties on such committee shall be paid by the Project Participant or
Project Participants which he/she represents and shall not be an expense
payable under this Agreement.
6.10 Inaction by Committee. It is recognized by SCPPA and the Project
Participants that if the Coordinating Committee is unable or fails to agree
with respect to any matter or dispute which it is authorized to determine,
resolve, approve, disapprove or otherwise act upon after a reasonable
opportunity to do so, or within the time limits specified herein or in any
otherwise applicable Project Agreement, then the Project Manager may
take such action as in its discretion is necessary for its timely performance
under any applicable Project Agreement pending the resolution of any
such inability or failure to agree, but nothing herein shall be construed to
90197821.2 32
allow the Project Manager to act in violation of the express terms of any
applicable project management agreement or this Agreement.
6.11 Compliance with Indenture. It is recognized by SCPPA and the Project
Participants that the planning, financing, development, acquisition,
operation and maintenance of, and insurance programs relating to, the
Project must comply in all respects with requirements of the Indenture and
all licenses, permits and regulatory provisions necessary for such
planning, financing, development, acquisition, operation and maintenance
and it is therefore agreed that, notwithstanding Section 6.10 or any other
provision of this Agreement, no action by the Coordinating Committee or
the Project Manager (if a designee other than SCPPA) shall require
SCPPA to act in any manner inconsistent with any such requirements or to
refrain from acting as required by the Power Sales Agreements and if the
Coordinating Committee or the Project Manager (if a designee other than
SCPPA) shall fail to make recommendations or act with respect to any
matter in connection with an action that is required to be taken pursuant to
any of the foregoing, SCPPA shall take such action as is appropriate to
assure compliance with the foregoing
6.12 Compliance with the Power Purchase Agreement and Transmission
Arrangements. It is further recognized by SCPPA and the Project
Participants that the planning, development, acquisition, operation and
maintenance of the Project must comply with requirements of the Power
Purchase Agreement, those transmission arrangements entered into to
facilitate the delivery of SCPPA Facility Output and the licenses, permits
and regulatory provisions applicable to such planning, development,
acquisition, operation and maintenance and it is therefore agreed that,
notwithstanding Section 6.10 or any other provision of this Agreement, no
action by the Coordinating Committee, or the Project Manager (if a
designee other than SCPPA) shall require SCPPA to act in any manner
inconsistent with any such requirements or to refrain from acting in a
manner required by such requirements.
6.13 Delegation. To secure the effective cooperation and interchange of
information in a timely manner in connection with various administrative,
technical and other matters which may arise from time to time in
connection with Operating Work, in appropriate cases the authority, duties
and responsibilities of the Board of Directors or the Coordinating
Committee, as the case may be under this Section 6, may be delegated to
the Executive Director.
7. CHARGES AND BILLINGS.
7.1 Power Purchase Agreement Monthly Costs and Billing Statement. During
the term of the Power Purchase Agreement the amount of Monthly Costs
which shall be paid by Purchaser pursuant to a Billing Statement for a
90187821.2 33
particular Month shall be the sum of the following, as applicable, subject
to Sections 7.9 and 7.10 hereof and any applicable adjustments as
provided in Section 16 hereof:
7.1.1 Purchaser's Delivery Point Output Cost Share multiplied by the
Delivery Point Output cost component of Total Monthly Costs (as
provided in Section 4.8.1) with respect to Purchaser's Designated
Point of Delivery for such Month.
7.1.2 Purchaser's Project Cost Share multiplied by the PPA General and
Administrative cost component of Total Monthly Costs (as
provided in Section 4.8.2 hereof) for such Month.
7.1.3 Purchaser's Project Cost Share multiplied by the Reserve Fund
cost component of Total Monthly Costs (as provided in Section
4.8.3 hereof) for such Month.
7.1.4 Purchaser's share of the Supplementary Services cost component
of Total Monthly Costs (as provided in Section 4.8.4 hereof) for
such Month based on Purchaser's allocated share of any such
services procured by SCPPA on behalf of the Purchaser.
7.1.5 By the fifth calendar day of each Month during each Power Supply
Year, SCPPA shall bill Purchaser for the amount of Monthly Costs
to be paid by Purchaser for the current Month by providing
Purchaser with a Billing Statement in accordance with the charges
established pursuant to the provisions of this Agreement. Such
Billing Statement shall detail the costs described in this Section 7.1
and shall sat forth, among other things, the amounts due for such
Month by Purchaser with respect to the items of Monthly Costs set
forth in this Section 7.1, as such Monthly Costs may be adjusted
from time to time in accordance with Section 5 and this Section 7.
Such Billing Statement shall be paid by Purchaser on or before 20
days after receipt of such Billing Statement.
7.2 Ownership Monthly Costs and Billing Statement. In the event that
SCPPA shall acquire the Facility or an ownership interest therein; the
amount of Monthly Costs which shall be paid by Purchaser pursuant to a
Billing Statement for a particular Month, commencing upon such
Acquisition, shall be the sum of the following, as applicable, subject to
Sections 7.9 and 7.10 hereof and any applicable adjustments as provided
in Section 16 hereof:
7.2.1 Purchaser's Project Cost Share multiplied by the Operating cost
component of Total Monthly Costs (as provided in Section 4.9.1
hereof) for such Month.
90197821.2 34
7.2.2 Purchaser's Transmission Services Cost Share multiplied by the
Transmission cost component of Total Monthly Costs (as provided
in Section 4.9.2) for such Month with respect to Transmission
Services applicable to the delivery of SCPPA Facility Output from
the Point of Interconnection to Purchaser's Designated Point of
Delivery.
7.2.3 Purchaser's Project Cost Share multiplied by the Ownership
General and Administrative cost component of Total Monthly
Costs (as provided in Section 4.9.3 hereof) for such Month.
7.2.4 Purchaser's Project Cost Share multiplied by the Reserve Fund
cost component of Total Monthly Costs (as provided in Section
4.9.4 hereof) for such Month.
7.2.5 Purchaser's Indenture Cost Share as set forth in the Indenture Cost
Shares column of Appendix C hereof multiplied by the Indenture
cost component of Total Monthly Costs (as provided in Section
4.9.5 hereof) for such Month as the Indenture cost component has
been reduced by interest earned on investments of amounts held
under the Indenture if and to the extent not credited against the
Cost of Acquisition or has been off-set or reduced by other
amounts made available therefor as provided in the Indenture.
7.2.6 Purchaser's share of the Supplementary Services cost component
of Total Monthly Costs (as provided in Section 4.9.6 hereof) for
such Month based on Purchaser's allocated share of any such
services procured by SCPPA on behalf of Purchaser.
7.2.7 By the fifth calendar day of each Month during each Power Supply
Year, SCPPA shall bill Purchaser for the amount of Monthly Costs
to be paid by Purchaser for the current Month by providing
Purchaser with a Billing Statement in accordance with the charges
established pursuant to the provisions of this Agreement; provided,
however, that such Billing Statement, with respect to Debt Service
and other obligations payable from the Debt Service Fund under
the Indenture, shall instead include the amount, if any, to be paid
by Purchaser with respect to the applicable Bonds and the other
obligations payable from the Debt Service Fund that is due and
payable in the immediately succeeding Month or as otherwise
provided under the Indenture, and provided further, that such
Billing Statement, with respect to the cost of SCPPA Facility
Output provided by SCPPA to Purchaser under this Agreement,
shall also include with respect to the performance by SCPPA or the
counterparty under and pursuant to applicable Project Agreements,
a charge or credit to Purchaser with respect to the costs or revenues
attributable to Purchaser pursuant to and under any applicable
90187821.2 35
Project Agreement. Such Billing Statement shall detail the costs
described in this Section 7.2 hereof and shall set forth, among
other things, the amounts due for such Month by Purchaser with
respect to the items of Monthly Costs set forth in this Section 7.2,
as such Monthly Costs may be adjusted from time to time in
accordance with Section 5 and this Section 7. Such Billing
Statement shall be paid by Purchaser on or before 20 days after
receipt of such Billing Statement.
7.3 Adoption of Alternative Billing Statement Procedures. The Coordinating
Committee may recommend the adoption of an alternative Billing
Statement billing methodology in connection with each Project
Participant's Billing Statement with respect to the Total Monthly Costs
and the costs associated with any Project Agreement. Such alternative
Billing Statement procedures may be placed into effect with the approval
of the same by resolution of the Board of Directors. Any such alternative
Billing Statement billing methodology shall.satisfy all requirements of the
Indenture and shall be fiscally prudent, financially sound and shall assure
coverage of all potential and actual costs and obligations of SCPPA.
7.4 Disputed Monthlv Billing Statement. In case any portion of any Billing
Statement received by Purchaser from SCPPA shall be in bona fide
dispute, Purchaser shall pay SCPPA the full amount of such Billing
Statement and, upon determination of the correct amount, the difference
between such correct amount and such full amount, if any, including
interest at the rate received by SCPPA on any overpayment, will be
credited to Purchaser by SCPPA after such determination; provided,
however, that such interest shall not accrue on any overpayment that is
acknowledged by SCPPA and returned to Purchaser by the fifth calendar
day following the receipt by SCPPA of the disputed overpayment. In the
event such Billing Statement is in dispute, SCPPA will give consideration
to such dispute and will advise Purchaser with regard to SCPPA's position
relative thereto within 30 days following receipt of written notification by
Purchaser of such dispute.
7.5 Reconciliation of Monthly Costs. As soon as practicable after the end of
each Power Supply Year, SCPPA will submit to Purchaser and the other
Project Participants a detailed statement of the actual aggregate Monthly
Costs and other amounts payable hereunder, including any credits thereto,
for all of the Months of such Power Supply Year, and the adjustments of
the aggregate Monthly Costs and other amounts payable hereunder, if any,
for any prior Power Supply Year, based on the annual audit of accounts
provided for in Section 6.4. If, on the basis of the statement submitted as
provided in this Section 7.5, the actual aggregate Monthly Costs and other
amounts payable by the Project Participants for any Power Supply Year
exceed the amount thereof which Purchaser and the other Project
Participants have been billed, Purchaser and the other Project Participants
901878212 36
shall pay SCPPA, within 20 days of receipt of SCPPA's invoice, the
amount to which SCPPA is entitled. If, on the basis of the statement
submitted pursuant to this Section 7.5, the actual aggregate Monthly Costs
or other amounts payable by the Project Participants for any Power Supply
Year are less than the amount therefor which Purchaser and the other
Project Participants have been billed, SCPPA shall, unless otherwise
directed by Purchaser or the other Project Participants with respect to
moneys owed to each, credit such excess against Purchaser's and the other
Project Participants' next monthly Billing Statement. In the event that the
failure of Purchaser to make its payments in accordance with this
Agreement shall have resulted in the application of amounts in any reserve
or other Fund under the Indenture or this Agreement to the payment of
costs payable from such reserve or Fund and the other Project Participants
shall have made up the deficiency created by such application or paid
additional amounts as a result of a draw on such reserve or Fund, amounts
thereafter paid to SCPPA by Purchaser for application to such past due
payments including interest shall be credited on the Billing Statements of
such other Project Participants in the next Month or Months as provided in
the applicable provisions of Section 15.
7.6 Other or Additional Cost Reconciliation Mechanisms. The Board of
Directors may, by resolution, authorize or prescribe other billing,
payment, costing and cost reconciliation mechanisms to address such
billing, payment, costing and cost reconciliation issues as may from time
to time arise with respect to the Project.
7.7 Interest on Late Pavments. If Purchaser fails to pay any Billing Statement
when due, interest shall accrue, to the extent permitted by law, at a rate
equal to the lesser of (i) one percent per Month (12% per annum) on the
unpaid amount of the bill or (ii) the monthly equivalent of the "prime" rate
of interest as noticed in the Federal Reserve's HR 15 weekly bulletin (or
the subsequent equivalent thereof) as of the date of nonpayment on the
unpaid amount of the bill, until such Billing Statement is paid.
7.8 Prepayment of Monthly Costs. Purchaser may, at any time, pay moneys to
SCPPA or utilize any credits due or amounts owed by SCPPA to
Purchaser with respect to the Project for the purpose of prepaying its
monthly Billing Statement. Such moneys and amounts owed by SCPPA
under any Project Agreement shall be deposited into an account
established by, or at the direction of, SCPPA. Consistent with SCPPA's
investment policy, moneys in such account shall be invested pursuant to
instructions provided to SCPPA by Purchaser and all investment income
shall be credited to such account. Payment of the amount of any monthly
Billing Statement or Default Invoice shall be made from moneys available
in such account to the extent set forth in written directions from Purchaser
to SCPPA received at least five business days prior to the due date of such
payment. Any credit or prepayment with respect to its monthly Billing
90187821.2 37
Statement shall not relieve or reduce Purchaser's other obligations under
this Agreement.
7.9 Costs or Expenses Incurred for Sole Benefit of Purchaser.
Notwithstanding anything to the contrary in this Agreement, if a particular
cost or expense is.incurred by SCPPA for the sole benefit of Purchaser,
unless otherwise determined by the Coordinating Committee, then such
cost or expense shall be allocated only to Purchaser, in which event only
Purchaser (and no other Project Participant) shall be responsible for the
payment thereof under this Agreement. Any such cost or expense incurred
by SCPPA for the sole benefit of Purchaser shall be deemed to be paid last
from amounts paid by Purchaser for the payment of its Billing Statements.
7.10 Credit, or other Payment Attributable to a Specific Project Participant.
Should any Project Participant make or provide, through any type of
payment mechanism, for a separate payment or prepayment for SCPPA
Facility Output or other Project purpose which results in a credit or
reduction in SCPPA's obligation being credited to the purchase of SCPPA
Facility Output, or a reduced cost of power or otherwise credited under the
Power Purchase Agreement or other Project Agreement, then, to the extent
that such credit is credited to an obligation of SCPPA under the Power
Purchase Agreement or such other Project Agreement, such credit shall be
passed through or credited to the applicable Project Participant under such
Project Participant's Power Sales Agreement. Such a credit may at the
request of the applicable Project Participant be credited on the Project
Participants subsequent Billing Statements or handled pursuant to a
Billing Statement methodology which bills for and places an amount
which is the equivalent of the credit into the Project Participants project
stabilization account or such a credit may be otherwise handled in such
manner as the applicable Project Participant may reasonably request. The
provisions of this Section 7.10 shall be in addition to the terms and
provisions of Section 16 and shall not be applicable to any circumstances,
conditions or matters that are within the scope of Section 16.
8. UNCONDITIONAL PAYMENT OBLIGATIONS; RATE COVENANT;
AUTHORIZATIONS; CONFLICTS; LITIGATION.
8.1 Unconditional Payment Obligation. Beginning with the earliest of(i) the
date SCPPA incurs or becomes obligated to pay any portion of the costs of
the Project , (ii) the date upon which SCPPA first incurs or accrues costs
associated with the issuance of the Bonds, (iii) the effective date of the
Power Purchase Agreement or (iv) the date of the first delivery of SCPPA
Facility Output to Purchaser and continuing through the term of this
Agreement, Purchaser shall pay SCPPA the amounts of Monthly Costs set
forth in the Billing Statements submitted by or on behalf of SCPPA to
Purchaser in accordance with the provisions of Section 7 hereof and,
without duplication, any amount set forth in any Step-Up Invoices or
90187821.2 38
Default Invoices received by Purchaser as a result of the operation of
Section 15 hereof, whether or not the Project or any part thereof has been
completed, is functioning, producing, operating or operable or its output is
suspended, interrupted, interfered with, reduced or curtailed or terminated
in whole or in part, and such payments shall not be subject to reduction
whether by offset or otherwise and shall not be conditional upon the
performance or nonperformance by any party of any agreement for any
cause whatsoever.
8.2 Source of Payments. The Purchaser hereby represents and warrants that
the obligations of Purchaser to make the payments to SCPPA under this
Agreement shall constitute a cost of purchased power and an operating
expense of Purchaser payable solely from its electric revenue fund,
including any and all legally available electric system reserves. Purchaser
will annually in each and every fiscal year of Purchaser during the term of
this Agreement include in its power system budget, whether or not any
other items are included, an appropriation from the revenues of its electric
system (including moneys derived from sales to third parties) sufficient to
satisfy all the payments required to be made in such year under this
Agreement until all payments required under this Agreement have been
paid in full.
8.3 Rate Covenant. Purchaser will establish, maintain and collect rates and
charges for the electric service of its electric system each year so as to
provide revenues sufficient, together with any legally available electric
system reserves, to enable Purchaser to pay to SCPPA all amounts payable
when due under this Agreement and to pay all other amounts payable
from, and all lawful charges against or liens on, the revenues of its electric
system.
8.4 Authorizations. The Purchaser hereby represents and warrants that no
order, approval, consent or authorization of any governmental or public
agency, authority or person, is required on the part of the Purchaser for the
execution and delivery by the Purchaser of this Agreement, or the
performance by the Purchaser of its obligations under this Agreement
except for such as have been obtained.
8.5 Conflicts. Purchaser represents and warrants to SCPPA as of the Effective
Date and as of the date of the opinion of counsel referenced in
Section 13.4, that, to Purchaser's knowledge, the execution and delivery of
this Agreement by Purchaser, and Purchaser's performance thereunder
will not constitute a default under any agreement or instrument to which it
is a party, or any order, judgment, decree or ruling of any court that is
binding on Purchaser, or a violation of any applicable law of any
governmental authority, which default or violation would have a material
adverse effect on the financial condition of Purchasers electric revenue
fund.
90187821.2 39
8.6 Litieation. Purchaser represents and warrants to SCPPA as of the
Effective Date and as of the date of the opinion of counsel referenced in
Section 13.4 that, to Purchaser's knowledge, except as disclosed, there are
no actions, suits or proceedings pending against Purchaser (service of
process on Purchaser having been made) in any court that questions the
.validity of the authorization, execution or delivery by Purchaser of this
Agreement, or the enforceability on Purchaser of this Agreement.
9. OTHER TERMS AND SERVICES.
9.1 Delivery Procedures. Prior to the time at which any Energy will be
delivered to Purchaser from the Facility, Purchaser will schedule and shall
be obligated to take delivery of its Output Entitlement Share of the Energy
to be delivered. The SCPPA Facility Output generated and produced from
the Project shall be scheduled and delivered to Project Participants at their
respective Designated Points of Delivery under any development,
operating, project management or agency agreement and/or practices and
procedures approved by the Coordinating Committee pursuant to
Section 6.2, as applicable.
9.2 Other Services and Transmission From Points of Delivery. It is the
obligation of Purchaser to receive its share of SCPPA Facility Output and
to arrange for delivery of such SCPPA Facility Output to its ultimate
destination or destinations after having reached its Designated Point of
Delivery, as determined by Purchaser. However, to the extent specified by
the Purchaser, and to the extent practicable for SCPPA to do so, SCPPA
shall assist in arranging for Supplementary Services and for such
additional transmission, interconnection arrangements, energy
management, finning, shaping, swaps, exchanges or other services
associated with the transmission, use or disposition of SCPPA Facility
Output to be utilized by the Purchaser and to provide for delivery,
accounting for, transferring and crediting the ownership and transfer of
SCPPA Facility Output from such Purchaser's Designated Point of
Delivery to any other points or destinations, as determined by the
Purchaser.
9.3 Energy Services. Except as otherwise provided in this Agreement and
subject to Section 18.1, nothing herein shall prevent or restrict Purchaser
from providing for its own transmission, energy management services,
firming, balancing, or exchanging services or otherwise using or
dispatching its Energy under this Agreement; provided, however, that such
services, use or activities shall not affect any of the obligations of
Purchaser under this Agreement or, if applicable, result in or cause non-
compliance with the Federal Tax Law Requirements, and shall at all times
conform to the applicable requirements of Section 10 of this Agreement.
90187821.2 40
9.4 Actions Respecting Facility Purchase. SCPPA shall endeavor to take
those actions and carry forth those measures necessary to maintain and
preserve SCPPA's rights with respect to any purchase potential or
purchase or acquisition options contained in the Power Purchase and
Security Agreements and, if so determined pursuant to the terms of this
Agreement, to facilitate any such purchase or acquisition of the Facility or
an ownership interest therein pursuant to the terms of the Power Purchase
and Security Agreements or under or pursuant to any consents,
assignments or any agreements relating thereto, including any purchase of
rights or interests under or pursuant to the Facility Credit Agreements.
SCPPA's services in connection with any such purchase obligation or
purchase option may include but is not limited to determining the
advisability of such purchase, preparing such agreements, documents or
instruments as may be necessary to facilitate such purchase, and carrying
forth any diurnal, barometric or meteorological reporting, prepare any
facility efficiency reports, economic, modeling or appraisal studies as may
be desirable to facilitate any proposed transaction and to obtain any
necessary or appropriate information in connection with any such potential
purchase or acquisition of the Facility or an ownership interest therein.
9.5 Balancing Agent and Dvnamic Scheduling. Upon the request of
Purchaser, SCPPA shall either (i) retain an agent to maintain and balance
Purchaser's hourly Energy schedules in accordance with WECC protocols
("Balancing Agent"), including the provision or absorption of imbalance
energy to accommodate intra-hour fluctuations of SCPPA Facility Output
as compared to Purchaser's Energy schedule and maintaining a balancing
account of accumulated imbalance energy to be settled by adjusting future
Purchaser Energy schedules, (ii) arrange for Dynamic Scheduling from
Purchaser's Designated Point of Delivery to Purchaser's control area or
electric system, including the procurement and installation of scheduling
hardware, software, and communications equipment necessary to
effectuate Dynamic Scheduling (if such a scheduling methodology is
deemed appropriate, applicable and/ or otherwise feasible), (iii) procure,
contract for or otherwise arrange for any available energy balancing,
firming, shaping or integration services to address any of the above
referenced imbalances, fluctuations, variability, intermittency, or like
conditions or (iv) address the costs, charges or consequences of such
imbalances, fluctuations, variability, intermittency, or like conditions
though other mechanisms or methodologies which are mutually agreeable
to the Purchaser and SCPPA. Any such arrangements (other than
arrangements with another Project Participant or other SCPPA members)
entered into by SCPPA at the request of Purchaser shall be with third
parties and negotiated in arms' length transactions, to the extent
applicable.
901 87821.2 41
9.6 Transfer of Environmental Attributes to Project Participants. SCPPA shall
transfer all Environmental Attributes received by SCPPA either under the
Power Purchase Agreement or with respect to SCPPA Facility Output
following its purchase or acquisition of the Facility to Purchaser and the
other Project Participants in accordance with their respective Output
Entitlement Shares in the same manner by which SCPPA receives
Environmental Attributes.
10. FEDERAL TAX LAW REQUIREMENTS.
10.1 Purchaser to Provide Information Relevant to Compliance with Federal
Tax Law Requirements. At such times and through such means as
prescribed by the rules, procedures and protocols promulgated by SCPPA
to address compliance with the applicable Federal Tax Law Requirements
with respect to any Bonds, or pursuant to any request by SCPPA,
Purchaser shall provide SCPPA with a tax certificate relating to such
Bonds, and such additional information and representations as necessary
to establish Purchaser's compliance with the Federal Tax Law
Requirements, including, to the extent applicable, information and
representations concerning the disposition or use of electric energy
provided under this Agreement or the disposition or use of any assets
acquired with the proceeds of such Bonds.
10.2 Compliance with Federal Tax Law Requirements. With respect to any
Bonds, Purchaser agrees that it will promptly act in accordance with
written instructions which SCPPA may reasonably require from time to
time in connection with the Federal Tax Law Requirements, and in
addition Purchaser will not at any time take any action, or fail to take any
action, if such action or failure to take action would result in or cause non-
compliance with Federal Tax Law Requirements. The Purchaser agrees to
execute new or revised tax certificates or provide such information or
other assurance respecting past and future compliance with the Federal
Tax Law Requirements applicable to any Bonds as may be reasonably
requested by SCPPA. In connection therewith, Purchaser shall cooperate
with and provide to SCPPA such other information, representations and
certifications as necessary for Bond Counsel or Tax Counsel to render an
opinion or advise to the effect that any applicable Federal Tax Law
Requirements are met.
10.3 SCPPA to Issue Rules, Procedures and Protocols. SCPPA shall develop
and promulgate such rules, procedures and protocols, together with
amendments thereto, as necessary, in consultation with Bond Counsel or
Tax Counsel, to ensure compliance with any applicable Federal Tax Law
Requirements, including to establish expectations regarding future
compliance under applicable laws and regulations existing from time to
time with respect to any Bonds, and shall include, without limitation, the
90187821.2 42
appropriate reporting, documentation and certifications to establish and
maintain compliance with the provisions of this Section 10.
11. PROJECT SPECIFIC MATTERS AND PROJECT PARTICIPANT RIGHTS AND
OBLIGATIONS UNDER PROJECT AGREEMENTS.
11.1 Rights and Obligations under the-Project Agreements Notwithstanding
anything to the contrary contained herein: (i) the obligation of SCPPA to
deliver Purchaser's Output Entitlement Share of SCPPA Facility Output
hereunder during the Delivery Term of the Power Purchase Agreement is
limited to the SCPPA Facility Output which SCPPA receives from the
Facility (or the Power Purchase Provider, as applicable) at Purchaser's
Designated Point of Delivery for redelivery to Purchaser hereunder during
such time; (ii) the obligation of SCPPA (or the Power Purchaser Provider)
to deliver Purchaser's Output Entitlement Share of Replacement Energy
hereunder during the Delivery Term of the Power Purchase Agreement is
limited to the Replacement Energy which SCPPA receives at Purchaser's
Designated Point of Delivery under the Power Purchase Agreement,
(iii) the obligation of SCPPA to pay any amount to Purchaser hereunder or
to give credits against amounts due from Purchaser,hereunder is limited to
amounts SCPPA receives in connection with the transaction to which the
payment or credit relates (or is otherwise available to SCPPA in
connection with this Agreement for which such payment or credit relates);
(iv) any purchase costs, operating costs, energy costs, capacity costs,
environmental attribute costs, transmission costs, tax costs, insurance
costs, indemnifications, other costs or other charges for which SCPPA is
responsible under the Project Agreements shall be considered purchase
costs, operating costs, energy costs, capacity costs, environmental attribute
costs; transmission costs, tax costs, insurance costs, indemnifications,
other costs or other charges incurred by SCPPA and payable by Purchaser
and the other Project Participants as provided in this Agreement-, and
(v) any Force Majeure under the Power Purchase Agreement or other
event of force majeure affecting the delivery of energy pursuant to
applicable provisions of the Project Agreements shall be considered an
event caused by Uncontrollable Forces affecting SCPPA with respect to
the delivery of energy and/or environmental attributes hereunder and
SCPPA forwarding to Purchaser notices and information from the Power
Purchase Provider concerning an event of Force Majeure upon receipt
thereof shall be sufficient to constitute a notice that Uncontrollable Forces
have occurred pursuant to Section 16.3 of this Agreement.
11.2 Acquisition of the Facility by SCPPA. The Parties mutually acknowledge
and agree that SCPPA may, under certain circumstances, acquire
ownership of the Facility or an ownership interest therein, and succeed to
the rights and obligations associated with such ownership with respect to
the Facility pursuant to the provisions of the Power Purchase and Security
Agreements, including the purchase of rights and interests under the
9018 7821.2 43
Facility Credit Agreements or pursuant to any security interest in the
Project held by any third party, or through foreclosure action (or a deed in-
lieu-of foreclosure) or under and pursuant to any of the Security
Instruments, or purchase at foreclosure sale, including, but not limited to,
the rights and obligations under operating agreements and the ownership
interests with respect to the leasehold estates, rights-of-way and other real
property interests upon which the Facility is situated, at such time and
under such terms as provided in the Power Purchase and Security
Agreements or on such other terms as may be agreed upon between
SCPPA and the Power Purchase Provider, or otherwise. The Parties also
anticipate that any such Acquisition of the Facility, or an ownership
interest therein may be carried out with SCPPA financing. If, pursuant to
the recommendation of the Coordinating Committee and approval of the
Board of Directors, SCPPA should enter into any arrangement to purchase
or acquire the Facility, or any ownership interest therein, pursuant to the
Power Purchase and Security Agreements or, subject to the
recommendation of the Coordinating Committee and approval of the
Board of Directors, SCPPA exercises any option to purchase or acquire
the Facility or any ownership interest therein as provided in the Power
Purchase and Security Agreements or to purchase rights and interests
under the Facility Credit Agreements, or otherwise acquires the Facility or
an ownership interest therein, pursuant to any of the Security Instruments
or any of the foregoing, SCPPA may finance the associated Cost of
Acquisition through the issuance of Bonds.
11.3 Payment Special Pa Obligations vym e ons in Advance of the Issuance of Bonds. In the
event the Board of Directors anticipates that SCPPA will be obligated to
make a substantial payment under a Project Agreement which may be
reimbursed from the proceeds of Bonds (a "Special Obligation") and it is
anticipated that there will not be time to issue Bonds, or that it is otherwise
impracticable to issue Bonds, to cover such Special Obligation, and the
amounts available through other cost payment mechanisms under this
Agreement are not sufficient to timely pay such Special Obligation at the
time it may come due, the Board of Directors may take action by
resolution in advance of the time anticipated for payment of such Special
Obligation to impose upon Purchaser the obligation to make such
payment. Purchaser shall pay its share of such costs within seven (7) days
of receiving an invoice therefor (a "Special Obligation Billing Statement")
from SCPPA which Special Obligation Billing Statement shall describe
the Special Obligation. In case any portion of any Special Obligation
Billing Statement received by Purchaser from SCPPA shall be in bona fide
dispute, Purchaser shall pay SCPPA the full amount of such Special
Obligation Billing Statement and, upon determination of the correct
amount, the difference between such correct amount and such full amount,
if any, including interest at the rate received by SCPPA on any
overpayment, will be credited to Purchaser by SCPPA after such
determination; provided, however, that such interest shall not accrue on
901 97821.2 44
any overpayment that is acknowledged by SCPPA and returned to
Purchaser by the fifth (5th) Business Day following the receipt by SCPPA
of the disputed overpayment. In the event such Special Obligation Billing
Statement is in dispute, SCPPA will give consideration to such dispute and
will advise Purchaser with regard to SCPPA's position relative thereto
within thirty (30) days following receipt of written notification from
Purchaser of such dispute. Should Purchaser satisfy such a Special
Obligation through its own resources, at the request of Purchaser SCPPA
will endeavor to reimburse such payments from the proceeds of future
financings to the extent, if applicable, permitted by the Federal Tax Law
Requirements.
12. PLEDGE OF PAYMENTS. All or any portion of the payments required to be made by
Purchaser in accordance with or pursuant to any provision of this Agreement may be
pledged by SCPPA to secure the payment of the Bonds, and interest thereon, subject to
the application thereof to such purposes and on such terms as provided in the Indenture,
and as required by the Act. SCPPA may assign, among other rights and security, to the
Project Trustee or Lender its rights to receive from Purchaser all or any portion of the
payments to be made by Purchaser pursuant to this Agreement. SCPPA may direct
Purchaser to make all or any portion of such payments directly to the Project Trustee or
Lender for application by the Project Trustee or Lender under the Indenture.
Notwithstanding the foregoing or any other provision of this Agreement, SCPPA shall
not acquire the Facility unless there shall be compliance with the applicable provisions of
Section 10 and with the provisions of the Indenture applicable to the acquisition of the
Facility.
13. ISSUANCE OF BONDS.
13.1 Issuance of Bonds. Bonds will be issued by SCPPA in accordance with
this Agreement, the provisions of the Indenture and the Act for the
purpose of financing the Cost of Acquisition, which may entail, among
other things, the acquisition resulting from the exercise of the purchase
option in the Power Purchase Agreement, and, if applicable, the purchase
or acquisition of the Facility or an ownership interest therein and all or any
portion of associated assets, rights and interests under or pursuant to the
Power Purchase and Security Agreements, and any other Acquisitions and
any Capital Improvements.
13.2 Additional Bonds. Additional Bonds may be issued by SCPPA in
accordance with this Agreement, the provisions of the Indenture and the
Act at any time and from time to time in the event funds are required for
further development or completion of the Project or for the purpose of
financing any further Cost of Acquisition or other Acquisitions or Capital
Improvements, including without limitation the cost of acquiring the
Facility or an ownership interest therein or the rights and interests
otherwise described in Section 11.2, and upon the recommendation of the
90187821.2 45
Coordinating Committee and approval of the Board of Directors, SCPPA
shall use its best efforts to issue such additional Bonds.
13.3 Refunding Bonds. In the event that Monthly Costs may be reduced by the
refunding of any of the Bonds or in the event it shall otherwise, for one or
more of the Project Participants, be advantageous, in the opinion of
SCPPA, to refund any Bonds, SCPPA may issue and sell refunding Bonds
in accordance with the Indenture and the Act.
13.4 Opinions of Counsel. In connection with the issuance of Bonds,
additional Bonds or refunding Bonds for the purposes described in this
Section 13, Purchaser shall provide an opinion of an attorney or firm of
attorneys, or the equivalent thereof, in substantially the form as attached
hereto as Appendix D as may be reasonably necessary to facilitate the
issuance of such Bonds.
13.5 Redemption or Payment of Bonds. SCPPA may issue such bonds, notes,
certificates of participation, commercial paper, other evidences of
indebtedness or other instruments, in accordance with the Indenture and
the Act, as it may deem appropriate to facilitate the redemption or
payment of Bonds.
13.6 Bond-Related Documents. Purchaser agrees to supply SCPPA, upon
written request, with such additional information and documentation as
SCPPA shall reasonably determine to be necessary or desirable to
facilitate the issuance of Bonds, additional Bonds or refunding Bonds for
the purposes described in this Section 13 and to comply with Federal Tax
Law Requirements and continuing disclosure requirements including, but
not limited to, requirements under the United States Securities and
Exchange Commission Rule 15c2-12.
14. EXCESS BOND PROCEEDS. In the event the proceeds derived from the sale of any
Bonds exceed the aggregate amount required for the purposes for which such Bonds were
issued, the amount of such excess shall be used, after prior consultation with Bond
Counsel or Tax Counsel, to make up any deficiency existing in any Funds under the
Indenture in the manner therein provided, and any balance shall (i) be used to retire, by
purchase or redemption, Bonds in advance of maturity, (ii)be deposited in any applicable
account established in accordance with Section 7.8 hereof, (iii) reduce the payments by
the applicable Project Participants required pursuant to Section 7 hereof, and in such
event SCPPA will reduce the monthly Billing Statements of such Project Participants as
are necessary and appropriate, or (iv)be used for other lawful Project expenses or
purposes.
9018782 L2 46
15. NONPERFORMANCE AND PAYMENT DEFAULT.
15.1 Nonperformance by Purchaser. If Purchaser shall fail to perform any
covenant, agreement or obligation under this Agreement or shall cause
SCPPA to be in default with respect to any undertaking entered into for
the Project or to be in default under the Power Purchase Agreement,or
any other Project Agreement, as applicable, or cause a default to occur
pursuant to such agreements, SCPPA may, in the event the performance of
any such obligation remains unsatisfied after 30 days' prior written notice
thereof to the Purchaser and a demand to so perforin; take any action
permitted by law to enforce its rights under this Agreement, including but
not limited to termination of this Agreement, and/or (unless SCPPA has
already taken action pursuant to the immediately following sentence)
bring any suit, action or proceeding at law or in equity as may be
necessary or appropriate to recover damages and/or enforce any covenant,
agreement or obligation against the Purchaser with regard to its failure to
so perform. In addition to any other rights SCPPA may have under this
Agreement as a result of nonpayment by the Purchaser, if the Purchaser
fails to pay its share of Debt Service in accordance with this Agreement
and the result is that SCPPA defaults on the payment of principal of or
interest on any Bond or other obligations payable from the Debt Service
Fund under the Indenture, SCPPA may, immediately and without delay,
take any action permitted by law to enforce its rights under this Agreement
and/or bring any suit, action or proceeding at law or in equity as may be
necessary or appropriate to recover damages and/or enforce any covenant,
agreement or obligation against the Purchaser with regard to its failure to
so perform.
15.2 Notice of Payment Default. On or promptly following the Initial Payment
Default Date by Purchaser, SCPPA shall issue a Default Invoice and shall
provide written notice to Purchaser that as a result of a Payment Default it
is in default under this Agreement and has assumed the status of a
Defaulting Project Participant and that Purchaser's Project Rights are
subject to discontinuance, termination and disposal in accordance with
Sections 15.4 and 15.5 of this Agreement. Notice of such Payment
Default shall be provided promptly by SCPPA to the other Project
Participants and to the Project Trustee or Lender. In addition to the
foregoing, the Notice of Payment Default shall specify that five days after
the issuance of the written notice of Payment Default by SCPPA,
deliveries of SCPPA Facility Output to the Purchaser pursuant to this
Agreement shall be thereafter suspended until such time as Purchaser is in
Compliance. SCPPA may take any action through or in conjunction with
the Power Purchase Provider or any other counterparty under a Project
Agreement or with the Project Manager, if applicable, to expeditiously
carry forth the provisions of this Section 15.
90187821.2 47
i
15.3 Cured Payment Default. Except for a Payment Default which causes
SCPPA to default on the payment of principal of or interest on Bonds or
other obligations payable from the Debt Service Fund under the Indenture,
which shall be subject to and addressed as provided in Section 15.4 and
the other applicable sections of this Agreement, and except as provided in
Section 15.14, if after a Payment Default, Purchaser cures such Payment
Default within 30 days (the Cure Period) its Project Rights shall not be
subject to discontinuance, termination or disposal as provided for in
Sections 15.4 and 15.5 of this Agreement as a result of any Payment
Default associated with such Cured Payment Default.
15.4 Failure to Cure Pavment Default. If at any time 30 days after an uncured
Payment Default by Purchaser, Purchaser fails to be in Compliance, or if
at any time SCPPA defaults on the payment of principal of or interest on
any Bond, or other obligations payable from the Debt Service Fund under
the Indenture, due to the failure of the Defaulting Project Participant to
pay its share of Debt Service in a timely manner in accordance with this
Agreement, Purchaser's Project Rights shall immediately be discontinued
and terminated and its Project Rights and Obligations shall be disposed of
by SCPPA in accordance with Section 15.5 of the Defaulting Project
Participant's Power Sales Agreement; provided, however, the Defaulting
Project Participant's obligation to make payments under its Power Sales
Agreement shall not be eliminated or reduced except to the extent
provided in Section 15.6. SCPPA shall provide to the Defaulting Project
Participant a separate monthly invoice of any such payment obligations
under its Power Sales Agreement. SCPPA shall immediately notify the
Project Manager (if other than SCPPA), the other Project Participants and
the Project Trustee or Lender, and such others as SCPPA deems
appropriate, of such discontinuance and termination of a Defaulting
Project Participant's Project Rights.
15.5 Treatment of the Defaulting Project Participant's Project Rights and
Obligations upon Payment Default of Defaulting Project Participant. In
the event Defaulting Project Participant's Project Rights are discontinued
and terminated pursuant to Section 15.4 of its Power Sales Agreement,
SCPPA shall undertake or cause to be undertaken the following actions in
the order indicated:
15.5.1 SCPPA shall offer to convey, transfer and assign to all non-
Defaulting Project Participants, on a temporary or permanent
basis as determined by SCPPA, the Project Rights and
Obligations of Defaulting Project Participant, and SCPPA shall
so convey, transfer and assign on such basis so determined by
SCPPA to (i) all requesting non-Defaulting Project Participants
the amount of Project Rights and Obligations requested if the
aggregate of such requests does not exceed the amount of the
Project Rights and Obligations of the Defaulting Project
901878212 48
V
Participant, or (ii) all requesting non-Defaulting Project
Participants on a pro-rata basis (based upon the amount
requested) if the aggregate of such requests exceeds the amount
of the Project Rights and Obligations of the Defaulting Project
Participant; provided, however, that SCPPA shall not offer or
permit the conveyance, transfer or assignment of Defaulting
Project Participant's Project Rights and Obligations in such a
manner or in such an amount as, in the opinion of Bond Counsel
or Tax Counsel, would violate any provision of the Indenture or
result in or cause non-compliance with the Federal Tax Law
Requirements relating to (if applicable) the Bonds. Each such
requesting non-Defaulting Project Participant shall assume all,
but not less than all, Project Rights and Obligations so conveyed,
transferred and assigned to it by SCPPA.
15.5.2 If all of Defaulting Project Participant's Project Rights and
Obligations are not conveyed, transferred and assigned to non-
Defaulting Project Participants as provided in Section 15.5.1 of
its Power Sales Agreement, SCPPA shall, to the extent SCPPA
in its discretion determines it appropriate, offer to convey,
transfer and assign, on a temporary or permanent basis as
determined by SCPPA, the remaining (or all, if applicable) of
Defaulting Project Participant's Project Rights and Obligations
to third parties, all in accordance with applicable law; provided,
however, that SCPPA shall not offer or permit the conveyance,
transfer or assignment of Defaulting Project Participant's Project
Rights and Obligations in such a manner or in such an amount as
would, in the opinion of Bond Counsel or Tax Counsel, violate
any provision of the Indenture or result in or cause non-
compliance with the Federal Tax Law Requirements relating to
(if applicable) the Bonds. Each such requesting third party shall
assume all, but not less than all, Project Rights and Obligations
so conveyed, transferred and assigned to it by SCPPA.
15.5.3 If, at any time or from time to time, any of the Project Rights
and Obligations of a Defaulting Project Participant are not
conveyed, transferred and assigned as provided in
Sections 15.5.1 or 15.5.2 of its Power Sales Agreement, SCPPA
shall use its best efforts, to the extent reasonably possible and
economically beneficial, to offer all non-Defaulting Project
Participants and third parties, for long-term or short-term sale as
determined by SCPPA, Facility Output associated with such
Project Rights and Obligations or to remarket or resell such
SCPPA Facility Output, or cause the same to be remarketed or
resold; provided, however, that SCPPA shall not offer or permit
the sale or remarketing of such SCPPA Facility Output
associated with Defaulting Project Participant's Project Rights in
90187821.2 49
i
such a manner or in such an amount as would, in the opinion of
Bond Counsel or Tax Counsel, violate any provision of the
Indenture or result in or cause non-compliance with the Federal
Tax Law Requirements relating to (if applicable) the Bonds; and
provided further, however, that without eliminating Defaulting
Project Participant's obligation to make payments under its
Power Sales Agreement (notwithstanding anything to the
contrary in this Agreement), including payment of SCPPA's
costs and expenses related to such default and sale, such
payment obligation shall be satisfied to the extent that payments
are received by SCPPA from the remarketing or sale of SCPPA
Facility Output associated with Defaulting Project Participant's
Project Rights. If at the time of any Coordinating Committee
meeting, any of Defaulting Project Participant's Project Rights
and Obligations are not conveyed, transferred and assigned as
provided in Sections 15.5.1 or 15.5.2, the associated voting
rights with respect to Defaulting Project Participant's Project
Rights and Obligations shall be redistributed pro rata among the
non-Defaulting Project Participants, based upon each non-
Defaulting Project Participant's Output Entitlement Share, so
that the total voting rights remain at 100%.
Except as provided in this Section 15.5 or otherwise in this Agreement,
SCPPA may not convey, transfer or assign any Project Participant's
Rights and Obligations without the prior written consent of the Project
Participant.
15.6 Elimination or Reduction of Payment Obligations. Upon termination of
Defaulting Project Participant's Project Rights pursuant to Section 15.5
and conveyance, transfer or assignment of Defaulting Project Participant's
Project Rights and Obligations pursuant to Sections 15.5.1 or 15.5.2,
Defaulting Project Participant's obligation to make payments under its
Power Sales Agreement (notwithstanding anything to the contrary in this
Agreement) shall not be eliminated or reduced except to the extent of
moneys received by SCPPA as a result of the conveyance, transfer and
assignment of Defaulting Project Participant's Project Rights and
Obligations, less SCPPA's related costs and expenses; provided, however,
such payment obligations for Defaulting Project Participant may be
eliminated or reduced to the extent permitted by law, if and to the extent
any costs incurred by SCPPA have been fully paid, and (a) no Bonds are
outstanding or adequate provision for the payment thereof has been made
in accordance with the applicable provisions of the Indenture and (b) the
Board of Directors, by resolution, determines to eliminate or reduce such
payment obligations, which determination shall not be unreasonably
withheld.
901 87821.2 50
15.7 Use of Operating Reserve Account. With respect to a Payment Default by
Purchaser, funds in the operating reserve account, if any, under the
Indenture may be used, to the extent necessary and to the extent available
and consistent with the Indenture, to cover any deficiency with respect to
any payment due by SCPPA attributable to Purchaser's participation in the
Project under the Indenture during the period prior to the Operating
Reserve Depletion Date. Any replenishing of the operating reserve
account under the Indenture shall be in accordance with the Indenture.
15.8 Use and Replenishment of Debt Service Reserve Fund(s). SCPPA may
maintain Debt Service Reserve Fund(s) which shall be funded and
maintained in the amount(s) specified in the Indenture. With respect to a
Payment Default by Purchaser, funds (or any surety bond, credit facility or
similar instrument) in the Debt Service Reserve Fund(s) under the
Indenture shall be used, to the extent necessary and to the extent available,
to cover any shortfall in the Debt Service account(s) relating to the
Indenture to pay for Debt Service (but, unless otherwise provided in the
Indenture, not the payment of other obligations payable from amounts
deposited in the Debt Service Fund). The replenishment of the Debt
Service Reserve Fund(s) shall be in accordance with the Indenture.
15.9 Step-Up Invoices. Step-Up Invoices shall be issued in accordance with
the provisions set forth below.
15.9.1 In the event of a Payment Default by one or more Project
Participants, SCPPA shall provide by the fifth day of the month
following such Payment Default(s) a separate Step-Up Invoice
to each non-Defaulting Project Participant that specifies the non-
Defaulting Project Participant's pro rata share, based upon the
Indenture Cost Shares of all non-Defaulting Project Participants,
of the amount of the Payment Defaults with respect to the
Indenture cost component (described in Section 4.9.5 hereof) set
forth in the Billing Statement(s) for the Defaulting Project
Participant(s). Notwithstanding the previous sentence, (i) the
amount of a Step-Up Invoice provided to a non-Defaulting
Project Participant under this Section 15.9.1 shall not exceed
100% of the amount that such non-Defaulting Project Participant
was billed for the Indenture cost component (described in
Section 4.9.5 hereof) in its Billing Statement for the Month
preceding such monthly Step-Up Invoice and (ii) following the
Operating Reserve Depletion Date, the provisions of
Section 15.9.2 hereof shall apply and no additional Step-Up
Invoices shall be issued pursuant to this Section 15.9.1 with
respect to such Payment Default.
90197821.2 51
15.9.2 In the event of a Payment Default by one or more Defaulting
Project Participants, which is in existence following the
Operating Reserve Depletion Date, SCPPA shall provide by the
fifth day of the Month following such Operating Reserve
Depletion Date, a separate Step-Up Invoice to each
non-Defaulting,Project Participant that includes a charge equal
to the non-Defaulting Project Participant's pro rata share, based
upon the Project Cost Shares of all non-Defaulting Project
Participants, of the amount of Total Monthly Costs reflected in
the unpaid Billing Statements for the previous Month for such
Defaulting Project Participant(s). Notwithstanding the
foregoing, the amount of each monthly Step-Up Invoice
provided to a non-Defaulting Project Participant shall not exceed
100% of the aggregate amount that such non-Defaulting Project
Participant was billed with respect to Total Monthly Costs in its
Billing Statement for the Month preceding such monthly Step-
Up Invoice.
15.9.3 Step Up Invoices shall be due and payable within 20 days of the
receipt thereof, and payments to SCPPA with respect to Step-Up
Invoices shall be separate from any other payments due under
each Project Participant's Power Sales Agreement, including but
not limited to monthly Billing Statement payments.
15.10 Application of Moneys Received from Step-Up Invoices Relating to the
Project. Moneys received by or on behalf of SCPPA from the payment of
Step-Up Invoices relating to a Payment Default of a Project Participant
shall be applied in the following manner:
15.10.1 Moneys received from Project Participants with respect to the
Indenture cost component (described in Section 4.9.5 hereof), as
set forth in the Step-Up Invoices, to the extent such moneys
relate to Debt Service, shall be forwarded to the Project Trustee
or Lender for deposit directly into the Debt Service Fund under
the Indenture, and to the extent such moneys relate to any other
portion of the Indenture cost component, shall be forwarded to
the Project Trustee or Lender for deposit into such other Funds
as are appropriate under the Indenture.
15.10.2 Moneys received from the Project Participants with respect to
the amount of Total Monthly Costs (described in Section 4.8 or
Section 4.9 hereof, other than Section 4.9.5) as set forth in the
Step-Up Invoices, shall be forwarded to the Project Trustee or
Lender for deposit into the Revenue Fund under the Indenture,
as appropriate, or into such other Funds as are appropriate under
the Indenture.
90187821.2 52
15.10.3 In the event a Project Participant pays less than the total amount
of its Step-Up Invoice, such Project Participant shall be a
Defaulting Project Participant and its partial payment shall be
allocated in the following order: (i) all Total Monthly Costs
(described in Section 4.8 or Section 4.9 hereof) except the
Indenture cost component described in Section 4.9.5 hereof, and
(ii) the Indenture cost component (described in Section 4.9.5
hereof).
15.11 Application of Moneys Received from Default Invoices. Moneys received
by or on behalf of SCPPA from the payment of Default Invoices shall be
forwarded by SCPPA to the Project Trustee or Lender for deposit into the
Revenue Fund of the Indenture, as appropriate, or into such other Funds as
are appropriate under the Indenture. SCPPA shall credit on each non-
Defaulting Project Participant's next monthly Billing Statement or Billing
Statements an amount equal to the aggregate amount such non-Defaulting
Project Participant paid as a result of Step-Up Invoices with respect to
such Default Invoice, plus a pro rata share, based upon the Project Cost
Shares of the non-Defaulting Project Participants, of the amount SCPPA
received regarding late payment interest charges. In the event a Defaulting
Project Participant pays less than the full amount of its Default Invoice.
the credit to each non-Defaulting Project Participant shall be adjusted
proportionately.
15.12 Application of Moneys Received from Compliance Payments. Moneys
received by or on behalf of SCPPA from a Defaulting Project Participant
that makes payments to remain in Compliance with respect to a Payment
Default shall be applied in the following manner:
15.12.1 With respect to a Defaulting Project Participant's first payment
to remain in Compliance, SCPPA shall forward or cause to be
forwarded the moneys received to the Project Trustee or Lender
to be deposited into the Revenue Fund of the Indenture, as
appropriate, or into such other Funds as are appropriate under
the Indenture. SCPPA shall provide a credit on each non-
Defaulting Project Participant's next monthly Billing
Statement(s) an amount equal to the aggregate amount such non-
Defaulting Project Participant paid as a result of Step-Up
Invoices with respect to such Compliance payment, plus a pro
rata share, based upon the Project Cost Shares of the non-
Defaulting Project Participants, of the amount SCPPA received
regarding late payment interest charges.
15.12.2 With respect to a Defaulting Project Participant's payments to
remain in Compliance other than the first payment (as provided
in Section 15.12.1 hereof), SCPPA shall forward or cause to be
forwarded the moneys received to the Project Trustee or Lender
90187821.2 53
e
for deposit into the Revenue Fund of the Indenture, as
appropriate, or into such other Funds as are appropriate under
the Indenture.
15.13 Application of Moneys Received from Sale of SCPPA Facility Output.
Moneys received by or on behalf of SCPPA from the sale of SCPPA
Facility Output related to a Defaulting Project Participant's Project Rights
and Obligations, as provided in Section 15.5.3 hereof, shall be applied in
the following manner in order:
15.13.1 SCPPA shall credit on each non-Defaulting Project Participant's
next monthly Billing Statement(s) an amount up to, but not in
excess of, the aggregate amount paid to SCPPA by such non-
Defaulting Project Participant with respect to each such non-
Defaulting Project Participants Step-Up Invoices.
15.13.2 SCPPA shall forward or caused to be forwarded to the
applicable Project Trustee or Lender for deposit into the
Revenue Fund of the Indenture, as appropriate, or into such
other Funds as are appropriate under the Indenture, the
applicable portion of such moneys.
15.13.3 Following consultation with the non-Defaulting Project
Participants, SCPPA shall determine the disposition of any
moneys received that are in excess of the aggregate amount of
related Step-Up Invoices paid by non-Defaulting Project
Participants. Unless the Coordinating Committee determines
otherwise, or except as otherwise required by law, the
Defaulting Project Participant shall have no claim or right to any
such monies.
15.14 Limitation on Cure Period. Notwithstanding anything to the contrary in
this Agreement, there shall be no Cure Period with respect to Purchaser's
failure to pay those costs constituting its share of Debt Service in a timely
manner in accordance with this Agreement, and any such Debt Service not
paid by the Purchaser when due shall be immediately due and payable to
SCPPA.
16. CHARACTER, CONTINUITY OF SERVICE.
16.1 Outages, Interruptions and Curtailment of Energy Deliveries. Under
certain conditions set forth in Project Agreements or in the case of
emergencies or abnormal conditions with respect to the Facility or in order
to take the Facility out of service for repairs, maintenance work,
replacements, equipment installation or inspections, or in the event of a
failure by a Project Participant to receive or accept SCPPA Facility Output
or Replacement Energy delivered to SCPPA at a Point of Delivery, the
90187821.2 54
Power Purchase Provider or, if SCPPA shall acquire the Facility or an
ownership interest therein, SCPPA, its agent or the Project Manager, as
the case may be, may temporarily interrupt or curtail deliveries of SCPPA
Facility Output (or in the case of the Power Purchase Provider, the
Replacement Energy) to Project Participants. In the event of the
occurrence of any such interruption or curtailment, including any
associated Facility outage, which shall cause a reduction in deliveries of
SCPPA Facility Output, any incurrence by SCPPA of additional costs, or a
receipt by SCPPA of payments or credits under any Project Agreement,
certain of the rights, entitlements and obligations of the affected Project
Participants under their respective Power Sales Agreements shall be
subject to adjustment as follows:
16.1.1 In the case of such an interruption, curtailment or outage affecting
the deliveries of SCPPA Facility Output at or to the Point of
Interconnection, (i) the resulting reduction in SCPPA Facility
Output at the Point of Interconnection shall be shared by the
Project Participants pro rata in accordance with their respective
Point of Interconnection Allocable Shares, and (ii) any resulting
costs incurred by SCPPA or payments or credits received by
SCPPA shall be allocated among the Project Participants in
accordance with their respective Project Cost Shares.
16.1.2 In the case of such an interruption or curtailment that affects
deliveries of SCPPA Facility Output from the Point of
Interconnection to any Point of Delivery, and as a result thereof
SCPPA shall receive any payment or credit, each affected Project
Participant shall in turn receive a credit on its monthly Billing
Statement (i) during the term of the Power Purchase Agreement,
in the amount of its Delivery Point Output Cost Share of such
payment or credit received by SCPPA, and (ii) commencing upon
an Acquisition by SCPPA of the Facility or an ownership interest
therein, the amount of its Transmission Services Cost Share of
such payment or credit received by SCPPA.
16.1.3 In the case where a Project Participant fails to accept or receive at its
Designated Point of Delivery all or any portion of its Output
Entitlement Share of SCPPA Facility Output or Replacement Energy
delivered to such Point of Delivery, such Project Participant shall be
responsible for any cost incurred by SCPPA which is attributable to
such failure and the amount of such cost shall be added to such
Project Participant's monthly Billing Statement.
16.1.4 No such interruption or curtailment of deliveries of SCPPA Facility
Output, including any interruption or curtailment due to a Facility
outage, shall relieve any of the Project Participants of their
90187821.2 55
obligations to make payments under their respective Power Sales
Agreements.
16.1.5 SCPPA or the Project Manager (if other than SCPPA) or SCPPA's
agent will use its best efforts to apprise the affected Project
Participants of potential outages, interruptions or curtailments, the
reason therefor and the probable duration thereof, when such
outages, interruptions or curtailments can be deemed likely to occur.
16.1.6 After informing the affected Project Participants regarding any such
planned interruption or curtailment, giving the reason therefor, and
stating the probable duration thereof, SCPPA, its agent or the Project
Manager, as applicable, will to the best of its ability schedule such
interruption or curtailment at a time which will cause the least
interference with the system operations of the Project Participants.
16.2 Uncontrollable Forces. SCPPA shall not be required to provide, and
SCPPA shall not be liable for failure to provide, SCPPA Facility Output or
other service under this Agreement when such failure or the cessation or
curtailment of or interference with the service is caused by Uncontrollable
Forces or by the inability of SCPPA, the Power Purchase Provider or other
applicable counterparty to obtain any required governmental permits,
licenses or approvals to enable SCPPA or the Power Purchase Provider, as
applicable, to acquire, administer or operate the Project; provided,
however, that Purchaser and the other Project Participants shall not
thereby be relieved of their obligations to make payments under their
respective Power Sales Agreements except to the extent SCPPA is so
relieved pursuant to the Indenture and/or other applicable Project
Agreements.
17. SEVERAL OBLIGATION; LIABILITY.
17.1 Project Participants' Obligations Several. Purchaser and the other Project
Participants shall be severally responsible and liable for performance
under their respective Power Sales Agreements, and for any respective
arrangements which are not part of the Project. The obligation of
Purchaser to make payments under this Agreement is a several obligation
and not a joint obligation with those of the other Project Participants under
the other Power Sales Agreement to which such Project Participants are
parties.
17.2 No Liability of SCPPA, Directors, Officers, Etc.; SCPPA Directors,
Officers, Employees, Project Manager Not Individually Liable. Purchaser
agrees that neither SCPPA, the Project Manager, nor any of their directors,
officers, or employees shall be liable to Purchaser for any and all claims,
including loss of profits, direct or consequential loss, or damage suffered
by Purchaser as a result of(i) the performance or non-performance by the
Power Purchase Provider or the Project Manager or any of its directors,
90187821.2 56
officers,. and employees under this Agreement or any Project Agreement
(including negligent or grossly negligent acts or omissions and excluding
willful misconduct) or (ii) the performance or non-performance of
SCPPA, the Project Manager, or any of their directors, officers, or
employees under this Agreement or any Project Agreement (including
negligent or grossly negligent acts or omissions and excluding willful
misconduct). Purchaser releases SCPPA and its directors, officers, and
employees and the Project Manager from any claim or liability that
Purchaser may have cause to assert as a result of any actions or inactions
of SCPPA under this Agreement or the performance or non-perfonnance
by the Project Manager under this Agreement or any Project Agreement
(including negligent or grossly negligent acts or omissions and excluding
willful misconduct). No such performance or non-performance by the
Project Manager, the Power Purchase Provider, or SCPPA shall relieve
Purchaser from its obligations under this Agreement, including its
obligation to make payments required under this Agreement. The
provisions of this Section 17.2 shall not be construed so as to relieve the
Project Manager or the Power Purchase Provider from any obligation (or
liability in the case of the Power Purchase Provider) under this Agreement,
the Power Purchase and Security Agreements or any other applicable
Project Agreement. It is also hereby recognized and agreed that no
member of the Board of Directors, the Project Manager, nor their officers
or employees or member of SCPPA in its capacity as a member of
SCPPA, shall be individually liable in respect of any undertakings by
SCPPA under this Agreement or any Project Agreement.
17.3 Extent of Exculpation; Enforcement of Rights. The exculpation provision
set forth in Section 17.2 hereof shall apply to all types of claims or actions
including, but not limited to, claims or actions based on contract or tort.
Notwithstanding the foregoing, Purchaser may protect and enforce its
rights under this Agreement by a suit or suits in equity for specific
performance of any obligations or duty of SCPPA, and Purchaser shall at
all times retain the right to recover, by appropriate legal proceedings, any
amount determined to have been an overpayment by Purchaser in
accordance with Section 7.4 hereof.
17.4 Determination or Enforcement of Rights. Notwithstanding Section 17.2
and 17.3 hereof, Purchaser or SCPPA may determine, protect and enforce
its rights under this Agreement or any Project Agreement by a suit(s) in
equity for specific performance of, or declaratory action with respect to,
any obligation or duty hereunder or thereunder.
17.5 No Relief From Insurer's Obligations. Notwithstanding any provision in
this Agreement to the contrary, including but not limited to the provisions
in this Section 17, the provisions of this Section 17 shall not be construed
or applied so as to relieve any insurer of its obligation to pay any
insurance claims in accordance with any applicable insurance policy.
90187821.2 57
17.6 No General Liability of SCPPA. The undertakings under this Agreement
by SCPPA, or the Project Manager in its capacity as such, shall never
constitute a debt or indebtedness of SCPPA or the Project Manager within
the meaning of any provision or limitation of the Constitution or statutes
of the State of California and shall not constitute or give rise to a charge
against its general credit.
18. RESTRICTIONS ON DISPOSITION.
18.1 Limitations Concetnine Private Use. Purchaser recognizes that certain
Federal Tax Law Requirements, if applicable, limit the arrangements
permitted with respect to the purchase, sale, assignment or other
disposition of Purchaser's Project Rights and Obligations. Purchaser shall
comply with the rules, procedures and protocols promulgated by SCPPA
pursuant to Section 10.3 with respect to compliance with the Federal Tax
Law Requirements, applicable, to any Bonds. Except as provided in
Section 6.2.9 or Section 15 hereof, no sale, assignment or other disposition
of all or any portion of Purchaser's Project Rights and Obligations,
including the Purchaser's Output Entitlement Share with respect to the
Project, shall be effective until (i) Purchaser shall have given prior written
notice thereof to SCPPA, and (ii) unless waived by the Board of Directors
after consultation with Bond Counsel or Tax Counsel, Bond Counsel or
Tax Counsel shall have rendered an opinion that such sale, assignment or
other disposition will not result in or cause non-compliance with any
applicable Federal Tax Law Requirements and will not be inconsistent
with the Power Sales Agreements. Notwithstanding the immediately
preceding sentence, Purchaser may (without giving such notice or
obtaining such opinion) contract to provide or otherwise sell or dispose of
the SCPPA Facility Output to which it is entitled hereunder in a
transaction which complies with guidelines established by SCPPA and
approved by SCPPA's Bond Counsel or Tax Counsel from time to time.
In addition to the forgoing, no such sale, assignment or disposition shall
cause SCPPA to be in default of any term or condition of the Power
Purchase Agreement.
18.2 Restrictions on Elimination of Payment Obligations. No sale, assignment
or other disposition of Purchaser's Project Rights and Obligations to any
Person ("Assignee") that occurs when any Bonds are outstanding shall
release Purchaser from its payment obligations under this Agreement;
provided, however, such payment obligations may be eliminated or
reduced if no Bonds are outstanding or adequate provisions for the
payment thereof have been made in accordance with the provisions of the
Indenture if(i) such Assignee shall assume and agree to fully perform and
discharge the Project Rights and Obligations under this Agreement,
(ii) unless otherwise provided by resolution of the Board of Directors,
such Assignee shall have a corporate or long-term senior unsecured credit
rating not less than Standard & Poors A- or Moody's A3, and (iii)the
90187821.2 58
Board of Directors, by resolution, determines in its sole discretion to
eliminate or reduce such payment obligations. For avoidance of doubt,
notwithstanding the forgoing, no such sale, assignment or disposition shall
cause SCPPA to be in default of any term or condition of the Power
Purchase Agreement or of any Project Agreement.
18.3 Restrictions on Disposition of Purchaser's Entire System. Purchaser shall
not sell, lease or otherwise dispose of all or substantially all of its electric
system to any Person ("Acquiring Entity") unless the following conditions
shall be met: (A) in the event that Bonds are outstanding then
(i) Purchaser shall assign its Project Rights and Obligations hereunder to
such Acquiring Entity and such Acquiring Entity shall assume and agree
to fully perform and discharge the Project Rights and Obligations under
this Agreement, (ii) such sale, lease or other disposition shall not, in and of
itself, cause the rating of any Bonds to be downgraded, suspended or
withdrawn (which fact shall be evidenced by letters of the rating agencies
then rating the Bonds), and (iii) such sale, lease or other disposition will
not adversely affect the value of this Agreement as security for the
payment of the Indenture cost component; (B) in the event that no Bonds
are outstanding or adequate provisions for the payment thereof have been
made in accordance with the provisions of the Indenture then (i) such
Acquiring Entity shall assume and agree to fully perform and discharge
the Project Rights and Obligations under this Agreement, and (ii) such
Acquiring Entity shall have a corporate or long-term senior unsecured
credit rating not less than investment grade; and (C) in all cases, unless
waived by SCPPA after consultation with Bond Counsel or Tax Counsel,
Bond Counsel or Tax Counsel shall have rendered an opinion that such
sale, lease or other disposition will not result in or cause non-compliance
with any applicable Federal Tax Law Requirements with respect to any
Bonds.
18.4 Successors and Assigns. Subject in all respects to Sections 15 and 18
hereof, the Project Rights and Obligations under this Agreement shall
inure to the benefit of and shall be binding upon the respective successors
and assigns of the parties to this Agreement.
19. REIMBURSEMENT OF PROJECT DEVELOPMENT COSTS. Within 90 days
after the issuance of the first Bonds all of the following project development costs and
expenses and other applicable costs for Development Work, paid by Purchaser prior to
the date of such issuance, to the extent reimbursable under applicable tax law and
regulations, shall be reimbursed to Purchaser by SCPPA from the proceeds of the Bonds
(in an amount determined by the Coordinating Committee or Board of Directors, as
appropriate): costs of planning and development of the Project; costs relating to any
acquisition of the Project; costs of investigation and feasibility studies; technical, legal
and financing expenses; legal costs including but not limited to the costs of Bond
Counsel, Tax Counsel, electric utility counsel, secured transaction and real estate
specialists, solar energy counsel, environmental counsel,bankruptcy counsel, and counsel
90187821.2 59
experienced in securing and facilitating this transaction under California, Arizona, and
Federal law, costs of obtaining permits, clearances, licenses, entitlements and approvals
or other governmental authorizations, options or rights therein; costs of preparing
agreements or other documents; and other costs relating to the Project in amounts
determined by the Coordinating Committee.
20. EFFECTIVE DATE, TERM AND EXPIRATION.
20.1 Effective Date: Execution in Counterparts. This Agreement shall become
effective on the first day when all of the following shall have occurred:
(i) this Agreement shall have been duly executed and delivered by SCPPA
and Purchaser, (ii) the Power Purchase Agreement shall have been duly
executed and delivered by SCPPA and the Power Purchase Provider, and
(iii) the Power Sales Agreement between SCPPA and the other Project
Participants shall have been duly executed and delivered by the parties
thereto. Once the Power Purchase Agreement has been executed and
delivered as set forth above, SCPPA shall deliver a copy of the same to
Purchaser. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original.
20.2 Termination Conditions. This Agreement shall be effective upon
satisfaction of the conditions set forth in Section 20.1 and shall extend for
the term specified in Section 20.3 unless earlier terminated pursuant to an
express provision of this Agreement, or by operation of the Indenture or of
law; provided, however, that (i) any obligation to make payments to
SCPPA or any outstanding liability of Purchaser hereunder which either
exists or may exist as of the date of termination of this Agreement, or
which comes into existence at any future time as a result of any activity or
transaction carried forth under this Agreement, shall survive such
termination and (ii) any obligation of SCPPA or Purchaser hereunder to
comply with the Federal Tax Law Requirements shall continue until such
time as provided in Section 23.3.
20.3 Expiration. The term of this Agreement shall begin on the day this
Agreement becomes effective pursuant to Section 20.1 hereof. Unless
terminated earlier pursuant to Sections 20.4 or 20.5 and subject to
Section 23 hereof, the term of this Agreement shall expire on the later of:
(i) the date SCPPA's Joint Powers Agreement (including any extensions
thereof) expires or (ii) the date on which all Bonds and the interest thereon
shall have been paid in full or adequate provision for such payment shall
have been made and the Bonds are no longer outstanding; provided,
however, that in no event shall the term of this Agreement expire so long
as the Power Purchase Agreement is of any force or effect.
20.4 Transfer of SCPPA Interest. Except as provided in Section 20.5 hereof,
and subject to any applicable provisions of any associated operating
agreements, upon the expiration of the term of this Agreement pursuant to
90187821.2 60
Section 20.3 hereof, in the event SCPPA shall have purchased or acquired
the Facility or an ownership interest therein, SCPPA shall transfer to the
Project Participants and each Project Participant shall assume its pro rata
share of any right, title and interest in the Facility or such ownership
interest therein, as applicable, (including all rights and obligations of
SCPPA under any Project Agreement) as evidenced by a participation
agreement developed by SCPPA and the Project Participants, unless
otherwise agreed to by SCPPA and all of the Project Participants. The
purchase price and consideration to be paid to SCPPA by Purchaser for
such transfer shall consist of the payments made by Purchaser pursuant to
this Agreement prior to the date of such transfer plus any remaining costs
or obligations incurred by SCPPA in connection with the Project.
20.5 Termination of Agreement before Expiration Date. Notwithstanding the
expiration date set forth in Section 20.3 hereof, this Agreement shall
terminate, subject to Section 23 hereof, on the date, if any, by which each
and all of the following have occurred:
20.5.1 All Bonds and the interest thereon shall have been paid in full or
adequate provision for such payment shall have been made and
the Bonds are no longer outstanding under the Indenture;
20.5.2 SCPPA notifies Purchaser that all Power Sales Agreements are
superseded as a result of each Project Participant having
(i) succeeded to SCPPA's rights through another agreement or
agreements, (ii) entered into a replacement power sales agreement
or other agreement with SCPPA or (iii) entered into a
replacement power sales agreement or other agreement with one
or more Project Participants which have become Project
Participants in the Project under another agreement. The
purchase price and consideration to be paid to SCPPA by
Purchaser with respect to any such superseding arrangement shall
consist of the payments and satisfaction of all obligations by
Purchaser under and pursuant to this Agreement prior to the
effective date of the superseding arrangement plus any remaining
costs or obligations incurred by SCPPA in connection with the
Facility or an ownership interest therein, as applicable; and
20.5.3 The Power Purchase Agreement shall no longer be of any force or
effect.
21. REVISION OF APPENDICES B AND C.
21.1 Revision of Appendices B and C. The Parties acknowledge that under the
terms of the Power Purchase Agreement SCPPA may hereafter increase its
SCPPA Facility Capacity Share of the Facility Capacity and may hereafter
enter into additional power sales agreements for the purchase of SCPPA
90187821.2 61
Facility Output by LADWP and other of its members which would then
become additional Project Participants. In such event Appendix B and
Appendix C may be revised, as applicable, so as to add Project
Participants and to adjust the Capacity Amounts, Output Entitlement
Shares, any of the Cost Shares, the Point of Interconnection Allocable
Shares and the Points of Delivery (collectively, the "Appendix A and B
Designations") as set forth in Appendix B and Appendix C, as shall be
necessary to provide for any such increase in the SCPPA Facility Capacity
Share of the Facility Capacity or the addition of Project Participants;
provided that (i) any such adjustments in Appendix B and Appendix C
shall be approved by a resolution adopted by the Coordinating Committee
(which shall include the affirmative vote of Purchaser's representative on
the Coordinating Committee if any of the Purchaser's Appendix A and B
Designations shall be so adjusted), and shall be approved by a
corresponding resolution adopted by SCPPA's Board of Directors, (ii)
such adjustments shall not result in an increase or a decrease of more than
fifty percent (50%) of the then existing Capacity Amount, Output
Entitlement Share, any Cost Share, or the Point of Interconnection
Allocable Share of Purchaser, and (iii) such adjustments shall be in
compliance with this Agreement and from and after the Acquisition by
SCPPA of the Facility or an ownership interest therein shall be subject to
and shall comply with the applicable provisions of the Indenture. The
Parties further agree that any such adjustments in Appendix B or
Appendix C shall be made pursuant to the terms of this Agreement as
entered into by the Parties and shall be treated as an element of
administration and not an amendment of this Agreement. The revised
Appendix B and Appendix C upon receipt of the approvals as provided
above and upon compliance with the other requirements set forth in this
Section 21.1 shall become Appendix B and Appendix C, respectively, to
this Agreement in replacement of the prior Appendix B and Appendix C
hereof.
21.2 Agreement Subject to the Indenture. It is recognized by the Parties hereto
that SCPPA, in undertaking the planning and financing, development,
acquisition, operation and maintenance of the Project, must comply with
the requirements of the Indenture and all conditions, permits and
approvals or other governmental authorizations necessary for such
planning, financing, development, acquisition, operation and maintenance
and it is therefore agreed that this Agreement is made subject to the
provisions of the Indenture and all such conditions, permits, approvals and
governmental authorizations
21.3 Comply With the Indenture. SCPPA covenants and agrees for the benefit
of Purchaser to comply in all material respects with all terms, conditions
and covenants of the Indenture and all conditions, permits, approvals and
governmental authorizations relating to the Project, provided that SCPPA
shall not be prevented from contesting the validity or applicability of any
90187821.2 62
such conditions, permits, approvals and governmental authorizations in
good faith by appropriate proceedings.
22. SEVERABILITY. In case any one or more of the provisions of this Agreement shall for
any reason be held to be illegal or invalid by a court of competent jurisdiction, it is the
intention of each of the Parties hereto that such illegality or invalidity shall not affect any
other provision hereof, but this Agreement shall be construed and enforced as if such
illegal or invalid provision had not been contained herein unless a court holds that the
provisions are not separable from all other provisions of this Agreement.
23. CONDITIONS TO TERMINATION OR AMENDMENT.
23.1 No Adverse Effect. So long as any of the Bonds are outstanding under the
Indenture, this Agreement shall not be terminated, amended, modified or
otherwise altered in such a manner (i) as will materially reduce the
payments pledged as security for the Bonds or extend the time of such
payments provided herein, (ii) as will materially impair or materially
adversely affect the rights of the owners from time to time of any Bonds,
or (iii) as would be prohibited by any applicable provision of the
Indenture.
23.2 Rights Among Project Participants. None of the Power Sales Agreements
may be terminated as to any one or more of the Project Participants, or be
amended as to any one or more of the Project Participants so as to provide
terms and conditions materially different from those contained therein
except, subject to the provisions of Section 23.1 and consistent with the
Indenture, upon written notice to and written consent or waiver by the
other Project Participants, and upon similar amendment, if appropriate,
being made to the Power Sales Agreement of the other Project Participants
requesting such amendment after receipt by such Project Participant of
written notice of such amendment.
23.3 Continuing Compliance with Federal Tax Law Requirements.
Notwithstanding anything contained in the Power Sales Agreements to the
contrary, all obligations of SCPPA and the Project Participants with
respect to compliance with Federal Tax Law Requirements with respect to
any Bonds shall survive any termination of the Power Sales Agreements
until such time as all Bonds to which such Federal Tax Law Limitations
shall apply shall have been fully paid or redeemed and discharged or such
earlier time as SCPPA shall determine upon consultation with Bond
Counsel or Tax Counsel, or Bond Counsel or Tax Counsel shall have
rendered an opinion to the effect that such Federal Tax Law Requirements
shall no longer be applicable.
24. REPRESENTATION AND GOVERNING LAW. The Parties acknowledge that each
Party was represented by counsel in the negotiation and execution of this Agreement.
This Agreement was made and entered into in the County of Los Angeles and shall be
90187821.2 63
governed by, interpreted and enforced in accordance with the laws of the State of
California. All litigation arising out of, or relating to this Agreement, shall be brought in
a State or Federal court in the County of Los Angeles in the State of California. The
Parties irrevocably agree to submit to the exclusive jurisdiction of such courts in the State
of California and waive any defense of_forum non conveniens.
25" ARBITRATION AND ATTORNEYS' FEES. If a dispute arises between the Parties
which the Coordinating Committee or the Board of Directors is unable to resolve, the
Parties may by mutual agreement submit the dispute to mediation or non-binding
arbitration. With respect to any such dispute the Parties agree that each Party shall bear
its own attorneys fees and costs. Notwithstanding the foregoing, Purchaser and SCPPA
recognize and agree that SCPPA's attorneys fees associated with any matter relating to
the Project or this Agreement, including any dispute relating thereto, shall constitute a
Project cost which shall be allocated and billed as set forth in Sections 4 and 7 of this
Agreement.
26. PURCHASER'S CONTRACT ADMINISTRATOR. Purchaser's contract
administrator for this Agreement shall be the person so designated by the individual
authorized to receive notices on behalf of Purchaser pursuant to Section 27 herein, and
Purchaser's contract administrator shall have the authority to administer this Agreement
on behalf of Purchaser.
27. NOTICES. Any notice, demand or request provided for in this Agreement shall be in
writing and shall be deemed properly served, given or made if delivered in person or sent
by registered or certified mail, postage prepaid, to the persons specified below:
Southern California Public Power Authority
Attention: Executive Director
225 South Lake Avenue, Suite 1250
Pasadena, California 91101
City of Azusa
Director of Utilities
City of Azusa Light and Water
P.O Box 9500 (729 N. Azusa Ave.)
Azusa, California 91702-9500
28. AMENDMENTS. The Parties acknowledge and agree that any amendment to this
Agreement shall be in writing and duly executed by the Parties.
[SIGNATURE PAGE FOLLOWS]
90187821.2 64
IN WITNESS WHEREOF, the Parties hereto have duly caused this Agreement to
be executed on their respective behalves by their duly authorized representatives.
SOUTHERN CALIFORNIA PUBLIC
POWER AUTHORITY
By:
MARCIE L. EDWARDS
President
Attest:
BILL D. CARNAHAN
Assistant Secretary
CITY OF AZUSA, CALIFORNIA
By:
Printed Name:
Title:
Attest:
Printed Name:
Title:
90187821.2 65
APPENDIX A
DEFINITIONS
The following terms, whether in the singular or the plural, and initially
capitalized, shall have the meanings specified below: .
1. Acquisition. Acquisition shall entail the procurement of SCPPA's rights and obligations
pursuant to the Power Purchase Agreement and applicable Project Agreements, the
acquisition resulting from the exercise of the purchase option pursuant to the Power
Purchase Agreement, any purchase of the Facility or an ownership interest therein,
including the purchase of rights and interests under any of the Power Purchase and
Security Agreements, SCPPA financing arrangements for the foregoing, and all rights
and entitlements associated with the acquisition, development and implementation of the
Project, including those resources, contracts, rights, benefits, entitlements and
arrangements as may be necessary, desirable or appropriate to the Project to further
SCPPA's and the Project Participants' goals and those associated structures and services
procured, retained or acquired by and on behalf of the Project Participants as part of the
Project and which have been approved by the Coordinating Committee and, where
applicable, the Board of Directors. Acquisition also includes the rights and interests
under any consents to assignment and related agreements, and taking foreclosure action
(or a deed in-lieu-of foreclosure) under and pursuant to any of the Power Purchase and
Security Agreements, or a purchase at foreclosure sale, and, if and as applicable,
associated financing, and all rights and entitlements of SCPPA under the Power Purchase
and Security Agreements or other Project Agreements associated with the development
and implementation of the Project.
2. Act. All of the provisions contained in the California Joint Exercise of Powers Act found
in Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California,
beginning at California Government Code Section 6500 et seq., as amended from time to
time
3. Additional Facility. "Additional Facility" shall have the definition set forth in the Power
Purchase Agreement
4. Anaheim. The City of Anaheim, a California municipality.
5. Ancillary Documents. "Ancillary Documents" shall have the definition set forth in the
Power Purchase Agreement.
6. Annual Budget. The budget approved by the Coordinating Committee and adopted by
SCPPA pursuant to Section 5.4.1 of this Agreement not less than 30 days nor more than
60 days prior to the beginning of each Power Supply Year, including any amendments
thereto, which shall show a detailed estimate of the Total Monthly Costs under the Power
Sales Agreements and all credits, charges, revenues, income, or other funds to be applied
to such costs, for and applicable to such Power Supply Year.
90187821.2 A-1
7. Azusa. The City of Azusa, a California municipality.
8. Billing Statement. The written statement prepared or caused to be prepared each Month
by, or on behalf of. SCPPA which shall be based upon certain of the information in the
Annual Budget and shall show for such Month the amount to be paid to SCPPA by a
Project Participant in accordance with the provisions of Section 7 of its Power Sales
Agreement.
9. Board of Directors. The Board of Directors of the Southern California Public Power
Authority.
10. Bond Counsel. Nationally recognized legal counsel having background and experience
in the issuance of municipal bonds, including the Federal Tax Law Requirements relating
thereto, and selected by SCPPA to evaluate and advise regarding the Bonds with respect
to specified cases, transactions and matters from time to time.
11. Bonds. The bonds, notes, bond anticipation notes, certificates of participation,
commercial paper or other evidences of indebtedness issued or incurred by SCPPA and
outstanding pursuant to the provisions of the Indenture to finance or refinance the Cost of
Acquisition and any Capital Improvements, and, where applicable, the purchase of the
Facility or any part, portion or component thereof, including purchase of the rights and
interests under the Facility Credit Agreements or any consents or agreements relating to
any assignment. Bonds shall include but not be limited to the taxable and/or tax-exempt
bonds, notes, bond anticipation notes, certificates of participation, commercial paper or
other evidences of indebtedness issued or incurred by SCPPA to finance any purchase of
the Facility or an ownership interest therein, including purchase of the rights and interests
under the Facility Credit Agreements or other applicable Project Agreement, or bonds,
notes, certificates of participation, commercial paper or other evidences of indebtedness
issued to redeem or refund such bonds, notes, certificates of participation, commercial
paper or evidences of indebtedness, and any and all other obligations which SCPPA
issues or incurs relating to the Project. Bonds shall also include any additional Bonds
authorized by the Indenture or any supplement thereto and issued or incurred pursuant to
the provisions of Section 13.2 of the Power Sales Agreements and any refunding of
Bonds issued pursuant to the provisions of Sections 13.3 or 13.5 thereof. Bonds may
constitute other categories of bonds eligible for certain tax benefits under the Internal
Revenue Code, including but not limited to tax-exempt bonds; tax credit bonds, "build
America bonds" or "qualified bonds" within the meaning of Section 54AA of the Internal
Revenue Code, "new clean renewable energy bonds" within the meaning of Section 54C
of the Internal Revenue Code or "qualified energy conservation bonds" within the
meaning of Section 54D of the Internal Revenue Code.
12. Burbank. The City of Burbank, a California municipality.
13. Capacity. The ability or potential to generate, produce or transfer electricity, expressed in
kilowatts ("kW") or megawatts ("MW"), including, when feasible, ancillary or regulating
services or other valuable non-energy products or services from a generating facility.
90187821.2 A-2
14. Capacity Amount. "Capacity Amount' means, with respect to a Project Participant, such
Project Participant's Project Cost Share of the amount of the SCPPA Facility Capacity
Share of the Facility Capacity.
15. Capacity Rights. "Capacity Rights" means the rights, whether in existence as of the
Effective Date or arising thereafter during the term of this Agreement, of SCPPA to
Capacity of the Facility,'including resource adequacy, associated attributes and/or
reserves or any of the foregoing purchased by SCPPA under the Power Purchase
Agreement, or, if SCPPA acquires the Facility or an ownership interest therein,
associated with the electric generating capability of the Facility or such ownership
interest therein.
16. Capital Improvements. Any unit of property, property right, land or land right which is a
replacement, repair, addition, improvement or betterment to the Project or any
transmission facilities relating to, or for the benefit of, the Project, the betterment of land
or land rights or the enlargement or betterment of any such unit of property constituting a
part of the Project or related transmission facilities which is (i) consistent with Prudent
Utility Practices and determined necessary and/or desirable by the Board of Directors or
(ii) required by any governmental agency having jurisdiction over the Project.
17. Chairperson. "Chairperson" is as defined in Section 6.1.
18. Colton. The City of Colton, a California municipality.
19. Commercial Operation. "Commercial Operation" shall have the definition set forth in the
Power Purchase Agreement.
20. Compliance. Following a Payment Default, a Defaulting Project Participant shall be in
compliance with its payment obligations under its Power Sales Agreement if it(i) no later
than the last day of the Cure Period fully pays all amounts owed as reflected in any
Default Invoice; (ii) pays any monthly Billing Statement which comes due during the
Cure Period; and (iii) replenishes any reduction made to the applicable operating reserve
account, Debt Service reserves or other Reserve Fund as a result of any Payment Default.
21. Consent Agreements. All consents to assignments and all agreements relating thereto
entered into with any lender, financial institution or other Person for the purpose of
consenting to the assignment of the rights of the Power Purchase Provider under the
Power Purchase Agreement.
22. Coordinating Committee. The Coordinating Committee established in accordance with
Section 6 of this Agreement.
23. Cost of Acquisition. "Cost of Acquisition" is defined in Section 4.4.
24. Cost Share. "Cost Share" means and includes, with respect to any Project Participant, the
Project Cost Share, the Delivery Point Output Cost Share, the Transmission Services Cost
Share and the Indenture Cost Share, as applicable, with respect to such Project
Participant.
90187821.2 A-3
25. Cure Period. That period of time beginning on the date of a Payment Default and
concluding sixty (30) days thereafter.
26. Cured Payment Default. A Payment Default which has been cured in accordance with
Section 15.3 of this Agreement. If at any time during the Cure Period the Defaulting
Project Participant is in Compliance, then the requirements of a Cured Payment Default
shall be deemed to have been satisfied as of the date of receipt of such payments by
SCPPA and the Cure Period shall expire.
27. Debt Service. The debt service payable with respect to the Indenture pertaining to any
category of Bonds, any Bonds issued pursuant to Section 13 of this Agreement, or other
applicable series of Bonds, as determined by the context; provided that in the case of any
Bonds, Debt Service may, to the extent provided in the Indenture, be reduced by the
amount of any applicable cash grant or rebate payable by the Federal Government to
SCPPA (or to the trustee under the Indenture) with respect to interest on such Bonds.
Debt Service shall also include any payments required to be deposited into the Debt
Service Fund under the Indenture to pay, for example, amounts due under any interest
rate swap agreements or other derivative agreements.
28. Debt Service Fund. The Debt Service Fund or account, or similar fund or account,
established by the Indenture to pay Debt Service. The Debt Service Fund shall not
include the Debt Service Reserve Fund(s) under the Indenture.
29. Default Invoice. An invoice during the Payment Default Period and the Cure Period
issued to a Defaulting Project Participant pursuant to Section 15 of this Agreement that
identifies the total defaulted amount owed, including late payment interest, to achieve a
Cured Payment Default. During the Cure Period, the Default Invoice shall also include
the amount that must be paid to achieve Compliance.
30. Defaulting Project Participant A Project Participant that causes a Payment Default
which has not been remedied and where the Defaulting Project Participant has not
effected a Cured Payment Default.
31. Delivery Point Output cost component. "Delivery Point Output cost component" is
defined in Section 4.8.1.
32. Delivery Point Output Cost Share. "Delivery Point Output Cost Share" is defined in
Section 4.5.
33. Delivery Term of the Power Purchase Agreement The time period for the delivery of
energy pursuant to the Power Purchase Agreement as set forth therein.
34. Designated Point of Delivery. means, at any time and with respect to a particular Project
Participant, the Point of Delivery designated by such Project Participant, as provided for
in this Agreement, at which such Project Participant is to receive SCPPA Facility Output
or Replacement Energy.
90187821.2 A_4
35. Development Work. All work and activities in connection with the development of the
Project, including, without limitation, all planning, designing, acquiring (by prepayment,
purchase or otherwise), mitigating impacts, constructing, installing, investigating, cost
monitoring and control activities, negotiating and administering contracts, purchasing,
environmental monitoring, scheduling, protecting, erecting, supervising, expediting
inspectin,g, testing and training activities, recruitment and training of technical,
operational and administrative personnel, insuring, accounting, budgeting, public
information services and activities, services of consultants and legal counsel, preparing of
manuals and reports, and activities relating to securing requisite actions, permits,
licenses, approvals and certificates from governmental agencies and authorities.
36. Dvnamic Scheduling. "Dynamic Scheduling" shall mean the automated scheduling of
Energy from the Designated Point of Delivery with respect to a Project Participant to
such Project Participant's control area or electric system, provided that said dynamic
schedules adjust at four second intervals, or other intervals as specified by WECC, to
match the amount of Energy actually delivered to such Designated Point of Delivery of
the Project Participant from the Facility.
37. Energy. "Energy" shall have the definition set forth in the Power Purchase Agreement
38. Energy Prices. "Energy Prices" means the respective purchase prices, as provided in
Appendix A to the Power Purchase Agreement, for SCPPA Facility Output and
Replacement Energy, as applicable, delivered at the respective Points of Delivery.
39. EnviroMission (USA) Inc. EnviroMission (USA) Inc., a Delaware Corporation, or its
successor.
40. Environmental Attributes. "Environmental Attributes" shall have the definition set forth
in the Power Purchase Agreement.
41. Facility. "Facility" means all of the facilities including those resources described or
defined as the Facility, the Site, the Lease, Purchased Assets, Permits and facilities
referred to in the Power Purchase Agreement or such portions of these facilities, interests,
assets and rights as are provided SCPPA by way of the Power Purchase Agreement and
the other Power Purchase and Security Agreements and all of the Acquisitions, related
assets and accompanying rights and obligations associated therewith and all rights,
interests and obligations under the Ownership Participation and Related Agreements
associated with such facilities, including the rights interests and obligations under
agreements for Transmission Services and under any other of the Ancillary Documents.
Facility shall also include all Capital Improvements.
42. Facility Capacity. "Facility Capacity" shall have the meaning provided in the Power
Purchase Agreement.
43. Facility Energy. "Facility Energy" shall have the definition set forth in the Power
Purchase Agreement.
90187821.2 A-5
44. Facility Credit Agreements. All agreements, assignments and security related documents
associated with the financing of the Facility, or of the rights or interests held in
connection with the Facility, by the Power Purchase Provider or any of its affiliates and
any other agreements or documents providing for security for the performance of the
obligations of the Power Purchase Provider.
45. Federal Tax Law Requirements. "Federal Tax Law Requirements" shall mean, with
respect to the issuer of Bonds, any and all requirements and limitations to which any
specified type or category of Bonds are subject under the Internal Revenue Code or
related Treasury regulations in order that such specified Bonds initially qualify and
maintain qualification as that type or category of Bonds.
46. Fiscal Year. The twelve-month period commencing at 12:01 a.m. on July 1 of each year
and ending at 12:01 a.m. on the following July 1, or such other time frame as determined
by the Coordinating Committee or Board of Directors.
47. Force Majeure. "Force Majeure" shall have the definition set forth in the Power Purchase
Agreement,
48. Fund or Funds. Any fund or account created under the Indenture.
49. Guaranteed SCPPA Energy. "Guaranteed SCPPA Energy" shall have the meaning
provided in the Power Purchase Agreement.
50. Glendale. The City of Glendale, a California municipality.
51. IID. The Imperial Irrigation District, a California Irrigation District.
52. Indenture. The indenture of trust, trust agreement, credit or loan agreement and other
similar agreements with respect to the Bonds, between SCPPA and a Project Trustee or
Lender, as from time to time amended and supplemented in conformity with its
provisions and of this Agreement. Under such agreements, SCPPA may enter into, or
authorize the entering into of, interest rate swap agreements, other derivative agreements,
and such other agreements as are authorized or permitted under such agreements.
Indenture shall include, but not be limited to, any and all indentures in connection with
any bridge loans, bond anticipation notes or other notes, or draw down bonds or with
respect to any other type of bonds, and the indentures of trust, trust agreements or other
similar agreements entered into between SCPPA and the Project Trustee or Lender to
effect the redemption or refunding of any bridge loans, bond anticipation notes or other
notes, draw down bonds or other bonds, as from time to time amended and supplemented
in conformity with their provisions and the provisions of this Power Sales Agreement.
53. Indenture cost component. "Indenture cost component' is defined in Section 4.9.5.
54. Indenture Cost Share. "Indenture Cost Share" is defined in Section 4.6.
90187821.2 A-6
55. Initial Payment Default Date. The earlier of(i) the end of the fifth day following the first
Payment Default for which no remedy in payment has occurred and been received by
SCPPA, or (ii) the last day of the Month in which the first Payment Default has occurred
for which no remedy in payment has occurred and been received by SCPPA.
56. Interconnection Contracts. The contracts providing for the interconnections and
associated facilities which interconnect the Facility with the transmission system and
substations and provide for the delivery of SCPPA Facility Output.
57. Internal Revenue Code. The Internal Revenue Code of 1986, as amended.
58. Joint Powers Agreement. The "Southern California Public Power Authority Joint Powers
Agreement' dated as of November 1, 1980, as amended and modified from time to time,
entered into pursuant to the provisions of the Act, among SCPPA and its members.
59. Lease. "Lease" shall have the meaning provided in the Power Purchase Agreement.
60. Major Contracts. The Project Agreements and, to the extent not finalized or effective on
the effective date of an applicable project management agreement, any other contract or
agreement so identified by the Coordinating Committee or the Board of Directors, as
such contracts or agreements may be amended or supplemented from time to time.
61. Milestone. "Milestone" shall have the definition set forth in the Power Purchase
Agreement.
62. Milestone Security. "Milestone Security' shall have the definition set forth in the Power
Purchase Agreement.
63. Month. A calendar month.
64. Monthly Costs. "Monthly Costs" is defined in Section 7.1.
65. Mortgage. "Mortgage" shall have the meaning set forth in the Power Purchase
Agreement.
66. Neve Facility. "New Facility" shall have the definition set forth in the Power Purchase
Agreement.
67. Operating Budget. The operating budget approved by the Board of Directors, which shall
show a detailed estimate of all Project operating costs, including all revenues, income or
other funds to be applied to such operating costs, for and applicable to a Power Supply
Year.
68. Operating cost component. "Operating cost component' is defined in Section 4.7.1.
69. Operating Reserve Depletion Date. The date that is two Months prior to the date on
which SCPPA anticipates, assuming continued Payment Defaults by one or more
Defaulting Project Participants, that the moneys in the operating reserve account of the
90187821.2 A-7
Indenture will be fully depleted; provided, however, if as of the date on which a Payment
Default occurs SCPPA determines that the moneys in the operating reserve account held
by SCPPA will be fully depleted in less than two Months (or currently are fully depleted),
then the Operating Reserve Depletion Date shall be deemed to have occurred when such
a Payment Default occurs.
70. Operating Work. All work and activities in connection with the administration, operation
and maintenance of the Project, including without limitation, negotiating and
administering contracts, planning, mitigating impacts, purchasing, repairing, inspecting,
maintaining, investigating and monitoring all aspects of the Project, performing modeling
functions, economic analysis, quality control, testing and evaluating, recruitment and
training of operating entities and personnel, electric energy and environmental attribute
procurement, regulatory efforts, tagging, interconnecting, transmission, dispatching,
firming, balancing, exchanging and scheduling activities, supervising, expediting,
budgeting, insuring, accounting, tracking, registering, protecting, operating and managing
activities, public information services and services of consultants, operators, engineers,
contactors and legal counsel, renewals, replacements, reconstruction, and improvements,
and activities related to securing requisite permits, franchises, licenses, approvals,
entitlements, credits and certificates from governmental agencies and authorities.
71. Option Agreement. "Option Agreement' shall have the meaning provided in the Power
Purchase Agreement.
72. . Output Entitlement Share. With respect to a particular Project Participant and during
each Power Supply Year, the percentage entitlement, as set forth for such Project
Participant in Appendix B of this Agreement, of the SCPPA Facility Output or, if
applicable, the Replacement Energy, delivered at such Project Participant's Designated
Point of Delivery. The Output Entitlement Share of such Project Participant may be
adjusted in connection with a revision of Appendix B as provided in Section 21.1.
73. Ownership General and Administrative cost component. "Ownership General and
Administrative cost component' is defined in Section 4.9.3.
74. Ownership Participation and Related Agreements. Any participation, tenant-in-common
or shared facilities agreements with respect to the Facility and the associated Facility
operation and maintenance agreements, and any lease, leasehold interest, rights-of-way,
deeds, conveyances, assignments, mortgages or other security instruments or any estate
or other property interests or consents or collateral instruments with respect to the
Acquisition or ownership of the Facility or an ownership interest therein by SCPPA.
75. Participants. The Project Participants.
76. Pasadena. The City of Pasadena, a California municipality.
77. Payment Default. A failure by a Project Participant to pay when due all of its Billing
Statement for any Month.
78. Pavment Default Period. That period of time during which a Payment Default exists.
90187821.2 A-8
79. Performance Security. "Performance Security" shall have the definition set forth in the
Power Purchase Agreement.
80. Permit. "Permit` shall have the definition set forth in the Power Purchase Agreement.
81. Person. "Person" means any individual, corporation, partnership, joint venture, limited
liability company, association, joint stock company, trust, unincorporated organization,
entity, government or other political subdivision.
82. Point of Interconnection. Point of Interconnection shall have the definition set forth in
the Power Purchase Agreement.
83. Point of Interconnection Allocable Share. With respect to a particular Project Participant,
in the event that SCPPA shall acquire the Facility or an ownership interest therein and
commencing with such acquisition, the percentage share, as set forth for such Project
Participant in Appendix C hereof, of the SCPPA Facility Output at the Point of
Interconnection. The Point of Interconnection Allocable Share of such Project
Participant may be adjusted in connection with a revision of Appendix C as provided in
Section 21.1.
84. Points of Delivery. The respective points at which SCPPA Facility Output or
Replacement Energy is to be delivered to an individual Project Participant or to any
combination of Project Participants, as set forth (or as designated by notice) pursuant to
Appendix B hereof, or otherwise, pursuant to the Power Purchase Agreement and the
Power Sales Agreements or, if SCPPA shall purchase or acquire the Facility or an
ownership interest therein, the same respective Points of Delivery for the SCPPA Facility
Output, as provided under the Power Purchase Agreement, or such other respective points
of delivery as authorized and determined by the Coordinating Committee or the Board of
Directors.
85. Power Purchase Agreement. The Power Purchase Agreement between Southern
California Public Power Authority and EnviroMission (USA), Inc., dated as of November
1, 2010, attached hereto in substantial form as Appendix F, as the same may be amended
from time to time.
86. Power Purchase and Security Agreements. The Power Purchase Agreement, the Security
Instruments, Consent Agreements, Facility Credit Agreements, and any other consent to
assignment or other agreement with any financial institution or Person relating to the
solar tower project or the Facility or any loan or other credit agreement associated with
the solar tower project or the Facility, or the Option Agreement or any other agreement
under which SCPPA might acquire or otherwise purchase or obtain the Facility or an
ownership interest therein or related resources and assets or output of the Facility or carry
forth any Acquisition all as and to the extent applicable to any particular Project matter or
matters. The Power Purchase and Security Agreements shall also include any instrument
or form of security which affords any opportunity for the purchase of the Facility or
Acquisition, whether through foreclosure or otherwise, including the Mortgage or any
other mortgage, deed or deed of trust, lease, assignment, beneficial interest, collateral
90187821.2 A-9
0
instrument or other device or mechanism providing for the ability to acquire the solar
tower project or the Facility or an ownership interest therein.
87. Power Purchase Provider. EnviroMission (USA) Inc. as the counterparty to SCPPA
under the Power Purchase Agreement, and the entity named under any applicable
operating agreement to operate or otherwise run or manage the Facility, along with each
of their successors, or any successors or assigns to the rights of these entities.
88. Power Sales Agreements. The La Paz Solar Tower Project Power Sales Agreements,
dated for convenience as of November 1, 2010, as the same may hereafter be amended
from time to time, entered into by SCPPA and each of the Project Participants for, among
other things, the acquisition of the Output Entitlement Shares.
89. Power Supply Year. The Fiscal Year, except that the first Power Supply Year shall begin
on the first to occur of(i) the date SCPPA is obligated to pay any portion of the costs of
the Project, (ii) the date upon which SCPPA first incurs or accrues costs associated with
the issuance of the Bonds, (iii) 90 days before the scheduled date for issuance of the
Bonds, (iv) the date of Commercial Operation of the Facility, or (v) the date of the first
delivery of Energy to Purchaser pursuant to this Agreement.
90. PPA General and Administrative cost component. "PPA General and Administrative cost
component' is defined in Section 4.8.2.
91. Project Cost Share. "Project Cost Share" is defined in Section 4.10.
92. Project or La Paz Solar Tower Project. The term "Project' or "La Paz Solar Tower
Project" shall be broadly construed to entail the aggregate of rights, liabilities, interests
and obligations of SCPPA pursuant to the Power Purchase Agreement, the Power
Purchase and Security Agreements and the other Project Agreements, including but not
limited to the rights, liabilities, interests and obligations associated with the SCPPA
Facility Output, or, upon purchase or acquisition by SCPPA, all rights, liabilities,
interests and obligations associated with the Facility, or any ownership interest therein, as
shall be purchased or acquired by SCPPA, and including all aspects of the operation and
administration of the Facility or an ownership interest therein and the Project Agreements
and the rights, liabilities, interests and obligations associated therewith. The term Project
shall also include those rights, liabilities, interests or obligations necessary or appropriate
to carry out the functions specified in Section 6 and to utilize or deliver the Energy of the
Facility as specified in Section 9.
93. Project Agreements. Any project management agreement, the Indenture, the Power Sales
Agreements, each of the Power Purchase and Security Agreements, any operation and
management agreement, any agreement for the provision of Transmission Services, any
Lease, any interconnection agreement, the Ancillary Documents, other contracts and
leases, easements, rights of way and each of the Ownership Participation and Related
Agreements, and other real property arrangements or agreements associated with the
Facility or an ownership interest therein, if any, any other Acquisition agreement or
agreement for the purchase, procurement, delivery or transmission of SCPPA Facility
90187821.2 A-10
Output, including all agreements connected or associated with any purchase of the
Facility or an ownership interest therein or passing to SCPPA in connection with any
purchase of the Facility or an ownership interest therein, and including the rights and
interests under the Facility Credit Agreements or any other consents to assignments or
agreements for assignment, any intercreditor agreement, any other operating agreements,
maintenance agreergents, warranty agreements, participation agreements, or any other
agreements for scheduling, dispatching, exchanging, tagging, movement or transmission
of SCPPA Facility Output, any agreements relating to any Capital Improvements and
agreements to which SCPPA is a party relating to the project design, development,
administration, management or operation of the Project and for placing of the Project
into operation or maintaining its operation.
94. Proiect Manager. SCPPA or a designee or designees appointed by SCPPA to assist
SCPPA to carry out SCPPA's responsibilities under the Power Sales Agreements, among
other things, and to assist SCPPA in carrying out SCPPA's responsibilities upon purchase
of the Facility or any of its resources or upon any Acquisition.
95. Project Participant(s). Those entities executing Power Sales Agreements, together in
each case with each entity's successors or assigns, identified as "Project Participants" in
Appendix B of the Power Sales Agreements or Appendix C of the Power Sales
Agreements and such additional entities executing Power Sales Agreements as may be
added by way of a revision of Appendix B or Appendix C under the terms of this
Agreement
96. Project Purchase Option. "Project Purchase Option" shall have the meaning provided in
the Power Purchase Agreement.
97. Project Rights. All rights and privileges of a Project Participant under its Power Sales
Agreement, including but not limited to its Output Entitlement Share, its right to receive
SCPPA Facility Output from the Facility, and its right to vote on Coordinating
Committee matters.
98. Project Rights and Obligations. Purchaser's Project Rights and obligations under the
terms of this Agreement.
99. Proiect Trustee or Lender. Any bank or other financial firm or institution at any time
serving as trustee under the Indenture or any bank or financial firm party to the Indenture
as a lender or as agent for a lender or lenders thereunder.
100. Prudent Utility Practices. "Prudent Utility Practices" shall have the meaning provided in
the Power Purchase Agreement
101. Purchased Assets. "Purchased Assets" shall have the meaning provided in the Power
Purchase Agreement.
102. Renewable Electric Energy Resource Project. The aggregate of SCPPA's endeavors to
acquire renewable energy and capacity and to facilitate acquisition of renewable electric
90187821.2 A-11
generation and the means to deliver such generation either by way of the development
agreement for the Renewable Electric Resource Project as described in Section 2.6 herein
103. Replacement Energy. "Replacement Energy" shall have the meaning provided in the
Power Purchase Agreement.
104. Reserve Fund cost component. "Reserve Fund cost component" is defined in
Section 4.8.3 and Section 4.9.4.
105. Reserve Fund(s). Those reserve accounts deemed appropriate to afford a reliable source
of funds for the payment obligations of the Project and, taking into account the variability
of costs associated with the Project for the purpose of providing a reliable payment
mechanism to address the ongoing costs associated with the Project.
106. Riverside. The City of Riverside, a California municipality.
107. SCPPA Facility Capacity Share. "SCPPA Facility Capacity Share" shall have the
meaning provided in the Power Purchase Agreement.
108. SCPPA Facility Output. All output, rights, and other tangible or intangible benefits,
whatsoever, derived from the Facility and received by SCPPA, including without
limitation, all Facility Energy, Capacity Rights and Environmental Attributes, whether
received by SCPPA under or pursuant to the Power Purchase Agreement or other
applicable Project Agreement or derived from the Facility or an ownership interest
therein by SCPPA as owner following SCPPA's purchase of the Facility or an ownership
interest therein.
109. Security and Assignment Agreements. The agreements and instruments entered into by
the Power Purchase Provider or any affiliate thereof and, where applicable, SCPPA,
including the Milestone Security, the Performance Security, the Mortgage and the
agreements and instruments referenced in the Power Purchase Agreement to, among
other things, secure certain performance requirements.
110. Security Instruments. The Security and Assignment Agreements, the Mortgage, the
Milestone Security, the Performance Security, the Facility Credit Agreements or other
arrangement or agreement with the Facility Lender following a purchase of the rights and
interests thereunder by SCPPA if applicable, and any and all instruments, agreements,
assignments, mortgages, deeds of trusts or conveyances or other collateral arrangements
entered into to secure the performance of the Power Purchase Provider or any affiliate
thereof under the Power Purchase Agreement or any other of the Power Purchase and
Security Agreements, or any lease or interest in real property used by or affecting the
Facility, including without limitation any security interest conveyed by way of the Power
Purchase Agreement or other agreement or instrument relating to the Project or any
Project matter creating a security interest enforceable by SCPPA.
111. Site. "Site" shall have the meaning set forth in the Power Purchase Agreement
90187821.2 A-12
112. Special Obligation. "Special Obligation" shall have the meaning set forth in
Section 11.3.
113. Special Obligation Billing Statement. "Special Obligation Billing Statement" shall have
the meaning set forth in Section 11.3.
114. Step-Up Invoice. An invoice sent to a non-Defaulting Project Participant as a result of
one or more Payment Defaults, which invoice shall separately identify any amount owed
with respect to the monthly Billing Statement of one or more Defaulting Project
Participants for, as the case may be, pursuant to Section 15.9.1 or 15.9.2 herein, either the
Indenture cost component of the Defaulting Project Participant(s) unpaid monthly Billing
Statement or the Total Monthly Costs reflected in the Defaulting Project Participant(s)
unpaid monthly Billing Statement.
115. Study Project. "Study Project" has the meaning provided in the Joint Powers Agreement.
116. Supplementary Services. Those services in connection with the delivery of Energy
involving additional transmission, interconnection arrangements, energy management,
firming, shaping, energy balancing, dispatching, tagging, scheduling, Dynamic
Scheduling, transmitting, interconnecting, swapping, exchanging or other services
associated with the transmission, use or disposition of SCPPA Facility Output to be
utilized by the Project Participants under the Power Sales Agreements, and to otherwise
provide for delivery and facilitate the disposition, movement, taking, receiving,
accounting for, transferring and crediting the ownership and transfer of SCPPA Facility
Output from the respective Points of Delivery to any other points or destinations, as
determined by the Project Participants. Supplementary Services include but are not
limited to delivery point swaps, stranded energy/transmission curtailments, tiepoint
liquidity improvement, transmission loss savings, tiepoint price spread optimization, on-
peak/off-peak exchanges, peak shifting exchanges, seasonal exchanges, and both
simultaneous or non simultaneous green energy exchanges.
117. Supplementary Services cost component. "Supplementary Services cost component" is
defined in Section 4.8.4 and Section 4.9.6.
118. Tax Counsel. Nationally recognized legal counsel having background and experience in
tax-exempt financing and selected by SCPPA to evaluate and advise regarding the
Federal Tax Law Requirements with respect to specified cases, transactions and matters
from time to time.
119. Total Monthly Costs. "Total Monthly Costs" has the meaning described in Section 4.7.
120. Transmission Services cost component. "Transmission Services cost component" is
defined in Section 4.9.2.
121. Transmission Losses. "Transmission Losses" means the transformation and transmission
losses associated with the delivery of SCPPA Facility Output from the Point of
Interconnection to each respective Point of Delivery calculated in accordance with the
Transmission Provider's tariff applicable to the associated Transmission Services.
90187821.2 A-I3
122. Transmission Provider. "Transmission Provider" means Western Area Power
Administration of the United States Department of Energy or any other Person(s)
providing Transmission Services.
123. Transmission Services. "Transmission Services" means the transmission and other
related services required to transmit SCPPA Facility- Output from the Point of
Interconnection to each of the respective Points of Delivery.
124. Transmission Services Cost Share. "Transmission Services Cost Share' is defined in
Section 4.11.
125. Uncontrollable Forces. Any Force Majeure event and any cause beyond the control of
any Party, and which by the exercise of due diligence such Party is unable to prevent or
overcome, including but not limited to, failure or refusal of any other Person to comply
with then existing contracts, an act of God, fire, flood, explosion, earthquake, strike,
sabotage, pestilence, an act of the public enemy (including terrorism), civil or military
authority including court orders, injunctions and orders of governmental agencies with
proper jurisdiction or the failure of such agencies to act, insurrection or riot, an act of the
elements, failure of equipment, a failure of any governmental entity to issue a requested
order, license or permit, inability of any Party or any Person engaged in work on the
Project to obtain or ship materials or equipment because of the effect of similar causes on
suppliers or carriers, or inability of SCPPA to sell or issue its Bonds. Notwithstanding the
foregoing, Uncontrollable Forces as defined herein shall also include events of Force
Majeure pursuant to the Power Purchase Agreement, as defined therein.
126. WECC. The Western Electricity Coordinating Council, or its successor.
127. fReservedl.
9018782 1.2 A-14
APPENDIX B*
SCHEDULE OF PROJECT PARTICIPANTS
CAPACITY AMOUNTS
OUTPUT ENTITLEMENT SHARES
PROJECT COST SHARES
POINTS OF DELIVERY
Project Participants Capacity Amounts Output Project Cost Points of Delivery**
MW Entitlement Shares Shares (as Designated by
(at Points of Delivery) Project Participants)
Anaheim 10 MW 11.6279% 9.9010% 500 kV Bus at
Marketplace Substation
or, in the event
designated in a notice
to the Transmission
Provider, the 500 kV
Bus at McCullough
Substation
Azusa 2 MW 2.3256% 1.9802% 500 kV Bus at
Marketplace Substation
or, in the event
designated in a notice
to the Transmission
Provider, the 500 kV
Bus at McCullough
Substation
Burbank 27 MW 31.3953% 26.7327% 500 kV Bus at
Marketplace Substation
or, in the event
designated in a notice
to the Transmission
Provider, the 500 kV
Bus at McCullough
Substation
90187821.2 B-1
Reserved -0- -0- -0- 500 kV Bus at
Marketplace Substation
or, in the event
designated in a notice
to the Transmission
Provider, the 500 kV
Bus at McCullough
Substation
Glendale 12 MW 13.9535% 11.8812% 500 kV Bus at
Marketplace Substation
or, in the event
designated in a notice
to the Transmission
Provider, the 500 kV
Bus at McCullough
Substation
IID 15 MW 100.0000% 1.4.8515% 161 kV Bus at Blythe
Substation or, in the
event designated in a
notice to the
Transmission Provider,
the 161 kV Bus at
Knob Substation.
Pasadena 10 MW l 1.6279% 9.9010% 500 kV Bus at
Marketplace Substation
or, in the event
designated in a notice
to the Transmission
Provider, the 500 kV
Bus at McCullough
Substation
90187821.2 B-2
Riverside 25 MW 29.0698% 24.7525% 500 kV Bus at
Marketplace Substation
or, in the event
designated in a notice
to the Transmission
Provider, the 500 kV
Bus at McCullough
Substation
Total 101 MW 100% at each discrete 100%
Point of Delivery
*Appendix B may be revised in accordance with the provisions of Section 21.1 of this Agreement.
**The notice to the Transmission Provider with respect to a change in the Designated Point of Delivery shall be provided by SCPPA upon a timely
request by the Project Participant.
90187821.2 B-3
APPENDIX C*
SCHEDULE OF PROJECT PARTICIPANTS
DELIVERY POINT OUTPUT COST SHARES
TRANSMISSION SERVICES COST SHARES
POINT OF INTERCONNECTION ALLOCABLE SHARES
INDENTURE COST SHARES
Project Participants Delivery Point Output Cost Transmission Services Point of Interconnection Indenture Cost
Shares Cost Shares ** Allocable Shares Shares
Anaheim 11.6279% 11.6279% 9.9010% 9.9010%
2.3256% 2.3256% 1.9802% 1.9802%
Azusa
31.3953% 31.3953% 26.7327% 26.7327%
Burbank
Reserved
13.9535% 13.9535% 11.8812% 11.88120/,
Glendale
100.00000/. 100.0000% 4.8515% 4.8515%
111
11.6279% 11.6279% 9.010% 9.010%
Pasadena
29.0698% 29.0698% 24.7525% 24.7525%
Riverside
100% at each discrete Point 100% at each discrete 100% 100%
Total of Delivery Point of Delivery **
*Appendix C may be revised in accordance with the provisions of Section 21.1 of this Agreement.
**Less applicable transmission losses.
5
90187821.2 C-1
APPENDIX D
OPINION OF COUNSEL TO PROJECT PARTICIPANTS
[Date]
Southern California Public Power Authority
c/o Executive Director
225 South Lake Avenue, Suite 1250
Pasadena, California 91101
[Underwriters for the Bonds]
[Bond Insurer or credit enhancement entity]
Ladies and Gentlemen:
We have acted as counsel to the [City of Anaheim][City of Azusa][City of
Burbank][City of Colton][ City of Glendale][Imperial Irrigation District][the City of
Pasadena][the City of Riverside] as Project Participant (the "Project Participant") under the La
Paz Solar Tower Project Power Sales Agreement dated for convenience as of November 1, 2010
(the "Power Sales Agreement') between the Project Participant and Southern California Public
Power Authority ("SCPPA").
We have examined originals or copies of those records and documents we
considered appropriate for purposes of this opinion. As to relevant factual matters, we have
relied upon, among other things, the Project Participant's factual representations.
We have assumed the genuineness of all signatures (other than the signatures of
persons signing the Power Sales Agreement on behalf of Project Participant), the authenticity of
all documents submitted to us as originals and the conformity with originals of all documents
submitted to us as copies. To the extent the Project Participant's obligations depend on the
enforceability of the Power Sales Agreement against SCPPA, we have assumed that the Power
Sales Agreement is enforceable against SCPPA.
From such examination, on the basis of our reliance upon the assumptions in this
opinion and our consideration of those questions of law we considered relevant, and subject to
the limitations and qualifications in this opinion, we are of the opinion that:
1. The Project Participant is a municipal corporation organized and
existing under the laws of the State of California and authorized under
[the City Charter of the City of Anaheim][the laws of the State of
California][the City Charter of the City of Burbank][the laws of the State
of California][the City Charter of the City of Glendale][the laws of the
90187821.2 D_l
State of California][the City Charter of the City of Pasadena][the City
Charter of the City of Riverside] to furnish retail electricity within its
service area.
2. The Project Participant is empowered under [the City Charter of the
City of Anaheim][the laws of the State of California][the City Charter of
the City of Burbank][the laws of the State of California][the City Charter
of the City of Glendale][the laws of the State of California][the City
Charter of the City of Pasadena][the City Charter of the City of Riverside]
to enter into the Power Sales Agreement and to perform its obligations
thereunder.
3. The Power Sales Agreement has been duly authorized, executed and
delivered by the Project Participant and, assuming due authorization,
execution and delivery by SCPPA of such Power Sales Agreement,
constitutes the legal, valid and binding obligation of the Project
Participant enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws affecting
creditors' rights generally and to general principles of equity, to the
exercise of judicial discretion in appropriate cases, and to the limitations
on legal remedies against municipal corporations in the State of
California.
Certain documents that are ancillary to the Power Sales Agreement provide that
they are to be governed by the laws of the State of Arizona. We express no opinion as to those
laws or their applicability to matters covered by this opinion.
Our opinion in paragraph 3 as to enforceability is subject to the unenforceability
of provisions waiving a right to a jury trial. Also, a court may refuse to enforce a provision of the
Power Sales Agreement if it deems that such provision is in violation of public policy.
We express no opinion with respect to your ability to collect attorneys' fees and
costs in an action if you are not the prevailing party in that action (we call your attention to the
effect of Section 1717 of the California Civil Code, which provides that where a contract permits
one party thereto to recover attorneys' fees, the prevailing party in any action to enforce any
provision of the contract shall be entitled to recover its reasonable attorneys' fees).
We express no opinion as to any provision requiring written amendments or
waivers insofar as it suggests that oral or other modifications, amendments or waivers could not
be effectively agreed upon by the parties or that the doctrine of promissory estoppel might not
apply.
It is our opinion that no person, other than SCPPA, has setoff rights against
payments due from Project Participant. We express no opinion with respect to any
indemnification, contribution, penalty, choice of law, choice of forum, choice of venue,
severability or waiver provisions contained in the Power Sales Agreement.
90187821.2 D-2
We express no opinion as to any agreement or document referred to in the Power
Sales Agreement or incorporated into the Power Sales Agreement by reference, or any agreement
other than the Power Sales Agreement itself, or the effect of any such agreement or document on
the opinions herein stated.
The opinions expressed are matters of professional judgment and are not a
guarantee of result. The law covered by this opinion is limited to the present law of the State of
California. We express no opinion as to the laws of any other jurisdiction.
This opinion may only be relied upon only by the addressees hereto in connection
with the issuance of the Bonds (as described in the Power Sales Agreement). It may not be used
or relied upon for any other purpose or by any other person, nor may copies be delivered to any
other person, without in each instance our prior written consent, except that this opinion may be
included in the closing binder memorializing the Power Sales Agreement.
This opinion is expressly limited to the matters set forth above, and we render no
opinion, whether by implication or otherwise, as to any other matters. This letter speaks only as
of the date hereof and we assume no obligation to update or supplement this opinion to reflect
any facts or circumstances that arise after the date of this opinion and come to our attention, or
any future changes in laws.
Very truly yours,
90187821.2 D_3
a 4
APPENDIX E
OPINION OF COUNSEL TO SCPPA
[Date]
[Project Participantsl
[Underwriters of the Bonds]
[Bond Insurer or credit enhancement entity]
Ladies and Gentlemen:
I am acting as counsel to the Southern California Public Power Authority
("SCPPA") under each La Paz Solar Tower Project Power Sales Agreement dated for
convenience as of November 1, 2009, between a Project Participant and SCPPA (collectively,
the "Power Sales Agreements"), and I have acted as counsel to SCPPA in connection with the
matters referred to herein. As such counsel I have examined and am familiar with (i) those
documents relating to the existence, organization and operation of SCPPA, (ii) all necessary
documentation of SCPPA relating to the authorization, execution and delivery of the Power Sales
Agreements and (iii) the Power Sales Agreements.
Capitalized terms used herein not otherwise defined shall have the respective
meanings ascribed thereto in the Power Sales Agreements.
I am of the opinion that:
1. SCPPA is a joint powers authority duly organized and validly existing under
the Act, as amended, and the Joint Powers Agreement dated as of November 1, 1980, among
SCPPA's members, as amended, and has full legal right, power and authority to execute and
deliver, and to perform its obligations under, the Power Sales Agreements.
2. The Power Sales Agreements have been duly authorized, executed and
delivered by SCPPA, and, assuming due authorization, execution and delivery by each of the
parties thereto other than SCPPA, the Power Sales Agreements constitute the legal, valid and
binding obligations of SCPPA, enforceable against SCPPA in accordance with their respective
terms.
3. To the best of my knowledge, SCPPA is not in material breach of or default
under, and the authorization, execution and delivery of the Power Sales Agreements and
compliance with the provisions thereof, will not conflict with or constitute a breach of, or default
under: (i) any instrument relating to the organization existence or operation of SCPPA; (ii) any
loan agreement, lease agreement, indenture, bond, note, resolution, commitment, agreement or
other instrument to which SCPPA is a party or by which it or its property or assets is bound or
90187821.2 E-I
affected, and no event has occurred and is occurring which with the passage of time or the giving
of notice, or both, would constitute a material default or event of default under any such
instrument, which breach or default would have a material adverse impact on the Power Sales
Agreements or the ability of SCPPA to comply with its obligations under the Power Sales
Agreements; or (iii) any applicable constitutional provision, law, ruling, administrative
regulation, ordinance, judgment, order or decree to which SCPPA (or any of its officers in their
respective capacities as such) is subject.
4. To the best of my knowledge, as of the date hereof, there is no action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by any court, government
agency, public board or body, pending or, to the best of my knowledge, threatened against or
affecting SCPPA or any of its officers in their respective capacities as such (nor to the best of my
knowledge is there any basis therefor), which questions the right, power or authority of SCPPA
referred to in paragraph 2 above or the validity of the proceedings taken by SCPPA in connection
with the authorization, execution or delivery of the Power 'Sales Agreements, or wherein any
unfavorable decision, ruling or finding would materially adversely affect the transactions
contemplated by the Power Sales Agreements, or which, in any way, would adversely affect the
validity or enforceability of the Power Sales Agreements or the ability of SCPPA to comply with
its obligations thereunder.
Insofar as the foregoing opinions relate to the legal, valid and binding effect, and
the enforceability, of any instrument, such opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and are subject, as to
enforceability, to general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
The opinions expressed herein are based upon the law and other matters in effect
on the date hereof. The opinions expressed are matters of professional judgment and are not a
guarantee of result. I assume no obligation to revise or supplement this opinion should such law
or other matters be changed by legislative action, judicial decision, or otherwise, or should any
facts or other matters upon which I have relied change.
The opinions which are set forth or which are expressed herein are limited to the
laws of the State of California.
This opinion is furnished exclusively for the benefit of the recipients to which it is
addressed. This opinion may not be provided to, made available to, or relied upon any other
party without prior written consent, except that this opinion may be included in the closing
binder memorializing the transaction.
Very truly yours,
Richard M. Helgeson, Esq.
General Counsel
Southern California Public Power Authority
90187821.2 E-2
APPENDIX F
POWER PURCHASE AGREEMENT
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
ENVIROMISSION (USA) INC.
DATED AS OF NOVEMBER 1, 2010
90187821.2 F-1
a
La Paz
Solar Tower project
Azusa City Council
December 6, 2010
AZUSA
LIGHT % WATER
Background
Presently, Azusa has ~20% "renewables" in its power
supply portfolio.
Requirements for renewable energy in California
increase to 24% in 2015, 28% in 2018 and 33% in
2020.
• In addition , AB 32 (Climate Change Bill) will require
electric utilities to significantly reduce greenhouse gas
emissions beginning in 2012
• As a result, AL&W continues to identify renewable
energy opportunities.
r�i�� 2
AZUSA
LIGHT h WATER
4
Renewable OpUo:ns:]
In a recent RFP, SCPPA members received
over 90 renewable proposals
A proposed Solar Tower project by
EnviroMission , Inc. was judged by many to
have the most favorable commercial and
economic terms
3 A'Z�U S A
LIGHT & WATER
La Paz
Soar Tower project
Project to be built in La Paz County, Arizona
Developer is EnviroMission (USA), a subsidiary of an
Australian company
200 MW solar thermal tower project
Project to be licensed, funded, and constructed by
developer
Planned operations date is November 2014
4a:I
raj •
4 AZUSA
LIGHT 3 W n t E 9
Project Location
M1M41�.Va1nV� - � �
' WM14g9�cyhwe�
I • ys 1
1 • �IGntMsf - i
Lake
Havasu Cq
1 • BS
q.+N
i Me,.py'aap
5 lar�n
'B' .arra
v/ f
Ifs�Ma
1a 4'o-11vaY.tl
,.,M.p lt.1►�
,H
�.i0 •yen» � t
4-. - � . �r• _ . _... F2:79 Gw9I^-Mcv kala Rima Gxogk., ��
i 5
AZUSA
LIGHT 6 WATER
The Concept
Project is composed of three major elements
— A very large circular, umbrella shaped solar collector or
greenhouse (covering perhaps 5000+ acres)
— A very tall & wide thermal chimney (perhaps 1000 meters tall
and 100 meters wide)
— Up to 32 electric generators coupled to wind turbines
When heated by sun , air under the solar collector
rushes to escape through the chimney passing
through turbines placed at the base of the chimney
r M
flue\'
6 AZUSA
l I G H i & WATER
Diagram
Towe,exit:warm air `Lf
1
hot relatively cool
air. \ ambient air
110
40
\\entryj
` = temperature difference:
density difference
pressure difference
-� up-draught
cogreenhouse effect
ambient air ?-
f f
4M
7 AZUSA
L I G H 1 6 W A 7 E H
Prototype
M
Constructed in Manzanares, Spain in 1982
8 A'ZUSA
LIGHT & WATER
" Under Glass" at Prototype
ID iJ
.i
N
9 AZUSA
Lt G H i 5 N'AT ER
How does it Work?
A
10 AZUSA
LIGHT & W A T E R
Key Terms
• SCPPA would contract with developer. Azusa would execute a Power
Sales Agreement with SCPPA.
• Contract term is 30 years
• Price is $95.50 per MWH for first 15 years
— Price is reduced by 40% for all energy produced in excess of a 63%
capacity factor
Price increases $1 .00/MWH annually after 15th year
• Delivery Point for Azusa is in southern Nevada (a favorable location)
• Expected "capacity factor" is 60%
• Various construction milestones and operational performance objectives
with penalties
• Option for SCPPA to purchase after 10 years at Fair Market Value
11 AZUSA
LIGHT S WATER
EconOMOCS
° Azusa's average "all in" price for power supply
today is $90 per MWH
° La Paz's price of $95 . 50/MWH in 2014/15 is
comparable
° Average "net present value" price is very good
— $57/MWH at a 4% discount rate
— $65/MWH at a 3% discount rate
12 AZUSA
LIGHT 6 w A T E R
Production Profile
Hourly Total MWh
:3:)PF'1.4003gr)'f9C.f3.P)03.t, n,i.px.(•YC
T 70,000 T
0 60,000 _ ::?lo _ .
Sl.to 3l rao
t
50.000
a
40,000 —
30,000
•saoo--
M
20.Otk7
w LS1lC
h 10.0� .E�ZQ�.i.3(.•��_� - - - - - - -,��
1 2 3 4 5 b 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
Hour of Day
�l3e�v
13
AZUSA
L I G H T & W A T E P
SCPPA Participants
Azusa 2
Anaheim 10
Burbank 27
Glendale 12
Imperial Irrigation District 15
Pasadena 10
Riverside 25
Total 101
hro
14 AZUSA
LIGHT & WATER
Risk
• Azusa has no responsibility for licensing or
construction (i .e. no capital costs)
• Azusa only pays for energy that is produced by the
project at the fixed contract prices
• If the Developer fails to meet contract milestones or
plant performance objectives, SCPPA will receive
penalty payments and may potentially cancel contract
• Risk is that Azusa will need to replace the expected
renewable energy from La Paz if is not constructed or
does not work as planned
15 AZUSA
LIGHT $ VIAIER
mey Mflestones
Permits Obtained February, 2012 $1 .0
Financing November, 2012 $0.75
Transmission Interconnection May, 2012 - $2.0
Start of Construction November, 2012 $3.0
Commercial Operation November, 2014 $15.0
gni
16 AZUSA
l 1 G H i y W A i E P
Recommendation
• Introduce and conduct first reading of a
proposed ordinance :
Ordinance would approve a Power
Sales Agreement with the Southern
California Public Power Authority to
purchase energy from the La Paz Solar
Tower Project
17 AZUSA
L I G H T & W A T E R
OF glut;
11FORN
AGENDA ITEM
TO: HONORABLE MAYOR AND CIT COUNCIL MEMBERS
FROM: VERA MENDOZA, CITl'-.0
DATE: DECEMBER 6, 2010
SUBJECT: RESOLUTION APPROVING AND ADOPTING THE AMENDED
APPENDIX TO THE CONFLICT OF INTEREST CODE PURSUANT TO
THE 2010 MANDATORY REVIEW AND FILED BIENNIAL NOTICE.
RECOMMENDATION:
It is recommended to that City Council waive further reading and adopt Resolution approving and
adopting an amended appendix to the Conflict of Interest Code.
BACKGROUND:
On June 7, 2010,pursuant to the Political Reform Act, the City Council directed staff to review the
City's Conflict of Interest Code, file a Biennial Report regarding the review and submit a revised
Code, if needed. Revisions to the Designated Employees contained in the Appendix to the City's
Conflict of Interest Code were prepared by the City Attorney's office working together with the City
Clerk and Human Resources staff to apply the FPPC definitions to the appropriate City positions
thereby requiring designation.
The revision to the list of Designated Employees accurately reflect the City's current positions that
make or participate in the making of governmental decisions as required by the Act and the FPPC
Regulations.
FISCAL IMPACT:
None.
Prepared by C. Toscano, Assistant City Clerk
i
RESOLUTION NO. 2010-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AZUSA, CALIFORNIA, APPROVING AND ADOPTING AN
AMENDED CONFLICT OF INTEREST CODE PURSUANT
TO THE POLITICAL REFORM ACT OF 1974
WHEREAS, the Legislature of the State of California enacted the Political Reform
Act of 1974,Government Code Section 81000,et seq.(the"Act"),which contains provisions relating
to conflicts of interest which potentially affect all officers, employees and consultants of the City of
Azusa (the "City"), and which requires all public agencies to adopt and promulgate a conflict of
interest code; and
WHEREAS,the City Council adopted a Conflict of Interest Code(the"Code")which
was amended on December 15, 2008, in compliance with the Act.; and
WHEREAS, subsequent changed circumstances within the City have made it
advisable and necessary pursuant to Sections 87306 and 87307 of the Act to amend and update the
City's Code; and
WHEREAS, the potential penalties for violation of the provisions of the Act are
substantial and may include criminal and civil liability,as well as equitable relief which could result
in the City being restrained or prevented from acting in cases where the provisions of the Act may
have been violated; and
WHEREAS,notice of the time and place of a public meeting on,and of consideration
by the City Council of, the proposed amended Code was provided to each affected designated
employee and was publicly posted for review; and
WHEREAS, a public meeting was held upon the proposed amended Code at a regular
meeting of the City Council on December 6,2010, at which all present were given an opportunity to
be heard on the proposed amended Code.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA,
CALIFORNIA, DOES FIND AND DECLARE THAT:
SECTION 1. Approval and Adoption of Amended Conflict of Interest Code. The
City Council does hereby approve and adopt the proposed amended Conflict of Interest Code,a copy
of which is attached hereto and shall be on file with the City Clerk and available to the public for
inspection and copying during regular business hours;
SECTION 2. Effective Date. The said amended Conflict of Interest Code shall
become effective thirty(30) days after the date of its adoption and approval on January 5, 2011.
45635.01000\5734205.1 t
PASSED, APPROVED AND ADOPTED this 6h day of December, 2010.
Mayor, City of Azusa, California
ATTEST:
City Clerk, City of Azusa, California
45635.0100015734205.1 2
STATE OF CALIFORNIA )
SS.
COUNTY OF LOS ANGELES )
I, ,City Clerk of the City of Azusa,do hereby certify that the foregoing
Resolution is the actual resolution duly and regularly adopted at a regular meeting of the City
Council on the 6`h day of December, 2010, by the following vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAINED:COUNCILMEMBERS:
City Clerk
City of Azusa, California
APPROVED AS TO FORM:
City Attorney
45635.01 000\5734205.1
LAW OFFICES OF
BEST BEST & KRIEGER
CONFLICT OF INTEREST CODE FOR THE
CITY OF AZUSA
(Amended December 6, 2010)
The Political Reform Act (Gov. Code § 81000, et seq.) requires state and
local government agencies to adopt and promulgate conflict of interest codes. The Fair
Political Practices Commission has adopted a. regulation (2 Cal. Code of Regs. §
18730) which contains the terms of a standard conflict of interest code, which can be
incorporated by reference in an agency's code. After public notice and hearing it may
be amended by the Fair Political Practices Commission to conform to amendments in
the Political Reform Act. Therefore, the terms of 2 California Code of Regulations
section 18730 and any amendments to it duly adopted by the Fair Political Practices
Commission are hereby incorporated by reference. This regulation and the attached
Appendix designating officials and employees and establishing disclosure categories,
shall constitute the conflict of interest code of the City of Azusa (the "City").
All officials and designated employees required to submit a statement of
economic interests shall file their statements with the City Clerk as the City's Filing
Officer. The Filing Officer shall make and retain a copy of all statements filed by all
Officials subject to the Act, and forward the originals of such statements to the Fair
Political Practices Commission. The Filing Officer shall retain the. originals of the
statements filed by all other Designated Employees. The Filing Officer will make all
retained statements available for public inspection and reproduction during regular
business hours. (Gov. Code § 81008.)
1- BBK—December 2010
16356.0000115733793.3
LAW OFFICES OF
BEST BEST & KRIEGER
APPENDIX
CONFLICT OF INTEREST CODE
OF THE
CITY OF AZUSA
(Amended December 6, 2010)
EXHIBIT "A"
The Mayor, Members of the City Council and Planning Commission, the
City Manager, the City Attorney, the City Treasurer, and all Other City Officials who
manage public investments as defined by 2 Cal. Code of Regs. § 18701(b), are NOT
subject to the City's Code but are subject to the disclosure requirements of the Act.
(Government Code Section 87200 et seq.). [Regs. § 18730(b)(3)]
OFFICIALS WHO MANAGE PUBLIC INVESTMENTS
It has been determined that the positions listed below are Other City
Officials who manage public investments'. These positions are listed here for
informational purposes only.
Director, Administrative Services/Chief Financial Officer
Financial Consultant
' Individuals holding one of the above-listed positions may contact the FPPC for assistance or
written advice regarding their filing obligations if they believe that their position has been
categorized incorrectly. The FPPC makes the final determination whether a position is covered
by§87200.
16356.00001 k5733793.3 App.-t- BBK—December-2010
LAW OFFICES OF
BEST BEST & KRIEGER
DESIGNATED POSITIONS
GOVERNED BY THE CONFLICT OF INTEREST CODE
DESIGNATED EMPLOYEES' DISCLOSURE CATEGORIES
TITLE OR FUNCTION ASSIGNED
Administrative Analyst 5
Adult Education and Literacy Services Coordinator 5
Assistant City Clerk 5
Assistant City Manager 1 , 2
Assistant Director, Community Development 1 , 2
Assistant Director, Customer Care & Solutions 5
Assistant Director, Economic & Community Development 1, 2
Assistant Director, Electric Operations 2, 3, 5
Assistant Director of Public Works/City Engineer 2, 3, 5, 6
Assistant Director, Resource Management 5
Assistant Director, Water Operations 2, 3, 5
Assistant Library Director 5
Assistant to the Director, Utilities/Principal
Policy and Budget Analyst 2, 3, 5
Assistant Planner 2, 3, 5, 6
Associate Planner 2, 3, 5, 6
Budget Analyst 5
Building Inspector 5, 6
Building Official 2, 3, 5, 6
Business Development/Public Benefit Program Coordinator 1, 2
App.-2- BBK—December 2010
16356.0000115733793.3
LAW OFFICES OF
BEST BEST & KRIEGER
DESIGNATED EMPLOYEES' DISCLOSURE CATEGORIES
TITLE OR FUNCTION ASSIGNED
Buyer q
Chief of Police 5, 6
City Attorney (not filing under Gov Code 87200) 1, 2
City Clerk 5
Community Improvement Inspector 5, 6
Community Improvement Supervisor 1
Controller 1
Customer Care Operations Supervisor 5
Director,. Economic and Community Development 1 , 2
Director, Human Resources/Personnel Officer 5
Director, Information Technology 5
Director, Library/Community Services 1 , 2
Director, Public Works/Assistant City Manager 1, 2
Director, Recreation and Family Services 2, 3, 5
Director, Utilities 2, 3, 5, 6
Electric Distribution Supervisor 5
Electrical Engineer (ALL) 2, 3, 5
Emergency Services Coordinator 5
Engineering Assistant 2, 3, 5, 6
Engineering Associate 2, 3, 5, 6
Equipment Mechanic Supervisor 5
APP BBK—December 2010
16356.00001�,5733793.3
LAW OFFICES OF
BEST BEST & KRIEGER
DESIGNATED EMPLOYEES' DISCLOSURE CATEGORIES
TITLE OR FUNCTION ASSIGNED
Field Service Supervisor 5
Human Resources/Risk Management Analyst 5
Information Systems Manager 5
Information Technology (IT) Analyst 5
Librarian 5
Management Analyst - Public Works 5
Police Administrative Services Manager 5
Police Captain 5, 6
Police Communications Supervisor 5
Power Resources Coordinator 5
Principle Civil Engineer 2, 3, 5, 6
Public Information Officer 5
Public Works Inspector 3, 6
Public Works Supervisor 2, 3, 5
Recreation Coordinator 5
Recreation Superintendent - Operations & Parks 2, 5
Recreation Superintendent - Programs & Services 5
Recreation Supervisor 5
Redevelopment Project Manager 1, 2
Revenue Supervisor 5, 6
Senior Accountant 5
16356.0000115733793.3 App.-4- BBK-December 2010
LAW OFFICES OF
BEST BEST & KRIEGER
DESIGNATED EMPLOYEES' DISCLOSURE CATEGORIES
TITLE OR FUNCTION ASSIGNED
Senior Information Technology Analyst 5
Senior Librarian 5
Senior Management Analyst 5
Senior Planner 2, 3, 5, 6
Storekeeper 4
Urban Forester 5
Water Production Supervisor 5
Water Distribution Supervisor 5
MEMBERS OF BOARDS
COMMISSIONS AND COMMITTEES
Architectural Barriers Commission 2, 3, 5, 6
Cultural & Historic Preservation Commission 2, 3, 5
Library Commission 2, 3, 5
Parks & Recreation Commission 2, 3, 5
Personnel Board 5
Consultant2
2 Consultants shall be included in the list of Designated Employees and shall disclose pursuant to
the broadest disclosure category in this Code subject to the following limitation:
The City Manager may determine in writing that a particular consultant, although a "designated
position," is hired to perform a range of duties that are limited in scope and thus is not required to
fully comply with the disclosure requirements described in this Section. Such written
determination shall include a description of the consultant's duties and, based upon that
description, a statement of the extent of disclosure requirements. The City Manager's
determination is a public record and shall be retained for public inspection in the same manner
and location as this Conflict of Interest Code.
App.-5- BBP—December 2010
16356.0000115733793.3
LAW OFFICES OF
BEST BEST & KRIEGER
EXHIBIT "B"
DISCLOSURE CATEGORIES
The disclosure categories listed below identify the types of investments,
business entities, sources of income, including gifts, loans and travel payments, or real
property which the Designated Employee must disclose for each disclosure category to
which he or she is assigned.
Category 1: All investments and business positions and sources of
income, including gifts, loans and travel payments, that are located in, do business in,
or own real property within the jurisdiction of the City.
Category 2: All interests in real property which is located in whole or in
part within, or not more than two (2) miles outside, the jurisdiction of the City.
Category 3: All investments and business positions and sources of
income, including gifts, loans and travel payments, that are engaged in land
development, construction or the acquisition or sale of real property within the
jurisdiction of the City.
Category 4: All investments and business positions and sources of
income, including gifts, loans and travel payments, that provide services, supplies,
materials, machinery, vehicles or equipment of a type purchased or leased by the City.
Category 5: All investments and business positions and sources of
income, including gifts, loans and travel payments, that provide services, supplies,
materials, machinery, vehicles or equipment of a type purchased or leased by the
Designated Employee's department, unit or division.
Category 6: All investments and business positions and sources of
income, including gifts, loans and travel payments, subject to the regulatory, permit, or
licensing authority of the Designated Employee's department, unit or division.
16356.00001\5733793.3 App.-6- BBK—December 2010
RESOLUTION NO. 2010-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AZUSA, CALIFORNIA, APPROVING AND ADOPTING AN
AMENDED CONFLICT OF INTEREST CODE PURSUANT
TO THE POLITICAL REFORM ACT OF 1974
WHEREAS, the Legislature of the State of California enacted the Political Reform
Act of 1974,Government Code Section 81000,et seq. (the"Act"),which contains provisions relating
to conflicts of interest which potentially affect all officers, employees and consultants of the City of
Azusa (the "City"), and which requires all public agencies to adopt and promulgate a conflict of
interest code; and
WHEREAS,the City Council adopted a Conflict of Interest Code(the"Code")which
was amended on December 15, 2008, in compliance with the Act.; and
WHEREAS, subsequent changed circumstances within the City have made it
advisable and necessary pursuant to Sections 87306 and 87307 of the Act to amend and update the
City's Code; and
WHEREAS, the potential penalties for violation of the provisions of the Act are
substantial and may include criminal and civil liability,as well as equitable relief which could result
in the City being restrained or prevented from acting in cases where the provisions of the Act may
have been violated; and
WHEREAS,notice of the time and place of a public meeting on,and of consideration
by the City Council of, the proposed amended Code was provided to each affected designated
employee and was publicly posted for review; and
WHEREAS, a public meeting was held upon the proposed amended Code at a regular
meeting of the City Council on December 6,2010, at which all present were given an opportunity to
be heard on the proposed amended Code.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA.
CALIFORNIA, DOES FIND AND DECLARE THAT:
SECTION 1. Approval and Adoption of Amended Conflict of Interest Code. The
City Council does hereby approve and adopt the proposed amended Conflict of Interest Code,a copy
of which is attached hereto and shall be on file with the City Clerk and available to the public for
inspection and copying during regular business hours;
SECTION 2. Effective Date. The said amended Conflict of Interest Code shall
become effective thirty (30) days after the date of its adoption and approval on January 5, 2011.
45635.0 10005734205.1 ]
PASSED, APPROVED AND ADOPTED this 6h day of December, 2010.
Mayor, City of Azusa, California
ATTEST:
City Clerk, City of Azusa, California
45635.01000\5734205.1 2
STATE OF CALIFORNIA )
SS.
COUNTY OF LOS ANGELES )
I, City Clerk of the City of Azusa, do hereby certify that the foregoing
Resolution is the actual resolution duly and regularly adopted at a regular meeting of the City
Council on the 6h day of December. 2010, by the following vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAINED:COUNCILMEMBERS:
City Clerk
City of Azusa, California
APPROVED AS TO FORM:
City Attorney
45635.01000\5 734205.1
r
SCHEDULED ITEM
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: KURT CHRISTIANSEN, DIRECTOR OF ECONOMIC AND COMMUNITY
DEVELOPMENT
VIA: F.M. DELACH, CITY MANAGERAW
DATE: DECEMBER 6, 2010
SUBJECT: COUNCIL REQUEST FOR INFORMATION REGARDING POTENTIAL
DEVELOPMENT CODE AMENDMENT TO ADDRESS
INCONSISTENCIES BETWEEN PERSONAL SERVICES AND BUSINESS
SERVICES IN THE DOWNTOWN TOWN CENTER
RECOMMENDATION
Staff recommends that the City Council give direction to staff regarding a potential City initiated
Development Code Amendment.
BACKGROUND
At the November 15, 2010, City Council meeting, Councilman Macias raised an concern as to
why a real estate office would be allowed on the ground floor of a two-story building in the
downtown while a law office would not. Staff indicated that from time to time the Development
Code is amended to address inconsistencies or change outdated requirements. The City Council
directed staff to look into this issue, determine whether an inconsistency exists, and respond with
a recommendation as to how to correct any inconsistency.
ANALYSIS
The current Development Code was adopted by the City Council in 2005 and sets forth the
zoning designations and requirements for all parcels in the City. At the time the Code was
adopted, the intent was to ensure that the Downtown Town Center (roughly from 5`h Street on the
south to the railroad tracks on the north and from San Gabriel Avenue on the west to between
Dalton and Soldano on the east) would be retail commercial focused. Therefore, establishments
providing direct services to consumers or clients, typically with higher client volumes - such as
real estate offices and travel agencies, would be categorized as Office - Business/Service and
would be permitted anywhere in the Downtown Town Center. However, office uses
characterized by high employee densities, such as data processing services (Office— Processing),
or those which provide professional services, such as an attorney or architect office (Office —
Professional), would be allowed in the downtown zones on the second or upper floor only. Staff
believes that it would be appropriate to focus retail uses on Azusa Avenue and San Gabriel
Avenue.
Therefore, with City Council direction, staff can initiate a Development Code Amendment to
allow Office - Professional uses everywhere in the Downtown Town Center except along Azusa
Avenue or San Gabriel Avenue, where they would be allowed on the second or upper floor only.
FISCAL IMPACT
There would be no fiscal impact to the City as a proposed Development Code Amendment
would be processed by City staff.
C:\DOCUME-1\AZUSAU-2\LOCALS-1\Temp\XPgrpwise\Office Professional CC Staff Report 12.6.10 revised_l.doc 2
U v
CITY OF AZUSA
MINUTES OF THE CITY COUNCIL
REGULAR MEETING
MONDAY,NOVEMBER 15,2010—6:37 P.M.
The City Council of the City of Azusa met in regular session at the above date and time in the Azusa
Auditorium located at 213 E.Foothill Boulevard,Azusa,CA 91702.
CLOSED SESSION
The City Council recessed to Closed Session at 6:39p.in. Closed Session
1. CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code Sec 54957.6) Conf w/labor
Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and Negotiators
City Manager Delach
Organizations: AMMA,SEfU,APOA,APMA and ACEA
2. REAL PROPERTY NEGOTIATIONS(Gov.Code Sec.54956.8) Real Prop
Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff Negotiations
Under Negotiation: Price and Terms of Payment
a. ENTERPRISE PROPERTY Enterprise Prop
Address: 229 S.Azusa Avenue(APN 8614-014-056,057 and 058)
Agency Negotiators: City Manager Dclach and Assistant City Manager Makshanoff
Negotiating Parties: City of Azusa and City of Azusa Redevelopment Agency
b. BLOCK 36 Block 36
Address: 100 E.Foothill Boulevard,Azusa,CA 91702
614—640 N.Azusa Avenue,Azusa,CA 91702
Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff
Negotiating Parties:City of Azusa and City of Azusa Redevelopment Agency
Address: 152 E. Foothill Boulevard,Azusa,CA 91702
Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff
Negotiating Parties:Bank of America&City of Azusa Redevelopment Agency
The City Council reconvened at 7:35 p.m.The City Attorney Carvalho advised that there was no reportable No Reports
action taken in Closed Session. Closed Session
Mayor Rocha called the meeting to order. Call to Order
Mr. Bill Baca led in the Flag Salute and Invocation was given by Pastor Eddie Velasquez of Jesus Is Lord Flag Salute
Church
Invocation
ROLL CALL Roll Call
PRESENT: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,ROCHA
ABSENT: COUNCILMEMBERS: HANKS
ALSO PRESENT: Also Present
City Attorney Carvalho, City Manager Delach, Assistant City Manager Makshanoff,Police Chief Garcia,
Director of Public Works Haes,Director of Economic and Community Development Christiansen, Director
of Recreation and Family Services Jacobs, Recreation Supervisor Gonzales, Public Information Officer
Quiroz, Assistant Director of Economic and Community Development McNamara, Director of Utilities
Morrow,City Clerk Mendoza,Deputy City Clerk Toscano.
Mayor Rocha announced that Mr.David Feldman is an honorary member of the City of Azusa. D.Feldman
Honorary
Member of City
PUBLIC PARTICIPATION Pub Part -
Mr. Mike Lee addressed Council with comments regarding Veteran's Day Ceremony, commended Bill M.Lee
Baca for serving the City as outgoing Representative to Senator Gloria Romero, prayer for the shoemaker Comments
on Gladstone Street, congratulations to Mayor for running for office again, and all candidates who won in
November election, questions on Vulcan Mining issue, Applebee's is coming to Azusa, pray for soldiers
and expressed sympathy for the families of Mike Castaneda and Don Flowers who passed away this week.
Mr. Bill Baca Field Representative to Senator Gloria Romero addressed Council expressing his B.Baca
appreciation to the Mayor, City Council and staff for the time and friendship they have given him during Comments
his tenure as aide to Senator Gloria Romero. -
Mr. Jorge Rosales addressed Council regarding proposed Housing Development at Miller Property and J.Rosales
read a statement,distributed to Councilmembers,expressing his opinion regarding the item. Comments
Recreation Supervisor Lenore Gonzales and Program Coordinator Stefanie Fultz invited all to the Winter L.Gonzales
Family Fiesta and Holiday Tree Lighting Ceremony to be held on Sunday, December 56 from 12 noon to S.Fultz
6:00 p.m.They talked about the activities that will occur and announced sponsors of the event. Winter Fiesta
Holiday Tree
Ms. Jeri Vogel addressed Council thanking all who support the Azusa Against Mining Expansion J.Vogel
Committee and talked about money spent by the Canyon City Alliance Committee. Comments
Ms. Mercedes Castro addressed Council thanking them for working together to address the issue of mining M.Castro
and to insure that it is done right. Comments
Ms.Mary Mc Kendrick, Chairwoman of the Azusa Chamber of Commerce,addressed Council expressing M.McKendrick
her opinion in favor of Measure A. Comments
Ms.Elizabeth Ramirez,Executive Director of Canyon City Alliance addressed Council in favor of Measure E.Ramirez
A and talked about benefits,guarantees and future mining. She invited all to attend the grand opening of Comments
their office on November 18,2010.
Mr. Russ Rentschler congratulated Councilmember Carrillo on the passage of Proposition 22, asked Mr. R.Rentschler
Macias when the meetings on Downtown North will resume, congratulated Azusa Aztecs and Gladstone Comments
Gladiators on their Football season wins, asked that the City begin decorating the downtown area for
Christmas Season, encouraged all to vote on January 25, 2011, and stated that there should be a football
stadium built for Azusa High School and Gladstone High School.
Ms. Lucy Shelton invited all to a special free presentation entitled Coyotes in our Midst to be held at the L.Shelton
LA. County Arboretum, 301 N. Baldwin Avenue. Arcadia, on Tuesday,November 30, 2010 from 6:30 Comments
p.m.—8:30 p.m.with renowned Coyote expert and author Camilla H.Fox.
Mr.Ian Scott addressed Council expressing his disappointment on not receiving answers to questions posed L Scott
at the last Council meeting and asked additional questions. Comments
Pastor Eddie Velasquez on behalf of the Ministerial Association invited all to attend a Thanksgiving Pastor E.
Service on Sunday,November 21,2010 at 6:00 p.m.at Praise Chapel Azusa on 5"Street with Pastor Wood Velasquez
Calvary. He stated that the Association continues to pray for local leaders. Thanksgiving Svs
City Manager Detach responded to questions from Mr. Mike Lee regarding the money paid by Vulcan Responses
Materials to the City. Discussion was held regarding response to Mr.Ian Scotts questions and it was noted To Questions
that there was a question and answer memo prepared by staff which can be made available to Mr.Scott and
any other clear questions can be answered by staff or be found on the web site and responses could be
provided at the City Clerks office.
REPORTS.UPDATES COUNCIL BUSINESS AND ANNOUNCEMENTS-STAFF Rpts,Updates
Mayor Rocha announced the 136 Annual Food Drive sponsored by the Azusa Unified School District and City Manager
the City of Azusa; all foods collected will be distributed to the Five Food Banks in Azusa. He thanked Detach
drivers who will be collecting food from drop off sites on December 3`" 10'and 17'. Comments
Mayor Pro-Tem Gonzales thanked City Manager and Staff for their part in Azusa becoming the finalist in Gonzales
the Los Angeles Economic Development Corporation Business Friendly City;Azusa was number six of the Comments
eighty-eight cities. He thanked Mayor Rocha and the Veteran's Committee for the Ceremony on Veteran's
Day as well as the USO Dance at Recreation on Saturday stating that in Azusa Veteran's are honored
everyday. He congratulated Azusa High School Football Team on their win on Friday,and both Azusa and
Gladstone High School Football Teams for making the playoffs.He wished all a Happy Thanksgiving.
Councilmember Macias congratulated and thanked Staff and Chamber of Commerce for their part in Azusa Macias
being nominated as the Most Business Friendly City. Comments
11/15/10 PAGE TWO
He stated that they may begin the Downtown North Advisory Committee Meeting as there is renewed Macias
interest in Block 36. He thanked Director of Public Works Haes for the clean up of the freeway off ramps Continued
and noted a light pole that needs to be replaced,thanked Mayor Rocha and Recreation Staff for the success
of the Veteran's Day Ceremony and congratulated Football Coach Joe Scherf of Azusa High School for the
success of the team.
Councilmember Carrillo thanked the Veteran's Committee for the success of the Veteran's Day Ceremony, Carrillo
thanked Economic & Community Development Director Christiansen and the Azusa Chamber of Comments
Commerce for the honor of being recognized as one of the cities nominated as the Most Business Friendly.
He congratulated Azusa High School Football Team and Gladstone High Football Team on their success.
He wished all a very Happy Thanksgiving, and thanked Pastor Eddie Velasquez for his kind words and
prayers for the City Council.
Mayor Rocha announced that the meeting would be adjourned in memory of Carmen S. Reyes, Michael Rocha
Castaneda and Don Flowers and asked that all pray for our soldiers. He stated that majestic magnolias Comments
trees have been planted at the turn about on Sierra Madre. He thanked recreation staff for the USO Dance
held on Saturday, noted the I" anniversary of Be a Walker Program which over 150 kids attended,
announced Hearts for the Hungary at Pastor Jesse Aramburo's church on November 20'",and Canyon City
Car Club Toy Drive on December 5". He stated that old American Flags could be disposed of at the VFW
and can be left off at City Hall, Administration Office and he will see they get to the VFW. Lastly, he
urged all to join in the candy drive for U.S.Troops;they are also accepting white socks, at City Hall and
will be collected on December 4,2010 and packaged at the VFW 10 a.m.
City Manager Delach addressed the Most Business Friendly City competition stating that it was at the City Mgr
direction of the City Council that staff proceeded with the effort and congratulated Councilmembers for Comments
their direction and guidance.
SCHEDULED ITEMS Sched Items
PUBLIC HEARING - ORDINANCE AMENDING CHAPTER 14 AZUSA MUNICIPAL CODE AND Pub Hrg Ord
ADOPTION OF 2010 CALIFORNIA BUILDING STANDARDS CODES. Amend
AMC Bldg Codes
Councilmembers commented on new California residential mandatory installation of fire system and Cncl Comment
inconsistent code sections. Staff responded stating that they could initiate a clean up ordinance to address
inconsistencies.
The Mayor declared the Hearing open. The City Clerk read the affidavit of proof of publication of notice Hrg Open
of the Hearing published in the San Gabriel Valley Tribune on October 29"and November 5,2010. .
Testimony was solicited, but none was received. Moved by Mayor Pro-Tem Gonzales, seconded by Testimony
Councilmember Macias and unanimously carried to close the Hearing. Hrg closed
Councilmember Macias offered an Ordinance entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA AMENDING CHAPTER 14 OF THE Ord 10.07
AZUSA MUNICIPAL CODE,BY AMENDING SECTIONS 14-1, 144, 14-51, 14-53, 14-55, 15-57, 14-62, 14-64, Amending AMC
14-201 and 14-202;ADDING SECTION 14-69,AND DELETING SECTIONS 14-58, 14-59, 14.60, 14-61, 14-63, Amending Bldg
14-65, 14-66, 14-67 AND 14-68;AND ADOPTING BY REFERENCE THE 2010 EDITION OF THE CALIFORNIA Codes&
BUILDING STANDARDS CODE (CALIFORNIA CODE OF REGULATIONS, TITLE 24)J INCLUDING THE Adopting by
CALIFORNIA BUILDING CODE VOLUMES I & 2 INCLUDING APPENDIX (2010 EDITION, Reference
INCORPORATING AND AMENDING THE 2009 INTERNATIONAL BUILDING CODE); THE CALIFORNIA
RESIDENTIAL CODE (2010 EDITION, INCORPORATING AND AMENDING THE 2009 INTERNATIONAL
RESIDENTIAL CODE); THE CALIFORNIA GREEN BUILDING STANDARDS CODE(2010 EDITION); THE
CALIFORNIA MECHANICAL CODE (2010 EDITION, INCORPORATING AND AMENDING THE 2009
UNIFORM MECHANICAL CODE); THE CALIFORNIA PLUMBING CODE (2010 EDITION,
INCORPORATING AND AMENDING THE 2009 UNIFORM PLUMBING CODE); THE CALIFORNIA
ELECTRICAL CODE (2010 EDITION, INCORPORATING AND AMENDING THE 2008 NATIONAL
ELECTRICAL CODE);THE CALIFORNIA EXISTING BUILDING CODE(2010 EDITION),together with certain
additions, insertions, deletions and changes thereto; AND ADOPTING BY REFERENCE THE UNIFORM
SWIMMING POOL, SPA AND HOT TUB CODE(2009 EDITION), AND THE UNIFORM HOUSING CODE
CHAPTERS 4,5,6 AND SECTIONS 701.2 AND 701.3(1997 EDITION).
Moved by Councilmember Macias, seconded by Councilmember Carrillo to waive further reading and
adopt. Ordinance was passed and adopted by the following vote of the Council:
AYES: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: HANKS
CONSIDERATION OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, Proposed Ord
AMENDING CHAPTER 74 OF THE AZUSA MUNICIPAL CODE, BY ADDING SECTION 74-439.1 Prohibit Sleeping
PROHIBITING SLEEPING IN VEHICLES, In Vehicles
11/15/10 PAGE THREE
Director of Public Works Haes presented the item stating that this proposed ordinance is in response to Dir Pub Wks
complaints from residents regarding people that are living in their vehicles i.e.recreational vehicles,trucks Presentation
or cars; Code Enforcement/Police have no authority to prevent this because there is no ordinance
prohibiting this activity. He stated that this will eliminate blight, trash and sewage dumping from people
living in vehicle for several weeks.-He responded to questions posed.
Mayor Pro-Tem Gonzales offered an Ordinance entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, 0 RdOrd
PROHIBITING SLEEPING IN VEHICLES ON PUBLIC AND PRIVATE PROPERTY. Prohibit sleeping
In vehicles
Moved by Mayor Pro-Tem Gonzales, seconded by Councilmember Macias and unanimously* carried to
waive further reading and introduce the proposed ordinance.
The CONSENT CALENDAR consisting of Items D-1 through D- 7 was approved by motion of Mayor Consent Calendar
Pro-Tem Gonzales,seconded by Councilmember Carrillo and unanimously* carried. Approved
1. The minutes of the regular meeting of November 1,2010 were approved as written. Min appvd
2. HUMAN RESOURCES ACTION ITEMS. HR Action Items
Human Resources Action Items were approved as follows:
Merit Increase and/or Regular Appointment: M. Gomez-Villegas, C. Cusack, and T.
Rasmussen.
Promotion: D.Eldridge to Police Sergeant and R.Hayden to Police Corporal.
Separation: M.Gurbada and S.Shahsavari.
3. The Police Department was authorized to increase parking,fines by $3.00 per violation effective Increase Pkg
December 7,2010 to match the surcharge increase imposed by the Stale during the recent passing of Fines
the 2010 California Budget Act.
4. Approval was given for minor amendments to agreements between the City and Miki Carpenter and Renew Grant
the Center for Integrated Family and Health Services regarding implementation of the Los Angeles Funding
County Renewing Environment for Nutrition,Exercise and'Wellness(RENEW)Grant Funding.
5. Plans and Specifications were approved and staff was authorized to solicit bids for the Cerritos
Avenue and Gladstone Street Traffic Signal Improvements and the Citrus Avenue and Baseline
Avenue Traffic Signal Modification.
6. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA IN SUPPORT OF Res. 10-C86
"BUSINESS FRIENDLY PRINCIPLES" AS PART OF SOUTHERN CALIFORNIA Support Bus
ASSOCIATION OF GOVERNMENT'S (SCAG) DEVELOPMENT OF A SOUTHERN Friendly
CALIFORNIA ECONOMIC GROWTH STRATEGY. Principals
- 7. The following resolution was adopted and entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ALLOWING CERTAIN Res. 10-C87
CLAIMS AND DEMANDS AND SPECIFYING THE FUNDS OUT OF WHICH THE SAME Warrants
ARE TO BE PAID.
THE CITY COUNCIL RECESSED AND THE REDEVELOPMENT AGENCY CONVENED AT Cncl Recess
8:58 P.M. THE CITY COUNCIL RECONVENED AT 9:01 P.M. CRA Cont
APFA Convene
Cncl Rcnd
It was consensus of Councilmembers to adjourn in memory of Carmen S. Reyes, Michael Castaneda and Adjourn in
Don Flowers Memory of
C.Reyes
TIME OF ADJOURNMENT:9:02 P.M. M.Caslaneda&
D.Flowers
CITY CLERK
NEXT RESOLUTION NO.2010-C88
NEXT ORDINANCE NO.2010.08.
*Indicates Councilmember Hanks absent.
I1/15/10 PAGE FOUR
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CITY OF AZUSA
MINUTES OF THE CITY COUNCIL
SPECIAL MEETING
MONDAY,OCTOBER 25,2010-7:29 P.M.
The City Council of the City of Azusa met in special session at the above date and time at the Azusa Light
and Water Conference Room located at 729 N.Azusa Avenue,Azusa.
Mayor Rocha called the meeting to order. Call to Order
ROLL CALL Roll Call
PRESENT: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,ROCHA
ABSENT: COUNCILMEMBERS: HANKS
ALSO PRESENT: Also Present
Manager Delach and Assistant City Manager Makshanoff.
PUBLIC PARTICIPATION Pub Part
None. None.
CLOSED SESSION ITEMS Closed Session
It was consensus of Councilmembers to recess to Closed Session at 7:30 p.m.to discuss the following: Recess
LCONFERENCE WITH LEGAL COUNSEL- POTENTIAL LITIGATION (Gov. Code Sec Potential
54956.9(c))One Case of Potential Litigation: Based on existing facts and circumstances,the City will Litigation
discuss whether to initiate litigation in relation to loan agreements regarding the Talley Building.
2.CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code See.54957.6) Labor
Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and City Negotiations
Manager Delach
Organizations: AMMA,SEIU,APOA,APMA and ACEA
Reconvened
The City Council reconvened at 7:40 p.m. There was no reportable action taken in Closed Session
Adjourn
It was consensus•of Councilmembers to adjourn.
TIME ADJOURNMENT:7:41 P.M. -
CITY CLERK
NEXT RESOLUTION NO. 10-C79.
-Indicates Hanks absent.
Of�G
U N
.4.. %
CITY OF AZUSA
MINUTES OF THE CITY COUNCIL
SPECIAL MEETING
MONDAY,NOVEMBER 22,2010—7:38 P.M.
The City Council of the City of Azusa met in special session at the above date and time in the Azusa Light
and Water Conference Room located at 729 N.Azusa Avenue,Azusa.
Mayor Rocha called the meeting to order. Call to Order
ROLL CALL Roll Call
PRESENT: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
ABSENT: COUNCILMEMBERS: NONE
ALSO PRESENT: - Also Present
Manager Delach and Assistant City Manager Makshanoff.
PUBLIC PARTICIPATION Pub Part
None. None,
CLOSED SESSION ITEMS Closed Session
The City Council did not recess to Closed Session to discuss the following,as there was no new business No Business
regarding the item.
1.CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code Sec 54957 6) Labor
Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and City Negotiations
Manager Delach
Organizations: AMMA,SET,APOA,APMA and ACEA
Moved by Councilmember Hanks,seconded by Mayor Pro-Tem Gonzales and unanimously carried to Adjourn
adjourn.
TIME ADJOURNMENT:7:39 P.M.
CITY CLERK
NEXT RESOLUTION NO. 10-C88.
x
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: KERMIT FRANCIS, INTERIM DIRECTOR OF HUMAN RESOURCES/PERSONNEL OFFICER
VIA: F.M. DELACH, CITY MANAGER
DATE: DECEMBER 6, 2010 �Y'•
SUBJECT: HUMAN RESOURCES ACTION ITEMS
RECOMMENDATION
It is recommended that the City Council approve the following Personnel Action Requests in accordance with the
City of Azusa Civil Service Rules and applicable Memorandum of Understanding(s).
BACKGROUND
On November 23,2010,the Personnel Board confirmed the following Department Head recommendations regarding
the following Personnel Action requests.
A. MERIT INCREASE AND/OR REGULAR APPOINTMENT:
DEPARTMENT NAME CLASSIFICATION ACT.ION/EFF RANGE/STEP
DATE BASE.MO SALARY
PD Robert Landeros Police Corporal Reg Appointment 6106/5
11/17/2010 $7006.70
UTL Ruben Lopez Water Distribution Worker I Merit Increase 5167/4
12/02/2010 $4252.81
LB James Peek Senior Librarian Merit Increase 4185/3
09/04/2010 $4945.58
B. NEW APPOINTMENT: The following appointments have been requested by department heads pursuant to
the Rules of The Civil Service System.
DEPARTMENT NAME CLASSIFICATION EFFECTIVE RANGE/STEP
DATE BASE MO. SALARY
PD Erin Coulter Police Officer Trainee Pending Physical 6184/1
and Background $4377.21
PD Frank Cueva Police Officer Trainee Pending Physical 6184/1
and Background $4377.21
PD Kurt Rasmussen Police Officer Trainee Pending Physical 6184/1
and Background $4377.21
PD Starr Henchey Police Dispatcher Pending Physical 9166/5
$4,754.78
C. SEPARATION: The following separations are submitted for informational u poses.
DEPARTMENT NAME CLASSIFICATION EFFECTIVE DATE
PD I Ran DiGiulio I Police Officer Trainee 11/15/2010
FISCAL IMPACT
There is no fiscal impact, as positions listed are funded in approved department budgets.
OF
7) 4k Ur ,n'g2N i
a
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MARCENE HAMILTON, CITY TREASURER >;
DATE: DECEMBER 6, 2010
SUBJECT: CITY TREASURER'S STATEMENT OF CASH AND INVESTMENT
BALANCES FOR THE MONTH OF OCTOBER 2010
RECOMMENDATION:
It is recommended that the Council Members receive, review, and file the City Treasurer's
Report for the City of Azusa for the month of October 2010.
BACKGROUND:
Transmitted herewith is the City Treasurer's Statement of Cash Balances for the City of Azusa
for the month of October 2010. City investments are made in accordance with the City's
Investment Policy adopted and approved with Resolution No. 05 — C 16 dated, October 18, 2010
and Government Code Section 53600 et seq.
FISCAL IMPACT:
The balances of cash, investments, and projected revenues for the next six months are expected
to be sufficient to meet cash disbursement requirements of the City for at least the next six
months.
The change in total cash in bank and investments from September 30, 2010 to October 31, 2010
is a net decrease of$860,353.49.
CITY OF AZUSA TREASURER'S REPORT
Treasury Checking Accounts and Certificates of Deposit October 31, 2010
Held in Wells Fargo Bank
Prepared by: Marcene Hamilton, Treasurer
Interest or Balance
Face Maturity Coupon Description Account Number or
Amount Date Rate or CUSIP Market Value
Checking Accounts
General Checking Account XXX-XX-X1244 186,739.00
Stagecoach Sweep Account DDA XXX-XXX 1244 1,593,690.30
Worker's Compensation Checking XXXX-XX0318 0.00
Flexible Reimbursement XXXX-XX5036 0.00
Payroll Checking (ZBA account) XXXX-XX1393 0.00
Police Petty Cash Fund XXX-XXX0334 19,129.32
Section 108
0.970% Choice IV-Public Fund Account XXX-XXX2239 30,863.91
200,000 11/14/06 3.060% FHLB 3.060 11/14/06(Matured) 3133X6PD2 0.00
ISO Collateral Account
300,000 Every 30 Days 0.050% Certificate of Deposit XXX-XXX1658 314,122.17
1,975,001 04/07/07 3.748% Certificate of Deposit XXX-XXX2840 2,359,938.98
Covington Endowment
Money Market Mutal Funds WFB XXXX7554 17,697.46
100,000 06/29/09 1 4.200% 1 Certificate of Deposit- 25467JG21 WFB 25467JG21 100,000.00
TOTALS 4,622,181.14
CITY OF AZUSA TREASURER'S REPORT
TREASURY INVESTMENTS October 31,2010
Pmparcdbv: Marcenc Hamilton,Tmesurcr
Coupon Maturity Sell'an PtlnriPal• Market Price
Broker Face Amount DesrripDon Rale Data ActUCusIP No. Date (Changes Marko Value-
MonlM1ly)
City of Aausa Investmenla- AAA Ruled Federal Agency Bonds
WachoviaStt 1 2.W0,000 FHLB 3.12511/1]/11 3.125% 11/17/11 3133XSM70 11/17/08 2,0001100.00 IW.125.0 2002500.00
Wachosia Set 2,000,000 FFCB 2.25002/1]/12 2.250% 02/1]/12 31331GM7 03/16/09 1,999,00000 102.344001 2N6880.W
WachoviaStt 1,1100,1100 FHIB 2.25004/13112 2.25MI. 04/13/12 3133XTAW6 03116/09 999,5000 302 75M 1,02]50.00
Higgins Cailai 2,00000 FHLMC 2.SW 04718113 2.Slp°6 NMI13 3128XM5 04/08109 2,0NOIN)W 10.923000 2,016.460.W
Wachovia Set 2,000,000 FFCB 1.6000611]/IJ I6W1. ./17113 31331JRIo 116/17110 2,0000.W IW.625000 2,0225W.W
Wxhovia Sec 1,000,000 FHLB 20012/0/13 2.M% 12/09/13 313JXYPX] X109/10 1000000 10.156000 IWI560.W
Glroad Sec 110001000 FHLB 1.15012/16/13 1.150% 1246113 313370VWS 0/16110 IOOO,OOp,W 1031]000 13,13000
Gilford Scc 2,00000 FHLB 15W IL2l/I3 2.5110% IffiJ/IJ 3II3XW]E3 11/23/09 1,997,WO.W 10281000 2,05,,6200 i
GilfOad Scc 1,000000 FFCB 242002/11114 2420% 02/11/14 J]JJIIDL4 01/1]/10 1"XOW 1046900 1,009690.0
Gilford See 1,000,00 FHLB 24W 01/24/14 24W 03124114 3133XXLU9 0324110 998 4W.0 IW,TIHN IW78100
Gilford Sec 2,0.,.o FFCB 2.45005/13/14 2450% 05/13/14 313313NM1 05/14/10 2.000 W(3,00 101.0300 2021 60.00
Wxhovia See 1X0,00 FHLB 1.2500]/29114 1.25W.. 07129/14 313370YKS 0117/10 1M.00W 101.25000p 101250.00
Wa[M1ovia Sec 1,000.0 FHLB 145008/25/14 1450.6 0812S114 ]133] 89 0825110 1,000,000.0 1021900 102190.00
Wachovia Se[ 1000.00 FFCB 14500102/14 1450'6 0712/10 31J31JC43 09712/10 1,000000.00 IW.W4000 100094000
Hi ins Ca ital 2,000.000 FHLB 1.500 SIM UP to 6.000 1.500% lIRW14 3133XYRV6 0526/10 2,00000. 1. as 2,0018800
Gilford Sec 1.00000 FFCB 2.95002/02115 2950Ye 0015115 JIAlICX9 02712/]0 1,000000.. 1,]19000 IW71900
Gilford Scc 2,000,0. FFCB 2.98004120/15 2.98W. 0928/15 31331118] .RO/10 2,0000000 102.250000 2,015000%
Wachovia Scc 2,000,000 FHLB 2 XO SI U to 3.3W 2.0°6 05/16/15 JIIIXYCC] 05116/10 1,996,]500 101469000 2,029180.00
Waclmvia Se[ 1,000,000 FHLB 1.000 Sir U t00% 1.000'6 08125/15 3133]0119 0825/10 Iow cxto.0 1X156000 101,5600
Gilford Scc 1,000,000 FHLB 1.13556 a 1035% 1.125%' 0!14115 31JJ]OVF2 0/14/10 999,250.0 IW.031000 I,000,JIOW
TOTAU 29,000,000 28,991,90.0 29352...0
Cit,of Aau ttliveslments - Cerlifacates of Da,.ait-FDIC Insured
Wachovia S¢ IWON w GE MONEY BANK 1.300% 10122113 36159SUC3 1021110 IW,00.W 10.113000 IW111W
Wachovia Set IW,.O.W METLIFEBANK,NA 1.3W°A 1028/13 591557FHI IW21/10 1W,W0.00IW.11500 1W,115.W
20,00.. 2.,00.0 20,128.0
WFB-CITY THIRD PARTY CUSTODIAL TRUST ACCT 0.240. NIA NIA N/A 2,342,275.07 1..0001100 2,342,175.07
Light&Water Fund Investments - AAA Rated Federal Agency Bands
Higgins Capital 1,215."00 FHLB 2 I 091 W11 2.10. 0716/11 3133XTA97 03716/0 1,215,0000 10153100 1231,X1.65
Hi eins Ca ilal 2.00,00.% FNMA 2.2500224112 2250% ()2/24112 3136FHCFG 0227.19 2.00,000.W IN 563000 2.011,260.%
Wathovu Stt 1,000,000.0 FHLB 1.400 W/12/13 140% W/1211) 3133702V 07112/10 10(10.0.. 100938000 1009,380.
Gilford Scc LrW'W000 FHLB 1.6908/1 VI 1.690% (All 2/14 313370051 08/12/10 I,0000W.W I01.1880X 1011880%
Hi ira Coital OO.O W FHLB L7508125/14 IJ50°: 0825/19 313370X75 0625110 1,000,1]00.. 100469000 1,1104,690%
HinobsC ilal 2,000000.0 FHLB 1.2009/13/14 1.20% 09/13/14 31337ORS9 0/13/10 2,000000W 100]19000 2,0143800
Wachovia Sec I,00.000.W FHLB L5W 12/15114 L5W% 1115/14 313370UH9 0/15/10 LOW,00.0 10188.0 1,X1,880.0
TOTALS 9215100.0 9,2151000.0 9,287,071.65
WFB-L&W THIRD PARTY CUSTODIAL TRUST ACCT 0240% N/A N/A N/A 0.. 100.0100 0.0
LAIF-CITY I LOCAL AGENCY INVESTMENT FUND 0480% N/A N/A N/A 7A38,250.56 1.WN(a) I 7,638350.56
TOTAL INVESTMENTS IN FEDERAL AGENCIES,WFB INSTITUTIONAL TRUSTS,and LAW 48,187,41563 48,7ID,685.28
INTEREST RECEIVED FROM INVESTMENTS FISCAL YEAR-TO-DATE (From July 1,2010) 413,177.65
.The"Principal"column reflectsthe balance on the laz1 day of @c monthw the"historical cost-mean to Purchazc a secuniy.
•'Thc"Minkel Value' is the current price at which a sec rily can be traded or sold.
Treasurer Report Oclooer 2070 Tones Ronunsis 11/15/2010 7:22PM
CITY OF AZUSA TREASURER'S REPORT
INVESTMENT INTEREST EARNINGS Thru October 31,2010
Prepared by: Marcene Hamilton,Treasurer
Scheduled Scheduled Interest
Face Amount Net Amount Coupon Maturos Date Acct/Cuup No. en
Paymt 2D102011 Semnual i-AnReceived
Rale Schedule Interest Payment Fiscal Year to
Earnings Amount Date-
City of Azusa Investments - AAA Rated Federal Agency Bonds
1,000.000 1 1,000,000 2.700% CALLED 3128X9UU2 7/21&121 0 00 13 500:00 ]1,250.00
2,000,000 2,000,000 3.680% CALLED 31331GJ59 8/]8&2/18 73,600.00 36,80000 36,800.00
2,000,000 2,000,000 3.050% CALLED 312$X9XE5 824&2/24 61,000.00 30,500.00 30,500.00
2000,000 2,000,000 2.450% CALLED 3133XYR31 12/9&6/9 49,000.00 24,500.00 12,250.00
1,000000 1,000,000 3.000% CALLED 3133XXH42 923&323 30,000.00 15,000.00 15,000.00
1000,000 1,000,000 2.500% CALLED 3133XY2A2 1028&428 25,00000 12,500.00 12,500.00
2,000,000 2,000,000 3.125% 11/17/11 3133XSM70 11/17&5/17 62,500.00 31,250.00
2,000,000 1,999,000 2.250% 02/17/12 31331GND7 8/16&2/l7 45,000.00 22,500.00 22,500.00
1,000,000 999,500 2.2501K 04/13/!2 3133XTAW6 10113&4/13 22,500.00 11,250.00 11,250.00
2,000,000 2,000,000 2.500% 04/08/13 3128X8TZ5 10/8&4/8 50,000.00 25,000.00 25,000.00
2,000,000 2,000,000 1.600% 06/17/13 313311RR6 12/17&6/17 32,000.00 16,000.00
1,00,000 1,000,000 2.000% 12/09/13 3133XYPX7 12/9&6/9 20,000.00 10,000.00
1,000,000 1,000,000 1.150% 12/16/13 313370VW5 9/16&3/16 5,750.00 5,750.00
2,000,000 1,997,000 2.500% 12/23/13 3133XW7E3 1223&6/23 50,000.00 25,000.00
1,000,000 1,000,000 2.420°/ 02/11/14 31331JDL4 8/11&2/ll 24,200.00 12,100.00 12,100.00
1,000,000 998,400 2.400% 03/24/14 3133XXLU9 924&324 24,000.00 12,000.00 12,000.00
2,000000 2,000,000 2.450% 05/13/14 3133]JNMI 11/13&5/13 49,000.00 24,500.00
1,000,000 1,000,000 1.250% 0729/14 313370YK8 729&129 4,583.33 6,250.00
1,000,000 1,000,000 1.450% 08/25/14 313370 84 825&2/25 7,250.00 7,250.00
1,000,000 1,00,000 1.450%. 09/02/14 3133IJC43 9/2&32 7,250.00 7,250.00
2,000,000 2,000,000 1.500% 11/26/14 3133XYKV6 112&526 30,000.00 15,000.00
1,000,000 1,000,000 2.950% 02/]5/]5 31331 JCX9 82&22 29,500.00 14,750.00 14,750.00
1,000,000 1,000,000 1.0-4.0% 0225/15 313370LZ9 825&2/25 5,000.00 5,000.00
2,000,000 2,000,000 2.980% 04/20/15 31331JLB7 1020&4/20 59600.00 29,800.00 29,800.00
2,000,000 1,998,750 2.000% 05/18/15 3133XYCC7 11/18&5/18 40,000.00 20,00.00
1.000,000 999.250 1.125% 09/14/15 313370VF2 9/14&3/14 5625.00 5,625.00
29,00,00 28,991,900.00 ACTIVE INVESTMENTS 812,358.33 439,075.00 245,700.00
City of Azusa Investments - Certificates of Deposit-FDIC Insured
100,000.0 100,00.00 1.30% 10/22/17 1 36159SUC3 10/22&4/22 626.65 648.22 (21.37)
10,00.0 100,00.0 1.300% 10/28/13 591557FHI 10/27&427 644.66 648.22 (3.56)
200,000.00 200,000.0 (24.93)
CITY-Wells Fargo Bank Institutional Third Party Custodial Money Market Account-Liquid Asset
2,342,275.07 j 0.240% 1 Na 1 N/A Monthly Per Balance and Rate 863.8
Light&Water Fund Investments-AAA Rated Federal Agency Bonds
3,000,000 1 3,000,000 3.000% CALLED 31398AE81 729&129 45,000.00 45,000.00 4500.00
3,000,000 3,000,000 3.680% CALLED 31331GI59 8/18&2/18 110,400.00 55,200.00 55,200.0D
1,215,000 1,215,00 2.10% 09/06/11 3133XTA97 9/6&3/6 25,515.00 12,757.50 12,757.50
1,1100,00 L00,OD0 1.500% 12/15/14 313370UH9 9/15&3/15 7,500.00 7,500.00
2,000,00 2,00,00 1.20% 09/13/14 313370RS9 9/13&3/13 12,00.0 12,00.0
2,00,000 2,00,000 2.250% 0224/12 3136FHCFO 8/24&2/24 45,00.0 22,50.0 22,500.00
1,00,00 1,00,00 1.4001. 07/12/13 3133702W7 7/12&1/12 700.0 7,000.0
L00,000 1,0,00 1.690% 08/12/14 313370GSI 8/12&2/12 8,450.00 8,450.00
1,00,00 1,000,000 1.750% 08/25/14 313370HCS 8/25&225 8,750.0 8,750.0
9,215,00 9,215,000 JACTIVE INVESTMENTS 1 269,615.00 179,157.50 135,457.50
Light&Water Stablization-Wells Fargo Bank Institutional Third Party Cuslodial Money Market Account-liquid Asset
0.00 10.240% 1 N/A N/A Monthly Per Balance and Rate 482,2
CITY-Local Agency Investment Fund-Liquid Asset
7,638,250.56 1 0.480% 1 N/A N/A Quanedy T Per Balance and Rale 1 30,699.04
Fiscal Year: July I-June 30 TOTAL INTEREST EARNED YTD 413,177.65
OF
U-
CONSENT CALENDAR
TO: HONORABLE MAYOR ANBD MEMBERS OF THE CITY COUNCIL
FROM: KURT CHRISTIANSEN, ECONOMIC AND COMMUNITY DEVELOPMENT
DIRECTOR
VIA: F.M. DELACH, CITY MANAGER
DATE: DECEMBER 6, 2010
SUBJECT: CONTRACT WITH BENCHMARK RESOURCES AS A MINING CONSULTANT FOR
VARIOUS REVIEWS ASSOCIATED WITH SMARA (SURFACE MINING AND
RECLAMATION ACT) COMPLIANCE
RECOMMENDATION
It is recommended that the City Council approve Benchmark Resources to provide consultant services
for the various reviews associated with SMARA compliance, as well as biennial monitoring of the Fish .
Canyon/Azusa Rock mine Conditions of Approval, and authorize the City Manager to execute the City's
standard professional services agreement for three years in an amount not to exceed $110,000.
BACKGROUND
The California State Surface Mining and Reclamation Act (SMARA) requires that Lead Agencies
conduct annual inspection of any mines within their cities' boundaries to assure compliance with the
requirements of SMARA. The SMARA compliance of the Vulcan Materials Azusa Rock mine and the .
CEMEX mine, both wholly within the City of Azusa, is the responsibility of the City of Azusa.
SMARA compliance includes annual mine inspections and an annual review of the financial assurance
for the implementation of the approved reclamation plan. Any firm reviewing mines for SMARA
compliance are required to have mining knowledge and long-term experience in SMARA compliance
regulations. It was the City's intention to select a qualified consultant whose services would be paid for
by the mining companies as part of the SMARA compliance review process.
On September 8, 2010, the Economic and Community Development Department circulated a Request
for Proposal (RFP) to 8 qualified consulting firms for these SMARA-related services. Two firms
submitted proposals and staff interviewed Benchmark Resources and Kjelstrom & Associates. Kit
Kjelstrom of Kjelstrom & Associates disclosed during this process that he was previously an employee
of Vulcan Materials and had previously been the Azusa Rock on-site manager.
As such, staff is recommending award of a three year contract to provide consultant services for the
various reviews associated with SMARA compliance, as well as biennial monitoring of the Fish
Canyon/Azusa Rock mine Conditions of Approval to Benchmark Resources, in an amount not to exceed
$110,000. Benchmark Resources has extensive experience in planning and environmental issues unique
to mining and SMARA compliance.
FISCAL IMPACT
The costs associated with this project will be borne solely by the mining companies and there will be no
impact to the City's General Fund.
Attachments:
Professional Services Agreement
CITY OF AZUSA
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 15`h day of November, 2010 by and between
the City of Azusa, a California municipal corporation organized under the laws of the State of
California with its principal place of business at 213 East Foothill Boulevard, Azusa, California
91702-1295 ("City") and Benchmark Land Use Group, Inc., a California corporation with its
principal place of business at 4990 Hillsdale Circle, Suite 400, El Dorado Hills, CA 95762
("Consultant"). City and Consultant are sometimes individually referred-to as "Party" and
collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing consultant services for the various reviews
associated with the Surface Mining and Reclamation Act(SMARA)compliance to public clients,is
licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such services for the Azusa Rock/Fish Canyon
Mine and the Cemex Mine ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the
City all labor,materials,tools,equipment, services,and incidental and customary work necessary to
fully and adequately supply the professional consultant services for the various reviews associated
with the Surface Mining and Reclamation Act(SMARA)compliance consulting services necessary
for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached
hereto and incorporated herein by reference. All Services shall be subject to, and performed in
accordance with,this Agreement,the exhibits attached hereto and incorporated herein by reference,
and all applicable local, state and federal laws, rules and regulations.
RVPUMNGS1544364 .�
3.1.2 Term. The term of this Agreement shall be from November 15, 2010 to
November 15, 2013, unless earlier terminated as provided herein. Consultant shall complete the
Services within the term of this Agreement, and shall meet any other established schedules and
deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates: Independent Contractor. The Services
shall be performed by Consultant or under its supervision. Consultant will determine the means,
methods and details of performing the Services subject to the requirements of this Agreement. City
retains Consultant on an independent contractor basis and not as an employee. Consultant retains the
right to perform similar or different services for others during the term of this Agreement. Any
additional personnel performing the Services under this Agreement on behalf of Consultant shall also
not be employees of City and shall at all times be under Consultant's exclusive direction and control.
Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with
their performance of Services under this Agreement and as required by law. Consultant shall be
responsible for all reports and obligations respecting such additional personnel, including, but not
limited to: social security taxes, income tax withholding, unemployment insurance, disability
insurance, and workers' compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with the Schedule of Services set forth in
Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has
the professional and technical personnel required to perform the Services in conformance with such
conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to
Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more
detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant
shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain
key personnel will perform and coordinate the Services under this Agreement. Should one or more
of such personnel become unavailable, Consultant may substitute other personnel of at least equal
competence upon written approval of City. In the event that City and Consultant cannot agree as to
the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As
discussed below; any personnel who fail or refuse to perform the Services in a manner acceptable to
the City, or who are determined by the City to be uncooperative, incompetent, a threat to the
adequate or timely completion of the Project or a threat to the safety of persons or property,shall be
promptly removed from the Project by the Consultant at the request of the City. The key personnel
for performance of this Agreement are as follows: David Brown,
3.2.5 City's Representative. The City hereby designates Kurt Christiansen, or his
designee, to act as its representative for the performance of this Agreement ("City's
Representative"). City's Representative shall have the power to act on behalf of the City for all
RVPUBWGS1544364 - 2
purposes under this Contract. Consultant shall not accept direction or orders from any person other
than the City's Representative or his or her designee.
3.2.6 Consultant's Representative. Consultant hereby designates David Brown ,or
his designee, to act as its representative for the performance of this Agreement ("Consultant's
Representative"). Consultant's Representative shall have full authority to represent and act on behalf
of the Consultant for all purposes under this Agreement. The Consultant's Representative shall
supervise and direct the Services, using his best skill and attention, and shall be responsible for all
means, methods, techniques, sequences and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in
the performance of Services and shall be available to City's staff, consultants and other staff at all
reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all
Services under this Agreement in a skillful and competent manner, consistent with the standards
generally recognized as being employed by professionals in the same discipline in the State of
Califomia. Consultant represents and maintains that it is skilled in the professional calling necessary
to perform the Services. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Finally. Consultant
represents that it, its employees and subcontractors have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Services, including a City
Business License, and that such licenses and approvals shall be maintained throughout the term of
this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant
shall perform, at its own cost and expense and without reimbursement from the City, any services
necessary to correct errors or omissions which are caused by the Consultant's failure to comply with
the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who
is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely
completion of the Project, a threat to the safety of persons or property,or any employee who fai Is or
refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from
the Project by the Consultant and shall not be re-employed to perform any of the Services or to work
on the Project.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner affecting the
performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all
notices required by law. Consultant shall be liable for all violations of such laws and regulations in
connection with Services. If the Consultant performs any work knowing it to be contrary to such
laws, rules and regulations and without giving written notice to the City, Consultant shall be solely
responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its
officials,directors,officers, employees and agents free and harmless, pursuant to the indemnification
provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure
to comply with such laws, rules or regulations.
R VPMNG51544364 3
3.2.10 Insurance .
3.2.10.1 Time for Compliance. Consultant shall not commence Work
under this Agreement until it has provided evidence satisfactory to the City that it has secured all
insurance required under this section. In addition, Consultant shall not allow any subcontractor to
commence work on any subcontract until it has provided evidence satisfactory to the City that the
subcontractor has secured all insurance required under this section.
3.2.10.2 Minimum Requirements. Consultant shall, at its expense,
procure and maintain for the duration of the Agreement insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the performance of the
Agreement by the Consultant, its agents,representatives, employees or subcontractors. Consultant
shall also require all of its subcontractors to procure and maintain the same insurance for the duration
of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and
(3) Workers'Compensation and Employer's Liability: Workers' Compensation insurance as required
by the State of California and Employer's Liability Insurance.
(B) Minimum Limits of Insurance. Consultant shall maintain
limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with general
aggregate limit is used, either the general aggregate limit shall apply separately to this
Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2)
Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3)
Workers 'Compensation and Employer's Liability: Workers' Compensation limits as required by the
Labor Code of the State of California. Employer's Liability limits of$1,000,000 per accident for
bodily injury or disease.
3.2.10.3 Professional Liabilitv. Consultant shall procure and maintain,
Pand require its sub-consultants to procure and maintain, for a period of five (5) years following
completion of the Project, errors and omissions liability insurance appropriate to their profession.
Such insurance shall be in an amount not less than $1,000,000 per claim, and shall be endorsed to
include contractual liability.
3.2.10.4 Insurance Endorsements. The insurance policies shall contain
the following provisions, or Consultant shall provide endorsements on forms supplied or approved
by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall be endorsed
to state that: (1)the City,its directors, officials, officers, employees,agents and volunteers shall be
covered as additional insured with respect to the Work or operations performed by or on behalf of
the Consultant, including materials,parts or equipment furnished in connection with such work;and
RVPUB\NGS\544364 4
(2) the insurance coverage shall be primary insurance as respects the City, its directors, officials,
officers, employees,agents and volunteers,or if excess, shall stand in an unbroken chain of coverage
excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance
maintained by the City; its directors, officials, officers, employees, agents and volunteers shall be
excess of the Consultant's insurance and shall not be called upon to contribute with it in any way.
(B) Automobile Liabilitv. The automobile liability policy shall be
endorsed to state that: (1)the City,its directors,officials, officers, employees,agents and volunteers
shall be covered as additional insureds with respect to the ownership, operation, maintenance, use,
loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which
the Consultant is responsible; and (2)the insurance coverage shall be primary insurance as respects
the City,its directors,officials,officers,employees,agents and volunteers,or if excess,shall stand in
an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any
insurance or self-insurance maintained by the City, its directors,officials,officers,employees,agents
and volunteers shall be excess of the Consultant's insurance and shall not be called upon to
contribute with it in any way.
(C) Workers' Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, officials,
officers, employees, agents and volunteers for losses paid under the terms of the insurance policy
which arise from work performed by the Consultant.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A)coverage shall not be suspended, voided, reduced or
canceled except after thirty(30)days prior written notice by certified mail,return receipt requested,
has been given to the City; and (B) any failure to comply with reporting or other provisions of the
policies, including breaches of warranties, shall not affect coverage provided to the City, its
directors, officials, officers, employees, agents and volunteers.
3.2.10.5 Separation of Insureds;No Special Limitations. All insurance
required by this Section shall contain standard separation of insureds provisions. In addition, such
insurance shall not contain any special limitations on the scope of protection afforded to the City, its
directors, officials, officers, employees, agents and volunteers.
3.2.10.6 1Deductibles and Self-Insurance Retentions. Any deductibles or
self-insured retentions must be declared to and approved by the City. Consultant shall guarantee
that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or
self-insured retentions as respects the City, its directors, officials, officers, employees, agents and
volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related
investigation costs, claims and administrative and defense expenses.
3.2.10.7 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best's rating no less than A:VIII,licensed to do business in California.
and satisfactory to the City.
RVPUB\NGS1544364 5
3.2.10.8 Verification of Coverage. Consultant shall furnish City with
original certificates of insurance and endorsements effecting coverage required by this Agreement on
forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be
signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms
provided by the City if requested. All certificates and endorsements must be received and approved
by the City before work commences. The City reserves the right to require complete,certified copies.
of all required insurance policies, at any time.
3.2.11 Safe . Consultant shall execute and maintain its work so as to avoid injury or
damage to any person or property. In carrying out its Services, the Consultant shall at all times be in
compliance with all applicable local, state and federal laws,rules and regulations,and shall exercise
all necessary precautions for the safety of employees appropriate to the nature of the work and the
conditions under which the work is to be performed. Safety precautions as applicable shall include,
but shall not be limited to: (A) adequate life protection and life saving equipment and procedures;
(B)instructions in accident prevention for all employees and subcontractors,such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and
shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or
lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper
inspection and maintenance of all safety measures.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation.including authorized
reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C"
attached hereto and incorporated herein by reference. The total compensation shall not exceed One
Hundred Ten Thousand dollars ($110,000.00) without written approval of City's Economic and
Community Development Director, Kurt Christiansen. Extra Work may be authorized,as described
below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a monthly
itemized statement which indicates work completed and hours of Services rendered by Consultant.
The statement shall describe the amount of Services and supplies provided since the initial
commencement date, or since the start of the subsequent billing periods,as appropriate,through the
date of the statement. City shall,within 45 days of receiving such statement,review the statement
and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement,City may request
that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is
determined by City to be necessary for the proper completion of the Project,but which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall
not perform, nor be compensated for, Extra Work without written authorization from City's
Representative.
RVPUBWG5\544364 6
3.4 Accounting Records.
3.4,1 Maintenance and Inspection. Consultant shall maintain complete and accurate
records with respect to all costs and expenses incurred under this Agreement. All such records shall
be clearly identifiable. Consultant shall allow a representative of City during normal business hours
to examine, audit, and make transcripts or copies of such records and any other documents created
pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents,
proceedings, and activities related to the Agreement for a period of three (3)years from the date of
final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may,by written notice to Consultant,
terminate the whole or any part of this Agreement at any time and without cause by giving written
notice to Consultant of such termination, and specifying the effective date thereof,at least seven(7)
days before the effective date of such termination. Upon termination, Consultant shall be
compensated only for those services which have been adequately rendered to City, and Consultant
shall be entitled to no further compensation. Consultant may not terminate this Agreement except
for cause.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided
herein, City may require Consultant to provide all finished or unfinished Documents and Data and
other information of any kind prepared by Consultant in connection with the performance of Services
under this Agreement. Consultant shall be required to provide such document and other information
within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in
whole or in part as provided herein, City may procure, upon such terms and in such manner as it may
determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
Consultant:
Benchmark Resources
4990 Hillsdale Circle, Suite 400
EI Dorado Hills, CA 95762
Attn: David Brown
City:
City of Azusa
213 East Foothill Blvd.
Azusa, CA 91702-1295
RVPUB\NGS\544364 7
Attn: Kurt Christiansen
Economic and Community Development Department
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48)hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property. This
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or
sublicense any and all copyrights, designs, and other intellectual property embodied in plans,
specifications,studies,drawings,estimates,and other documents or works of authorship fixed in any
tangible medium of expression, including but not limited to,physical drawings or data magnetically
or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by
Consultant under this Agreement("Documents&Data"). Consultant shall require all subcontractors
to agree in writing that City is granted a non-exclusive and perpetual license for any Documents &
Data the subcontractor prepares under this Agreement. Consultant represents and warrants that
Consultant has the legal right to license any and all Documents&Data. Consultant makes no such
representation and warranty in regard to Documents & Data which were prepared by design
professionals other than Consultant or provided to Consultant by the City. City shall not be limited
in any way in its use of the Documents and Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City's sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans,
procedures,drawings, descriptions, computer program data, input record data,written information,
and other Documents and Data either created by or provided to Consultant in connection with the
performance of this Agreement shall be held confidential by Consultant. Such materials shall not,
without the prior written consent of City, be used by Consultant for any purposes other than the
performance of the Services. Nor shall such materials be disclosed to any person or entity not
connected with the performance of the Services or the Project. Nothing furnished to Consultant
which is otherwise known to Consultant or is generally known, or has become known,to the related
industry shall be deemed confidential. Consultant shall not use City's name or insignia,photographs
of the Project,or any publicity pertaining to the Services or the Project in any magazine,trade paper,
newspaper,television or radio production or other similar medium without the prior written consent
of City.
3.5.4 Cooperation;Further Acts. The Parties shall fully cooperate with one another,
and shall take any additional acts or sign any additional documents as may be necessary,appropriate
or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees. If either party commences an action against the other party,
either legal, administrative or otherwise, arising out of or in connection with this Agreement, the
prevailing party in such litigation shall be entitled to have and recover from the losing party reason-
able attorney's fees and all other costs of such action.
RVPUB\NGS\544364 8
3.5.6 Indemnification. Consultant shall defend, indemnify and hold the City, its
officials, officers, employees, volunteers and agents free and harmless from any and all claims,
demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to
property or persons, including wrongful death, in any manner arising out of or incident to any alleged
acts, omissions or willful misconduct of Consultant, its officials, officers, employees, agents,
consultants and contractors arising out of or in connection with the performance of the Services,the
Project or this Agreement, including without limitation the payment of all consequential damages
and attorneys fees and other related costs and expenses. Consultant shall defend,at Consultant's own
cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every
kind that may be brought or instituted against City,its directors,officials,officers,employees,agents
or volunteers. Consultant shall pay and satisfy any judgment,award or decree that may be rendered
against City or its directors, officials, officers, employees, agents or volunteers, in any such suit,.
action or other legal proceeding. Consultant shall reimburse City and its directors,officials,officers,
employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of
them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation
to indemnify shall not be restricted to insurance proceeds, if any,received by the City, its directors,
officials officers, employees, agents or volunteers.
3.5.7 Entire Agreement, This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by both
parties.
3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of
California. Venue shall be in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every provision of this
Agreement.
3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other
consultants in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the successors
and assigns of the parties.
3.5.12 Assignment or Transfer. Consultant shall not assign,hypothecate,or transfer,
either directly or by operation of law,this Agreement or any interest herein without the prior written
consent of the City. Any attempt to do so shall be null and void, and any assignees,hypothecates or
transferees shall acquire no right or interest by reason of such attempted assignment,hypothecation
or transfer.
3.5.13 Construction: References• Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any term
referencing time, days or period for performance shall be deemed calendar days and not work days.
All references to Consultant include all personnel, employees, agents, and subcontractors of
Consultant, except as otherwise specified in this Agreement. All references to City include its
RVPUMNGS\544364 9
elected officials, officers, employees, agents, and volunteers except as otherwise specified in this
Agreement. The captions of the various articles and paragraphs are for convenience and ease of
reference only, and do not define, limit, augment, or describe the scope, content, or intent of this
Agreement.
3.5.14 Amendment; Modification. No supplement,modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.15 Waiver . No waiver of any default shall constitute a waiver of any other
default or breach,whether of the same or other covenant or condition. No waiver,benefit,privilege,
or service voluntarily given or performed by a Party shall give the other Party any contractual rights
by custom, estoppel, or otherwise.
3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely for
Consultant,to solicit or secure this Agreement. Further,Consultant warrants that it has not paid nor
has it agreed to pay any company or person, other than a bona fide employee working solely for
Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent
upon or resulting from the award or making of this Agreement. For breach or violation of this
warranty, City shall have the right to rescind this Agreement without liability. For the term of this
Agreement, no member, officer or employee of City,during the term of his or her service with City,
shall have any direct interest in this Agreement,or obtain any present or anticipated material benefit
arising therefrom.
3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor,employee or applicant
for employment because of race,religion,color,national origin,handicap,ancestry, sex or age. Such
non-discrimination shall include, but not be limited to, all activities related to initial employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise
program, Affirmative Action Plan or other related programs or guidelines currently in effect or
hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder,Consultant certifies that it is
aware of the provisions of Section 3700 of the California Labor Code which require every employer
to be insured against liability for Worker's Compensation or to undertake self-insurance in
accordance with the provisions of that Code, and agrees to comply with such provisions before
commencing the performance of the Services.
RVPUB\NGS\544364 10
3.5.21 Authority to Enter Agreement Consultant has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and bind each respective Party.
3.5.22 Counterparts . This Agreement may be signed in counterparts, each of which
shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the
work required by this Agreement,except as expressly stated herein,without prior written approval of
City. Subcontracts,if any,shall contain a provision making them subject to all provisions stipulated
in this Agreement.
CITY OF AZUSA BENCHMARK LAND USE GROUP
By By
Fran Delach David Brown
City Manager Principal
Attest:
City Clerk
Approved as to Form.-
Best
orm:Best Best & Krieger LLP
City Attorney
RVPUB\NGS\544364
ExHIBIT "A"
SCOPE OF SERVICES
RVPUB\NGS\544364
A-1
4.0 SCOPEt
O WORK
There are typically at least four principal duties needed to fulfill the scope of work for
annual. SMARA inspections and related activities. Additional duties may also be
considered on an as-needed basis.
4.1 ANNUAL INSPECTIONS
Inspection of conformance with mine reclamation plans is required annually by
§2774 of SMARA. Annual Inspection by Benchmark Resources will involve at least the
following tasks:
• Review of previous inspection reports to determine if there were corrective
actions or violations noted;
• Review of City files correspondence for previous corrective actions or violations;
• Review of City files for any reclamation plan amendments'
• Confirm current operator/owner information;
• Review Operator Annual Report for previous year regarding reported acreages
disturbed and reclaimed;
• Review of the approved reclamation plan, and any amendments thereto, to
ascertain the reclamation commitments and expected conditions at the current
phase of operations. Document:
- Operating parameters, height, depth, acreage, and phasing;
- Reclamation goals and schedule;
9
-City of Azusa Annual SMARA Compliance Review Proposal
- City conditions of approval,
- Plan commitments for wildlife habitat, backfilling, regrading slope stability,
recontouring, revegetation, drainage and erosion control, and stream
protection and groundwater, topsoil salvage and distribution.
• Scheduling and coordination of site inspection and attendees;
• Preparation of file records available at inspection;
• Acquire aerial photographs and measure current site acreage;
• Overlay site boundaries and permitted operating limits and setbacks, and
evaluate compliance;
• Travel to site and perform scheduled inspection. Document field conditions
relative to SMARA performance standards;
• Prepare draft written report, graphics, and photographs;
• Review draft report with City staff, and operator, as appropriate;
• Discuss/agree on timeframes for compliance with corrective actions for
violations; and
• Prepare final reports in triplicate for distribution to City, operator, and State.
4.2 FINANCIAL ASSURANCE VERIFICATION
Benchmark Resources will review and make recommendations to clarify, substantiate,
and standardize the reclamation estimates submitted annually by operators in
accordance with CCR §3804(c). The estimates will be reviewed in accordance with the
requirements of §27731 of SMARA and §3800 et seq. of the regulations.
Financial assurance verification by Benchmark Resources will involve at least the
following tasks:
• Contact with operator, provide guidance and follow-up to receive its proposed
annual estimate submitted in accordance with PRC §2773.1 (a)(3);
• Establish current labor and equipment rates as established by State, or by locally
established sources;
• Renew operator costs relative to current site field ,conditions and aerial
photograph, relative to:
- Grading
- Backfill areas;
- Highwalls that do or do not meet the approved plan standard;
10
City of Azusa Annual SMARA Compliance Review Proposal
- General grading;
- Scarification for planting;
- Resoiling;
- Revegetation
- Approved seed mix and costs;
- Seeding and planting tasks;
- Success monitoring and follow-up costs;
- Equipment and plant
- Removal. costs;
- Site clean-up and waste disposal;
- Other applicable uses;
• Obtain current financial assurance mechanism (bond) value;
• Compare bond value to FAE; and
• Review discrepancies, resolve, report.
4.3 FINANCIAL ASSURANCE MECHANISMS
The financial assurance mechanism must take one of the forms specified as acceptable
by the SMGB (payable statement, letters of credit, surety bond, or certificate of deposit).
The mechanisms are held by the City.
Following annual review and recalculation of financial assurance, Benchmark
Resources compares the new amount to the Mechanism, and recommends revisions, as
necessary.
4.4 USE PERMIT COMPLIANCE MONITORING
Mine site start-up, operation, and closure can require special inspection attention for
SMARA compliance and Use Permit compliance. Mitigation monitoring is required for
environmental mitigation required under CEQA. Our expertise in understanding
regulatory requirements and operational realities facilitates this real-time work.
The City is requesting assistance in the biennial monitoring of Conditions of Approval.
We commonly coordinate this work with the SMARA inspection. This maximizes the
efficiency of enforcing conditions of approval and the mitigation monitoring
requirements of the CEQA. In many cases, limited additional costs are associated with
11
City of Azusa Annual SMARA Compliance Review Proposal
this service, depending on the number of conditions, degree of compliance, and other
variables.
4.5 PUBLIC PROCESS SUPPORT
Permit Compliance often involves procedural tasks that include public involvement
with stakeholders and the local community, as well as presentations to decision-makers.
These tasks generally include:
• Public Scoping Meetings;
• Community Workshops;
• Planning Commission Presentations;
• Board of Supervisors Presentations; and
• Meetings and Presentations to Responsible Agencies.
Benchmark Resources staff have the materials, manpower, and impartial temperament
needed to facilitate professional and successful public meetings. Our capabilities in
preparing graphics, brochures, and other products designed to convey concepts and
information in lay-person terms are well-recognized by our references.
4.6 ADDITIONAL ASSISTANCE
Benchmark Resources maintains a full complement of the services needed to address
mine operation and compliance issues, including individuals with the expertise in
wildlife habitat and endangered species, slope stability, revegetation, engineering and
erosion control, agricultural land and its productivity, surface waters, soils, and others.
These services would be available to the City on an as-requested basis. The following
describes commonly requested services.
SMARA Technical Support
Annual inspections are rarely completed in isolation of other SMARA technical support.
As consultants regularly involved in all aspects of SMARA compliance, we commonly
provide advice to the lead agency and operator for resolution of site compliance
objections, follow-up to corrective actions, completion of special issue inspections,
completion of site closure reports, completion of documentation for release of financial
assurance, and other mining environmental and regulatory compliance issues. We are
available to provide.such services on a case-by-case basis.
12
City of Azusa Annual SMARA Compliance Review Proposal
Compliance with Other Laws and Regulations
As experts in mine permitting and compliance, our staff is entirely familiar with the
large array of permits and typical requirements for compliance under the Clean Water
Act, Fish and Game Code, federal and state endangered species acts, and other laws
and regulations (SWPPPs, SPCCPs, 1600, 404, ESA). We assist with compliance or
processing of these applications as requested.
Application Processing Support
Benchmark Resources' staff assists several lead agencies with review and processing of
applications for mining use permits, reclamation plan approval, and related CEQA
documentation, such as:
• Permit Application Processing: fnter-agency coordination, project
communication and correspondence, team management, staff reports,
preparation of conditions of'approval, mitigation monitoring plans, findings of
fact, Statements of Overriding Considerations, hearings presentation, and other
day-to-day tasks necessary to comply with all procedural requirements and
present a project to the decision-makers.
• CEQA Compliance: Our staff has prepared CEQA documentation on mining
projects in more than 40 counties statewide for hardrock, alluvial aggregates, and
industrial mineral mines.
• Mining Use Permit and Reclamation Plan Applications: Our experience in the
preparation of mine plans, operations descriptions, reclamation plans, and
financial assurance estimates for new, expanded, or modified mining operations
is used by lead agencies to provide assistance to applicants in meeting the needs
of a complete application.
• Procedurally, we are familiar with taking an application from its initial submittal
through to its approval and follow-up, including:
— Application Completeness Review;
— Reclamation Plan Review for SMARA Compliance;
— CEQA Compliance (Preparation of Initial Study, Environmental Impact
Report, Negative Declaration, Mitigated Negative Declaration);
— Preparation and Circulation of Public and Responsible Agency Notifications;
— Staff Report;
— Conditions of Approval;
13
City of Azusa Annual SMARA Compliance Review Proposal
- Board of Supervisors Presentations;
- Meetings and Presentations to Responsible Agencies; and
- Mitigation Monitoring.
14
EXHIBIT "B"
SCHEDULE OF SERVICES
RVPUMNGS1544364
B-1
5.0 SCHEDULING
Annual inspections may be completed during any time, but are typically scheduled
from mid-year, (when the, operators annual reporting is due to the Department of
Conservation) through the end of the year, when the construction season ends and the
operations are prepared for winter.
The duration of an inspection is typically 1.5 to 3 hours, depending on the complexity of
the site. An attempt is made to schedule the inspection at the convenience of the
operator and assure he is in attendance. Coordination with County staff is also
accommodated when their attendance is requested.
MRRC-2 Inspection forms are to be prepared within 30 days of the inspection.
15
EXHIBIT "C"
COMPENSATION
RVPUB\NGS\544364 X-1
City of Azusa Annual SMARA Compliance Review Proposal
based on our standard schedule of charges, subject to authorization by the City. All
expenses (travel, lodging, per diem) are included in the fixed fee.
TABLE 2
CITY OF AZUSA MINING OPERATIONS
ANNUAL INSPECTION AND FAE FEES
Cemex Azusa Mine
91-1.9-0007 $9,140 $4,780 $6,535
Vulcan Azusa Rock
Fish Canyon Quarry $9,140 $4,780 $6,535
91-19-0035
Total $18,280 $9,560 $13,070
TABLE 3
OTHER SERVICES AND FEES
Use Permit Compliance
Compliance with Other Laws -
Application ProcessingSupport
See Schedule of Charges
Public Process Support
Benchmark Resources' Schedule of Charges for the City of Azusa is attached as
Appendix 5. This fee schedule incorporates the following:
• The fees would be applicable for the contract period;
• Direct expenses are reflected on the fee schedule, and include the Administrative
Burden of 15 percent on certain expenses, including subconsultants, which is
necessary for associated administrative overhead, carrying costs, warranty
indemnification and insurance costs; and
• The fees would be applicable for the contract period from 2010 through 2012.
17
City of Azusa Annual SMARA Compliance Review Proposal
6.2 HOURLY COSTS FOR MEETINGS, HEARINGS, AND OTHER SERVICES
The fees shote ranges of charges, by position, that would be applicable to all current
staff and any new staff over this period. Current rates for the project team cited in this
proposal are: `
• David Brown, Principal..............................$215.00/hr
• Bruce Steubing, Director............................$205.00/hr
• Andrew White, Project Manager..............$175.00/hr
• Bob Delp, Project Manager........................$175.00/hr
• Dr. Andrew Kopania..................................$200.00/hr
• Kenneth Haskell..........................................$255.00/hr
• Kathy Lyons.................................................$115.00/hr
• Graphics Support........................................$115.00/hr
• Administrative/Document Preparation..395.00/hr
18
BENCHMARK
RESOURCES
SCHEDULE OF CHARGES FOR THE CITY OF AZUSA
Effective to December 31,2012
Time spent on behalf of a client, and expenditures on behalf of a client, are charged as
follows:
LABOR
Principal $215.00/hour
Director $205.00/hour
Senior Staff $175.00/hour
Project Manager, Engineer,Geologist,Biologist
Project Staff $1.75.00/hour
Engineer,Resource Planner,
Geologist,Biologist, Coordinator
Technical Staff $115.00/hour
Analyst, CADD, GIS,Field Support
Support Staff $95.00/hour
Document Control,Word Processing, Database Management
EXPENDITURES
Airfare, auto rental, lodging, equipment, Cost, plus 15 percento)
subconsultants, printing and miscellaneous costs
Report Production—Black & White $0.15 (Letter), $0.50 (Tabloid)
Report Production —Color $1.00 (Letter), $1.50 (Tabloid)
Large Format Printing—Black & White $10 (18x24), $24 (2406), $36 (36x48)
Large Format Printing—Color $20 (18x24), $54 (2406), $65 (36x48)
Auto Mileage $0.65 per mile
Per Diem $40.00 per da
(1) Administrative Burden covers associated overhead,carrying costs, warranty,indemnification and insurance
costs.
www.benchtnarkresources.net
Benchmark Land Use Group,Inc. 4990 Hillsdale Circle,Suite 400 . EI Dorado Hills,CA 95762 - 916.9639193
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: TITO HAES, PUBLIC WORKS DIRECTOR/ASSISTANT CITY MANAGER
VIA: F.M. DELACH, CITY MANAGER/,&
DATE: DECEMBER 6, 2010
SUBJECT: AUTHORIZATION TO SOLICIT REQUEST FOR PROPOSALS (RFP's) — TRAFFIC
SIGNAL MAINTENANCE AND EQUIPMENT SERVICES
RECOMMENDATION
It is recommended that the City Council authorize staff to solicit proposals for Traffic Signal
Maintenance and Equipment Services.
BACKGROUND
The Public Works Department requests authority to solicit proposals for the maintenance and repairs as
necessary for the 39 maintained signals 'in the City of Azusa. The existing contract with Republic ITS
has expired and a new contract needs to be established with a signal maintenance contractor. We are
currently on a month to month agreement with Republic.
The City is very happy with the quality of service Republic has and continues to provide. However, in
order to ensure the City gets the best quality and value, staff recommends soliciting RFP's The scope of
work for the lowest responsible bidder will be repairs of signal equipment as needed, training of Public
Works staff to perform routine maintenance checks and provide 24/7 emergency services as necessary.
FISCAL IMPACT
The funds to cover the cost of this agreement are budgeted in FY 2010-2011 from Public Works-
Roadway Streets Maintenance, account 012-55-661-000-6493.
U
tv
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: TITO HAES, PUBLIC WORKS DIRECTOR/ASSISTANT CITY MANAGER
VIA: F.M. DELACH, CITY MANAGER�j�O
DATE: DECEMBER 6, 2010 VV
SUBJECT: CIP PROJECT NO. 66110H: NOTICE OF COMPLETION FOR TARGET
PEDESTRIAN IMPROVEMENTS PROJECT
RECOMMENDATION
It is recommended that the City Council approve a Notice of Completion for the following
project and authorize staff to file the Notice of Completion with the Los Angeles County Clerk:
• Target Pedestrian Improvements Project No. 66110H — $348,831.82 — Sully-Miller
Contracting Company, Brea, CA 92821
BACKGROUND
As part of the Target Store Development, numerous mitigation measures were required around
the Target site and various intersections around the City to alleviate the projected increase in
vehicle and pedestrian traffic. On March 15, 2010, the City Council awarded the Target
Pedestrian Improvements Project to Sully-Miller Contracting Company for a total amount of
$258,240.95. On September 7, 2010, the City Council approved a change order in the amount of
$93,201.32 for additional street resurfacing along Ninth Street and San Gabriel Avenue,
increasing the total contract amount to not to exceed $351,442.27.
This project included new crosswalk, sidewalk, curb & gutter, curb ramps, drainage upgrades,
and street resurfacing on Azusa Avenue between the railroad tracks and Ninth Street, Ninth
Street between Azusa Avenue and San Gabriel Avenue, and San Gabriel Avenue between Ninth
Street and the railroad tracks. Work on this project began on July 6, 2010 and all work was
completed on October 6, 2010.
FISCAL IMPACT
The project was completed below the not to exceed amount for a final construction cost of
$348,831.82. The project is listed in the FY 2009-2010 Capital Improvement Plan as project
#66110H with an overall budget of$414,000.
Attachment: Notice of Completion
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
NAME CITY OF AZUSA
STREET ADDRESS 213 E.FOOTHILL BLVD
CITY,STATE ZIP AZUSA,CA 91702 SPACE ABOVE THIS LINE FOR RECORDER'S USE
NOTICE OF COMPLETION
Notice pursuant to Civil Code Section 3039,must be filed within 10 days after completion.Notice is hereby given that:
1. The undersigned is owner or corporate officer of the owner of the interest or estate staled below in the property hereinafter described:
2. The full name of the owner is The City of Azusa
3. The full address of the owner is 213 E.Foothill Boulevard,Azusa,CA 91702
4. The nature of the interest or estate of the owner is:In fee.
OF OTHER THAN FEE,SrRIKE"IN FEE"AND INSERT,FOR EXAMPLE,"PURCHASER UNDER CONTRACT OF PURCHASE",OR"LESSEE"
5. The full names and full addresses of all persons,if any,who hold title with the undersigned as joint tenants or as tenants in common,
are:
NAMES ADDRESSES
NONE
6. The full names and full addresses of the predecessors in interest of the undersigned,if the property was transferred subsequent to the
commencement of the work or improvements herein referred to:
NAMES ADDRESSES
NONE
7. A work of improvement on the property hereinafter described was completed on October 6.2010 The work done was:
Target Pedestrian Improvements Project No 66110H
8. The name of the contractor,if any,for such work of improvement was:
Sully-Miller Contracting Co 135 S State College Boulevard Brea,CA 92821 April 5 2010
(IF NO CONTRACTOR FOR WORK OF IMPROVEMENT AS A WHOLE,INSERT"NONE") (DATE OF CONTRACT)
9. The property on which said work of improvement was completed is in the City of Azusa,County of Los Angeles,California and as
described as follows:
Azusa Ave between RR tracks and Ninth St Ninth St between Azusa Ave and San Gabriel Ave San Gabriel Ave between Ninth St and
RR tracks,intersection of Foothill Blvd and Azusa Ave,intersection of Azusa Ave and First St
10. The street address of said property is None
(IF NO STREET ADDRESS HAS BEEN OFFICIALLY ASSIGNED,W SERI"NONE')
Dated: Joseph R Rocha Mayor
(SIGNATURE OF OWNER OR CORPORATE OFFICER OF OWNER NAMED IN PARAGRAPH 2 OR HIS AGENT)
1,the undersigned,say:1 am the person who signed the foregoing notice of completion.1 have read said notice of completion and know its
contents,and the facts stated therein are true of my own knowledge. I declare under penalty of perjury that the foregoing is true and correct.
Executed on at
(DATE) (CITY,COUNTY,&STATE)
(SIGNATURE)
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CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROBERT B. GARCIA, CHIEF OF POLICE
VIA: F.M. DELACH, CITY MANAGER
DATE: DECEMBER 6, 2010 l ��
SUBJECT: PURCHASE OF EVIDENCE INVENTORY MANAGEMENT SYSTEM
RECOMMENDATIONS
It is recommended that the City Council authorize the purchase of an Evidence Inventory
Management System from File OnQ (Evidence on Q), Inc. of Seattle, WA in the total amount of
$38,795.90 (appropriate CA sales tax included). It is further recommended the City Council
approve this purchase based on a competitive bid process completed by the San Diego Data
Processing Corporation (SDDPC), where they are purchasing the system for the San Diego
Police Department (Purchase Order No. pending — based on SDDPD RFP dated 8-6-10). This
"piggyback" purchase is authorized by AMC Section 2-523(E) when the competitive bid process
has already been completed.
BACKGROUND
Failure to properly manage and track evidence in the Department's property room can negatively
impact the successful prosecution of criminal violations, resulting in potential litigation and
financial loss to the Agency. It can lead to a loss of public and professional confidence as well
as an unwelcome and persistent notoriety for the Agency. During the past decade, management
of property and evidence has become more complex due to legislative mandates, additional
regulatory requirements related to the increasing number of hazardous materials processed
through the property system, and the notoriety received in high-profile cases involving the
methods employed for the management of property and evidence.
I
The Police Department has a duty to store and protect property and evidence while it is in the
custody of the agency and, equally important, an obligation to restore the property to the rightful
owner as soon as practical. Incorporating a reliable computerized bar-coding system will
improve the integrity, accountability and efficiency within the property room operation.
Computerized bar-coding system utilization is considered a best-practice for law enforcement
agencies. Currently, a manual system is used for these processes.
Police staff members attended a California Association of Property and Evidence (CAPE)
conference where multiple vendors had their electronic property and evidence
tracking/management systems on display and found that Evidence on Q from File OnQ, Inc. was
the most "user friendly" and cost effective system to meet the Department's needs. Moreover,
staff made field visits to local agencies and made phone calls to other out-of-state agencies using
the system and received positive feedback about its performance and support. Police IT staff
reviewed the specifications and corresponded with File OnQ representatives and determined the
proposed product was appropriate for our use. Moreover, the purchase price includes three year
maintenance and support of the system.
FISCAL IMPACT
Adequate funds from the 2009 American Recovery and Reinvestment Act (ARRA) Edward
Byrne Justice Assistance Grant (JAG I) are available under Account # is 28-20-310-062-7140 for
this purchase. General fund money will not be used for this purchase.
Prepared by:
Sam Gonzalez, Captain
2
OF
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CONSENT ITEM
TO: HONORABLE MAYOR AND COUNCIL MEMBERS
FROM: KURT CHRISTIANSEECONOMIC AND COMMUNITY DEVELOPMENT
DIRECTOR /,y�
VIA: F.M. DELACH, CITY MANAGER ,{'�/U�'
DATE: DECEMBER 6, 2010 .
SUBJECT: CERTIFICATION OF ENVIRONMENTAL CONSULTING FIRMS FOR
ENVIRONMENTAL DOCUMENT PREPARATION
RECOMMENDATION
,
It is recommended that the City Council certify the list of firms to provide consultant services for
various environmental reviews associated with projects being processed through the City.
BACKGROUND
At the February 1, 2010, meeting, the City Council authorized staff to release a Request for
Qualifications (RFQ) to qualified consulting firms for environmental services. Any firm desiring to
work for the City would submit a Statement of Qualifications (SOQ). As the City continues to grow and
receive project submittals of increasing difficulty, it becomes necessary from time to time for staff to
retain environmental consultant services to prepare environmental documents for CEQA and NEPA
compliance. As such, it is the City's intent to secure a list of qualified consultants from which to choose
as need dictates. The consultant services would be paid for by applicants as part of their entitlement
fees.
On October 14, 2010, staff circulated the RFQ and 21 SOQ's (available for review at City Hall) were
received by the November 10, 2010, deadline. Of the 21 firms, staff believed eight either did not have
sufficient general municipal experience or were too focused in a particular discipline (e.g. engineering,
transportation, etc.). The remaining 13 firms demonstrated an ability to perform the duties required and,
as such, staff is recommending that the City Council certify the list of 13 consultants to allow staff to
draw from them in the future.
By taking the recommended action, the City Council will be authorizing the Director of Economic &
Community Development to contract directly with one or more of the certified firms. To ensure
maximum flexibility, this action will not mandate that these firms be the only ones used in the future.
The Director would still have authority to solicit proposals from additional firms through the Request for
Proposals (RFP)process.
FISCAL IMPACT
The costs associated with paying for environmental consulting services will be borne by individual
applicants through a Reimbursement Agreement and there will be no impact to the City's General Fund.
Attachments:
List of firms and recommendations for certification
r
RFQ Environmental Services
Statement of Qualifications- Received
Firms Recommended for Certification
Terry A. Hayes Associates LLC
Design, Community & Env (DC&E)
PCR Services Corporation
Impact Sciences, Inc.
Michael Brandman Associates
LSA Associates, Inc.
Melanie Doran Traxler
PMC
Rincon Consultants, Inc.
Hogle-Ireland, Inc.
Ultra Systems
RBF Consulting
ESA
Firms Not Recommended for Certification
EGC, Inc.
GPA (Galvin Preservation Associates Inc.)
BonTerrea Consulting
ECORP Consulting, Inc.
Chambers Group
STV
Pacifica Services, Inc.
SCS Engineers
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- ftix1.111ill _0
a
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROBERT B. GARCIA, CHIEF OF POLICE
VIA: F.M. DELACH, CITY MANAGER
DATE: DECEMBER 6, 2010
SUBJECT: AMENDMENT TO ROYAL COACHES AUTO BODY AND TOWING
FRANCHISE AGREEMENT FOR TOW TRUCK SERVICES WITH THE CITY
RECOMMENDATIONS
It is recommended that the City Council approve amending Section 15 (B) (2) of the non-
exclusive franchise agreement between the City of Azusa and Royal Coaches Auto Body and
Towing as described in Amendment "A" (attached).
BACKGROUND
On October 5, 2009 the City Council approved transferring the non-exclusive franchise
agreement with Johnny's Towing for tow truck services to Royal Coaches Auto Body and
Towing. On November 8, 2009 Royal Coaches began their rotation as the Police Department's
third tow vendor in place of Johnny's Towing.
At that time, it was determined that Royal Coaches tow yard located at 208 N. Aspan Ave, Azusa
could not meet the storage capacity of at least 250 vehicles as outlined in Johnny's original
franchise agreement, but that the site could store at least 170 vehicles. Therefore, City Council
authorized and Royal Coaches were agreeable to have Section 15 (B) (2) of the franchise
agreement read as follows:
Storage lot to hold a minimum of 170 vehicles and to be used exclusively for
vehicles towed/stored by the City of Azusa Police Department.
_ a
However, the owner of Royal Coaches, William "Bill" Salazar, has requested that based on the
12 months of tow truck services he has provided to the Police Department, his company has not
had to store more than 15 vehicles in his storage lot in any one month. I reviewed the monthly
activity reports provided by Royal Coaches and although they have not had to store more than
15.75 vehicles on average, they have impounded as many as 29 vehicles in a given month. Over
the course of the past year, I and other police personnel have visited Royal Coaches' storage lot
on several occasions and have found that the lot is always neat and clean, and almost always
nearly empty in comparison to the space available.
In light of the low usage of available storage space, Mr. Salazar has requested to amend their
non-exclusive franchise agreement to allow them to store other impounded vehicles on their lot.
Based on the Department's experience over the past year, his request seems reasonable and staff
recommends amending Section 15 (B) (2) to read as follows:
The storage lot must hold a minimum of 170 vehicles; 45 of which must be dedicated to
and used exclusively for vehicles towed/stored by the City of Azusa Police Department.
The Chief of Police shall retain in his/her sole discretion the authority to revert back to
the original language of this section requiring the Franchisee to make the storage lot
available for the exclusive use of the City of Azusa Police Department upon 30 days
written notice.
Moreover, the Police Department recommends that Amendment "A" become effective
immediately upon the appropriate signatures being obtained on the referenced amendment.
FISCAL IMPACT
No fiscal impact is anticipated
Prepared by:
Sam Gonzalez, Captain
FRANCHISE AGREEMENT
BETWEEN THE CITY OF AZUSA AND
ROYAL COACHES AUTO BODY & TOWING
FOR TOW TRUCK SERVICES
AMENDMENT "A"
Effective immediately, Section 15 (B) (2) of the above franchise agreement shall be amended as
follows:
The storage lot must hold a minimum of 170 vehicles; 45 of which must be dedicated to
and used exclusively for vehicles towed/stored by the City of Azusa Police Department.
The Chief of Police shall retain in his/her sole discretion the authority to revert back to
the original language of this section requiring the Franchisee to make the storage lot
available for the exclusive use of the City of Azusa Police Department upon 30 days
written notice.
This amendment shall not reduce any other requirement set forth in the Franchise Agreement
between the City of Azusa and Royal Coaches Auto Body & Towing for Tow Truck Services.
CITY OF AZUSA [Royal Coaches Auto Body & Towing]
By: By.
Francis Delach [Name]
City Manager
[Title]
Dated:
ATTEST:
City Clerk
I
APPROVED AS TO FORM: CONCUR:
Sonia R. Carvalho Robert Garcia Date
City Attorney Chief of Police
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CONSENT
TO: THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JAMES MAKSHANOFF, ASSISTANT CITY MANAGER
VIA: FRAN DELACH, CITY MANAGER*
DATE: DECEMBER 6, 2010
SUBJECT: SUSPENSION OF STREET SWEEPING DURING CHRISTMAS EVE AND
NEW YEARS EVE
RECOMMENDATION
It is recommended that City Council suspend street sweeping service on Christmas Eve and New
Years Eve.
BACKGROUND
Recently due to a misunderstanding regarding what days street sweeping will happen in relation
to a holiday, the Police Department issued an unusually high number of parking citations. It
seems that a number of residents thought that since Thanksgiving was a recognized holiday and
since they had both the Thursday and Friday off that Friday was a holiday and that street
sweeping would not happen. Therefore there was no need to worry about getting a citation for
parking along the curb on Friday.
Staff is therefore asking that the City Council consider suspending street sweeping services on
Christmas Eve and New Years Eve for this year. Both days fall on a Friday this year. Staff feels
that with a number of residents having the day off and or having visitors over for celebrations
and street parking being a premium on those days that it might be prudent to suspend street
sweeping and not have to worry about giving out tickets on those days.
Currently street sweeping is charged by the mile swept so there would be a slight saving of funds
if the sweeping was suspended. Staff would also direct the Police Department not to issue
citations for apparent parking violations on those streets signed as no parking on Fridays.
FISCAL IMPACT
Slight fund saving if sweeping is suspended.
"�ClfiJPN�P'
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ALAN KREIMEIER, DIRECTOR OF ADMINISTRATIVE SERVICES/CFO
VIA: F.M. DELACH, CITY MANAGER ./
DATE: DECEMBER 6, 2010 MANAGER*
"
SUBJECT: AZUSA MIDDLE MANAGEMENT ASSOCIATION (AMMA) CONTRACT
AUGUST 1, 2010 THRU JULY 31, 2011
RECOMMENDATION
It is recommended that City Council adopt the resolution approving the Azusa Middle Management
Association(AMMA) contract dated August 1, 2010 thru July 31, 2011.
BACKGROUND
Beginning this Summer, AMMA and City Administration began negotiating the terms of a new contract.
After several months of negotiations and good faith bargaining, AMMA and the City have reached
agreement on a(1) one year contract.
A summary of the proposed terms of the new AMMA Memorandum of Understanding include:
• Cost of Living Increase—0%
• Flexible Benefit Contribution— increase the contribution from $1,224 to $1,286, which is
an amount equal to the 2011 CaIPERS, Los Angeles County, Kaiser Family plan plus the
2011 Delta Dental PPO Family rate
• Conversion of Sick Leave to Cash Upon Death—modify current language to clarify cash
shall be made payable to the deceased employees beneficiary or estate
• Vacation Leave Usage and Carryover — remove current language that stops accrual of
vacation leave when the maximum accrual amount is reached; include language that
provides for any accrual in excess of the maximum to be paid as earned
• Acting Pay—add language to define eligibility for acting pay
• Sick Leave Accrual Cap —modify current language to cap sick leave accrual to no more
than 960 hours for employees hired on or after January 1, 2011. Balances accrued over
960 hours will be paid out annually at a rate of 25% as a wellness bonus
• Health Insurance During Retirement — modify current language regarding eligibility for
retiree health insurance to 75% with 15 years of service and 100% with 20 years of
service
See attached MOU for additional details.
FISCAL IMPACT
The proposed changes to the MOU are estimated to cost$18,600 over the term of the contract with $7.254
coming from the General Fund and the balance from restricted funds, primarily Light and Water.
Attachments:
1. Proposed Memorandum of Understanding
2. Resolution approving proposed MOU
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF AZUSA
AND THE
AZUSA MIDDLE MANAGEMENT ASSOCIATION
EFFECTIVE
AUGUST 1 , 2010 THROUGH JULY 31 , 2011
TABLE OF CONTENTS
1. TERM OF MEMORANDUM OF UNDERSTANDING .............................................................................1
2. TOTAL COMPENSATION ......................................................................................................................1
3. NON-DISCRIMINATION.........................................................................................................................1
4. SEPARABILITY.......................................................................................................................................2
5. MAINTENANCE OF EXISTING BENEFITS ...........................................................................................2
6. CITY RIGHTS .........................................................................................................................................2
6.2. Conformance with Rules............................................................................................................3
7. WORKWEEK AND TIMEKEEPING INTERVAL.....................................................................................3
8. SALARY..................................................................................................................................................4
9. ADDITIONAL COMPENSATION ............................................................................................................4
9.1 Acting Pay..............................................................................................................:.....................4
9.2. Automobiles...................................:.............................................................................................4
9.3 Bilingual Pay................................................................................................................................5
9.4 Deferred Compensation(City-paid).............................................................................................5
9.5. Educational Incentive Pay............................................................................................................5
9.6. Longevity Pay..............................................................................................................................5
10. FLEXIBLE BENEFIT PLAN.....................................................................................................................5
11. LEAVE TYPES/DAYS OFF...................................................................................................................6
11.1. Administrative Leave ...................................................................................................................6
11.2. Bereavement Leave.....................................................................................................................6
11.3. Holidays.......................................................................................................................................7
11.4. Industrial Leave ...........................................................................................................................7
11.5. Sick Leave...................................................................................................................................8
11.6. Vacation Leave..........................................................................................................................10
12. COMPUTER LOAN PROGRAM...........................................................................................................11
13. DAMAGE TO PERSONAL EFFECTS ..................................................................................................11
14. EMPLOYEE ASSISTANCE PLAN ........................................................................................................11
15. LAYOFF OR RECLASSIFICATION......................................................................................................11
16. LICENSE RENEWAL............................................................................................................................11
17. LIFE INSURANCE ................................................................................................................................11
18. PROPRIETARY INFORMATION AGREEMENT..................................................................................11
19. RETIREMENT.......................................................................................................................................12
19.1 Optional Benefits .......................................................................................................................12
19.2. PARS Retirement Enhancement ..............................................................................................12
19.3. Health Insurance During Retirement.........................................................................................13
19.4 Monthly Cash Payout Option Equivalent to Health Insurance Benefit Upon Retirement .........13
20. TUITION REIMBURSEMENT...............................................................................................................14
21. UNIFORM ALLOWANCE...........................................................................................................:..........15
CITY OF AZUSA
AZUSA MIDDLE MANAGEMENT ASSOCIATION
MEMORANDUM OF UNDERSTANDING
August 1, 2010 through July 31, 2011
This Memorandum of Understanding is entered into with reference to the following facts:
(1) The Azusa Middle Management Association (MMA) (hereinafter referred to as "Association") is the
recognized employee organization representing those personnel(hereinafter referredlo as"employees")employed by
the City of Azusa (hereinafter referred to as "City"), and occupying classifications in Exhibits "A."
(2) In the interest of maintaining harmonious relations between the City and those employees represented
by the Association, authorized representatives of the City and the Association have met and conferred in good faith,
exchanging various proposals concerning wages, hours and other terms and conditions of employment to affected
employees.
(3) The authorized representatives of the City and the Association have reached an understanding and
agreement as to certain changes in wages, hours and other terms and conditions of employment of the affected
employees which shall be submitted to the City Council of the City of Azusa for approval and implementation of these
changes by appropriate ordinance, resolution, or other lawful action.
Therefore, the City and the Association agree that, subject to the approval and implementation by the City
Council of the City, the wages, hours, and other terms and conditions of employment for all affected employees shall
be as follows:
1. TERM OF MEMORANDUM OF UNDERSTANDING
The term of this Memorandum of Understanding (MOU) shall commence August 1, 2010 and shall continue in full
force and effect until July 31, 2011
2. TOTAL COMPENSATION
As a matter of philosophy, the Association and the City recognize that compensation consists of terms and conditions
of employment other than those represented solely by salary. Further,the City and the Association recognize that the
changes in wages, hours and other terms and conditions of employment as set forth in this Memorandum of
Understanding constitute additions to the total compensation received by affected employees.
3. NON-DISCRIMINATION
3.1. Protection of Rights
The parties mutually recognize and agree to protect the rights of all employees hereby to join and/or participate in
protected Association activities or to refrain from joining or participating in protected activities in accordance with
Government Code Section 3500, et seq.
3.2. Anti-Discrimination
The City and the Association agree that they shall not discriminate against any employee because of race,color,
sex, age, national origin, political or religious opinions or affiliations. The City and the Association shall reopen
any provisions of this Agreement for the purpose of complying with any final order of the federal or state agency
or court of competent jurisdiction requiring a modification or change in any provision or provisions of this
Agreement in compliance with state or federal anti-discrimination laws.
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MEMORANDUM OF UNDERSTANDING,AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
4. SEPARABILITY
Should any provisions of this Memorandum of Understanding be found to be inoperative, void, or invalid by a court of
competent jurisdiction, all other provisions of this Memorandum of Understanding shall remain in full force and effect
for the duration of this Memorandum of Understanding.
. S. MAINTENANCE OF EXISTING BENEFITS
Except as provided herein,all wages, hours and economic terms and conditions of employment presently enjoyed by
employees shall remain in full force and effect during the entire term of this Memorandum of Understanding unless
mutually agreed to the contrary by both parties hereto.
6. CITY RIGHTS
6.1. Management Rights
The City reserves, retains and is vested with, solely and exclusively, all rights of Management which have not
been expressly abridged by specific provision(s)of this Memorandum of Understanding or by law to manage the
City,as such rights existed prior to the execution of this Memorandum of Understanding. The sole and exclusive
rights of Management, as they are not abridged by this Memorandum of Understanding or by law, shall include,
but not be limited to, the following:
6.1.1 To manage the City generally and to determine the issues of policy.
6.1.2 To determine the existence or nonexistence of facts, which is the basis of the Management
decision.
6.1.3 To determine the necessity and organization of any service or activity conducted by the City and
expand or diminish services.
6.1.4 To determine the nature, manner, means, and technology,and extent of services to be provided
to the public.
6.1.5 To determine methods of financing.
6.1.6 To determine types of equipment or technology to be used.
6.1.7 To determine and/or change the facilities, methods, technology, means, and size of the work
force by which the City operations are to be conducted.
6.1.8 . To determine and change the number of locations, relocations, and types of operations,
processes and materials to be used in carrying out all City functions including, but not limited to,
the right to contract for or subcontract any work or operations of the City.
6.1.9 To assign work to and schedule employees in accordance with requirements as determined by
the City and to establish and change work schedules and assignments.
6.1.10 To relieve employees from duties for lack of funds or lack of work or similar nondisciplinary
reasons
6.1.11 To establish and modify productivity and performance programs and standards.
6.1.12 To discharge, suspend, demote or otherwise discipline employees for proper cause.
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MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
6.1.13 To determine job classification and to reclassify employees.
6.1.14 To hire,transfer, promote or demote employees for nondisciplinary reasons in accordance with
this Memorandum of Understanding and applicable Resolutions and Codes of the City.
6.1.15 To determine policies, procedures and standards for selection, training and promotion of
employees.
6.1.16 To establish employee performance standards including, but not limited to, quality and quantity
standards and to require compliance therewith.
6.1.17 To maintain order and efficiency in its facilities and operation.
6.1.18 To establish and promulgate and/or modify rules and regulations to maintain order and safety in
the City, which are not in contravention with this Agreement.
6.1.19 To take any and all necessary action to carry out the mission of the City in emergencies.
6.2. Conformance with Rules
The City shall have the right to exercise the rights provided in sections 6.1.9 through 6.1.16 of the Management
rights clause, in accordance with the City of Azusa Rules of the Civil Service System and exercise these rights in
conformance with the Civil Service rules.
6.3. Meet and Confer
Except in emergencies, or where the City is required to make changes in its operations because of the
requirements of law,whenever the exercise of Management's rights shall impact on employees of the bargaining
unit, the City agrees to meet and confer with representatives of the Association regarding the impact of the
exercise of such rights, unless that matter of the exercise of such rights is provided for in this Memorandum of
Understanding,or in Personnel Rules and Salary Resolutions and Administrative Code(s)which are incorporated
in this Agreement. By agreeing to meet and confer with the Association as to the impact and the exercise of any
of the foregoing City Rights, Management's discretion in the exercise of these rights shall not be diminished.
7. WORKWEEK AND TIMEKEEPING INTERVAL
7.1. Workweek
The regular workweek for all employees covered by this agreement shall be forty(40)hours for a seven(7)day
period beginning at 12:01 a.m.each Sunday and shall consist of four(4)days a week and ten(10)hours per day
Monday through Thursday. Daily hours of work or shifts for employees within departments shall be assigned by
the department head, as required to meet the needs of the department.
7.1.1 Notwithstanding 7.1, the City may maintain a five, eight-hour days per week schedule for
employees currently assigned to such a schedule. Further,the City may assign a five,eight-hour
per week schedule to employees preferring to work such a schedule.
7.2. Workday
The workday will consist of ten and one half(101) hours with lunch and breaks to be scheduled in light of the
departmental policy. The City reserves the right to determine the beginning and ending times of the work day.
7.3. Timekeeping Interval
In compliance with FLSA, the minimum timekeeping interval shall be one(1)ten (10) hour day.
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MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
B. SALARY
8.1 Salaries Effective August 1, 2010
The current base monthly salaries of employees in the unit covered by this MOU are set forth in "Exhibit A."
8.2 Cost of Living Increase
Effective August 1,2010,there shall be no cost of living adjustment to salaries in all classifications for employees
represented by this agreement
8.3 Automatic Payroll Deposit
The Citywill continue to offer Automatic Payroll Deposit in cooperation with any bank that utilizes the Automated
Clearing House service.
8.4 Compensation Survey
The City agrees to meet with AMMA to discuss the results of the survey, but it is agreed by the parties that the
City is under no obligation to make compensation adjustments as the result of the survey.
9. ADDITIONAL COMPENSATION
9.1 Acting Pay
An employee,assigned the full responsibility and decision making authority of a higher classification shall be paid
(from the first day of the assignment),at the lowest step of the pay range for the higher classification that provides
at least a 5% increase but does not exceed the top step of the range for the higher classification.
An employee assigned the majorityof the work for a higher classification for a period in excess of 80 consecutive
work hours shall be paid, following the 801" hour of the assignment, at the lowest step of the pay range for the
higher classification that provides at least a 5% increase but does not exceed the top step of the range for the
higher classification.
An employee otherwise eligible for acting pay shall not be eligible during scheduled periods of vacation or when
on Sick Leave.
9.2. Automobiles
The City shall provide automobiles for the employees occupying the following positions:
Assistant Director of Electric Operations
Assistant Director of Water Operations
Other employees may take a City vehicle home when it must be used either before or after the commute for
attendance at a meeting or other City-related function, or for the purpose of making the employee available for
emergency response.
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MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010 THROUGH JULY 31,2011
9.3 Bilingual Pay
The City shall pay an additional $100 per month to personnel demonstrating a proficiency in the Spanish
language if they are assigned and required to speak and translate the Spanish language in performance of their
duties.
An additional payment of$100 per month shall be paid to those who are proficient in written Spanish as well.
Such payment is conditional upon demonstration of Spanish language proficiency by a qualified third-party
examiner mutually agreed upon by both the City and the Association.
Employees may apply for bilingual pay at any time; however, examinations shall be conducted semi-annually
9.4 Deferred Compensation (City-paid)
The City shall provide$150 per month in deferred compensation.
9.5. Educational Incentive Pay
All employees who possess a master's degree from an accredited college or university in an academic subject,
or a numbered certificate issued by a State or professional organization, appropriate to his/her job description,
and not a simple membership in a professional organization,shall receive education incentive pay in the amount
of$121 per month.
9.6. Longevity Pay
Employees shall receive Longevity Pay as follows:
The monthly Longevity Pay for employees shall be in accordance with the following schedule:
10 yrs =$150
15 yrs =$250
20 yrs =$350
Notwithstanding the foregoing,employees currently receiving a higher dollar amount of longevity pay than the
amount provided for above shall continue to receive the higher dollar amount until eligible for an increase
based on the schedule set forth above.
10. FLEXIBLE BENEFIT PLAN
10.1. Definition
Effective August 1, 1993, the City s existing Cafeteria Benefit Plan(CBP)was converted to an IRS Section 125
Flexible Benefit Plan (FBP) administered by either the City or its designee. This plan can be used by the
employee to pay, to the extent available, for qualified benefits as determined by the IRS. The employee
understands that, in the event the total premiums and/or expenses for qualified benefits selected by him/her
exceed the amount of the FBP; the excess shall be deducted from pre-tax wages of the employee.
10.2. Amount of Monthly Benefit
From August 1, 2010 thru December 31, 2010,the City will maintain the Flexible Benefit Plan contribution in
an amount equal to the CalPERS, Los Angeles County, Kaiser Family Plan Rate plus the 2010 Delta Dental
PPO Family Plan Rate,for a total Flexible Benefit Plan contribution of one thousand two hundred twenty four
dollars ($1224).
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MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
Effective January 1, 2011, the City will increase the Flexible Benefit Plan contribution to an amount equal to
the CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta Dental PPO Family Plan Rate,for a
total Flexible Benefit Plan contribution of$1287.
10.3. Eligibility
In order for an employee to be eligible for the FBP in any given month, he/she must be on payroll on the first work
day(excluding recognized paid City holidays)of that month.
A new employee will be eligible for the full FBP applicable to his/her bargaining unit if he/she begins work on the
first work day(excluding recognized paid City holidays)of the month. An employee whose date of hire is on the
second work day(excluding recognized paid City holidays)of the month or thereafter will not be eligible for the
FBP for that month.
If an employee does not meet the qualifying work time in any given month,arrangements must be made with the
Finance Department to reimburse the City for any benefits that have already been paid out on the employee's
behalf for that month. The Finance Department will notify the employee if he/she has not met the qualifying work
time for eligibility for the FBP.
10.4. Termination
The City will not be responsible for payment of any qualified benefits on behalf of the employee following the
month of termination. If an employee represented by the Association wishes to continue his/her qualified
benefits, advance payment for such qualified benefits will be deducted from the employee's final pay.
11. LEAVE TYPES!DAYS OFF
11.1. Administrative Leave
Employees shall receive fifty(50) hours per year of Administrative Leave beginning on July 1, 2006.
An Employee Leave Request must be approved by the appropriate department head prior to the use of
Administrative Leave and such leave may not be carried over into the next fiscal year or cashed in if not used.
Unused Administrative Leave may, however, be converted to Vacation Leave. An employee who wishes to
convert accrued unused Administrative Leave to Vacation Leave shall notify the Finance Department anytime
before June 15 of the desired conversion. It is the responsibility of the employee to request conversion.
Administrative Leave shall be granted with due regard for the employee's wishes and the operational needs of the
department.
11.2. Bereavement Leave
An employee may be permitted to take up to forty(40)hours of Bereavement Leave in the event of the death of a
member of his or her immediate family. "Immediate family' member is herewith defined as a mother; father,
brother, sister, spouse, child, mother-in-law,father-in-law, grandparents or relative living within the employee's
household. Persons in loco parentis may also be considered under certain circumstances. Such leave shall not
be charged against the employee's Sick Leave or vacation.
Bereavement Leave for close personal relationships other than listed relationships may be approved by
Department Head and Director of Human Resources.
In addition to Bereavement Leave,an employee may request up to twenty(20)hours of Sick Leave in the event of
the death of an immediate family member. Such leave shall be charged against the employee's accrued Sick
Leave balance and shall be considered in calculating his or her ability to convert the balance.
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MEMORANDUM OF UNDERSTANDING,AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
11.3. Holidays
11.3.1 Designated Holidays
The employee shall receive time off with pay for the following holidays but only if the employee is paid for
the workday that precedes or follows the holiday. If a holiday falls on an employee's scheduled day off,
the employee shall receive the holiday on the next scheduled business day.
The dates upon which these holida s shall be observed are listed below:
Holiday Schedule Month 2010- July
2011 2011
Independence Day July 5* 4*
Labor Day Sept 6*
Columbus Day Oct 11*
Veteran's Day Nov 11
Thanksgiving Day Nov 25
Christmas Day Dec 27*
New Year's Day Jan 3*
Martin Luther King Day Jan 17*
President's Day Feb 21*
Memorial Day May 30*
• = Monday
11.3.2. Floating Holidays
The City and the Association agree to two floating holidays of ten (10) hours each. All floating holidays
shall be requested in advance from the appropriate department head or division chief. Enough employees
shall remain at work during floating holidays so that the City's business may be conducted. Floating
holidays shall accrue on July 1 and must be taken by the following June 30, or the hours will be forfeited.
11.4. Industrial Leave
A regular employee who is temporarily or permanently incapacitated as a result of injury or illness determined to
be compensable under the Workers' Compensation Act shall be granted Industrial Leave under the following
terms and conditions:
11.4.1 An employee granted Industrial Leave shall continue to be compensated at his regular rate of pay in
lieu of temporary disability payments.
11.4.2 Should it be determined that an employee's illness or injury did not arise in the course of the
employee's employment with the City or that the employee is not temporarily or permanently
incapacitated or disabled as a result of the injury or illness, then the employee's accrued or, if
insufficient,future Sick Leave shall be charged to reimburse the City for any payments made to the
employee pursuant to (1)above.
11.4.3 An Industrial Leave of up to ninety(90)calendar days shall be authorized for each injury or illness
determined to be compensable under the Workers'Compensation Act. Paid leave maybe continued
subject to review by the City Council at the end of such ninety(90)calendar day period to a maximum
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MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
of one (1) calendar year. Supporting medical documentation must accompany such requests for
leave and be submitted thirty(30)days prior to expiration date.
11.4.4 Except as provided in (2) above, no employee shall have accrued Sick Leave deducted while on
Industrial Leave. Vacation and Sick Leave shall accrue for an employee on Industrial Leave.
11.4.5 Industrial Leave shall expire when one of the following conditions occurs:
11.4.5.1 Employee is able to return to work to his/her regular position.
11.4.5.2 The day before the employee is retired or separated for disability. The
employee's "retirement date" shall be the first of the month after all of the
following occur and are determined by the California Public Employees'
Retirement System:
11.4.5.2.1 The employee's condition is determined to be permanent or of an
extended duration.
11.4.5.2.2 The degree of disability precludes continued employment by the
employee in his present position.
11.4.5.2.3 After fifty-two (52)weeks of industrial disability payments.
11.4.6 Physicians may be assigned in compliance with the Health and Safety Code and the Workers'
Compensation Laws of the State of California(Ref.: Section 4600 - Labor Code.)
11.5. Sick Leave
Sick Leave shall not be construed as a right,which an employee may use at his or her discretion, but shall be
allowed only in case of necessity or actual sickness or disability. Sick Leave must be exhausted before
compensatory time off or Vacation Leave may be used for Sick Leave reasons.
11.5.1. Reasons for Use of Sick Leave
Sick Leave shall be granted for the following reasons:
11.5.1.1 Personal illness or physical incapacity.
11.5.1.2 The illness of a member of the employee's immediate family(father, mother,
sister or brother), or members of the employee's household(husband,wife,and
children)that require the employee's personal care and attention.
Sick Leave use under Section 11.5.1.2 shall be limited to twelve days per year;
except that up to twelve weeks per year (running concurrently with family
medical leave) may be approved by the department head when a relative
covered under Section 11.5.1.2 has an illness, injury,or condition,which may be
expected to be of long duration, has no reasonable date of termination and
requires continuous or intermittent care by the employee.
11.5.1.3 Enforced quarantine of the employee in accordance with Health Department
regulations.
11.5.1.4 Medical, dental, and optical appointments.
11.5.1.5 Personal Business not to exceed a maximum of forty(40)hours during any one
(1)year. Personal business"means those items of Personal Business that can
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MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1;2010 THROUGH JULY 31, 2011
only be taken care of during regular working hours of the employee. Personal
business leave shall be approved or disapproved by the department head in
accordance with this section. Departments are to use the earning code PB for
this purpose. Personal Business shall be debited against the employee's Sick
Leave balance but Sick Leave taken as Personal Business Leave shall not be
taken into consideration for the purposes of the Sick Leave Cash-In program or
with regard to employee performance evaluations. Employees must provide
advance notice for Personal Business Leave whenever possible
11.5.2. Accrual and Use
For employees hired prior to January 1,2011,Sick Leave shall accrue at the rate of ten hours per month for
each calendar month of paid employment, with unlimited accumulation.
For employees hired on or after January 1,2011, Sick Leave shall accrue at the rate of ten hours per month
for each calendar year of paid employment. No more than 960 hours of sick leave may be accrued.
Balances accrued over 960 hours will be paid out annually at a rate of 25% as a wellness bonus.
11.5.3. One-Fourth Conversion
If the employee has used more than three, but not more than six days of Sick Leave, excluding
time spent on personal business or bereavement, he or she would have the following options:
11.5.3.1 Carry over the accrual and add it to his or her Sick Leave balance.
11.5.3.2 Convert, only to the extent that his/her balance is more than zero at the beginning of the
new year, one-fourth of the accrual to Vacation or convert one-fourth to cash (but no
combination of these two); unused, unconverted leave would then be added to the
employee's Sick Leave balance.
11.5.4. One-Third Conversion
If the employee has used no more than three days of Sick Leave, excluding time spent on
personal business or bereavement, he or she would have the following options:
11.5.4.1 Carry over the accrual and add it to his or her Sick Leave balance.
11.5.4.2 Convert,only to the extent that his/her balance is more than zero at the beginning of the
new year, one-third of the accrual to Vacation or convert one-third of it to cash(but no
combination of these two); unused or unconverted leave would then be added to the
employee's Sick Leave balance.
A decision to convert Sick Leave according to the policies stated shall be made by March 31.
11.5.5. Conversion to Cash upon Retirement or Separation
The employee may convert fifty percent (50%) of his or her accrued Sick Leave balance to cash upon
disability retirement (if he or she has been employed by the city a minimum of five(5)years);or voluntary
retirement(if he or she has been employed by the city a minimum of ten (10)years).
Upon death of an employee, who has reached permanent status, the City shall convert 50% of the
deceased employee's accrued sick leave balance to cash. The cash shall be payable to the deceased
employee's beneficiary or estate.
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MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
Upon separation for other reasons, employee may convert fifty percent(50%) of his or her accrued Sick
Leave balance to cash for hours in excess of three hundred twenty(320)hours to a maximum payment of
two hundred forty(240) hours.
Upon voluntary separation with at least twenty five(25)years of service with the City,employee may convert
one hundred percent(100%) of his or her accrued Sick Leave balance to cash.
In case of layoff,the employee shall be allowed to convert 100%of his or her accrued Sick Leave balance to
cash.
11.5.6. Conversion to Service Credit Upon Retirement
Pursuant to the terms of the City's contract,as amended,with the California Public Employees'Retirement
System, upon voluntary retirement the employee may convert 100% of his or her accrued Sick Leave
balance, less any amount converted to cash under the provisions of Section 11.5.4, to retirement service
credit.
11.6. Vacation Leave
11.6.1. Required Usage and Carryover
Leave will be credited on a"per-pay-period"basis. Employees shall be required to use one-half(Y)of their
annual Vacation accrual yearly. Employees shall be able to carry over Vacation accrual from one year to the
next,cumulatively, up to a maximum of seventy-eight(78)times the then-current pay period rate of Vacation
accrual. Future accrual which exceeds the aforementioned maximum,shall be paid to the employee as it is
accrued.
Commencing on August 1, 2010, if the employee's balance is at or above the maximum, any accrual in
excess of the maximum shall be paid as earned. In special cases where it has not been possible, due to
work load or other factors,for the employee to use his or her Vacation before reaching a maximum, it shall
be within the department head's authority to authorize cash payment in lieu of time off.
11.6.2. Cash-In Policy
Employees covered by this Memorandum of Understanding may convert Vacation time to cash with
administrative approval.
11.6.3. Accrual
Vacation Leave shall accrue as follows:
Through the 5th year of employment 120 hours
Through the 6th year of employment 128 hours
Through the 7th year of employment 136 hours
Through the 8th year of employment 144 hours
Through the 9th year of employment 152 hours
Through the 10th year of employment 160 hours
Through the 11th year of employment 168 hours
Through the 12th year of employment 176 hours
Through the 13th year of employment 184 hours
Through the 14th year of employment 192 hours
Through the 15th year of employment 200 hours
Through the 16th year of employment 210 hours
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MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
12. COMPUTER LOAN PROGRAM
12.1 The Computer Loan Plan described below shall be made available to full time regular employees.
Eligibility is limited to employees who have completed their initial probation period with the City.
12.2 The equipment configuration shall be appropriate to the employee's position and career with the City.
12.3 It is the employee's responsibility to negotiate the price for the equipment and to bring a copy of the
order/quote to the City for approval orior to purchase.
12.4 The employee shall apply for a loan with the City on a City provided loan application. If the employee
qualifies, the City will fund the loan on an interest free basis. Loan payments must be by payroll
deduction. Each loan payment period shall not exceed two years and the aggregate value of all loan(s)
shall not exceed $5,000 per employee. In order for an employee to receive a loan under the Plan for
equipment upgrades for purchase of equipment components, the employee must certify that he/she
already owns the remaining components required to constitute a computer system.
12.5 Any remaining loan balance must be paid in full at time of separation of employment. Payment will be
made directly and/or by deduction from the last paycheck. In the event an outstanding balance remains,
the employee is responsible for making payment arrangements. The failure to make full payment will
obligate the employee to pay the Citys attorneys fees in any restitution process.
13. DAMAGE TO PERSONAL EFFECTS
If, in the course of business, an employee's personal clothing or effects are accidentally damaged or destroyed, the
employee may submit a claim for reimbursement for up to one hundred dollars ($100).
Employee will submit claim to their department head for his or her recommendation to the City Administrator for his or
her consideration.
14. EMPLOYEE ASSISTANCE PLAN
The City will continue to maintain the Employee Assistance Plan.
15. LAYOFF OR RECLASSIFICATION
The City agrees that in the event employees represented by the Association are laid off from their employment or are
reclassified to a lesser classification,a minimum of forty-five(45)calendar days notice will be given to each individual
affected employee. Such notice shall be in writing and signed by an appropriate management employee.
16. LICENSE RENEWAL
The City agrees to pay the cost of maintaining certifications and licenses that are necessaryto maintain the minimum
requirements for the licensee's job.
17. LIFE INSURANCE
The City shall provide term life insurance equal to one and one-half(11/2)times annual salary.
18. PROPRIETARY INFORMATION AGREEMENT
All unit employees will be subject to state and federal laws prohibiting the disclosure of confidential business
information,trade secrets and other proprietary information. The City will provide orientation on employee obligations
under such laws for existing and new employees.
11
MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010 THROUGH JULY 31, 2011
19. RETIREMENT
The City shall continue its contract with the California Public Employees' Retirement System (CaIPERS), at
the"2% @ 55 full formula"plan. The City shall also maintain the increased level of the 1959 Survivor Benefit.
The City shall continue to pay both the "employee"and "employer" share of the cost.
19.1 Optional Benefits
19.1.1 The City's contract with the CaIPERS includes the additional benefit of Service Credit for Unused
Sick Leave.
19.1.2 The City's contract with the CalPERS includes participation in the Two Years Additional Service
Credit as authorized by the State Legislature.
19.1.3 The City's contract with CalPERS includes Employer-Paid Member Contribution as Compensation
in base pay during the final compensation period.
19.1.4 CalPERS Service Credit for Military Service
The CalPERS Service Credit for Military Service Credit Purchase Assistance Plan described below shall
be made available to full-time regular employees who have completed their initial probation period with the
City.
The City's contract with CalPERS includes the provisions of Section 21024, Military Service Credit as
Public Service. Eligible employees with qualifying military service can contact CalPERS and arrange to be
billed for the service credit(CaIPERS' estimate is$5,000 per year of service). The City shall reimburse
the employee for 25% of the amount of the bill.
If desired, the employee may apply for a loan from the City for the remaining 75%. The employee shall
apply for the loan on a City-provided loan application. If the employee qualifies,the City will fund the loan
on an interest-free basis. Loan payments must be by payroll deduction. Each loan payment period shall
not exceed six years. The City may require collateral.
Any remaining loan balance must be paid in full at the time of separation of employment. Paymentwill be
made directly and/or by deduction from the last paycheck. In the event an outstanding balance remains,
the employee is responsible for making payment arrangements. The failure to make full payment will
obligate the employee to pay the City's attorney's fees in any restitution process.
19.2 PARS Retirement Enhancement
Beginning July 1,2007, employees agreed to payfor Public Agency Retirement Services benefits which
add a half percent(0.5%)to the PERS 2%at age 55 formula,such that at age 55,the benefit factor would
equate to 2.5% in total between PERS and PARS. The PARS program which employees agreed to pay
for is commonly referred to as the"stackable plan" meaning that the half percent(0.5%) benefit factor is
added to the amount provided by the PERS program regardless of the age of the retiring employee,
provided, however, the retiring employee has reached the qualifying retirement age of 55.
Effective July 1, 2007 through December 31,2008, the Citywill contribute the initial one percent(1%)cost
of the PARS program. Up to seven and one half percent(7.5%)of the remaining cost will come out of the
employee's base pay as an employee contribution payroll deduction administered bythe City.The Citywill
contribute any balance beyond the initial one percent (1%)and the employee contribution..
Effective January 1, 2009 the City will contribute an additional five percent (5%) of the employee's
contribution.The employee's contribution will cap at two and one half percent(2.5%). Effectively the City
will contribute the first six percent(6%); the employee will contribute the next two and one half percent
(2.5%)and then the City will contribute any portion beyond the eight and one half percent(8.5%).
12
MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010, THROUGH JULY 31, 2011
19.2.1 All amounts deducted from employees' base pay will be tax deferred.
19.2.2 Retiring employees must be vested 5 consecutive years with the City of Azusa, and must be age
55 or above to be eligible for PARS retirement benefits.
19.2.3 Employees must pay into the PARS program for one year before they can be eligible to retire.
19.2.4 Prior years served in other Cities under the PERS program will be counted toward service credit
when the PARS benefit is calculated and made part of benefit upon retirement.
19.2.5 Like PERS, the employee can take their contribution out of PARS in cash when separated
' from the City, plus interest accrued @'4% per year.
19.2.6 Basis for PARS portion of retirement calculation is single highest year of salary.
19.2.7 For purposes of PERS benefit calculation, the employee's contribution to PARS is
considered as a part of base salary; hence it does not affect PERS retirement calculation.
19.2.8 No Association employee may opt out of participation in the PARS program.
19.2.9 The cost to participate in PARS is notfixed and may be changed depending on future cost studies
for bargaining group.
19.3 Health Insurance During Retirement
Beginning with the first month after retirement,for employees who,at the time of retirementfrom the City
of Azusa, have attained the age of fifty(50)and have at least fifteen(15)cumulative years of service with
the City of Azusa, the City will reimburse monthly to the employee, until the employee passes away, an
amount equal to seventy five percent (75%) of the single-coverage premium in the employee's
comprehensive health insurance plan. For employees who, at the time of retirement from the City of
Azusa, have attained the age of fifty(50) and have at least twenty(20)cumulative years of service with
the City of Azusa,the City will reimburse the employee an amount equal to one hundred percent(100%)
of the single-coverage premium in the employee's comprehensive health insurance plan,or one hundred
percent (100%) of the coverage premium for the retiring employee and their spouse (at the time of
retirement)at the lowest available health maintenance organization(HMO)premium;in the event that the
employee passes away and is survived by an eligible spouse,the coverage for the surviving spouse shall
continue until he or she passes away. The amount of the City's contribution shall vary, up or down,
depending upon the employee's choice of health insurance carrier and its periodic changes in its rates.
The minimum contribution (currently$105 per month, effective January 1, 2011 increases to $108 per
month) that the City pays directly to CalPERS shall be considered to be part of that portion paid by the
City. If a retired employee maintains health insurance otherthan a CalPERS plan,the maximum amount
the Citywill pay for the insurance premium will not exceed the single premium for the CalPERS Care plan.
19.4 Monthly Cash Payout Option Equivalent to Health Insurance Benefit Upon Retirement
Employees with qualified medical retirement benefits as defined in section 19.3, and who retire under
PERS from the City of Azusa, may elect to be paid a Cash Equivalent amount on a monthly basis
regardless of whether they are paying a health insurance premium. The employee must indicate his or her
choice of this option within 30 days of retirement from the City of Azusa of his or her interest in being paid a
Cash Equivalent amount. If employee elects to chose a Cash Equivalent payment, the City will pay
monthly to retired employee until the retired employee passes away, a cash amount equivalent to the
single-coverage premium in the Cal PERS Care health plan based on the percentage benefit the retired
employee is eligible to receive as defined in section 19.3. For example, an employee at age 50 with 15
years with the City would be eligible to receive a cash equivalent payment on a monthly basis equal to 75%
of this cost as set forth by the CaIPERS Care plan, including monthly adjustments to account for increases
in the premium amounts as set forth by CalPERS Care.
13
MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010, THROUGH JULY 31, 2011
20. TUITION REIMBURSEMENT
20.1. Objective
The tuition reimbursement program is designed to encourage employees to continue their self-development by
enrolling in approved classroom courses, which will:
20.1.1 Educate them in new concepts and methods in their occupational field and prepare them to meet
the changing demands of their job.
20.1.2. Help prepare them for advancement to positions of greater responsibility in the City of Azusa.
20.2. Eligibility
20.2.1 All regularly appointed employees are eligible to receive tuition reimbursement. Courses must
commence after appointment and be in excess of the educational standards for the position. An
example of this would be job-related college or university courses when the specification for the
classification calls for high school graduation.
20.2.2 Courses must be (except where noted below in paragraphs 19.3.3. and 19.3.4.) traditional
classroom courses taken at colleges or universities and approved by the Western Association of
Schools and Colleges. Distance learning classes offered by such colleges and universities shall
be covered by this provision. Credits given for non-classroom assignments such as life
experience, military training, and professional training are not reimbursable.
20.2.3 Coursework must be related to the employee's current occupation or to a City classification to
which the employee may reasonably expect promotion within the next five years.
20.3. Courses may be eligible if they:
20.3.1 Are above the educational requirements of the position as noted in the position specification and
are not taken to acquire skills, knowledge and abilities which the employee was deemed to have
when appointed the position.
20.3.2 Do not duplicate training which the employee has already had orwhich is to be provided in-house.
20.3.3 Do not duplicate previously taken courses unless special approval has been granted by the
department head and the Human Resources Division:
20.3.4 Are required for the completion of the pre-approved job-related major. An example would be
general education or elective requirements for the major as stated in the school catalog.
Remedial courses or those taken as required for a non-approved major shall not be eligible.
20.3.5 Include completed engineering review courses taken at accredited institutions for which an
academic grade or units of academic credit are not given. These courses must prepare
candidates for a certificate, license or registration issued by the California Board of Registration
for Professional Engineers. The employee must receive the certificate or license from this Board
to be eligible for reimbursement,which will be granted for a maximum of 2 courses per certificate,
license or registration.
20.3.6 Lead to a City-approved certificate,license or registration. Reimbursement maybe made for any
examination fees required to successfully obtain the certificate, license or registration.
Reimbursement for eligible expenses will be made after obtaining the license, certificate or
registration.
14
MEMORANDUM OF UNDERSTANDING, AMMA, AUGUST 1, 2010, THROUGH JULY 31, 2011
20.3.7 Are not taken on City time and must be certified that they are taken on the employee's off-duty
time.
20.3.8 Are part of a bona-fide curriculum of the study of the Spanish language.
20.3.9 Have been approved by the Department Head and the City Administrator or his/her designee
before commencement of the class.
20.4. Reimbursement
20.4.1 The City shall reimburse employees for tuition, registration fees and texts required for the eligible
courses. Expenses for parking,travel, and meals,processing fees,transcript fees, materials and
any other costs are not reimbursable.
20.4.2 Employees shall be reimbursed up to the dollar amount charged for the same number of units per
term by California State University system.
20.4.3 In order to be reviewed,each application must state exactlywhich units or credits the employee is
applying for and whether the courses submitted are core courses or recommended electives for
the approved major.
20.4.4 Reimbursement shall be made upon completion of the course with a minimum final grade of"C"
or its equivalent, i.e., a pass in a pass/fail course will be considered equivalent to a "C." No
reimbursement shall be made for audited or incomplete courses.
20.4.5 Employees must submit from the attendant institution an original certification of fees paid and
grade achieved in order to have their application considered for reimbursement. These
documents must accompany the reimbursement application form in order to be processed.
20.4.6 Application for reimbursement must be submitted within three months of the completion of the
approved course in order to be considered for reimbursement.
20.4.7 Upon termination from employment, employees shall be required to reimburse the City for any
funds received under this program for courses completed during the last 24 months of
employment. This payback provision does not apply to employees laid off by the City or who
separate as a result of a City/departmental reorganization.
21. UNIFORM ALLOWANCE
Retroactive to July 1, 1996,employees that are permanently assigned to work in departments wherein employees
typically receive a uniform allowance shall receive a uniform allowance commensurate with that of their respective
work groups.
15
AZUSA MIDDLE MANAGEMENT ASSOCIATION
Olga Bruno, President Date
Paul Reid, Vice President Date
Steven Yang, Treasurer Date
Candy Toscana, Secretary Date
Richard Torres, Negotiating Team Representative Date
Damian Stafford, Labor Specialist, Lackie Dammeier& McGill Date
CITY OF AZUSA
F. M. Delach, City Manager Date
Sonia Carvalho, City Attorney, Best Best & Krieger Date
Alan Kreimeier, Director of Administrative Services/CFO Date
Kermit Francis, Interim Director of Human Resources Date
AMMA INDEX
16
Acting Pay(4)
Additional Compensation (4)
Automobiles (4)
Bilingual Pay(5)
Deferred Compensation (City-paid) (5)
Educational Incentive Pay(5)
Administrative Leave(6) .
Automobiles (5)
Bereavement Leave (6)
Bilingual Pay(5)
City Rights (2)
Conformance with Rules (3)
Management Rights (2)
Meet and Confer(3)
Computer Loan Program (11)
Damage to Personal Effects (11)
Deferred Compensation (City-paid) (5)
Educational Incentive Pay(5)
Employee Assistance Plan (11)
Flexible Benefit Plan (5)
Amount of Monthly Benefit(6)
Definition (5)
Eligibility(6)
Termination (6)
Health Insurance During Retirement(13)
Holidays(7)
Designated Holidays (7)
Floating Holidays (7)
Industrial Leave (7)
Layoff or Reclassification (11)
Leave Types/Days off
Administrative Leave(6)
Bereavement Leave(6)
Holidays (7)
Industrial Leave (7)
Sick Leave (8)
Vacation Leave (10)
License Renewal (11)
Longevity Pay(5)
Maintenance of Existing Benefits (2)
Management Rights (2)
Non-discrimination (1)
Anti-discrimination (1)
Protection of Rights (1)
Proprietary Information Agreement(11)
Retirement(12)
Health Insurance During Retirement (13)
Optional Benefits(12)
Salary(4)
Automatic Payroll Deposit(4)
Compensation Survey(4)
Cost of Living Increases (4)
Separability(2)
Sick Leave(8)
17
Accrual and Use (9)
Conversion to Cash upon Retirement or Separation (9)
One-fourth Conversion (9)
One-third Conversion (9)
Reasons for Use of Sick Leave(8)
Survey, Compensation (4)
Term of Memorandum of Understanding (1)
Total Compensation (1)
Tuition Reimbursement(14)
Eligibility(14)
Eligible Courses (14)
Objective(14)
Reimbursement(15)
Vacation Leave(10)
Accrual (110)
Cash-in Policy(10)
Required Usage and Carryover(10)
Workweek and Timekeeping Interval (3)
Timekeeping Interval (3)
Workday(3)
Workweek(3)
18
CITY OF AZUSA AMMA "EXHIBIT A"
AMMA SALARY EFFECTIVE 0810112010
CLASSIFICATION RANGE STEP 1 STEP 2 STEP 3 STEP 4 STEP 5
ASSISTANT CITY CLERK 3243 4784.06 4989.93 5206.02 5432.96 5671.19
ASSISTANT LIBRARY DIRECTOR 3348 5894.88 6
6
8
8
8
189.61 6499.07 6824.02 7165.22
ASSISTANT DIRECTOR OF FINANCE 3344 6292.57 612.81 6949.33 7302.97 7674.58
ASST DIR OF COMM DEVEL 3505 7760.49 155.72 8571.06 9007.61 9466.34
ASST DIR OF ECONOMIC&COMM DEV 3505 7760.49 155.72 8571.06 9007.61 9466.34
ASST DIR PUBLIC WKS/CTY ENGINR 3531 8184.66 593.91 9023.61 9474.78 9948.52
ASST DIR-CUST CARE &SOLUTIONS 3557 8728.57 9164.99 9623.24 10104.39 10609.73
ASST DIR-ELECTRIC OPER 3557 8728.57 9164.99 9623.24 10104.391 10609.73
ASST DIR-RESOURCE MGMT 3570 9906.45 10401.771 10922.05 11468.55 12042.46
ASST DIR-WATER OPER 3557 8728.57 9164.99 9623.24 10104.39 10609.73
AST DIR UT/PRNCPL POL BDGT ANL 3213 6848.42 7191.53 7550.87 7928.90 8325.35
BUILDING OFFICIAL 3435 6773.38 7112.04 7467.65_ 7841.03 8233.08
BUS DEV/PUBLIC BENE PROG COORD 3204 5497.20 5771.70 6059.89 6361.84 6678.74
CITY ENGINEER 3440 6907.94 7261.15 7632.06 8021.50 8430.40
COMMUNITY IMPROVEMENT MANAGER 3370 6147.24 6454.58 6777.32 7116.21 7472.00
ELECTRICAL ENGINEER 3448 7028.16 7379.55 7748.53 8135.96 8542.74
EMERGENCY SERVICE COORDINATOR 3268 6097.70 6418.60 6756.47 7112.05 7486.40
GRANT COMPLIANCE OFFICER 3341 5345.04 5620.14 5908.97 6212.24 6530.74
INFORMATION SYSTEMS MANAGER 3345 6791.90 7131.49 7488.07 7862.48 8255.59
POWER RESOURCES COORDINATOR 3455 7583.31 7962.46 8360.59 8778.62 9217.21
PRINCIPAL CIVIL ENGINEER 3440 6907.94 7261.15 7632.06 8021.50 8430.40
PUBLIC INFORMATION OFFICER 3205 5423.60 5694.33 5980.05 6278.25 6591.40
REC SUPER-OPER& PARKS 3365 5732.03 6018.60 6319.51 6635.49 6967.27
REC SUPER-PROGRAMS &SVCS 3365 5732.03 6018.60 6319.51 6635.49 6967.27
RECREATION SUPERINTENDENT 3365 5732.03 6018.60 6319.51 6635.49 6967.27
SENIOR ELECTRICAL ENGINEER 3515 8123.17 8529.33 8955.78 9403.56 9873.76
SENIOR MGMT ANALYST 3306 5085.38 5345.93 5721.05 6038.89 6356.72
SENIOR SERVICES MANAGER 3300 4713.47 4949.12 5196.64 5456.46 5729.28
TRANSPORTATION MANAGER 3365 5732.03 6018.60 6319.51 6635.49 6967.27
UTILITY ADMINSTRTVE SERVC SUPV 3565 5369.62 5638.11 5920.02 6216.02 6526.81
WATER SYSTEM ENGINEER 3415 6409.61 6730.09 7066.59 7419.92 7790.92
i
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA
APPROVING THE MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY AND THE AZUSA MIDDLE MANAGEMENT
ASSOCIATION EFFECTIVE AUGUST 1, 2010, THROUGH JULY
31, 2011
WHEREAS, the City Council acknowledges the Azusa Middle Management
Association as the recognized employee organization representing those personnel occupying the
positions identified in the attached Memorandum of Understanding between the City and the Azusa
Middle Management Association (AMMA), and
WHEREAS,the Memorandum between the City of Azusa and the AMMA expired July
31, 2010, and it is appropriate for the management of the City to receive proposals that govern the
compensation, benefits and working conditions of City employees, and
WHEREAS,the representatives of management and representatives of AMMA have
met on numerous occasions during the last 5 months and have discussed the issues between them
and have bargained in good faith, and
WHEREAS, management and AMMA have come to an agreement with regard to
every issue, and
WHEREAS,the new Memorandum of Understanding between the City of Azusa and
the AMMA covering the period of August 1, 2010 through July 31, 2011, is attached.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Azusa
does hereby approve the Memorandum of Understanding attached hereto and does direct the
representatives of management to affix their signatures thereon.
The City Clerk shall certify the passage of this Resolution.
APPROVED AND PASSED this 6h day of December, 2010.
MAYOR OF THE CITY OF-7=
I HEREBY CERTIFY that the foregoing Resolution w%s dulypassed by the City
Council of the City of Azusa at a regular meeting thereof held on the 6 day of December, 2010.
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
- - � ._.. .
U
i
CONSENT CALENDAR
TO: THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ALAN KREIMEIER, DIRECTOR OF ADMINISTRATIVE SERVICES/CFO
VIA: F.M. DELACH, CITY MANAGER
DATE: DECEMBER 6, 2010 ;
SUBJECT: AZUSA POLICE OFFICERS ASSOCIATION CONTRACT (AUGUST 1, 2010
THRU JULY 31, 2015) AND RELATED MATTERS AS INDICATED
RECOMMENDATION
It is recommended that City Council:
• Adopt the resolution amending the Rules and Regulations Relating to Employer-
Employee Relations
• Adopt the resolutions amending Employer Paid Member Contributions
• Adopt the resolution approving the Azusa Police Officers Association (APOA)
Memorandum of Understanding dated August 1, 2010 through July 31, 2015
BACKGROUND
Beginning last summer, the Azusa Police Officers Association, (APOA), and City
Administration began negotiations to consider a new contract. After several months of
negotiations and good faith bargaining, APOA and the City have reached agreement on a
Memorandum of Understanding/contract lasting five years and addressing several areas of
concern regarding long range financial impacts on the City. In return for modest salary increases
over the term of the new labor contract, the City has received important long term concessions
from APOA pertaining to retirement costs and health care benefits.
The Sergeant rank members have applied for transfer of their membership to the Azusa Police
Management group. An amendment to Section 10 of the Employer-Employee Relations
Resolution will allow Sworn Police Supervisory employees to be included in an appropriate unit
with Sworn Police Management employees. There is agreement by both associations (APOA
and APMA) and the Chief of Police and there has been compliance with all requirements set
forth in the Employer-Employee Relations Resolution for Unit Modification.
A summary of the proposed changes to the current APOA Memorandum of Understanding
include:
• No cost of living adjustment in year one of this Memorandum of Understanding.
• Providing a second tier retirement program for employees hired after January 1,-2011
under the PERS 3% at age 55 formula. The existing retirement plan for those already
employed under the Public Safety Plan will remain 3% at age 50. Additionally new
employees will begin to pick up a greater share of the cost (3%) out of payroll. This
adjustment will result in 7-10% savings over the next seven years.
• Elimination of the first tier of longevity pay at 7-years of service for new hires.
• Establishing a base Health and Dental benefit tied to the PERS HMO Kaiser Plan, and
PPO Dental Plan eliminating the automatic inflator provision currently existing.
• Instituting a Senior Officer and Senior Corporal Program for members of the group
achieving 12 years of service, documented degrees and excellence in performance and
productivity; which includes a 6'h step to the salary table, at 5% above the current Step-5.
• Capping the Tuition Reimbursement program for higher education which is tied to the
State College/University rates.
• City will cover up to 5-years of a surviving spouse's medical insurance before reaching
Medicare age.
• Year's 2-4 include a 2.5% Cost of Living increase. In year's 3 and 4, if the CPI increases
above 3.5% employees will cover an additional 1% of City pension costs from their pay.
• Year 5 of the MOU includes a 3% CPI salary increase.
See MOU for additional details.
FISCAL IMPACT
Finance estimates the average increase in salary cost per year of this new MOU to be $140,875
for the APOA bargaining Unit.
Attachments:
1. Amended Employer-Employee Relations Resolution
2. Resolution for Employer Paid Member Contributions
3. Resolution to Tax Defer Employer Paid Member Contributions
4. Memorandum of Understanding
5. Resolution Approving MOU
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF AZUSA
AND THE
AZUSA POLICE OFFICERS
ASSOCIATION
EFFECTIVE
08/01 /2010 THROUGH 07/31 /2015
TABLE OF CONTENTS
1. TERM OF MEMORANDUM OF UNDERSTANDING................................................................. 1
2. CONTINUATION OF BENEFITS, TERMS, AND CONDITIONS OF EMPLOYMENT........................ 1
3. MANAGEMENT RIGHTS,............................... .. ........... .................................................... 1
4. WORK WEEK AND TIMEKEEPING INTERVAL....................................................................... 2
5. SALARY........................................................................................................................... 3
6. ADDITIONAL COMPENSATION/PREMIUM PAY..................................................................... 5
6.1 Acting Employee............................................................................................................... 5
6.2. Bilingual Pay ................................................................................................................... 5
6.3. Callout............................................................................................................................. 5
6.4. Educational Incentive Pay.................................................................................................. 6
6.5. Holiday Pay (See also 7.2. Holidays).................................................................................... 6
6.6. Longevity Pay.................................................................................................................. 6
6.7 Off Duty Court Appearance Time........................................................................................ 7
6.8 Standby("On Call") Pay..................................................................................................... 8
6.9. Overtime/Compensatory Time......................................................................................... 8
6.10. Special Assignments...................................................................................................... 8
6.11. Shift Differential............................................................................................................ 9
6.12. Training Pay (Police Officer)............................................................................................ 9
6.14. Uniform Allowance......................................................................................................... 9
7. LEAVE/DAYS OFF............................................................................................................ 9
7.1. Bereavement Leave............................................................................................................9
7.2. Holidays (see also 6.6. Holiday Pay).................................................................................... 10
7.3 Worker's Compensation................................................................................................... 10
7.4. Personal Leave............................................................................................................... 11
7.5. Sick Leave.....................................................................................................................11
7.6. Vacation Leave................................................................................................................... 14
8. CLOTHING DAMAGE REIMBURSEMENT.............................................................................14
9. COMPUTER AND HOME EXERCISE EQUIPMENT LOAN PROGRAM.......................................14
10. DISABILITY INSURANCE (SHORT/LONG TERM).................................................................. 15
11. EMPLOYEE ASSISTANCE PLAN........................................................................................ 15
12. FLEXIBLE BENEFIT PLAN...............................:................................................................. 15
13. LIFE INSURANCE............................................................................................................ 17
14. OUTSIDE EMPLOYMENT.................................................................................................. 17
15. PHYSICAL EXAMINATIONS............................................................................................... 17
16. RETIREMENT..................................................................................................................17
17. LEAVE BANK FOR APOA BOARD MEMBERS.......................................................................19
18. SAFETY EQUIPMENT.......................................................................................................19
19. TUITION REIMBURSEMENT..............................................................................................19
20. POLICIES..................................................................................................................... 21
MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF AZUSA AND THE
AZUSA POLICE OFFICERS'ASSOCIATION
AUGUST 1, 2010 through JULY 31, 2015
This Memorandum of Understanding is entered into with reference to the following facts:
(1) The Azusa Police Officers'Association (APOA) (hereinafter referred to as "Association") is the
recognized employee organization representing those personnel (hereinafter referred to as
"employees") employed by the various departments of the City of Azusa (hereinafter referred to as
"City"), and occupying the classifications (see current salary schedule.)
(2) In the interest of maintaining harmonious relations between the City and those employees
represented by the Association, authorized representatives of the City and the Association have met
and conferred in good faith,exchanging various proposals concerning wages, hours and other terms
and conditions of employment to affected employees.
(3) The authorized representatives of the City and the Association have reached an understanding
and agreement as to certain changes in wages, hours and other terms and conditions of
employment of the affected employees which shall be submitted to the City Council of the City for
approval and implementation of these changes by appropriate ordinance, resolution, or other
lawful action.
Therefore, the City and the Association agree that, subject to approval and implementation by the City Council of the
City, the wages, hours and other terms and conditions of employment for all affected employees shall be as follows:
1. TERM OF MEMORANDUM OF UNDERSTANDING
The term of this Memorandum of Understanding(MOU)shall commence August 1,2010,and shall continue in full
force and effect until July 31, 2015.
2. CONTINUATION OF BENEFITS, TERMS,AND CONDITIONS OF EMPLOYMENT
Any benefits, terms, and conditions of employment, except as modified by state law, federal law, or municipal
ordinance, contained in prior Memoranda of Understanding between the Association and the City not specifically
altered by this agreement are hereby incorporated in this agreement and made a part of it by reference.
3. MANAGEMENT RIGHTS
3.1 The City reserves,retains and is vested with, solely and exclusively, all rights of Management which have not
been expressly abridged by specific provisions(s)of this Memorandum of Understanding or bylaw to manage
the City, as such rights existed prior to the execution of this Memorandum of Understanding. The sole and
exclusive rights of Management, as they are not abridged bythis agreement or by law,shall include,but not be
limited to, the following rights:
3.1.1 Determine the mission of its constituent departments, commissions and boards;
3.1.2 Set standards of service;
3.1.3 Determine the procedures and standards of selection for employment and promotion;
3.1.4 Direct its employees;
3.1.5 Take disciplinary action;
3.1.6 Relieve its employees from duty because of lack of work or for other legitimate reasons;
3.1.7 Maintain the efficiency of governmental operations;
1
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
3.1.8 Determine the methods, means and personnel by which government operations are to be
conducted;
3.1.9 Determine the allocation and content of job classifications;
3.1.10 Take all necessary actions to carry out its mission in emergencies; and
3.1.11 Exercise complete control and direction over its organization and technology of performing its
work.
3.2 Except in emergencies, or where the City is required to make changes in its operations because of the
requirements of law, whenever the exercise of Management's rights shall impact on employees of the
bargaining unit, the City agrees to meet and confer with representatives of the Association regarding the
impact of the exercise of such rights, unless the matter of the exercise of such rights is provided for in this
Memorandum of Understanding, or in Personnel Rules and Salary Resolutions and Administrative
Code(s)which are incorporated in this Agreement. By agreeing to meet and confer with the Association
as to the impact and the exercise of any of the foregoing City Rights, Management's discretion in the
exercise of these rights shall not be diminished.
4. WORK WEEK AND TIMEKEEPING INTERVAL
4. Work Week
For employees covered by this agreement who are scheduled to work a 4/10 schedule, the regular
workweek shall be forty(40)hours for a seven (7)day period beginning at 12:01 a.m. each Sunday and
shall consist of four (4) days a week and ten (10) hours per day. Daily hours of work or shifts for
employees within the department shall be assigned by the department head, as required to meet the
needs of the department.
4.1. Workday
For employees who are scheduled to work a 4/10 schedule,the workday will consist of ten(10)hours with
lunch and breaks to be scheduled in light of departmental policy.
For employees who are scheduled to work a 3/12.5 schedule,the workday will consist of 12.5 hours ora
10-hour make-up day each 28-daywork period.
The City reserves the right to determine the beginning and ending times of the workday.
4.2. Timekeeping Interval
In compliance with FLSA,the minimum timekeeping interval shall be fifteen(15)minutes. Periods of time
of seven(7)minutes or less shall be rounded down,and periods of time of eight(8)minutes or more shall
be rounded up.
4.3 Patrol 3/12.5 Shift Schedule
During the term of this MOU, the City agrees to maintain a 3/12.5 shift schedule for unit members
assigned to patrol, as agreed between APOA and Management. If costs for overtime or workers
compensation increases in excess of 10%in any given fiscal year,based on a three year moving average,
Management has the right to abandon the 3/12.5 Shift Schedule.
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
In reviewing the program management agrees to consider major incidents or unforeseen
circumstances that may temporarily affect the above condition. In the event management decides to
eliminate the 3/12.5 schedule the schedule will revert back to the 4/10 schedule as in the 2000-2004
MOU. In such event, management will provide a four-month notice to the APOA in writing.
The parties acknowledge that to maintain the 3/12.5 schedule it is necessary to maintain a work
period in accordance with section 7(k)of the FLSA. The parties agree the work period will remain to
be a 28-day work period. The city will pay overtime compensation to Police Officers as follows:
1. Working more than their regularly scheduled hours on a given day or
2. Working more than 160 hours over a 28 day FSLA work period.
5. SALARY
5.1
Effective August 1, 2010 implement an adjustment to correct the salary compaction between Police
Officer and Police Corporal. The compaction adjustment shall establish a 5% difference between each
step of Police Officer and Police Corporal.
Effective August 1, 2010 a sixth step is to be added to the Salary Schedule. This sixth step shall be
awarded to Senior Officers and Senior Corporals who meet the following criteria:
Minimum of 12 years of full time POST Law enforcement experience, to include 5 years of full
time sworn Law Enforcement experience with the City of Azusa.
Police Officers to possess an Intermediate POST Certificate and Police Corporals to possess an
Advanced POST Certificate.
Achieve performance standards of only successful and/or exceptional on the most recent annual
evaluation.
Successful completion of at least two of the following assignments, not disqualifying individuals
who left an assignment due to promotion or transfer to another qualifying assignment:
Field Training Officer
Any Special Assignment(current or former), including Detective Bureau, Special
Enforcement Task (SET, including HIDTA, T.R.A.P., or other multi-agency task force
program), Gang Unit Specialist(GSU), School Resource Officer, Motor/Traffic Division,
Air Support Tactical Flight officer(TFO), Special Weapons and Tactics Team Member
(SWAT), Training Supervisor, Public Information Officer(PIO), Terrorism Liaison Officer
(TLO).
Any Training Position (Firearms, Weapons/Self Defense, First Aid/CPR)
Received at least one Commendation for meritorious performance within the most recent
review period, either from citizens, other Law Enforcement Agencies, or internally
generated by the Department.
Any recipient of a "Meritorious Service Award", of any type issued by the City of Azusa PD
or local Public safety Agency.
Responsible for the seizure of narcotics/illegally gained monies totaling $50,000 or more
(including combinations of the two).
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
Responsible for significant recovery of personal property totaling $10,000 or more.
Recipient of"10851 Award" for GTA recoveries (past or present).
Recipient of"MADD Award"for arrests of drunken drivers (past or present)
Utilizing the principals of Community Policing and Problem Solving to design and
implement a project that successfully addressed an on-going issue of health, safety, or
community wellness in the City of Azusa (such as: truancy, loitering, vandalism, narcotics
activity, traffic issues, public drunkenness, ABC violations,juvenile problems, etc..). An
example of a determinable or measurable impact must be shown.
The City and the Association agree to re-open to evaluate the relevance of newly created
special assignments for incentive pay and/or sixth step Senior Officer/Senior Corporal
eligibility.
Police Officers and Police Corporals may appeal a denial of the sixth step increase (Senior
Officer/Senior Corporal)to the agreed ad-hoc panel consisting of six (6) members:
Two(2) of the Azusa Police Officers Association
One(1) Representative of the Police Chief
One (1) Representative of the Human Resources Director
One (1) Representative of the City Manager
One (1) Representative of the Chair of the Personnel Board
Classification Range Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
Police Officer 6101 $5,495.09 $5,771.73 $6,062.94 $6,369.40 $6,691.99 $7,026.59
Police Corporal 6106 $5,769.84 $6,060.32 $6,366.09 $6,687.87 $7,026.59 7,377.92
Effective August 1,2011 each unit member will receive a salary increase in the base monthly salary of two and
one-half percent(2.5%).
Classification Range Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
Police Officer 6101 $5,632.47 $5,916.02 $6,214.51 $6,528.64 $6,859.29 $7,202.25
Police Corporal 6106 $5,914.09 $6,211.82 $6,525.24 $6,855.07 $7,202.25 $7,562.37
Effective August 1, 2012 each unit member will receive a salary increase in the base monthly salary of two and
one-half percent(2.5%).
Classification Range Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
Police Officer 6101 $5,773.28 $6,063.92 $6,369.88 $6,691.85 $7,030.77 $7,382.31
Police Corporal 6106 $6,061.94 $6,367.12 $6,688.37 $7,026.44 $7,382.31 $7,751.43
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
Effective August 1,2013 each unit member will receive a salary increase in the base monthly salary of two and
one-half percent(2.5%).
Classification Range Step 1 Step 2 Step 3 Ste 4 Step 5 Step 6
Police Officer 6101 $5,917.61 $6,215.52 $6,529.12 $6,859.15 $7206.54 $7,566.87
Police Co oral 6106 $6,365.04 $6,685.48 $7,022.79 $7.377.77 $7,751.43 $8,139.00
Effective August 1, 2014 each unit member will receive a salary increase in the base monthly salary of three
percent (3%).
Classification Range Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
Police Officer 6101 $6,095.14 $6,401.99 $6,725.00 $7,064.92 $7,422.74 $7,793.87
Police orporal 6106 $6,555.99 $6,886.04 $7,233.47 $7,599.10 $7,983.97 $8,383.17
5.2 Automatic Payroll Deposit
The City will continue to offer Automatic Payroll Deposit in cooperation with any bank that utilizes the
Automated Clearing House service.
6. ADDITIONAL COMPENSATION/PREMIUM PAY .
6.1 Acting Employee
An employee otherwise eligible for acting pay shall not be eligible during scheduled periods of Vacation or
when on Sick Leave.
6.2. Bilingual Pay .
In addition to monthly basic pay,the city shall pay an incentive to personnel demonstrating a proficiency in
a major foreign language ff they are assigned and required to speak and translate the language in
performance of their duties.
Such additional payment is conditional upon demonstration of language proficiency by a qualified third-
party examiner mutually agreed upon by both the City and the Association.
The incentive paid shall be$200 per month; provided, however,that employees receiving a greater dollar
amount for bilingual pay on the effective date of this MOU shall continue to receive the higher dollar
amount.
6.3. Callout
If an employee is required to be called back to work after completing his or her normal shift or after having
left City premises or the employee's work location,the employee shall be compensated at the appropriate
rate for each hour worked on Callout with a minimum of(2) hours Callout compensation, regardless of
whether the employee actually works less than two (2) hours. This provision shall be applicable to an
employee even though the employee's regular workweek is not complete but shall not apply to an
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
employee who is continuing on duty for his/her normal work shift. For the purposes of this section only,
the time starts when the Callout call is received by the employee.
6.3.1. Appropriate Rate of Pay for Callout
The rate of pay for Callout shall be one and one-half(1'/z)times the normal rate of pay. Cal/out maybe
entered as Premium Overtime or as Compensatory Time Earned.
6.4. Educational Incentive Pay
6.4.1. The City will pay two and one-half percent(2.5%)of the"sworn"employee's base rate if he/she
possesses an Associate in Arts or Science degree or Intermediate Certificate issued by the
California Commission on Peace Officer Standards and Training (P.O.S.T.)with forty-five (45)
semester or equivalent quarter units from an accredited college or university, but not to exceed
$100 per a month for Police Officer and Police Corporal.
6.4.2. The City will pay five percent(5%)of the"sworn"employee's base salary rate if he/she possesses
a Bachelor of Arts or Science degree or Advanced certificate issued by the California
Commission on Peace Officer Standards and Training (P.O.S.T.) with sixty (60) semester or
equivalent quarter units from an accredited college or university, but not to exceed $200 per a
month for Police Officer and Police Corporal.
Neither 6.4.1. nor 6.4.2 above shall applyto any"sworn"employee whose job description has an
equivalency requirement for either an Associate in Arts or Science degree or a Bachelor of Arts or
Science degree.
6.4.3 Employees hired as a sworn officer after January 31, 2011, with an Associate in Arts or Science
degree, or 45 semester or equivalent quarter units from an accredited college or university, shall
receive$100 per month, upon receiving their Intermediate Certificate from POST.
6.4.4 Employees hired as a sworn officer after January 31, 2011, with a Bachelor of Arts or Science
degree, or 60 semester or equivalent quarter units from an accredited college or university, shall
receive $200 per month, upon receiving their Advanced Certificate from POST.
6.4.5 Notwithstanding the foregoing, employees receiving a greater amountfor education incentive pay
on the effective date of this MOU shall continue to receive the higher dollar amount.
6.5. Holiday Pay(See also 7.2. Holidays)
Shift Personnel - Employees shall receive an additional 100 hours pay per year whether the holiday is
worked or falls on a regularly scheduled day off(paid the pay period following the holiday).
Non-Shift Personnel - Employees who work holidays shall receive regular pay plus time and a half for
hour's worked or equivalent compensatory time.
6.6. Longevity Pay
6.7.1 The monthly longevity payfor employees hired after January 31,2011,shall be in accordance with
the following schedule:
10 yrs =$200
15 yrs = $300
20 yrs = $400
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
6.6.1 The monthly longevity pay for employees hired on or after August 1,2000,shall be in accordance
with the following schedule:
7yrs = $100
10 yrs = $200
15 yrs = $300
20 yrs = $400 -
6.6.2 The monthly longevity pay for employees hired prior to August 1, 2000, shall be in accordance
with the following schedule:
POLICE OFFICER
7 yrs $117.61
10 yrs $235.22
15 yrs $352.84
20 yrs $470.45
POLICE CORPORAL
7 yrs $123.49
10 yrs $246.99
15 yrs $370.48
20 yrs $493.97
6.6.3 Notwithstanding the foregoing,employees currently receiving a higher dollar amount of longevity
pay than the amount provided for under Section 6.7.2.shall continue to receive the higher dollar
amount until eligible for an increase based on the schedule set forth in Section 6.7.2.
6.7 Off Duty Court Appearance Time
6.7.1 Off-Duty Court Appearance Time is applicable only for court appearances scheduled to begin
during off-duty hours. Except as provided above,court time during regularly scheduled working
hours shall be compensated at straight time on an hour-for-hour basis.
The City agrees to pay for Off-Duty Court Appearance Time on an hour-for-hour basis with a
minimum of four(4) hours of pay at the appropriate rate (currently time and one-half).
For example, if an employee's shift begins at 6 p.m. and the employee's Off Duty Court
Appearance begins at 4 p.m.; the employee will be entitled to a minimum of four hours of Off-
Duty Court Appearance Time pay. Off--Duty Court Appearance Time shall begin to accrue as
early as 8:30 a.m. or the court-requested show-up hour, whichever is later. In cases where
the appearance is canceled by the court (either directly or through the Department), the
employee must be personally notified of such cancellation by the Department no later than
6:00 p.m. of the previous court day, or a guaranteed minimum of four(4) hours of Off-Duty
Court Appearance Time shall apply. "Personal" notification shall be defined as any one of the
Following (to be agreed upon in advance between the employee and the department court
officer):
• In person,
• To a responsible message taker, or
• Via an answering machine or voice mail
6.7.2 If the court or the Department requires an employee who makes an off-duty court appearance to
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
also standby on the same day(for that appearance and/or another one),the employee shall be
entitled to receive pay for one of the following, whichever is greater:
6.7.2.1 The actual time in court (or the four-hour Off-Duty Court Appearance Time minimum,
whichever is greater), plus the actual time standing by; or
6.7.2.2 The actual time standing by (or the four-hour Standby Time minimum, whichever is
greater) plus the actual time in court.
6.8 Standby("On Call") Pay
The City agrees to pay for court Standby Time (or other"On Call"time)on an hour-for-hour basis with a
minimum of four(4)hours of regular pay. Court Standby Time shall begin to accrue as early as 8:30 a.m.
or the court-requested show up hour, whichever is later, and shall continue no later than 5:30 p.m. In
cases where the appearance is canceled (either directly by the court or through the Department), the
employee must be personally notified of such cancellation by the Department no later than 6:00 p.m.of the
previous court day, or a guaranteed minimum of four(4) hours of Standby Time shall apply. "Personal"
notification shall be defined as any one of the following (to be agreed upon in advance between the
employee and the department Court Officer):
• In person,
• To a responsible message taker, or
• Via an answering machine or voice mail
6.9.Overtime/Compensatory Time
Employees scheduled to work the 3/12.5 schedule shall be entitled to Overtime Pay or compensatory time
off at the rate of one and one-half(1'/3)times the employee's hourly rate for:
1. Working more than their regularly scheduled hours on a given day or
2. Working more than 160 hours over a 28 day FSI_A work period.
Employees scheduled to work the 4/10 schedule shall be entitled to Overtime Payor compensatory time off
at the rate of one and one half(1'/z)times the employee's hourly rate for all hours worked in excess of ten
(10)hours in one work day or forty (40) hours within the employee's regular work week.
For the purposes of this agreement, holiday pay, Sick Leave,and other compensated time off shall count
for the hours. Compensatory time may be accumulated at the appropriate rate for each hour of overtime
worked to the maximum accrual rate set by Federal law.
Overtime pay or compensatory time off for overtime shall be accumulated in no less than fifteen (15)
minutes per day increments. When an employee works less than fifteen minutes per day of overtime,the
employee shall not receive compensatory time for such overtime.
In order to be entitled to any compensation for overtime hours worked;such overtime work must have been
authorized by the department head. Accumulated compensatory time not taken off in the pay period in
which it was earned may be carried over up to a maximum of four hundred and eighty(480) hours (320
hours worked at time-and-ane-half would equal 480 hours).
The use of compensatory time will be granted in the same manner as vacation leave.
6.10. Special Assignments
In addition to monthly basic pay, the following assignments, when made by the Chief of Police or his
designee, shall receive two and one-half percent(2.5%):
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7.31-2015
K-9 Officer
Bicycle Patrol Officer
In addition to monthly basic pay, the following assignment, when made by the Chief of Police or his
designee, shall receive five percent (5%):
Motor Officer
In addition to monthly basic pay, the following assignment when made by the Chief of Police or his
designee, shall receive two and one-half percent 2.5%for time worked on Monthly Training and Call Outs:
Swat
In addition to monthly basic pay, the following assignments, when made by the Chief of Police or his
designee, shall receive a minimum of ten (10) hours per month of Standby time, at the Premium rate
(currently time-and-ane-half):
Detective
SET Detective
Gang Detective
6.11. Shift Differential
Employees assigned to the following shifts will be compensated for all hours worked as follows:
For employees scheduled to work a 3/12.5 schedule
Night shift additional $1.08 per hour
Cover shift additional $.54 per hour
For employees scheduled to work a 4/10 schedule:
Swing Shift additional $.54 per hour
Morning shiftadditional $1.08 per hour
Shift differential pay will not apply to individuals who are working either of the above shifts on an overtime
basis, on a shift exchange or when called out due to an emergency.
6.12. Training Pay (Police Officer)
For employees in the classification of Police Officer only,the City shall pay five percent(5%)in addition to
the base salary while assigned the duties of a Field Training Officer (FTO).
6.13. Uniform Allowance
The uniform allowance for"sworn"employees is$800 per year and will be paid by the City in November.
At this time it is not subject to income tax withholding.
Effective August 1, 2012 the uniform allowance for"sworn" employees will increase to$850 per yearand
will be paid by the City in November.
7. LEAVE/DAYS OFF
7.1. Bereavement Leave
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
An employee maybe permitted to take up to forty(40)hours Bereavement Leave in the event of the death
of a member of his/her immediate family. "Immediate family" member is herewith defined as a mother,
father, brother,sister,spouse,child, mother-in-law,father-in-law,grandparents or relative living within the
employee's household. Persons in loco parentis may also be considered under certain circumstances.
Such leave shall not be charged against the employee's Sick Leave or Vacation.
In addition to Bereavement Leave, an employee may request up to twenty(20)hours of Sick Leave in the
event of the death of an immediate family member. Such leave shall be charged against the employee's
Sick Leave balance and shall be considered in calculating his or her ability to convert the balance.
7.2. Holidays (see also 6.6. Holiday Pay)
7.2.1. Designated Holidays
The employee shall receive time off with pay for the following holidays but only if the employee is paid
for the workday that precedes or follows the holiday. If a holiday falls on an employee's scheduled day
off, the employee shall receive the holiday on the next scheduled business day. The dates upon which
these holidays shall be observed are listed below:
Holiday Month 2010- 2011- 2012- 2013- 2014-
2011 2012 2013 2014 2015
Independence Day July 5' 4* 4 4 7*
Labor Day Sept 6'- 5* 3* 2' 1*
Columbus Day Oct 11* 10* 1 8* 14' 13'
Veteran's Day Nov 11* 14* 12' 11' 11
Thanksgiving Day Nov 25 24 22 28 27
Christmas Day Dec 27* 26' 25 25 25
New Year's Day - Jan 3* 2* 1 1 1 1
Martin Luther King Day Jan 17' 16* 21* 20' 19*
President's Day Feb 21' 1 20* 18* 17* 16*
Memorial Day May 30' 28* 27' 26* 25*
'indicates Monday
7.3 Worker's Compensation:
A regular employee who is temporarily or permanently incapacitated as a result of injury or illness
determined to be compensable under the Workers' Compensation Act shall be granted benefits in
accordance with this act.
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
7.4. Personal Leave
Thirty(30) hours Personal Leave may be taken by employee. Personal Leave is to be distinguished from
Personal Business Leave in that it does not have particular requirements for its use and is not deducted
from the employee's Sick Leave balance. An Employee Leave Request must be approved by the
appropriate department head prior to the use of Personal Leave and such leave may not be carried over into
the next fiscal year or cashed in if it is not used. Personal Leave shall be granted with due regard for the
employee's wishes and the operational needs of the department. This Personal Leave is also to be
considered similar to Vacation Leave in that an open shift can be filled with overtime coverage.
7.5. Sick Leave
Sick Leave shall not be construed as a right, which an employee may use at his or her discretion, but shall
be allowed only in case of necessity or actual sickness or disability.
The Finance Department will analyze and report to the employees the amount of Sick Leave earned, less
the amount used, and the net accrued during the calendar year.
7.5.1.Sick Leave During Probation
Sick Leave may be taken during the probationary period but only in such amount as the employee would
have earned if on permanent status. If the employee does not become permanent,all paid Sick Leave must
be reimbursed to the City at the time of termination of employment or it shall be deducted from the
employee's final paycheck.
7.5.2.Reasons for Use of Sick Leave
Sick Leave shall be granted for the following reasons:
7.5.2.1 Personal illness or physical incapacity.
7.5.2.2 Up to 120 hours per year for the illness of a member of the employee's immediate family
(father, mother, sister or brother), or members of the employee's household (husband,
wife, and children) that require the employee's personal care and attention. Additional
time, up to 12 weeks, could be approved by the department head when treatment for
illness, injury or condition which may be expected to be of long duration, has no
reasonably predictable date of termination and requires continuous or intermittent care by
the employee.
7.5.2.3 Enforced quarantine of the employee in accordance with Health Department regulations.
7.5.2.4 Medical, dental, and optical appointments.
7.5.2.5 Personal Business not to exceed a maximum of 37.5 hours during any one (1) year.
Personal Business means those items of personal business that can only be taken care of
during regular working hours of the employee. Personal Business Leave shall be
approved or disapproved by the department head in accordance with this section.
Departments are to use the earning code PB for this purpose. Personal Business shall be
debited against the employee's Sick Leave balance but Sick Leave taken as Personal
Business Leave shall not be taken into consideration for the purposes of the Sick Leave
Cash-in program or with regard to employee performance evaluations. Employee shall
give as much advance notice as reasonably possible when requesting Personal Business
Leave.
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8.1-2010 THROUGH 7-31-2015
7.5.2.6 In the foregoing circumstances, Sick Leave must be exhausted before compensatory time
off or Vacation Leave may be converted to Sick Leave,
7.5.3. Restrictions on Sick Leave
7.5.3.1 Disability arising from any sickness or injury purposely self-inflicted.
7.5.3.2 Sickness or disability sustained while on leave of absence, other than regular Vacation
Leave.
7.5.3.3 Disability or illness arising from compensated employment other than with the City.
7.5.4. Accrual and Use
For employees hired prior to January 1, 2006, Sick Leave with pay shall accrue at the rate of ten
hours per month for each calendar month of paid employment, with unlimited accumulation. Sick
Leave shall not be taken in units of less than one-half hour.
For employees hired on or after January 1, 2006, Sick Leave with pay shall accrue at the rate of ten
hours per month for each calendar month of paid employment. No more than 960 hours of sick
leave may be accrued. Balances accrued over 960 hours will be paid out annually at a rate of 25%
as a wellness bonus.
7.5.5. Sick Leave Donation Policy
Employees shall be eligible for sick leave donation from co-workers in accordance with the City's
policy.
7.5.6. Sick Leave During Vacation
If an employee becomes ill or injured while on vacation, he or she may, by completing an Employee
Leave Request Form, use accrued Sick Leave time in lieu of vacation time for the period of disability.
7.5.7. One-Fourth Conversion
If the employee has used more than thirty (30) hours, but not more than sixty (60) hours of Sick
Leave, excluding time spent on personal business or bereavement, he or she would have the
following options:
7.5.7.1 Carry over the accrual and add it to his or her Sick Leave balance.
7.5.7.2 Convert,only to the extent that his/her balance is more than zero at the beginning of the new
year,one-fourth of the accrual to Vacation or convert one-fourth to cash(but no combination
of these two); unused, unconverted leave would then be added to the employee's Sick
Leave balance.
7.5.8. One-Third Conversion
If the employee has used no more than thirty (30) hours of Sick Leave, excluding time spent on
personal business or bereavement, he or she would have the following options:
7.5.8.1 Carry over the accrual and add it to his or her Sick Leave balance.
7.5.8.2 Convert,only to the extent that his/her balance is more than zero at the beginning of the new
year, one-third of the accrual to Vacation or convert one-third of it to cash (but no
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
combination of these two); unused or unconverted leave would then be added to the
employee's Sick Leave balance.
7.5.9. Conversion Deadline
A decision to convert Sick Leave according to the policies stated shall be made by March 31.
7.5.10. Conversion to Cash Upon Separation
Upon separation due to death(if he or she had attained permanent status)the employee's estate may
receive fifty percent (50%) of his or her accrued Sick Leave balance in cash.
Upon disability retirement with at least five (5)years of service with the City of Azusa, the employee
may convert fifty percent(50%) of his or her accrued Sick Leave balance to cash.
Upon voluntary separation with less than ten (10)cumulative years of sworn safety service with the
City of Azusa Police Department, the employee may convert fifty percent(50%)of his or her accrued
Sick Leave balance to cash for hours in excess of three-hundred twenty(320) hours to a maximum
payment of two hundred forty(240) hours.
Upon voluntary retirement with at least ten (10)years of City service,the employee may convert fifty
percent(50%) of his or her accrued Sick Leave balance to cash.
Upon voluntary separation with at least ten(10)cumulative years of sworn safety service with the City
of Azusa Police Department,the employee may convert fifty percent(50%)of his or her accrued Sick
Leave balance to cash.
Upon voluntary separation with at least twenty-five(25)cumulative years of sworn safety service with
the City of Azusa Police Department,the employee may convert one hundred percent(100%)of his
or her accrued Sick Leave balance to cash.
7.5.11. Conversion to Service Credit Upon Retirement
Pursuant to the terms of the City's contract, as amended, with the Public Employees' Retirement
System, upon voluntary retirement the employee may convert 100%of his or her accrued Sick Leave
balance, less any amount converted to cash under the provisions of 7.5.10., to retirement service
credit.
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APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
7.6. Vacation Leave
7.6.1. Required Usage and Carryover
Vacation Leave will be credited on a"pay-per-period"basis. Employees shall be required to use one
half (%2) of their annual Vacation accrual yearly and shall be able to carry over one half(%2) of one
year's Vacation accrual from one year to the next, cumulatively, up to a maximum of fifty two (52)
- times the then-current pay period rate of vacation accrual. Existing balances over the limit shall be
paid off during the term of this Memorandum of Understanding based on a payoff schedule
determined by the employee. Such excess vacation accrual may also be taken as time off if
approved by management. Effective 8-1-2000, employee with more than the maximum amount will
not continue to accrue additional Vacation Leave, but will receive cash each pay period in lieu of
Vacation Leave until balance falls below maximum time allowed. Employee may direct payoff to
deferred compensation within the legal limits.
7.6.2. Accrual
Vacation Leave shall accrue as follows:
Through the 4th year of employment.......90 hours per year
Through the 5th year of employment......120 hours per year
Through the 6th year of employment......128 hours per year
Through the 7th year of employment......136 hours per year
Through the 8th year of employment......144 hours per year
Through the 9th year of employment......152 hours per year
Through the 10th year of employment......160 hours per year
Through the 11 th year of employment......168 hours per year
Through the 12th year of employment......176 hours per year
Through the 13th year of employment......184 hours per year
Through the 14th year of employment......192 hours per year
Through the 15th year of employment......200 hours per year
Through the 16th year of employment......218 hours per year
In addition to the above, sworn shift personnel shall accrue forty(40)additional hours per year in lieu
of holidays.
8. CLOTHING DAMAGE REIMBURSEMENT
If, in the course of business, an office employee's personal clothing or effects are accidentally damaged or
destroyed, the employee may submit a claim for reimbursement up to one hundred dollars ($100) to the City's
Safety Committee. The committee shall have the authority to investigate the claim and recommend to the City
Manager, or his designee, to pay the full amount of the claim, deny the claim, or apportion the claim based on
normal wear and tear of the item and/or the extent of the employee's negligence in following proper safety
procedures. It is expressly understood that stockings and socks are exempt from this procedure. It is further
expressly understood that prescription eyeglasses or contact lenses and hearing aid devices are exempt from the
one hundred dollar ($100) limit.
9. COMPUTER AND HOME EXERCISE EQUIPMENT LOAN PROGRAM
9.1. The Computer and Home Exercise Equipment Loan Plan described below shall be made available to full time
regular employees. Eligibility is limited to employees who have completed their initial probation period with
the City.
9.2. The equipment configuration shall be appropriate to the employee's position and career with the City.
14
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
9.3. It is the employee's responsibility to negotiate the price for the equipment and to bring a copy of the
order/quote to the City for approval prior to purchase.
9.4. The employee shall apply for a loan with the City on a City provided loan application. If the employee
qualifies, the City will fund the loan on an interest free basis. Loan payments must be by payroll deduction.
Each loan payment period shall not exceed two years and the aggregate value of all loan(s)shall not exceed
$5,000 per employee. In order for an employee to receive a loan under the Plan for equipment upgrades for
purchase of equipment components, the employee must-certify that he/she already owns the remaining
components required to constitute a computer system.
9.5. Any remaining loan balance must be paid in full at time of separation of employment. Payment will be made
directly and/or by deduction from the last paycheck. In the event an outstanding balance remains, the
employee is responsible for making payment arrangements. The failure to make full payment will obligate
the employee to pay the City's attorneys fees in any restitution process.
10. DISABILITY INSURANCE (SHORT/LONG TERM)
10.1. The City shall maintain in effect for the term of this agreement a disability plan covering employees
set forth herein. Said plan shall provide an employee with a maximum of two-thirds (213)of his/her
base salary. An employee may utilize his/her accrued Sick Leave, Vacation Leave and/or
compensatory time to supplement the disability insurance payment so as to receive 100%of his/her
base salary. The plan includes the following:
10.1.1. Provides 66.67%of the employee's monthly salary;
10.1.2. Commences after a 30 calendar day waiting period and provides a benefit to age 65;
10.2. For the first 30 days of non-job related illness or injury, the employee will use accrued Sick Leave,
compensatory time or Vacation Leave;
The employee will be allowed to use accrued Sick Leave in conjunction with the disability plan to
provide for a full paycheck;
At no time will an employee receive more than 100% of his or her base pay;
10.2.1. The premium will be added to the employee's gross pay and deducted from the net pay so as to
make the benefits exempt from further taxation.
11. EMPLOYEE ASSISTANCE PLAN
Association employees will be eligible for the City's Employee Assistance Plan.
12. FLEXIBLE BENEFIT PLAN
12.1. Definition
Effective August 1, 1993,the City's existing Cafeteria Benefit Plan(CBP)was converted to an IRS Section
125 Flexible Benefit Plan (FBP)administered by either the City or its designee.
12.2. Amount of Monthly Benefit
Effective August 1, 2010, the City will maintain the Flexible Benefit Plan at one thousand one three
hundred forty six dollars ($1,346) per month for each employee. This plan can be used by the
employee to pay, to the extent available,for qualified benefits as determined by the IRS. The
employee understands that, in the event the total premiums and/or expenses for qualified benefits
15
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
selected by him/her exceed the amount of the FBP; the excess shall be deducted from pre-tax wages
of the employee.
12.2.1. Yearly Increase
Effective January 1, 2011, the City will maintain the Flexible Plan contribution in an amount equal to
the CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta Dental PPO Family Plan
Rate. The monthly Flexible Benefit dollar amount shall remain $1,346.00 per month and will not
change until the monthly CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta
Dental PPO Family Plan Rate exceeds $1,346.00 per month.
Effective January 1, 2012, the City will maintain the Flexible Plan contribution in an amount equal to
the CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta Dental PPO Family
Plan Rate. The monthly Flexible Benefit dollar amount shall remain$1,346.00 per month and will
not change until the monthly CalPers, Los Angeles County, Kaiser Family Plan Rate plus the
Delta Dental PPO Family Plan Rate exceeds $1,346.00 per month, at which time the monthly
Flexible Benefit Plan will increase to an amount equal to the CalPers, Los Angeles County,
Kaiser Family Plan Rate plus the Delta Dental PPO Family Plan Rate(increase not to exceed
6%).
Effective January 1, 2013, the City will maintain the Flexible Plan contribution in an amount equal to
the CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta Dental PPO Family Plan
Rate. The monthly Flexible Benefit dollar amount shall remain $1,346.00 per month and will not
change until the monthly CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta
Dental PPO Family Plan Rate exceeds$1,346.00 per month, at which time the monthly Flexible
Benefit Plan will increase to an amount equal to the CalPers, Los Angeles County, Kaiser Family
Plan Rate plus the Delta Dental PPO Family Plan Rate (increase not to exceed 6%).
Effective January 1, 2014, the City will maintain the Flexible Plan contribution in an amount equal to
the CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta Dental PPO Family Plan
Rate. The monthly Flexible Benefit dollar amount shall remain$1,346.00 per month and will not
change until the monthly CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta
Dental PPO Family Plan Rate exceeds $1,346.00 per month, at which time the monthly Flexible
Benefit Plan will increase to an amount equal to the CalPers, Los Angeles County, Kaiser Family
Plan Rate plus the Delta Dental PPO Family Plan Rate(increase not to exceed 6%).
Effective January 1, 2015, the City will maintain the Flexible Plan contribution in an amount equal to
the CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta Dental PPO Family Plan
Rate. The monthly Flexible Benefit dollar amount shall remain$1,346.00 per month and will not
change until the monthly CalPers, Los Angeles County, Kaiser Family Plan Rate plus the Delta
Dental PPO Family Plan Rate exceeds $1,346.00 per month, at which time the monthly Flexible
Benefit Plan will increase to an amount equal to the CalPers, Los Angeles County, Kaiser Family
Plan Rate plus the Delta Dental PPO Family Plan Rate(increase not to exceed 6%).
12.3. Eligibility
In order for an employee to be eligible for the FBP in any given month, he/she must be on payroll on the
first work day(excluding recognized paid City holidays) of that month.
16
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
A new employee will be eligible for the full FBP applicable to his/her bargaining unit if he/she begins work
on the first work day(excluding recognized paid City holidays)of the month. An employee whose date of
hire is on the second work day(excluding recognized paid City holidays)of the month or thereafter will not
be eligible for the FBP for that month.
If an employee does not meet the qualifying work time in any given month, arrangements must be made
with the Finance Department to reimburse the City for any benefits that have already been paid out on the
employee's behalf for that month. The Finance Department will notify the employee if he/she has not met
the qualifying work time for eligibility for the FBP.
12.4. Termination
The City will not be responsible for payment of any qualified benefits on behalf of the employee following
the month of termination. If an employee represented by the Association wishes to continue his/her
qualified benefits, advance payment for such qualified benefits will be deducted from the employee's final
pay.
13. LIFE INSURANCE
The City shall provide group life insurance to all Association members in an amount of coverage one times the
member's annual earnings.
14. OUTSIDE EMPLOYMENT
Outside employment will be permitted, provided that the outside employment is consistent with moral & ethical
guidelines established by the Chief of Police and the Association and thatthe employee, prior to accepting outside
employment, signs an agreement, which:
14.1 Acknowledges that said employment is outside the course and scope of the employee's employment with
the City of Azusa and that said employment is not for the benefit of the City of Azusa; and
14.2 Releases, indemnifies, and holds the City of Azusa, its agents and employees harmless for any
liability, whatsoever, arising out of said employment, including but not limited to, injury or damage to the
employee, and
14.3 Acknowledges that the City will have no responsibility or obligation, whatsoever, to provide a legal
defense
as a result of any outside employment engaged in by employee.
15. PHYSICAL EXAMINATIONS
The City will continue to provide annual physical examinations,for all sworn officers, on a voluntary basis.
16. RETIREMENT
For employees hired prior to the signing of this MOU the City shall continue the highest level of the 1959 survivor
benefit. The City shall continue to pay both the"employee"and"employer'share of the cost. If the City's rate for
providing the 3%@ 50 benefit is decreased by CaIPERS,the City agrees to reopen discussions with APOA over
any savings realized by the City; provided, however, the City is under no obligation, whatsoever, to grant an
increase in wages or benefits as the result of reopening under this section.
For employees hired after January 1, 2011 the retirement benefit shall be 3%@55. The City shall continue the
highest level of the 1959 survivor benefit. The employee shall pay 3%of the "employee"share of the CalPERS
cost and the City shall pay the remainder of the"employee"share and the"employer"share of the CaIPERS cost.
If the City's rate for providing the 3% @ 55 benefit is decreased by CaIPERS, the City agrees to reopen
discussions with APOA over any savings realized by the City; provided, however,the City is under no obligation,
17
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
whatsoever, to grant an increase in wages or benefits as the result of reopening under this section.
Effective August 1, 2012, if the CPI-U for the LA/Riverside/OC statistical area from June 2011 to June 2012,
increases to above 3.5%, all employees will pick up 1%of the employees share of the PERS premium payment.
Effective August 1, 2013, if the CPI-U for the LA/Riverside/OC statistical area from June 2012 to June 2013,
increases to above 3.5%, all employees will pick up I% of the employees share of the PERS premium payment.
16.1 Optional Benefits
16.1.1 The City's contract with CaIPERS includes the additional benefit of Service Credit for
Unused Sick Leave.
16.1.2 The City's contract with CaIPERS includes participation in the two-year Golden Handshake
program as authorized by the State Legislature. The availability of this benefit shall be within the
discretion of the City Council.
16.1.3 The City's contract with the CaIPERS includes the Employer-Paid Member Contribution in base
pay during the final compensation period.
16.1.4 CaIPERS Service Credit for Military Service
The CaIPERS Military Service Credit Purchase Assistance Plan described below shall be made
available to full time regular employees who have completed their initial probation period with the
City.
The City's contract with CaIPERS includes the provisions of Section 21024,Military Service Credit
as Public Service. Eligible employees with qualifying military service can contact CaIPERS and
arrange to be billed for the service credit(CaIPERS'estimate is$5,000 per year of service). The
City shall reimburse the employee for 25%of the amount of the bill.
If desired,the employee may apply for a loan from the City for the remaining 75%. The employee
shall apply for the loan on a City-provided loan application. If the employee qualifies,the City will
fund the loan on an interest-free basis. Loan payments must be by payroll deduction. Each loan
payment period shall not exceed six years. The City may require collateral.
Any remaining loan balance must be paid in full at the time of separation of employment. Payment
will be made directly and/or by deduction from the last paycheck. In the event an outstanding
balance remains,the employee is responsible for making payment arrangements. The failure to
make full payment will obligate the employee to pay the City's attorneys fees in any restitution
process.
16.2. CaIPERS Retirement Planning Seminar
Employees who are in their"final compensation period"for CaIPERS purposes shall be allowed to attend
one nearby CaIPERS retirement planning/information seminar at City expense and on City time. Such
attendance shall be considered to be a training expense chargeable to the employee's "home" division.
16.3. Health Insurance During Retirement
Beginning with the first month after retirement, for Association employees who, at the time of retirement
from the City of Azusa, have attained the age of fifty(50)and have at least twenty(20)cumulative years of
sworn safety service with the City of Azusa Police Department, the City will pay until the employee passes
away,an amount equal to the single-coverage premium in the employee's comprehensive health insurance
plan.The amount of the City's contribution shall vary, up or down,depending upon the employee's choice of
health insurance carrier and its periodic changes in its rates. The minimum contribution that the City pays
]8
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
directly to CalPERS shall be considered to be part of the portion paid by the City. If a retired employee
maintains health insurance other than a CalPERS plan, the maximum amount the City will pay for the
insurance premium will not exceed the single premium for the PERS Care plan.
16.3.1 Spousal Option — In lieu of receiving the single coverage identified in section 16.3 a
retiree who qualifies for single coverage may opt to select a less expensive plan,and use
the differential toward health coverage for the spouse. If the retiree selects this option the
- total contribution by the City that may be used for the retiree and spouse can be no
greater than the single-coverage premium for the L.A./Orange County Sectors (as
provided by PERS) PERS Care plan. The City contribution is to be used for health
insurance premiums only. There is no cash out option. This option may be selected or
deselected at anytime during retirement.
16.3.2 Upon death of a retiree the City shall pay for the cost to continue medical coverage (no
greater than the single-coverage premium for the L.A./Orange County PERS Care Plan)
for the spouse for a period of five years, or until the spouse reaches Medicare age
(whichever occurs first). This benefit shall cease if the spouse remarries prior to the
expiration of the five year period or attaining Medicare age(whichever occurs first). This
benefit is only available to a spouse married to a retiree at the time of retirement.
17. LEAVE BANK FOR APOA BOARD MEMBERS:
Effective the month immediately following the ratification of this contract,the City agrees to initiate and maintain a
leave bank of 280 hours per fiscal year that maybe used byAPOA Board Members for APOA business. Requests
for leave,which utilizes this bank, must be approved in advance by police management under the same conditions
as vacation and compensatory time.
After the second pay period after ratification of the contract, each APOA member will automatically donate
sufficient vacation hours in order to build a bank of 280 hours.
During the second year of the contract and every year thereafter,donations will be made during the first pay period
in February.
Finance staff will convert the hours to a dollar value based upon the base pay rate of the donors. The total dollars
thus calculated will be placed in a separate account to be drawn upon by the Board members. Use of such time
will be paid to Board members at their current base pay rate. In no case shall the Board as a whole exceed 280
hours of use in a fiscal year. When funds are exhausted prior to the end of a fiscal year, the program will be
discontinued until the subsequent fiscal year. Any cash balance from donations in a fiscal year remaining after the
use of 280 hours in that fiscal year shall be carried over to be used in the subsequent fiscal year.
18. SAFETY EQUIPMENT
The City will provide safety equipment for new employees and will replace worn safety equipment for current sworn
employees as required by the department head.
19. TUITION REIMBURSEMENT
19.1. Objective
The tuition reimbursement program is designed to encourage employees to continue their self-development
by enrolling in approved classroom courses, which will:
19.1.1. Educate them in new concepts and methods in their occupational field and prepare them to meet
the changing demands of their job.
19.1.2. Help prepare them for advancement to positions of greater responsibility in the City of Azusa.
19
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
19.2. Eligibility
19.2.1. All regularly appointed employees are eligible to receive tuition reimbursement. Courses must
commence after appointment and be in excess of the educational standards for the position. An
example of this would be job-related college or university courses when the specification for the
classification calls for high school graduation.
19.2.2. Courses must be(except where noted in paragraphs 19.3.3 and 19.3.4.)traditional classroom
courses taken at colleges or universities and approved by the Western Association of Schools
and Colleges or approved mail correspondence or internet courses. Distance learning classes
offered by such colleges and universities shall be covered by this provision Credits given for
non-classroom assignments such as life experience, military training,and professional training
are not reimbursable.
19.2.3. Coursework must be related to the employee's current occupation or to a City classification to
which the employee may reasonably expect promotion within the next five years.
19.3. Courses may be eligible if they:
19.3.1. Are above the educational requirements of the position as noted in the position specification and
are not taken to acquire skills, knowledge and abilities which the employee was deemed to have
when appointed the position.
19.3.2. Do not duplicate training which the employee has already had or which is to be provided in-house.
19.3.3. Do not duplicate previously taken courses unless special approval has been granted by the
department head and the Human Resources Division.
19.3.4. Are required for the completion of the pre-approved job-related major. An example would be
general education or elective requirements for the major as stated in the school catalog.
Remedial courses or those taken as required for a non-approved major shall not be eligible.
19.3.5. Include completed engineering review courses taken at accredited institutions for which an
academic grade or units of academic credit are not given. These courses must prepare
candidates for a certificate, license or registration issued by the California Board of Registration
for Professional Engineers.The employee must receive the certificate or license from this Board
to be eligible for reimbursement,which will be granted for a maximum of 2 courses per certificate,
license or registration.
19.3.6. Lead to a City-approved certificate, license or registration. Reimbursement may be made for any
examination fees required to successfully obtain the certificate, license or registration.
Reimbursement for eligible expenses will be made after obtaining the license, certificate or
registration.
19.3.7. Are not taken on City time and must be certified that they are taken on the employee's off-duty
time.
19.3.8. Are part of a bona-fide curriculum of the study of a foreign language for which the City pays an
incentive.
19.3.9. Have been approved by the Department Head and the City Manager or his/her designee before
commencement of the class.
19.4. Reimbursement
20
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
19.4.1. The City shall reimburse employees for tuition,registration fees,and texts required for the eligible
courses. Expenses for parking,travel, and meals, processing fees,transcript fees, materials and
any other costs are not reimbursable.
19.4.2. The annual tuition reimbursement amount will be capped at an amount equal to the Cal State
Fullerton rate for full-time students as of September 1 in a given year;this cap shall stay constant
through August 31 of the proceeding year. For tuition reimbursement purposes the eligible school
year shall be defined from September 1 through August-31, regardless of when actual
reimbursement payment is processed.
19.4.2.1 Effective August 1, 2011 the tuition reimbursement amount will be capped at five
thousand dollars ($5,000) per employee, per fiscal year.
19.4.3. In order to be reviewed,each application must state exactlywhich units or credits the employee is
applying for and whether the courses submitted are core courses or recommended electives for
the approved major.
19.4.4. Reimbursement shall be made upon completion of the course with a minimum final grade of"C"
or its equivalent, i.e., a pass in a pass/fail course will be considered equivalent to a "C." No
reimbursement shall be made for audited or incomplete courses.
19.4.5. Employees must submit from the attendant institution an original certification of fees paid and
grade achieved in order to have their application considered for reimbursement. These
documents must accompany the reimbursement application form in order to be processed.
19.4.6. Application for reimbursement must be submitted within three months of the completion of the
approved course in order to be considered for reimbursement.
19.4.7 Upon separation from employment, employees shall be required to reimburse the City for any
funds received under this program for courses completed during the last 24 months of
employment. This payback provision does not apply to employees laid off by the City or who
separate as a result of a City/departmental reorganization.
20. POLICIES
Attendance, Reasonable Suspicion and Sick Leave Donation Policies will be discussed further in ad hoc
committee consisting of management representatives and a representative of each employee organization.
i
21
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31-2015
AZUSA POLICE OFFICERS ASSOCIATION
Dieter Dammeier, APOA General Counsel Date
Terry Smith, President Date
Peter Hoh, Vice President Date
Mark Horeczko, Secretary/Treasurer Date
Louie Hernandez, Board Member Date
Tommy Avila, Board Member Date
Eric Sanchez, Board Member Date
Michael Gurbada, Board Member Date
CITY OF AZUSA
Sonia Carvalho, Best Best & Krieger Date
F.M. Delach, City Manager Date
Alan Kreimeier, Administrative Services Director/CFO Date
22
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 8-1-2010 THROUGH 7-31.2015
INDEX
Acting Employee(5)
Bereavement Leave(9)
Bicycle Patrol Officer (8)
Bilingual Pay(5)
Callout (5)
Clothing Damage Reimbursement(14)
Compensatory Time (8)
Computer and Home Exercise Equipment Loan Program (14)
Detective (9)
Disability Insurance (15)
Educational Incentive Pay(6)
Employee Assistance Plan It 5)
Flexible Benefit Plan (15)
Amount of Monthly Benefit(15)
Termination (17)
Yearly Increase (16)
Gang Detective(9)
Holiday Pay(See Also 6.2. Holidays) (6)
Holidays (10)
K-9 Officer(8)
Leave/days off(9)
Life Insurance (17)
Longevity Pay(6)
Motor Officer(8)
Off Duty Court Appearance Time (7)
Overtime/compensatory Time (8)
Personal Leave (11)
Physical Examinations (17)
Salary(3)
Automatic Payroll Deposit(5)
SET Detective(9)
Shift Differential (9)
Sick Leave (11)
Accrual and Use(12)
Conversion Deadline (13)
Conversion.to Service Credit upon Retirement(13)
One-fourth Conversion (12)
One-third Conversion (12)
Reasons for Use of Sick Leave (12)
Restrictions on Sick Leave (11)
Sick Leave Donation Policy(12)
Sick Leave During Vacation (12)
Sick Leave During Probation (11)
Special Assignments (8)
Standby("On Call") Pay(8)
Term of Memorandum of Understanding (1)
Training Pay(9)
Police Officer(9)
Tuition Reimbursement (19)
Eligibility(20)
i
APOA MEMORANDUM OF UNDERSTANDING, EFFECTIVE 5-1-2010 THROUGH 7-31-2015
Eligible Courses (20)
Objective (19)
Reimbursement(20)
Uniform Allowance (9)
Vacation Leave (14)
Accrual (14)
Required Usage and Carryover(14)
Work Week(2) -
Work Week and Timekeeping Interval (2)
Workday(2)
Worker's Compensation (10)
ii
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA
APPROVING THE MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY AND THE AZUSA POLICE OFFICERS
ASSOCIATION EFFECTIVE AUGUST 1, 2010, THROUGH JULY
31, 2015
WHEREAS,the City Council acknowledges the Azusa Police Officers Association as
the recognized employee organization representing those personnel occupying the positions
identified in the attached Memorandum of Understanding between the City and the Azusa Police
Officers Association (APOA), and
WHEREAS, the Memorandum between the City of Azusa and the APOA expired July
31, 2010, and it is appropriate for the management of the City to receive proposals that govern the
compensation, benefits and working conditions of City employees, and
WHEREAS, the representatives of management and representatives of APOA have
met on numerous occasions during the last 5 months and have discussed the issues between them
and have bargained in good faith, and
WHEREAS, management and APOA have come to an agreement with regard to
every issue, and
WHEREAS, the new Memorandum of Understanding between the City of Azusa and
the HPOA covering the period of August 1, 2010 through July 31, 2015, is attached.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Azusa
does hereby approve the Memorandum of Understanding attached hereto and does direct the
representatives of management to affix their signatures thereon.
The City Clerk shall certify the passage of this Resolution.
APPROVED AND PASSED this 6`" day of December, 2010.
MAYOR OF THE CITY OF AZUSA
I HEREBY CERTIFY that the foregoing Resolution wp duly passed by the City
Council of the City of Azusa at a regular meeting thereof held on the day of December, 2010.
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
RESOLUTION NO.
A RESOLUTION OF THE
CITY COUNCIL OF THE CITY OF AZUSA AMENDING
ESTABLISHED RULES AND REGULATIONS RELATING
TO EMPLOYER-EMPLOYEE RELATIONS
WHEREAS, the Meyers-Milias-Brown Act (California Government Code
Sections 3500 et seq.) has been ena cted for the purpose of promoting improved employer-
employee relations between public employers and their employees by establishing uniform and
orderly methods of communication between employees and the public agencies by which they
are employed; and
WHEREAS, Government Code Section 3507 empowers a municipal corporation
to adopt reasonable rules and regulations for the administration of employee relations; and
WHEREAS, the City Council of the City of Azusa has adopted such reasonable
rules and regulations as authorized by law in City of Azusa Resolution No. 08-C79 (also known
as the Employer-Employee Relations Resolution of the City of Azusa);
WHEREAS, the City Council of the City of Azusa desires to amend Section 10 of
Resolution No. 08-C79 to permit an appropriate unit consisting of sworn police supervisory
employees and sworn police management employees;
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Azusa hereby amends Resolution No. 08-C79 to permit an appropriate unit consisting of sworn
1
police supervisory employees and sworn police management employees, as provided in
Section 10:
OUTLINE OF CONTENTS
SECTION 1. TITLE OF RESOLUTION 3
SECTION 2. PURPOSE OF RULES & REGULATIONS 3
SECTION 3. DEFINITIONS 3
SECTION 4. EMPLOYEE RIGHTS 5
SECTION 5. ADVANCE NOTICE 5
SECTION 6. FILING OF RECOGNITION PETITION BY EMPLOYEE 6
ORGANIZATION
SECTION 7. CITY RESPONSE TO RECOGNITION PETITION 7
SECTION S. OPEN PERIOD FOR FILING CHALLENGING PETITION 8
SECTION 9. ELECTION PROCEDURE 8
SECTION 10. POLICY AND STANDARDS FOR DETERMINATION OF 10
APPROPRIATE UNITS
SECTION 11. PROCEDURE FOR DECERTIFICATION OF AN 11
EXCLUSIVELY RECOGNIZED EMPLOYEE ORGANIZATION
SECTION 12. PROCEDURE FOR MODIFICATION OF ESTABLISHED 13
APPROPRIATE UNITS
SECTION 13 APPEALS 13
2
SECTION 14. SUBMISSION OF CURRENT INFORMATION BY AN 14
EXCLUSIVELY RECOGNIZED EMPLOYEE ORGANIZATION
SECTION 15. EMPLOYEE ORGANIZATION ACTIVITIES USE OF CITY 14
FACILITIES
SECTION 16 ADMINISTRATIVE RULES AND PROCEDURES 14
SECTION 17 INITIATION OF IMPASSE PROCEDURES 14
SECTION 18 IMPASSE PROCEDURES 15
SECTION 19 COSTS OF IMPASSE PROCEDURES 16
SECTION 20 CONSTRUCTION 16
SECTION 21 SEVERABILITY 16
Section 1. Title of Resolution. This Resolution shall be known as the Employer-
Employee Relations Resolution of the City of Azusa ("City").
. Section 2. Purpose of Rules and Regulations. The purpose of these rules and
regulations is to provide orderly procedures for the administration of employer-employee
relations between the City and its employees and employee organizations representing City
employees, and for resolving disputes regarding wages, hours and other terms and conditions of
employment.
Section 3. Definitions. Definitions found in Government Code Section 3501
shall be applicable to these rules and regulations. For purposes of these rules and regulations, the
following definitions, in addition to those specified above, shall be applicable:
(a) CITY: shall mean the City of Azusa;
(b) CITY COUNCIL: shall mean the City Council of the City of Azusa;
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(c) MEET AND CONFER IN GOOD FAITH: means performance by duly
authorized City representatives and duly authorized representatives of an exclusively recognized
employee organization of their mutual obligation to meet in person at reasonable times and to
confer in good faith regarding matters within the scope of representation, including wages, hours,
and other terms and conditions of employment, in an effort to reach agreement on those matters.
This does not require either party to agree to a proposal or to make a concession;
(d) CITY MANAGER: shall mean the City Manager of the City of Azusa;
(e) MANAGEMENT EMPLOYEE: any employee having responsibility for
formulating, administering or managing the implementation of City policies or programs;
(f) SUPERVISORY EMPLOYEE: any employee having authority in the
interest of the City to do any one of the following: hire, transfer, suspend, lay off, recall,
promote, demote, discharge, assign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to recommend any such action, if in
connection with the foregoing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment;
(g) CONFIDENTIAL EMPLOYEES: any employee who, in the course of his
or her duties, has access to information relating to the City's administration of
employer-employee relations;
(h) PROFESSIONAL EMPLOYEES: Per the California Government Code
Section 3507.3, "employees engaged in work requiring specialized knowledge attained through
completion of a recognized course of instruction".
(i) EXCLUSIVELY RECOGNIZED EMPLOYEE ORGANIZATION: an
employee organization which has been formally acknowledged by the City as the employee
4
organization that represents a majority of the employees in an appropriate representation unit
pursuant to the provisions of this Resolution. Only the Exclusively Recognized Employee
Organization in an appropriate unit may meet and confer with the City on matters within the
scope of representation; Employee organizations currently recognized by the City on the
effective date of this Resolution are deemed the Exclusively Recognized Employee Organization
in the unit in which they are recognized;
0) IMPASSE: a deadlock in discussions between the City and an
Exclusively Recognized Employee Organization over any matters concerning which they are
required to meet and confer in good faith wherein the differences remain so substantive and
prolonged that further meeting and conferring is not likely to produce an agreement;
(k) DAYS: means "calendar days" unless otherwise stated;
(1) EMPLOYEE RELATIONS OFFICER: means the City Manager
(m) PROOF OF EMPLOYEE SUPPORT: (1) an authorization card recently
signed and dated by an employee, or (2) an authorization petition or petitions recently signed and
dated by each employee whose name appears thereon. The only authorization which shall be
considered as proof of employee support hereunder shall be the authorization last signed by an
employee. The words "recently signed" shall mean within one hundred twenty days prior to the
filing of a petition.
Section 4. Employee Rights.
(a) Except as otherwise provided by law or by these rules and regulations,
employees of the City shall have the right to form, join and participate in the activities of an
employee organization of their own choosing for the purpose of representation in matters of
employer- employee relations. City employees also have the right to refuse to join or participate
5
in the activities of the employee organization and shall have the right to represent themselves
individually in their employment relations with the City. No employee shall be interfered with,
intimidated, restrained, coerced or discriminated against by the City or by an employee
organization because of his or her exercise of these rights.
Section 5. Advance Notice. Reasonable written notice shall be given to an
Exclusively Recognized Employee Organization affected by any ordinance, rule, resolution
policy or regulation directly relating to matters within the scope of representation proposed to be
adopted by the City and such organization shall be given the opportunity to meet with the City
Council or its representative prior to adoption.
In cases of a bona fide emergency when the City Council determines that an
ordinance, rule, resolution or regulation must be adopted immediately, without prior notice or
meeting with the Exclusively Recognized Employee Organization or majority representative, the
City shall provide such notice and opportunity to meet at the earliest practicable time following
the adoption of such ordinance, rule, regulation or resolution. In such cases, the ordinance, rule,
resolution or regulation shall only last for the duration of the emergency.
Section 6. Filing of Recognition Petition by Employee Organization An
employee organization that seeks to represent unrepresented employees and be formally
acknowledged as the Exclusively Recognized Employee Organization representing the
employees in an appropriate unit shall file a Recognition Petition with the Employee Relations
Officer containing the following information and documentation:
(a) Name and address of the employee organization;
(b) Names and title of its officers;
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(c) Names of employee organization representatives who are authorized to
speak on behalf of the organization;
(d) A statement that the employee organization has as its primary purpose or
one of its primary purposes, representing employees in their employment relations with the City;
(e) A designation of an officer of the employee organization and his or her
addresses, to whom notice sent by regular United States mail will be deemed sufficient notice to
the employee organization for any purpose;
(f) A statement that the employee organization has no restriction on
membership based on race, color, creed, sex, national origin, physical handicap or other unlawful
criteria;
(g) The job classifications or titles of employees in the unit claimed to be
appropriate;
(h) A statement that the employee organization has in its possession proof of
employee support as herein defined to establish that a majority of the employees in the unit
claimed to be appropriate have designated the employee organization to represent them in their
employment relations with the City. Such written proof shall be submitted for confirmation to
the Employee Relations Officer; provided, however, the Employee Relations Officer may elect
to refuse receipt of said proof, in which case, said proof shall be submitted to the California
Mediation and Conciliation Service or other impartial party for confirmation in accordance with
the terms of this Resolution; and
(i) A request that the Employee Relations Officer formally acknowledge the
petitioner as the Exclusively Recognized Employee Organization representing the employees in
the unit claimed to be appropriate for the purpose of meeting and conferring in good faith.
7
This Petition, including proof of employee support and all accompanying
documentation, shall be declared to be true, correct and complete, under penalty of perjury, by
the duly authorized officer(s) of the employee organization executing it.
Section 7. . City Response to Recognition Petition. Upon receipt of the
petition, the Employee Relations Officer shall determine whether:
(a) There has been compliance with the requirements of the Recognition
Petition; and
(b) The proposed representation unit is an appropriate unit in accordance with
Section 10.
If an affirmative determination is made by the Employee Relations Officer on the
foregoing two matters, he shall so inform the petitioning employee organization, shall give
written notice of such request for recognition to the employees in the unit and shall take no
action on said request for fourteen days thereafter. If either of the foregoing matters are not
affirmatively determined, the Employee Relations Officer shall inform the petitioning employee
organization of the reasons therefore in writing. The petitioning employee organization may
appeal such determination in accordance with Section 13.
Section 8. Open Period for Filing Challenging Petition.. Within twenty-one days
of the date written notice was given to affected employees that a valid Recognition Petition for
an appropriate unit has been filed, any other employee organization may file a competing request
to be formally acknowledged as the Exclusively Recognized Employee Organization of the
employees in the same or in an overlapping unit (one which corresponds with respect to some
but not all the classifications or positions set forth in the Recognition Petition being challenged),
by filing a petition evidencing proof of employee support in the unit claimed to be appropriate of
8
at least thirty percent and otherwise in the same form and manner as set forth in Section 6. If
such challenging petition seeks establishment of an overlapping unit, an election shall be held of
the employees described in the Petition to determine which unit they shall be in. Thereafter, the
Employee Relations Officer shall determine the appropriate unit or units in accordance with the
standards of Section 10. The petitioning employee organizations shall have seven days from the
date notice of such unit determination is communicated to them by the Employee Relations
Officer to amend their petitions to conform to such determination or to appeal such
determination pursuant to Section 13.
Section 9. Election Procedure. The Employee Relations Officer shall determine
the Exclusively Recognized Employee Organization in an appropriate unit by arranging for a
secret ballot election, the Employee Relations Officer shall arrange for said election to be
conducted by the California Mediation and Conciliation Service, or other impartial party, subject
to the provisions of this Resolution. The election shall be held within thirty days of the date that
an appropriate unit has been determined pursuant to a Recognition Petition or, if applicable, a
Challenging Petition. All employee organizations who have duly submitted petitions which have
been determined to be in conformance with this Resolution shall be included on the ballot. The
choice of self-representation by the employee shall also be included on the ballot.
Employees entitled to vote in such election shall be those persons employed in
positions within the designated appropriate unit on the date of the election and who were
employed during the pay period which ended immediately prior to,the date which is at least
fifteen days before the date the election commences, including those who did not work during
such period because of illness, vacation or other authorized leaves of absence.
9
An employee organization shall be formally acknowledged as the Exclusively
Recognized Employee Organization for the designated appropriate unit following an election if it
received a numerical majority of all valid votes cast in the election or after a run-off election of
the highest two Employee Organizations if one did not get a majority; In an election involving
three or more choices, where none of the choices receives a majority of the valid votes cast, a
run-off election shall be conducted between the two choices receiving the largest number of valid
votes cast. The rules governing an initial election will be applicable to a run-off election.
There shall be no more than one election (including run-off elections as
necessary) under this Resolution in a twelve-month period in the same unit.
Costs of conducting elections, if any, shall be borne in equal shares by the City
and by each employee organization appearing on the ballot.
Section 10. Policy and Standards for Determination of Appropriate Units. The
policy objectives to be served in determining the appropriateness of units shall be (a) the effect
of a proposed unit on the operations of the City, (b)the compatibility of a proposed unit with the
primary responsibility of the City and its employees to effectively and economically serve the
public, and (c) the provision to employees of effective representation based on a recognized
community of interest. Among the factors to be considered in determining community of
interest are:
(a) Similarity of the general kinds of work performed, types of qualifications
required, and the general working conditions.
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(b) History of representation in the City and similar employment, except,
however, that no unit shall be deemed to be an appropriate unit solely on the basis of the extent
to which employees in the proposed unit have organized.
(c) Consistency with the administrative organization of the City.
(d) Number of employees and classifications, and the effect on the
administration of employer-employee relations created by the fragmentation of classifications
and proliferation of units.
(e) Effect on the classification structure and impact on employer-emplovee
relations, as well as the employee's rights to self determination, of dividing single or related
classifications among two or more units.
Notwithstanding the foregoing provisions of this Section, management and
confidential employees shall not be included in any unit with non-management or non-
confidential employees, and shall be restricted from representing any employee organization
which represents other employees in the City on matters within the scope of representation.
Supervisory employees may be included in a unit consisting solely of supervisory employees or,
when there is a community of interest or past precedence, may be included in a bargaining unit
with non-supervisory employees. Notwithstanding the foregoing, sworn police supervisory
employees may be included in an appropriate unit with sworn police management employees.
This section shall not impact the classifications in an existing unit at the time this Ordinance was
approved. Professional employees may be represented in a separate unit.
The Employee Relations Officer shall, after notice to and consultation with
affected employee organizations, allocate new classifications or positions, delete eliminated
classifications or positions, from units in accordance with the provisions of this Section.
II
Section 11. Procedure for Decertification of an Exclusivelv Recognized
Employee Organization. A Decertification Petition alleging that the incumbent Exclusively
Recognized Employee Organization no longer represents a majority of the employees in an
established appropriate unit may be filed with the Employee Relations Officer following the first
full year of recognition. A Decertification Petition may be filed by an employee, an employee
representative, or an employee organization no sooner than 120 days or later than 90 days prior
to the expiration of an existing M.O.U.. A Decertification Petition shall contain the following
information and documentation, declared by the duly authorized signatory, under penalty of
perjury, to be true, correct and complete:
(a) The name, address and telephone number of the petitioner and if petitioner
is an employee organization, a designated representative authorized to receive notice or requests
for further information.
(b) The name of the established appropriate unit and the incumbent
Exclusively Recognized Employee Organization sought to be decertified as the representative of
that unit.
(c) An allegation that the incumbent Exclusively Recognized Employee
Organization no longer represents a majority of the employees in the appropriate unit, and any
other relevant and material facts relating thereto.
(d) Proof of employee support that at least thirty percent of the employees in
the established appropriate unit no longer desire to be represented by the incumbent Exclusively
Recognized Employee Organization. Such proof shall be submitted for confirmation to the
Employee Relations Officer along with the Decertification Petition, provided, however, the
Employee Relations Officer may elect to refuse receipt of said proof, in which case, said proof
12
shall be submitted to the California Mediation and Conciliation Service, or other impartial party,
for confirmation in accordance with this Resolution.
An employee. organization may, in satisfaction of the Decertification Petition
requirements hereunder, file a petition under this Section in the form of a Recognition Petition
that evidences proof of employee support of at least thirty percent and otherwise conforms to the
requirements of Section 6.
The Employee Relations Officer shall first determine whether the petition has
been filed in compliance with the applicable provisions of this Resolution. If his determination
is negative, he shall return such petition to the petitioner(s) with a statement of the reasons
therefore in writing. The petitioner(s) may appeal such determination in accordance with
Section 13. If the determination of the Employee Relations Officer is in the affirmative, or if his
negative determination is reversed on appeal, he shall give written notice of such Decertification
or Recognition Petition to the incumbent Exclusively Recognized Employee Organization and to
unit employees.
The Employee Relations Officer shall thereupon determine the wishes of unit
employees as to the question of decertification, and, if a Recognition Petition was duly filed
hereunder, the question of representation. Such determination shall be made by election in
conformance with Section 9.
Section 12. Procedure for Modification of Established Appropriate Units. An
employee or an employee organization may submit a petition for modification of established
appropriate units to the Employee Relations Officer. A Modification Petition may be filed by an
employee, an employee representative, or an employee organization no sooner than 120 days or
later than 90 days prior to the expiration of an existing M.O.U.. Such requests shall be submitted
13
in the form of a Recognition Petition, and, in addition to the requirements set forth in Section 6,
shall contain a complete statement of all relevant facts and citations in support of the proposed
modified unit in terms of the policies and standards set forth in Section 10 hereof. The
Employee Relations Officer shall process such petitions as Recognition Petitions under this
Resolution.
Section 13. Appeals. An employee or employee organization aggrieved by an
appropriate unit determination of the Employee Relations Officer, or an employee organization
aggrieved by a determination of the Employee Relations Officer that a Recognition Petition,
Challenging Petition, Decertification Petition or Petition for Modification of an Established
Appropriate Unit — or employee(s) aggrieved by a determination of the Employee Relations
Officer that a Decertification Petition or a Petition for Modification of an Established
Appropriate Unit — has not been filed in compliance with the applicable provisions of this
Article, may, within fourteen days of notice of such determination appeal the determination to
the City Council for final decision.
Appeals to the City Council must be filed in writing with the Clerk of the City
Council, and a copy thereof served on the Employee Relations Officer. The City Council shall
commence consideration of the matter within thirty-five days of the filing of the appeal. The
City Council shall provide for written and verbal presentations by the impacted employee
organizations. Any decision of the City Council on an appeal shall be final and binding.
Section 14. Submission of Current Information by an Exclusively Recognized
Employee Organization. All changes in the information filed with the City by an Exclusively
Recognized Employee Organization under items (a) through (h) of its Recognition Petition under
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Section 6 shall be submitted in writing to the Employee Relations Officer within fourteen days of
such changes.
Section 15. Employee Organization Activities — Use of City Facilities. Access
to City work locations and the reasonable use of City paid time, facilities, equipment and other
resources by employee organizations and those representing them shall be allowed and, shall not
interfere with the efficiency, economy, safety and security of City operations.
Section 16. Administrative Rules and Procedures. The Employee Relations
Officer is hereby authorized, after complying with any meet and confer requirements, to
establish such rules and procedures as appropriate to implement and administer the provisions of
this Resolution.
Section 17. Initiation of Impasse Procedures. If the meet and confer process has
reached impasse as defined in this Resolution, either party may initiate the impasse procedures
by filing with the other party a written request for an impasse meeting. An impasse meeting
shall then be scheduled promptly by the Employee Relations Officer. The purpose of such
impasse meeting shall be:
(a) To identify and specify the issue or issues that remain in dispute;
(b) To review the position of the parties in a final effort to resolve such
disputed issue or issues; and
(c) If the dispute is not resolved, to discuss utilization of the impasse
procedures provided herein.
Section 18. Impasse Procedures. Impasse procedures are as follows:
(a) Non-Binding Mediation — May be requested by either party. A list of
mediators shall be requested from the State of California Mediation and Conciliation Service or
15
the parties may and agree on the selection of a mediator. The dispute shall be submitted to non-
binding.mediation. If mediation proceedings are undertaken, such proceedings shall be private
and the mediator shall make no public recommendation nor take any public position at any time
concerning the issues. Costs of mediation shall be equally divided and paid by the City and each
employee organization involved in the impasse.
. (b) Mutually Agreed Upon Dispute Resolving Procedure — Any dispute
resolving procedure mutually agreed to by the parties to the impasse may be utilized.
(c) Resolution by the City Council — If the parties agreed to submit the
impasse directly to the City Council, or if the parties did not agree on non-binding mediation, the
selection of a mediator, or some other dispute resolving procedure, or having so agreed, the
impasse has not been resolved through such non-binding mediation or other dispute resolving
procedure, then the City Council shall review all information and take such action regarding the
impasse as it, in its discretion, deems to be in the public interest. This City Council review shall
take place within 30 days of the impasse meeting or completion of mediation if mediation is
selected by both parties. Any action by the City. Council on the impasse shall be final and
binding unless State law requires the City to adhere to some other resolution process.
Section 19. Costs of Impasse Procedures. The costs, if any, for the services of a
mediator or for any other mutually agreed upon dispute resolving procedure utilized by the
parties, and other mutually incurred impasse resolution costs, shall be bome equally by the City
and the Exclusively Recognized Employee Organization.
Section 20. Construction. This Resolution shall be administered and construed as
follows:
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(a) Nothing in this Resolution shall be construed to deny to the City Council
or any authorized officer, body or other representative of the City Council, employee or
employee organization, the rights, powers and authority granted by Federal, State or local law,
ordinance or resolution.
(b) Nothing in this Resolution shall be construed as making the provisions of
California Labor Code Section 923 applicable to City employees or employee organizations, or
of giving employees or employee organizations the right to participate in, support, cooperate or
encourage, directly or indirectly, any strike, sickout, other total or partial stoppage or slowdown
of work, or any unlawful concerted action that poses an imminent and substantial threat to public
health or safety.
Section 21. Severability. If any provision of this Resolution, or the application of
such provisions to any person or circumstance, shall be held invalid, the remainder of this
Resolution, or the application of such provision to persons or circumstances other than those as
to which it is held invalid, shall not be affected thereby.
APPROVED AND ADOPTED this 6th day of December, 2010.
MAYOR - CITY OF AZUSA
Joseph R. Rocha
17
x
ATTEST:
CLERK OF THE CITY COUNCIL
OF THE CITY OF AZUSA
Vera Mendoza
I HEREBY CERTIFY that the foregoing resolution No. was duly
adopted by the City Council of the City of Azusa, at a regular meeting thereof, held on the 6th
day of December, 2010, by the following vote of the Council:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
CLERK OF THE CITY COUNCIL
OF THE CITY OF AZUSA
Vera Mendoza
18
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA FOR
EMPLOYER PAID MEMBER CONTRIBUTIONS
WHEREAS, the City Council of the City of Azusa has the authority to implement
G.C. Section 20691;
WHEREAS, the City Council of the City of Azusa has a written labor policy or
agreement which specifically provides for the normal member contributions to be
paid by the employer;
WHERAS, one of the steps in the procedures to implement Section 20691 is the
adoption by the City Council of the City of Azusa of a Resolution to commence
said Employer Paid Member Contributions (EPMC); and
WHEREAS, the City Council of the City of Azusa has identified the following
conditions for the purpose of its election to pay EPMC:
• This benefit shall apply to employees of the Azusa Police Officers
Association (APOA).
• For all employees of the APOA (hired prior to January 1, 2011), the
employer shall pay 9% of the normal member contribution.
• For all employees of the APOA (hired after January 1, 2011), the employer
shall pay 6% of the normal member contribution.
• For all employees of the APOA, effective August 1, 2012, if the CPI-U for
the Los Angeles/Riverside/Orange County statistical area from June 2011
to June 2012 increases to above 3.5%, 1% of the member contribution
paid by the City will be paid by the employee.
• For all employees of the APOA, effective August 1, 2013, if the CPI-U for
the Los Angeles/Riverside/Orange County statistical area from June 2012
to June 2013 increases to above 3.5%, 1% of the member contribution
paid by the City will be paid by the employee.
• The effective date of this resolution shall be January 1 , 2011.
NOW THEREFORE, be it resolved that the City Council of the City of Azusa
elects to pay EPMC as set forth above:
The City Clerk shall certify the passage of this resolution.
APPROVED AND PASSED this 6th day of December 2010.
JOSEPH ROCHA, MAYOR
I HEREBY CERTIFY that the foregoing Resolution was duly passed by the City
Council of the City of Azusa at a regular meeting thereof held on the 6th day of
December 2010.
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
VERA MENDOZA, CITY CLERK
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA TO TAX
DEFER EMPLOYER PAID MEMBER CONTRIBUTIONS — IRC 414(h)(2)
WHEREAS, the City Council of the City of Azusa has the authority to implement
the provisions of section 414(h)(2) of the Internal Revenue Code (IRC); and
WHEREAS, the Board of Administration of the Public Employees' Retirement
System adopted its resolution re section 414(h)(2) IRC on September 18, 1985;
and
WHERAS, the Internal Revenue Service has stated in December 1985, that the
implementation of the provisions of section 414(h)(2) IRC pursuant to the
Resolution of the Board of Administration would satisfy the legal requirements of
section 414(h)(2) IRC; and
WHEREAS, has determined that even though the implementation of the
provisions of section 414(h)(2) IRC is not required by law, the tax benefit offered
by section 414(h)(2) IRC should be provided to all employees who are members
of the Public Employees' Retirement System.
NOW THEREFORE, be it resolved that:
1. The City Council of the City of Azusa will implement the provisions of
section 414(h)(2) Internal Revenue Code by making employee
contributions pursuant to California Government Code section 20691
to the Public Employees' Retirement System on behalf of its
employees who are members of the Public Employees Retirement
System. "Employee contributions" shall mean those contributions to
the Public Employees' Retirement System which are deducted from
the salary of employees and are credited to individual employee's
accounts pursuant to California Government Code section 20691.
2. That the contributions made by the City of Azusa to the Public
Employees' Retirement System, although designated as employee
contributions, are being paid by the City of Azusa in lieu of
contributions by the employees who are members of the Public
Employees' Retirement System.
3. That employees shall not have the option of choosing to receive the
contributed amounts directly instead of having them paid by the
City of Azusa to the Public Employees' Retirement System.
4. That the City of Azusa shall pay to the Public Employees' Retirement
System the contributions designated as employee contributions from
the same source of funds as used in paying salary.
5. That the amount of the contributions designated as employee
contributions and paid by the City of Azusa to the Public Employees'
Retirement System on behalf of an employee shall be the entire
contribution required of the employee by the Public Employees'
Retirement Law (California Government Code sections 20000, et seg.).
6. That the contributions designated as employee contributions made by
the City of Azusa to the Public Employees' Retirement System shall be
treated for all purposes, other than taxation, in the same way that
member contributions are treated by the Public Employees' Retirement
System.
7. That the Deputy City Clerk shall certify the adoption of this resolution.
PASSED, APPROVED AND ADOPTED this 6th day of December 2010.
JOSEPH ROCHA, MAYOR
I HEREBY CERTIFY that the foregoing Resolution was duly passed by the City
Council of the City of Azusa at a regular meeting thereof held on the 6th day of
December 2010.
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
VERA MENDOZA, CITY CLERK
•
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1
AGENCY AGENDA ITEM
TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AGENCY BOARD
FROM: KURT CHRISTIANSEN, DEPUTY EXECUTIVE DIRECTOR
VIA: F.M. DELACH, EXECUTIVE DIRECTOR,f�{,+�
DATE: DECEMBER 6. 20 10
111111��I��I
SUBJECT: ATLANTIS GARDENS PROJECT - DEVELOPER SELECTION
RECOMMENDATION
It is recommended that the Redevelopment Agency Board take the following Minute Actions:
1. Accept the recommendation of the Agency's Ad Hoc Affordable Housing Subcommittee
to select Mercy Housing ("Developer") as the developer for the Atlantis Gardens Project.
2. Direct the Executive Director to commence negotiations with Developer for an
Affordable Housing Agreement ("Agreement") and to bring said Agreement back to the
Agency for approval.
3. Direct the Executive Director to commence the entitlement process for the Atlantis
Gardens Project concurrent with the negotiation of the Agreement and in accordance with
the proposal submitted by Developer and reviewed by the Agency's Ad Hoc Affordable
Housing Subcommittee.
4. Approve the attached Consultant Request for Proposal for Environmental Analysis for
the Atlantis Gardens Affordable Housing Project ("RFP") and authorize the Executive
Director to circulate said RFP to qualified firms.
EXECUTIVE SUMMARY
Selecting a developer for the Atlantis Gardens project site represents the culmination of a multi-
year effort on the part of the City Council to redevelop a portion of the City that had been beset
with crime and dilapidated housing. Previously, the site was home to 39 four-unit apartment
buildings all under individual ownership. The site had become problematic for both Code
Enforcement and Police, with housing violations. crime: including homicides and gang activity
steadily increasing.
The City used housing bond funds to purchase 17 four-unit buildings. All but one of the
buildings were demolished and the sites secured while the City conducted a request for proposals
process to secure a developer to redevelop the entire site. Five proposals were received and
interviews were held with staff and an Ad Hoc Committee established by the City Council.
The Ad Hoc Committee has recommended that Mercy Housing be selected as the developer for
the project site. Their proposal calls for a $74.7 million project consisting of 193 units built in
three phases. The design would be two and three story townhomes with 31,000 square feet of
open space and an on-site property management and tenant services component, including the
Homework House. It is the developer's intent to leverage a number of tax credits and subsidies,
including City of Industry funds.
BACKGROUND
On July 19, 2010 the Redevelopment Agency Board took the following actions regarding the
Atlantis Gardens Neighborhood Rehabilitation project:
1. Approved a Developer Pre-Qualification List for Affordable Housing Projects.
2. Approved the Developer Request for Proposal for the Atlantis Gardens Project.
3. Appointed an Ad Hoc Affordable Housing Subcommittee to review the Atlantis Gardens
proposals and make recommendations to the full Board.
The Developer Request for Proposal ("RFP") was issued on July 20, 2010, to the seven firms on
the Pre-Qualification List. The original due date for submittal of proposals was September 2,
2010. However, this deadline was extended to September 23 in order to provide the developers
additional time to prepare their proposals. On that date, Agency staff received five proposals
from the following developers:
1. AMCAL
2. A joint venture of Jamboree Housing and Bridge Housing
3. Mercy Housing
4. National Community Renaissance (National CORE)
5. A joint venture of The Olson Company, TELACU, Related, and Homework House
The five development proposals were then reviewed and scored by Agency staff and the
Agency's redevelopment consultants, Urban Futures, Inc. and HR&A Advisors Inc. (HR&A is
under contract with the Los Angeles County Community Development Commission). Each rater
evaluated the proposals using the 100-point scoring criteria included in the RFP.
Following the initial staff evaluation and scoring, the proposals were submitted to the Agency's
Ad Hoc Affordable Housing Subcommittee for review and the proposers were invited to make
presentations before the Subcommittee. These interviews were conducted during the week of
November 15-18, 2010. The Ad Hoc Subcommittee members then conducted site inspections of
various affordable housing projects that have been constructed by AMCAL and Mercy Housing.
OVERVIEW OF DEVELOPER PROPOSALS
Attached for the Agency's review is a matrix summarizing the five proposals. This table
compares the key components of the proposals including a brief description of the project, the
number of units being proposed by project phase, the project density (as computed for the overall
8-acre site), the degree of unit affordability, the proposed timing, the total project construction
cost, the amount of Redevelopment Agency assistance being requested, the proposed sources and
uses of funds, and project operating costs..
The following are some general observations about the proposals that were considered by the Ad
Hoc Subcommittee in its assessment:
• Multiple Proposals - While the RFP did not make any provision for multiple development
concepts, the submittals from National CORE and the Olson/TELACU/Related joint
venture both contained two different alternatives.
• Land Donation - All of the proposals require the Agency to donate its current land
holdings to the project.
• Financial Support - The proposals submitted by AMCAL and Mercy Housing do not
require additional Agency financial support beyond the contribution of land. The other
three proposals do require additional support. It should be noted that the RFP specifically
stated that because of the Agency's current financial status, its contribution to the Atlantis
Gardens project would be confined to land assets (parcels, streets and rights-of-way), the
ability to adjust site densities and land use standards to accommodate proposed
improvements, the potential for addressing off-site development requirements, and
assistance in the processing of environmental documentation.
• Affordability — All of the proposals include various numbers of units affordable to very
low- and low-income households. The affordability of the units range from 30% of Area
Median Income to 60% of AMI (50% of AMI for the Mercy Housing and the
Olson/TELACU/Related joint venture). These income limits correspond to the
requirements for the various funding programs being proposed such as the federal Low
Income Housing Tax Credits, HOME Funds, City of Industry Funds, HUD Section 202
Funds, etc. The 2010 AMI for Los Angeles County is $63,000.
• Density - The proposals are generally consistent with the density of 27 dwelling units per
acre provided by the existing zoning for this neighborhood and do not request any
affordable housing density bonus (the National CORE proposal is highest at 28.7
units/acre).
• Market Rate Units - The submittals from National CORE and the Olson/TELACU/Related
joint venture include market rate units as part of the Atlantis Gardens project (National
CORE's market-rate townhomes are contained in its Alternative A). The AMCAL
proposal also suggests that the 72 units included in its third phase could be market-rate if
the City desires it and economic conditions make it feasible.
• Replacement Housing Obligation — All of the proposals except the
Olson/TELACU/Related joint venture include sufficient numbers of affordable units to
accommodate the Agency's 156-unit replacement housing requirement for the Atlantis
Gardens project.
Parkin¢ - The developers relied in large part on the provisions of SB 1818 to determine
parking standards for their proposed projects. SB 1818 (Chapter 928, Statutes of 2004)
expanded the various statutory definitions of"affordable housing density bonus" including
reduced parking standards for affordable projects. While the housing densities of all
proposals (except for National CORE) are consistent with or lower than the 216 units that
would be allowed under the Azusa Development Code, the proposed number of parking
spaces in each proposal is less than what the Azusa Code would otherwise require
AD HOC AFFORDABLE HOUSING SUBCOMMITTEE RECOMMENDATION
In evaluating the various developer submittals, Agency staff and the Ad Hoc Subcommittee
examined the extent to which each proposal complied with the requirements of the RFP and how
well they met the Agency's expectations. Two proposals, from AMCAL and Mercy Housing,
were found to be exceptional in terms of their thorough and thoughtful approaches to addressing
the unique challenges presented by the Atlantis Gardens Project.
AMCAL and Mercy Proposals
Both AMCAL and Mercy went to great lengths to craft site plans and phasing plans that allow
for the orderly acquisition of the remaining privately-held Atlantis Gardens parcels while
leveraging the Agency-owned parcels to help qualify for a wide variety of federal, state and local
funds that are available for affordable housing projects. Although the details associated with
densities, circulation, building massing, building design, landscaping/open space, parking, etc.
would still be subject to further refinement during the entitlement process, the proposals as
submitted reflect sensitivity to the surrounding neighborhood and community.
The AMCAL and Mercy financing proposals were also the only ones that did not require
additional Agency contributions to close funding gaps. Both accomplish this through project
phasing, creative and cost-effective design and construction, and maximum use of existing
infrastructure to control project costs. However, it is important to remember that the most likely
sources of project funding such as Federal 9% tax credits, HOME Funds, City of Industry Funds,
and HUD Section 202 Funds are highly competitive in nature and their availability is not
guaranteed. Agency staff and the Ad Hoc Subcommittee believe that AMCAL and Mercy did the
best job of assessing the various factors that effect potential funding awards and then crafting
proposals that would position the project to successfully compete for these funds.
Ad Hoc Subcommittee Recommendation: Mercy Housing
The Ad Hoc Subcommittee was particularly impressed with AMCAL and Mercy's background
and experience, their insights about the Atlantis Gardens project, and the financial viability of
their projects as demonstrated in their proposals. It is clear that both developers have the ability
to take the Atlantis Gardens project from concept to development to construction to operation.
However, in light of what the Ad Hoc Subcommittee views as the "best fit" for the City of
Azusa, it has recommended that the Agency proceed with Mercy Housing.
During its interview with Mercy, the Ad Hoc Subcommittee was impressed with Mercy's
presentation about its extensive corporate focus on community involvement and outreach,
especially during the early development stages when design concepts are being crafted and
neighborhood input becomes critical to project success. This commitment to active community
involvement is one of the cornerstones of Mercy Housing and stems from its foundation as a
social service provider.
Likewise. the Ad Hoc Subcommittee favored Mercy's approach to on-going property
management and the provision of tenant services, which are integral functions within the Mercy
organization and do not rely on third-party contractors. While other proposals also had some or
all of these service components internal to their organizations, the Ad Hoc Subcommittee
appreciated the combination of Mercy's demonstrated experience in these areas, its extensive
and relevant project development experience, history of long-term project ownership, and
obvious enthusiasm for making a long-term difference in the communities it serves.
Proposal Summary
As the attached Comparison Matrix indicates; Mercy Housing is proposing a 193-unit family
housing project to be built in three phases, each of which has been sized to achieve both
economies of scale and successful public financing. The $74.7 million project will be affordable
for families in the range of 30%-50% of AMI with the potential for an affordable senior housing
component, should community preferences and financing opportunities favor that approach.
Mercy proposes to implement a local veterans housing preference through which tenant
households that include a qualified veteran would move to the top of the waiting list for available
units.
The proposed density, which reflects a two- and three-story townhome style development and
31,000 square feet of open space, is less than what current zoning would permit. The proposal
intends to seek the LEED-ND sustainable design designation for the site plan, and LEED
certification for all buildings, including LEED Silver for at least one building. The remaining
properties not already acquired by the Agency will be purchased using loans provided by
Mercy's own internal financing resources in combination with the Los Angeles County Housing
Innovation Fund, a $60 million public-private partnership between the County's Community
Development Commission, Citi Community Capital, One California Bank, the Low Income
Investment Fund, Century Housing and the Corporation for Supportive Housing, which was
established specifically for this purpose.
If selected, Mercy Housing would own and operate the project, providing both in-house property
management and tenant services in conjunction with local social and community service
providers (such as Homework House). They would prepare a community outreach and education
program to solicit local input and support. During this process, Mercy would finalize building
designs for submission to the Planning Commission. Staff anticipates that this project's
environmental review would consist of a mitigated negative declaration.
PROJECT SCHEDULE AND ENVIRONMENTAL REVIEW
Should the Agency Board accept the Ad Hoc Subcommittee's recommendation to select Mercy
Housing as the Developer for the Atlantis Gardens Neighborhood Rehabilitation Project, Agency
s
staff will immediately begin crafting the terms of an Affordable Housing Agreement.
Concurrently, the Agency and the Developer will begin the entitlement process which will
include the community outreach efforts and Planning submittals. Staff is targeting June of 2011
to complete these efforts.
It is very important that the negotiation of the Agreement and the entitlement process run
concurrently in order to have a Phase 1 project ready to submit for City of Industry funding next
Fall. The Industry Funds are a key component of the eventual application for 9% Tax Credits and
the timing and receipt of these funds is critical to meeting the anticipated project schedule.
Consequently, staff is also proposing that the recruitment of a consultant to perform the
necessary environmental review of the Atlantis Gardens project commence immediately, even if
the Agency Board delays action on the selection of a Developer.
Attached for the Agency's review and approval is a Consultant Request for Proposal for
Environmental Analysis for the Atlantis Gardens Affordable Housing Project ("RFP"). This RFP
seeks to identify a firm that can assess all of the pertinent environmental issues associated with
the Project and prepare all documents and findings necessary for the approval of Project
entitlements. Based on a preliminary analysis of the various Atlantis Gardens proposals
submitted, staff believes that development entitlements will require a mitigated negative
declaration.
FISCAL IMPACT
The selection of Mercy Housing as the developer of the Atlantis Gardens Neighborhood
Rehabilitation Project will not have any additional fiscal impact on the Agency. To date, the
Redevelopment Agency has spent $11,092,544 to acquire 17 buildings as well as additional costs
to demolish and secure the sites. The terms of an eventual Affordable Housing Agreement will
identify the duties and obligations of both parties.
It is estimated that the environmental review of the Project could cost between $50,000 and
$75,000 (depending on the extent of traffic analysis required). A more definitive cost will be
determined once proposals have been received.
Attachments
1. Developer Proposal Comparison Matrix
2. Consultant Request for Proposal (RFP) for Environmental Analysis for the Atlantis
Gardens Affordable Housing Project
AZUSAI
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• City of Azusa Redevelopment Agency
Consultant Request for Proposal
Environmental Analysis for the
Atlantis Gardens Affordable Housing Project
TABLE OF CONTENTS
I. INTRODUCTION........................................................................................................... 3
II. DESCRIPTION OF PROJECT SITE ............................................................................. 3
111. PROPOSED PROJECT.......................................................................:........................ 6
IV. SELECTION PROCESS ............................................................................................... 6
V. CONTENTS OF PROPOSAL........................................................................................ 7
VI. SPECIAL CONDITIONS ............................................................................................... 9
VII. SUBMITTAL INFORMATION ..................................................................................... 10
VIII. WAIVER OF RIGHTS ................................................................................................. 11
2
City of Azusa Redevelopment Agency -Consultant RFP
Environmental Analysis— Atlantis Gardens
I. Introduction
The City of Azusa's Redevelopment Agency ("Agency') is pleased to issue this Request
for Proposal ("RFP") to qualified environmental firms to perform an environmental
assessment of a high-quality, affordable residential neighborhood project in the Merged
Redevelopment Project Area. The project site, located at the intersection of Alosta
Avenue and Rockvale Avenue in the City of Azusa and known locally as Atlantis
Gardens, is approximately eight acres and consists of thirty-nine (39) individual
properties along with existing public right-of-way. The Agency has selected a
development partner to acquire and demolish all existing improvements and construct
an integrated, multi-family rental project over multiple phases.
The primary goal of the RFP is to recruit a qualified environmental firm that can perform
a thorough environmental assessment of the proposed Atlantis Gardens Project and
prepare all documents and findings necessary for the awarding of Project entitlements.
II. Description of Project Site
The site, which is known as Atlantis Gardens, is approximately eight acres and consists
of thirty-nine individual parcels. It is generally located at the intersection of Rockvale
Avenue and Alosta Avenue (south of Foothill Boulevard) in the City of Azusa and
includes all or portions of 6th Street, E. Lime Street, N. Glenfinnan Avenue, and
Cedarglen Drive. The public streets and rights-of-way in the neighborhood constitute
approximately 97,000 square feet of the entire site.
As of the date of this RFP, the Redevelopment Agency owns 17 of the Atlantis Gardens
parcels with one additional parcel in escrow. Sixteen of the 17 Agency-owned parcels
have been cleared and rough graded. Each of the remaining parcels is still privately
owned and improved with a fourplex apartment building, a number of which are either
partially or completely vacant. The current zoning is NG2 (Neighborhood General 2)
which provides for moderate housing densities of up to 27 dwelling units per acre.
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III. Proposed Project
Mercy Housing is proposing a 193-unit family rental housing project to be built in three
phases, each of which has been sized to achieve both economies of scale and
successful public financing. The $74.7 million project will be affordable for families in the
range of 30%-50% of AMI with the potential for an affordable senior housing
component, should community preferences and financing opportunities favor that
approach. Mercy proposes to implement a local veterans housing preference through
which tenant households that include a qualified veteran would move to the top of the
waiting list for available units.
The proposed density, which reflects a two- and three-story townhome style
development and 31,000 square feet of open space, is less than what current zoning
maximums would permit. The proposal intends to seek the LEED-ND sustainable
design designation for the site plan, and LEED certification for all buildings, including
LEED Silver for at least one building. The remaining properties not already acquired by
the Agency will be purchased using loans provided by Mercy's own internal financing
resources in combination with the Los Angeles County Housing Innovation Fund, a $60
million public-private partnership between the County's Community Development
Commission, Citi Community Capital, One California Bank, the Low Income Investment
Fund, Century Housing and the Corporation for Supportive Housing, which was
established specifically for this purpose.
Mercy Housing will own and operate the project, providing both in-house property
management and tenant services in conjunction with local social and community service
providers (such as Homework House). Once selected as the Atlantis Gardens
Consultant, Mercy will prepare a community outreach and education program to solicit
local input and support. During this process, Mercy will finalize building designs for
submission to the Planning Commission. Staff anticipates that the project's
environmental review will consist of a mitigated negative declaration.
IV. Selection Process
A Selection Committee will be established for this project. The City's Economic and
Community Development Department staff will evaluate proposals according to criteria
described in this RFP. City staff will select proposals for further review based on the
applicant firm's qualifications, related project experience, cost and time schedule.
Those firms selected for further review will be invited for an interview and to make a
more detailed oral presentation to the Selection Committee. Upon review of the final
applicants, the Selection Committee will make its recommendation to the Economic and
Community Development Director. The Director will make the final selection and
recommendation to the Agency Board following completion of the applicant
interviews/presentations if necessary. Notice of the selected applicant firm will be
mailed to all applicants after the Director makes the recommendation to the Agency
6
City of Azusa Redevelopment Agency -Consultant RFP
Environmental Analysis— Atlantis Gardens
Board. The selected applicant will enter into a Professional Services Agreement with the
Agency.
V. Contents of Proposal
To be considered adequate, the proposal must contain or comply with all of the
following items:
1. The proposal must include a discussion of the principal staff member and any
individual staff members who will be providing the planning consultant services
and/or the preparation of the environmental documents and their experience with
similar projects. The proposal must include all estimated project-related expenses
and estimated costs for required copies and documents, as well as a work program
with tasks and cumulative costs on a "not-to-exceed" basis.
2. The proposal must include evidence that the applicant has secured and agrees to
maintain throughout the term of the agreement with the Agency the following types
of insurance issued by companies acceptable to the City's Risk Manager, with limits
as shown below:
(a) Workers' Compensation and Employer's Liability. Workers'
Compensation limits as required by the Labor Code of the State of California.
Employer's Liability limits of $1,000,000 per accident for bodily injury or disease.
(b) Automobile Liability. Insurance Services Office Business Auto
Coverage form number CA 0001, code 1 (any auto); $1,000,000 per accident for
bodily injury and property damage.
(c) General Liability. Insurance Services Office Commercial General
Liability coverage (occurrence form CG 0001); $1,000,000 per occurrence for
bodily injury, personal injury and property damage. If Commercial General
Liability Insurance or other form with general aggregate limit is used, either the
general aggregate limit shall apply separately to the agreement/location or the
general aggregate limit shall be twice the required occurrence limit.
.(d) Professional Liability. The selected applicant firm shall procure and
maintain, and require its subconsultants to procure and maintain errors and
omissions liability insurance appropriate to their profession for a period of five (5)
years following completion of the project,. Such insurance shall be in an amount
not less than $1,000,000 per claim, and shall be endorsed to include contractual
liability.
3. The proposal must include a statement of qualifications for the proposed planning
consultant services and environmental document preparation, highlighting the
applicant firm's specific experience in providing relevant or similar services for other
public agencies.
7
City of Azusa Redevelopment Agency- Consultant RFP
Environmental Analysis— Atlantis Gardens
(a) The proposal must include a statement regarding the applicant
firm's experience in assisting public agencies regarding compliance with the
California Environmental Quality Act (CEQA) and with any other pertinent State
and/or County regulations regarding affordable housing projects and associated
components as well as in performing environmental assessments for such
projects. The proposal must also identify specific projects where the applicant
firm has assisted other public agencies regarding compliance with CEQA and
any other pertinent State and/or County regulations regarding affordable housing
projects and associated components and has provided environmental services
for such projects.
(b) The proposal must include a statement regarding any
subcontractors' experience in assisting public agencies regarding compliance
with CEQA and any other pertinent State and/or County regulations regarding
Material Recovery Facilities and associated project components as well as in
performing environmental assessments for such projects. The proposal should
also identify specific projects where the subcontractor has assisted other public
agencies regarding compliance with CEQA and any other pertinent State and/or
County regulations regarding Material Recovery Facilities and associated project
components and has provided environmental services.
4. The proposal must include an hourly rate for each staff member providing the
proposed planning consultant services and environmental document preparation
services.
5. The proposal must include a fixed dollar amount for the preparation of all documents
and for attending all meetings and public hearings relating to the adequacy of the
environmental documents, including a breakdown of costs according to project
issues and tasks.
6. The proposal must include a statement that the proposed services will include
attendance at any public meetings, public hearings, and/or if necessary, any court
hearings or settlement conferences, relating to advice given regarding the project.
7. The environmental documents to be prepared by the selected applicant firm must
discuss all environmental impacts and satisfy the legal requirements CEQA. If the
proposal does not indicate discussion of all the environmental issues or does not
indicate adherence to stated time schedules, the Selection committee will consider
the proposal inadequate and disqualify it from further consideration.
8. The proposal must include a general work schedule identifying deadlines that will
provide drafts of the environmental documents within four (4) weeks from the time
that technical reports for critical issues are determined to be complete and adequate.
8
City of Azusa Redevelopment Agency - Consultant RFP
Environmental Analysis— Atlantis Gardens
9. The proposal must include the applicant firm's Federal Employer Identification
Number.
10.The proposer shall certify that it takes no exception(s) to this RFP. If the proposer
does take any exception(s) to any portion of this RFP, the specific portion of the RFP
to which exception(s) is taken shall be identified and explained.
11.The nature of this project requires an impartial, unbiased approach on the part of the
selected applicant firm. The proposal must include a statement declaring that the
applicant firm will not, during the performance of these services, engage in any other
professional relationship or representation that would create any type of conflict or
conflict of interest with regard to the environmental services for the Agency.
VI. Special Conditions
The following Special Conditions shall apply to the work to be performed pursuant to
this RFP:
1. The selected applicant firm must have a current vendor application and business
license on file with the City. Arrangements to complete those documents will be
made upon selection.
2. The selected applicant firm shall be responsible for attending any Public Review and
Comment meetings, Design Review Board meetings, Planning Commission
meetings, Agency Board meetings, City Council meetings, and any appeal hearing
which may challenge the adequacy of the environmental documents or challenge the
Agency's decision regarding the approval of the project.
3. The environmental documents for the Atlantis Gardens Project must specifically
include, at a minimum, the following areas:
(a) Aesthetics
(b) Air Quality
(c) Noise
(d) Transportation/Traffic
(e) Utilities / Service Systems
4. As part of the work to be performed, the selected applicant firm shall prepare or
conduct a review of the project developer's submitted technical reports for accuracy
and completeness.
5. The environmental documents shall become the property of the Agency of Azusa
upon submittal of same.
6. The fees for environmental services provided by the selected applicant firm shall be
paid in the following manner: 25 percent to commence work; 25 percent upon
delivery of the corrected draft environmental documents; 25 percent upon delivery of
9
City of Azusa Redevelopment Agency - Consultant RFP
Environmental Analysis— Atlantis Gardens
the final environmental documents; and 25 percent within 30 days of the final
Agency hearing date.
7. The selected applicant and its subcontractors shall be experienced in assisting
public agencies regarding environmental assessments and regarding compliance
with CEQA and with any other pertinent State and/or County regulations regarding
affordable housing projects and associated components.
VII. Submittal Information
Consultants desiring to respond to this Consultant RFP should submit five (5) copies of
their Proposals, in a sealed enveloped marked "Environmental Analysis — Atlantis
Gardens" prior to the closing date of Thursday, January 6, 2011, at 5:00 pm. All late
submittals will be rejected and returned unopened.
Consultant Proposals should be delivered to:
Azusa Redevelopment Agency
213 East Foothill Blvd.
Azusa, CA 91702-1395
Attn: Kurt Christiansen, Deputy Executive Director
Questions concerning this Consultant Request for Proposal should be directed to Mr.
Conal D. McNamara, Assistant Director of Economic & Community Development, at
(626) 812-5262 or at cmcnamara(&ci.azusa.ca.us. It is important to note that all
contacts regarding this RFP are to be directed to the Azusa Redevelopment Agency.
Any direct or indirect contact with members of the Redevelopment Agency
Governing Board, City Council, or the appointed members of any other City board
or commission during any phase of this consultant recruitment process shall
constitute grounds for the Agency's rejection of the Consultant's proposal.
It is the sole responsibility of the Consultant to ensure that the proposal is delivered
before the closing date, at the above address. No oral, telegraphic, electronic, facsimile,
or telephonic proposals or modifications will be considered. The Agency is not
responsible for deliveries made to any place other than the specified address.
Consultants should be advised that the Azusa Redevelopment Agency offices are
closed every Friday and do not accept mail deliveries on those days.
By submitting a response to this RFP, the Consultant represents that it has thoroughly
examined the requirements of this Consultant RFP, and that it is capable of performing
said tasks and functions.
10
City of Azusa Redevelopment Agency - Consultant RFP
Environmental Analysis— Atlantis Gardens
VIII. Waiver of Rights
The Agency reserves the right, in its discretion, to reject any or all proposals or to waive
any and all defects in any proposal(s). The Agency's waiver of an immaterial defect
shall in no way modify the RFP documents or excuse the Proposer from compliance
with the other provisions of this RFP.
All proposals and materials submitted become the property of the Agency. All
information received by the Agency from any source concerning this RFP and the
Contract, including the Contract itself, may be treated by the Agency as public
information subject to disclosure under the provisions of the California Public Records
Act, Government Code Section 6250 et seq. (the 'Public Records Act'). The
Proposer/Contractor understands that although all materials received by Agency in
connection with this RFP/Contract are intended for the exclusive use of the Agency,
they are potentially subject to disclosure under the provisions of the Public Records
Act. The Proposer/Contractor waives any and all claims for damages, lost profits, or
other injuries of any and all kinds in the event of any such disclosure request and/or
release of any information concerning the RFP/Contract received from the
Proposer/Contractor or any other source.
The Agency reserves the right to cancel this RFP at any time prior to contract award
without obligation in any manner for proposal preparation, interview, fee negotiation or
other marketing costs associated with this RFP.
In consideration of the compensation and other benefits derived from any contract that
may be entered into with the Agency, the Consultant shall agree to indemnify and hold
the Agency harmless from claims or losses arising from, or in connection with, all work
relating to the Project. In addition, the Consultant shall be expected to indemnify the
Agency, officers, employees, or agents and hold said personnel harmless from any and
all claims, liabilities, obligations, and causes of action of whatever find or nature for
injury to, or the death of any persons or the damage or destruction of property during
the term of the contract.
11
ATTACHMENT
Atlantis Gardens,City of Azusa
Developer Proposal Comparison Matrix
• � „q `.;.,Jamboree/7� Mercy -' �_.., National Olioo(.
-i.- AMCAL '. Brid c .. •IIousia i.:, . ";. *' CORE :' ' TELACU/Relined .
Pro'ecl Overview
Project Description Combination of family and Combination of family and Family rental apartments(may Two alternatives submitted: TWO alternatives submitted
senior rental apartments senior rental apartments convert some to senior 1)Combination or family 1)market-rate for sale
apartments depending on and senior rental homes,family and senior
market) apartments with for sale rental apartments
tovmhome
2)All family and senior 2)market-rate for sale
rental homes,senior rental
apartments
Phasing Concept Phase 1 along Alosta,north of Phase 1 west of Cedarglen and Phase 1 along Alosta,north of Phase 1a north of Lime and Phase 1 along Alosta to 6th St.,
Lime and west of Cedarglen to north limit Lime and west of Cedarglen west to Glenfinnian;Phase 1b west to Cedarglen
west of Cedarglen
Phase 2 west of Glenfinnian& Phase 2 Alosta to Cedarglen West of Glenfinnian&north of Phase 2 Cedarglen to Phase 2 along Lime St.
north of Lime north of 6th Lime Glenfinnian and along 6th St. .
• Phase 3 along 6th Street Phase 3 along 6th Street Phase 3 along 6th Street Phase 3 along Alosta Phase 3 West of Cedarglen Dr.
Parcel Acquislion Phase 1-Agency 8;other 7 Phase 1-Agency 12;other 5 Phase 1-Agency 6;other 8 Phase 1a-Agency 8;other 7 Phase 1-Not stated
Phase 1b-Agency 6;other
Phase 2-Agency 4;other 5 Phase 2-Agency 2;other 8 Phase 2-Agency 6;other 5 Phase 2-Agency 4;other 8 Phase 2-Not stated
Phase 3-Agency 6;other 9 Phase 3-Agency 4;other 8 Phase 3-Agency 6;other 8 Phase 3-Agency 0;other 5 Phase 3-Not stated
Units/Phases Phase 1—75 family apts Phase 1—80 family sets Phase 1—67 family opts Alternative A Alternative#1
Phase 2-70 senior apts Phase 2-72 senior apts Phase 2-54 family apes Phase la-77 family apts Phase l-65 townhomes
Phase 3—721ntergen.apts Phase 3—68 family apts Phase 3—72 family apts Phase 1b—80 senior apts Phase 2—70 senior opts
Total Units-217 Total Units-220 Total Units-193 Phase 2-43 family apts Phase 3-67 family sets
Phase 3-30 townhomes Total Units-202
Total Units-230
Alternative#2
Alternative B Phase 1—36 townhomes
Phase le-77 family opts Phase 2-65 townhomes
Phase 1b—80 senior apts Phase 3-70 senior opts
Phase 2-74 family spits Total Units-173
Total Units-231
Density 27 DUTAc 27.5 DUTAc 24.1 DU/Ac 28.75 DU/Ac Ah.1—25,2 DUTAc
AIL 2—21.6 DU/Ac
Affordability 217 units affordable at 30%to 220 units affordable at 30%to 193 units affordable at 30%to 200 or 231 affordable units at 137 or 70 affordable units at 30%
60%AMI 60%AMI 50%AMI 30%to 60%AMI to 60%AMI
Timing At 100%Occupancy: At Perm.Loan Closing: At 100%Occupancy: At Complete Lease Up: At Construction Complete:
Phase 1—June 2014 Phase 1—June 2015 Phase 1—March 2014 Phase 3-Jul 2013 Phase 3-Feb 2014 '
Phase 2—June 2014 Phase 2—Feb.2015 Phase 2—Feb 2015
Phase 3—June 2015 Phase 3—Feb 2016' Phase 3—Feb 2016
Total Project Cost $71.2 million $58.9 million $74.7 million Alt.A-$82.6 million to Alt.1-$54.7 million
$86.4 million(depending
on tax credits)
Alt.B-$74 million to Alt 2-44.9 million
$79.1 million(depending
on tax credits
Agency Assistance Land donation Land donation Land donation Land donation Land donation
Requested Fee waiver(not regn) $7.05 million None AIL A-$2.5 million Alt.1-$14.15 million
All.B-$3.6 million Alt.B-$3.95 million
Developer Entities
1 2;roles described in MOU 1 1 3 without MOU
HRBA Advisors,Inc,;Urban Futures,Inc.
Page 1 of 3 Updated:11-8-2010
ATTACHMENT?
Atlantis Gardens,City of Azusa
Developer Proposal Comparison Matrix
Mercy
. ,;... Nalioual 'O15ori/
- .AMCAL Brid'a Heusid' CORE TELACU/Iteloted
Project Development Costs
Construction Sources Construction Loan- Construction Loan- Construction Loan-N/A Construction Loan- Construction Loan-$12,120,288
Phase 1' Defamed Dev Fee-$649,999 Deferred Dev Fee-$0 Deferred Dev Fee-N/A Deferred Dev Fee-$0 Deferred Dev Fee-$1,314,152
'(Phase 3-Refaled) Azusa Land Donation- Azusa Land Donation- Azusa Land Donation-N/A Azusa Land Donation-$0 Azusa Land Donation-$0
Agency Assistance-$0 Agency Assistance-$1,000,000 Agency Assistance-N/A Agency Assistance-$426,081 Agency Assistance-$0
HOME Funds-$3,000,000 HOME Funds-$0 HOME Funds-N/A HOME Funds-$2,200,000 HOME Funds-$0
COI Funds-$3,000,000 COI Funds-$2,000,000 COI Funtls-N/A COI Funds-$2,000,000 "Resid Receipt Loan"-$6,981,537
Tax Credit Equity-$2,388,684 Tax Credit Equity-$1,828,800 Tax Credit Equity-NIA Tax Credit Equity-$8,970,447 Tax Credit Equity-$657,076
Total-$27,052,047 Total-$21,560,574 Total-$26,543,454 Total-$23,596,527 Total-$21,073,046
TDC Per Unit.$360,694 TDC Per Unit-$269,507 TDC Per Unit-$396,171 TDC Per Unit-$306,448 TDC Per Unit-$314,523
Construction Uses Acquisition-$9,066,906 Acquisition-$7,437,322 Acquisition-$8,996,930 Acquisition-$4,315,000 Acquisition-$25,000
Phase t' Hard Costs-$10,547,577 Hand Costs-$9,797,550 Hard Costs-$10,672,138 Hard Costs-$13,440,087 Hard Costs-$14,725,801
'(Phase 3-Related) Arch&Eng-$875,000 Arch&Eng-$1,880,000 Arch&Eng-$500,000 Arch&Eng-$2,386,000 Arch&Eng-$2,594,208
Interest&Fees-$1,417,446 Interest&Fees-$1,022,066 Interest&Fees-$1,244,189 Interest&Fees-$1,616,638 Interest&Fees-$1.370,000
Legal&Acct-$100,000 Legal&Acct-$591,637 Legal&Acct-$50,000 Legal&Acct-$918,802 Legal&Acd-$0
Reserves-$341,861 Reserves-$132,000 Reserves-$273,541 Reserves-$37-0,000 Reserves-$0
Other-$2,703,167 Other-$0 Other-$3,206,657 Other-$0 Other-$958,037
Developer-$1,999,999 Developer-$700,000 Developer-$1,400,000 Developer-$600,000 Developer-$1,400,000
Total-$27,052,047 Total-$21,560,574 Total-$26,543,454 Total-$23,596,527 Total-$21,073,046
Permanent Sources Tax Credit-$11,943,422 Tax Credit-$9,144,000 Tax Credit-$12,979,298 Tax Credit-$16,039,692 Tax Credd-$13,141,515
Phase l' Perm Loan-$3,321,846 Perm Loan-$4,670,000 Perm Loan-$1.825.036 Perm Loan-$3,336,000 Perm Loan-$950,OOD
'(Phase 3-Related) Deferred Dev Fee-$649,999 Deferred Dev Fee-$230,000 Deferred Dev Fee-$347,000 Deferred Dev Fee-$200,000 Deferred Dev Fee-$0
Azusa Land Donation- Azusa Land Donation- Azusa Land Donation- Azusa Land Donation-$0 Azusa Land Donation-$0
Agency Assistance-$0 Agency Assistance-$1,000,000 Agency Assistance-$0 Agency Assistance-$426,081 Agency Assistance-$6981,531
AHP Funds-$0 AHP Funds-$0 AHP Funds-$660,000 AHP Funds-$385,000 AHP Funds-$0
HOME Funds-$3,000,000 HOME Funds-$0 HOME Funds-$3,000,000 HOME Funds-$2,200,000 HOME Funds-$0
COI Funds-$3,000,000 COI Funds-$2,000,000 COI Funds-$2,792,300 COI Funds-$2,000,000 "Resid Receipt Loan"-$6,981,531
Total-$27,052,047 Total-$22,880,670 Total-$26,543,454 Total-
Tax Credits Pricing $0.87 $24,586,772 Total-$21,073,046
$0.80-$0.82 $0.85 $0.85-$0.87 2$0.62
Debt Coverage Ratio 1.15 1.20 1.15 1.20-7.30 1,pp
Page 2 of 3 HR&A Advisors,Inc.:Urban Futures,Inc.
Updated:11-8-2010
ATTACHMENT
Atlantis Gardens,City of Azusa
Developer Proposal Comparison Matrix
. Samboree/:_, -` Mercy National Olsou/
CALf *=. :.` -. Bid a Aoudm .CORE..':' :.nTELACU/Itelated ��..
Project Operating Cosls
Operating Expense Phase 1-$6,152 Phase 1-$5,453 Phase 1-$6,231 Alternative Alternative 1
Per Unit Per Year Phase 2-$5,086 Phase 2-$5,455 Phase 2-$5,748 Phase la-$5,892 Phase 1-NIA
Year Phase 3-$6,162 Phase 3-$5,711 Phase 3-$5,607 Phase ib-$6,164 Phase 2-$9,246
Phase 2-$5,739 Phase 3-$6,190
Phase 3-N/A • Alternative
Alternative B Phase 1-NIA
Phase la-$5,892 Phase 2-N/A
Phase lb-$6,164 Phase 3-$9,246
Phase 2-$5,535
Social Services Budget Phase 1-$230 Phase 1-Unknown Phase 1-$896 Alternative A Alternative 1
Per Unit Phase 2-$246 Phase 2-$600 Phase 2-$556 Phase is-$240 Phase l-N/A
Per Year Phase 3-$239 Phase 3-$600 Phase 3-$486 Phase ib-$240 Phase 2-$847
Years Phase 2-$240 Phase 3-$0
Phase 3-N/A Alternative 2
Alternative B Phase 1-N/A
Phase la-$240 Phase 2-NIA
Phase lb-$240 Phase 3-$847
Phase 2-$240
Net Operating Phase 1-$4,526 Phase 1-$3.813 Phase 1-$3.372 Alternative A Alternative 1
Income Per Unit Per Ye Phase 2-$3,967 Phase 2-$2.082 Phase 2-$3,928 Phase 1a-$4,489 Phase l-N/A
Year Phase 3-$3,791 Phase 3-$2,559 Phase 3-$3,904 Phase lb-$0 Phase 2-$0
Phase 2-$4,259 Phase 3-$1,683
Phase 3-N/A Alternative 2
Alternative B Phase i-NIA
Phase la-$4,489 Phase 2-N/A
Phase 1b-$0 Phase 3-$0
Phase 2-$4,259
Total Cash Available Phase 1-$60,699 Phase 1-$94,262 Phase 1-$0 Alternative A Alternative 1
For Distribution Phase 2-$50,209 Phase 2-$0 Phase 2-$0 Phase la-$54,514 Phase l-NIA
Per Year Phase 3-$47,026 Phase 3-$0 Phase 3-$0 Phase lb-$0 Phase 2-$0
Year Phase 2-$0 Phase 3-$29,114
Phase 3-NIA Alternative
Alternative B Phase t-NIA
Phase la-$54,514. Phase 2-N/A
Phase lb-$0 Phase 3-$0
Phase 2-$48,177
HBBA Advisors,Inc,;Urban Futures,Inc.
Page 3 of 3 Updated:11-8-2010
. hJ OF�G
U u•
lop
CITY OF AZUSA
MINUTES OF THE REDEVELOPMENT AGENCY
REGULAR MEETING
MONDAY,NOVEMBER 15,2010—8:58 P.M.
The Board of Directors of the Redevelopment Agency of the City of Azusa met in regular session at the
above date and time in the Azusa Auditorium,213 E.Foothill Blvd.,Azusa CA.
Chairman Rocha called the meeting to order. Call to Order
ROLL CALL Roll Call
PRESENT: DIRECTORS: GONZALES,CARRILLO,MACIAS,ROCHA
ABSENT: .DIRECTORS: HANKS
ALSO PRESENT: - Also Present
General Counsel Carvalho, Executive Director Delach, Assistant Executive Director Makshanoff,
Department Heads,Secretary Mendoza,Deputy Secretary Toscano. -
The CONSENT CALENDAR consisting of items F-I through F-3 was approved by motion of Director Consent Cal.
Gonzales,seconded by Director Carrillo and unanimously"carried. Approved
1. Minutes of the regular meeting of November 1,2010,were approved as written. Min appvd
2. SPECIAL CALL ITEM. Spec Call
3. Resolution authorizing payment of warrants by the Agency was adopted and entitled:
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA Res. 10-R36
ALLOWINGCERTAIN CLAIMS AND DEMANDS TO BE PAID OUT OF REDEVELOPMENT Warrants
AGENCY FUNDS.
SPECIAL CALL ITEMS Spec Call Items
REQUEST FOR PROPOSAL TO DEVELOP A RESIDENTIAL PROJECT ON THE FORMER RFP Developer
MILLER PROPERTY AT THE NORTHEAST CORNER OF NINTH STREET AND ALAMEDA Miller Prop
AVENUE.
Chairman Rocha referred to the staff report asking if there will be two or some affordable units with Question
respect the proposed project. Staff responded that there would be a minimum of two affordable units and &Response
noted that proceeds will go into housing set aside program at Atlantis Gardens.
Moved by Director Gonzales, seconded by Director Carrillo and unanimously carried to approve the RFP
Developer Request for Proposal for the Ninth and Alameda Project including the four parcels of Agency- Miller
owned land at the northeast comer of Ninth Street and Alameda Avenue,collectively referred to as the Prop approved
"Miller Property"(APN's 8608-019-901,-902,-903,and -904).
It was consensus of the Redevelopment Agency Board Members to adjourn. Adjourn
TIME OF ADJOURNMENT: 9:01 P.M.
SECRETARY
NEXT RESOLUTION NO. 10-1137.
"Indicates Director Hanks absent.
1
s �y ORAZ�
, t
AGENCY CONSENT ITEM
TO: HONORABLE CHAIRPERSON AND AGENCY MEMBERS
FROM: MARCENE HAMILTON, REDEVELOPMENT AG CY TREAS R
DATE: December 6. 2010
SUBJECT: REDEVELOPMENT AGENCY OF THE CITY OF AZUSA TREASURER'S
STATEMENT OF CASH BALANCES FOR THE MONTH OF OCTOBER 2010
RECOMMENDATION
It is recommended that the Agency Members receive and file the Agency Treasurer's Statement of
Cash Balances for the Redevelopment Agency of the City of Azusa for the month of October 2010.
BACKGROUND
Transmitted herewith is the Agency Treasurer's Statement of Cash Balances for the Redevelopment
Agency of the City of Azusa("Agency") for the month of October.2010. Agency investments are
made in accordance with the Redevelopment Agency Investment Policy approved and adopted with
Resolution No. 09-R53 dated October 5, 2009, and Government Code Section 53601. Investment
activity is summarized in the"Treasury Book Balances-Cash and Investments" schedule, attached
herewith and an integral part of this report.
Agency cash and investment balances increased by $63,231.65. Cash received totaled
51,063,231.65, and disbursements of$1,000,000.00 were made.
The Agency is the issuer of several Merged Project Tax Allocation Bonds. Of the total cash and
investments of$8,547,324.78, Wells Fargo Bank, the fiscal agent, held$4,112,116.63 on behalf of
the Agency. These funds are restricted for payment of debt service on the bonds and special bond-
funded projects. The remaining $4,435,208.15 was available for Agency operating, debt service,
restricted expenses, and outstanding liabilities.
FISCAL IMPACT
The balance of cash and investments and projected revenues for the next six months is expected to
be sufficient to meet cash disbursement requirements for at least the next six months.
MH:[G
CITY OF AZUSA
REDEVELOPMENT AGENCY
TREASURY BOOK BALANCES-CASH AND INVESTMENTS
OCTOBER 2010
Maximum
Deposits Cost Interest Mkt
Bank Accounts Allowed Amount Pledged Securities Maturity Rate Value'
CASH AND INVESTMENTS HELD BY AGENCY TREASURER
Wells Fargo Bank
Government Checking No limit $339,189.83 FDIC up to$100,000.00 Ongoing 0.000% $339,189.63
>5100,000 collalerized by 110%in govn'I securities
Local Agency Investment Fund(LAIF) $20,000,000.00 4,095,D18.32 Backed by faith 8 credit of the Slate of California Ongoing 0,500% 4,103.861 58
SUBTOTAL CASH AND INVESTMENTS
HELD BY AGENCY TREASURER: $4,435,206.15 54,443,051.41
Interest Collections: $3.993.51
CASH AND INVESTMENTS HELD BY FISCAL AGENT
2003 Merged Prosect Tax Allocation Bonds
2003A Special Fund
AIM GoVt Portfolio No limit 0.35 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% 0.35
2003A Interest Account
AIM GeV[Portfolio No limit 0.30 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% 0.30
2003A Principal Account
AIM GoVt Portfolio No limit 0.76 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% 0.76
2003A Reserve Account
Reliance Certificate of Deposit No limit IC85.19259>5100,000 collatenced by 110%in goi securities 12104/14 0.040% 1,065,192.59
Reliance Trust Co.Cash Equivalent Mmkl No limit 11,385.71 NIA Ongoing 0.000% 11,385.71
AIM GaVI Portfolio No limit 1.149.88 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% 1.149.88
2003 Merged Project Tax Allocation Bonds Subtotal: $1,097,729.59 $1.097,729.59
Interest Collections: $0.12
2005 Merged Protect Tax Allocation Bonds
2005 Special Fund
Wells Fargo Advantage Gov't Mmkl No limit $9.142.04 NIA Ongoing 0.010% 59,14204
2005 Interest Amount
Wells Fargo Advantage Gov't Mmkl No limit 0.15 N/A Ongoing 0.000% 0.15
2005 Redevelopment Fund
AIM Institutional Prime-Cash MpmVMMk No limit 0.01)N/A Ongoing 0.000% D.DO
2005 Reserve Amount
Reliance Certificate of Deposit No limit 869,259.17>$100,000 collalerized by 110%in govnt securities 12/04114 0.010% 869,259.17
Reliance Trust Co.Cash Equivalent Mmkt No limit 0.03 N/A Ongoing 0.000% O03
2005 Merged Project Tax Allocation Bonds Subtotal: $878,401.39 5878,401.39
Interest Collections: $0,11
2007A Merged Project Tax Allocation Bonds
2007A Bond Fund
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.92 NIA Ongoing 0.000% 50.92
2007A Interest Account ,
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.37 N/A Ongoing 0.000% 50.37
2007A Principal Account
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.32 NIA Ongoing 0.000% $0.32
2007A Merged Project Tax Allocation Bonds Subtotal: $1.61 $1.61
Interest Collections: $D.00
20078 Merged Protect Tax Allocation Refunding Son
20070 Bond Fund
Wells Fargo Advantage 100%Treasury Mri No limit $3.078.05 NIA Ongoing 0.000% $3,078.05
2007B Interest Account
CITY OF AZUSA
REDEVELOPMENT AGENCY
TREASURY BOOK BALANCES-CASH AND INVESTMENTS
OCTOBER 2010
Maximum
Deposits Cost Interest Mkt
Bank Accounts Allowed Amount Pledged Securities Maturity Rate Value'
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.09 N/A Ongoing 0.000% $0.09
20078 Principal Account
Wells Fargo Advantage 100%Treasury Mmkt No limit SO.07 N/A Ongoing 0.000% $0.07
20078 Reserve Fund
Reliance Certificate of Deposit No limit 325,042.50>$I 00,000 collatedzed by 110%in govn't securities 12104/14 0.010% 325,042.51)
Reliance Trust Co.Cash Equivalent Mmkt No limit 0,00 N/A Ongoing 0.000% O.OD
20876 Merged Project Tax Allocation Bonds Subtotal S328.120.71 S328,120.71
Interest Collections: SO.03
2888A Merged Project Tax Allocation Bonds
2008A Band Fund
Wells Fargo Advantage 100%Treasury Mmkl No limit $8,66&04 N/A Ongoing 0.010% $8,688.04
200BA Interest Account
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.21 N/A Ongoing 0.000% $0.21
2008A Reserve Fund
Reliance Trust Go.Savings and Con,of Deposit No limit $655,24076 -$100,000 collaterized by 11D%in govn'I securities 12/19113 2.650% 655.240.76
Reliance Trust Co.Cash Equivalent Mmkl No limil $O 01 NIA Ongoing 0.000% 0.01
2008A Redevelopment Fund
Wells Fargo Advantage 100%Treasury Mmkt No limit SD.06 N/A Ongoing 0.000% $0.06
2008A Merged Project Tax Allocation Bonds Subtotal: 5663.90908 $663.909.08
Interest Collections: 50.08
28088 Merced Project Tax Allocation Housina Bonds
2DOSB Bond Fund
Wells Fargo Advantage Government Mmkt No limit $20,471.32 NIA Ongoing 0.010% $20,471.32
20086 Interest Amount
Wells Fargo Advantage Government Mmkt No limit S0.31 NIA Ongoing 0.000% 50.31
2006B Reserve Fund
Reliance Trust Co.Savings and Cert.of Deposit No limit S1.123,482.50 4100,000 rollaterand by 110%in govn't securities 11/21113 4.00% 1.123,482.50
Reliance Trust Co.Cash Equivalent Mmkt No limit $0.02 N/A Ongoing 0.0"% 0.02
20DSB Low&Moderate Income Housing Fund
Reliance Trust Go,Cash Equivalent Mmkt No limit D.DO>S100,000 collatenzed by 110%in govn't securilies Ongoing 0.000%. 0.00
Wells Fargo Advantage Government Mmkt No limit 50.10 NIA Ongoing 0.000% 0.10
20088 Merged Project Tax Allocation Bonds Subtotal: $1,143,954.25 $1.143.954.25
Interest Collections. $0.19
SUBTOTAL CASH AND INVESTMENTS
HELD BY FISCAL AGENT: $4,112,116.63 $4,112,116.63
Total-Azusa Redevelopment Agency
Cash and Investments: $8,547,324.78 $8,555,168.04
Total Interest Collections: $3,994.04
Source of Market Value Information:
Wells Fargo Corporate Tmst.Trustee
Local Agency investment Fund(LAIF)
Wells Fargo Institutional Securities
Tax Allocation Bond Data is based on Trustee-generated Statements:bond funds listed
herein are restricted for payment of debt service and eligible projects and governed by
strict regulations described in the Trust Indentures.
'Market Value is the current price at which a security can be traded or sold.
CITY OF AZUSA REDEVELOPMENT AGENCY
AGENCY TREASURER'S STATEMENT OF CASH
AND INVESTMENT COST BALANCES
OCTOBER 2010
Beginning Cash Balance $8,484,093.13
(All Restricted and Unrestricted Accounts & Investments)
Receipts (All Sources) 1,063,231.65
Disbursements (1,000,000.00)
Ending Cash Balance $8,547,324.78
(All Restricted and Unrestricted Accounts & Investments)
Marcene Hamilton, Agency Treasurer
AZUSA REDEVELOPMENT AGENCY
TREASURER-HELD ACCOUNTS
OCTOBER 2010
WELLS FARGO
GOVT CHKG SECURITIES LAIF TOTAL
BAL @ 10/1/10 1,279,952.22 3,092,024.81 4,371,977.03
RECEIPTS:
DEPOSITS 59,237.61 59,237.61
INTEREST 3,993.51 3,993.51
DIVIDEND SWEEP TRANSFER 0.00
TREASURER'S ADJUSTMENTS 0.00
TOTAL RECEIPTS 59,237.61 0.00 3,993.51 63,231.12
DISBURSEMENTS:
CASH DISBURSEMENTS 0.00
REIMBURSE CITY 0.00
OTHER DISBURSEMENTS 0.00
TOTAL DISBURSEMENTS 0.00 0.00 0.00 0.00
OPER INCREASE/(DECREASE) 59,237.61 0.00 3,993.51 63,231.12
TRANSFERS:
CHECKING TRANSFERS 0.00
SAVINGS TRANSFERS 0.00
LAIF TRANSFERS (1,000,000.00) 1,000,000.00 0.00
B of A C.D. 0.00
LA COUNTY TRANSFERS 0.00
REHAB CKG TRANSFERS 0.00
TOTAL TRANSFERS (1,000,000.00) 0.00 1,000,000.00 0.00
BAL @ 10/31/10 339,189.83 0.00 4,096,018.32 4,435,208.15
4,435,208.15
WARRANT REGISTER NO.4
WARRANTS DATED 10/16/10 THROUGH 10/31/10 FISCAL AR 2010-11
FOR REDEVELOPMENT AGENCY MEETING OF 12-06-10
RESOLUTION NO. .
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE
CITY OF AZUSA ALLOWING CERTAIN CLAIMS AND DEMANDS
TO BE PAID OUT OF REDEVELOPMENT AGENCY FUNDS
THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA DQES RESOLVE AS
FOLLOWS:
SECTION 1. That the following claims and demands have been audited as required by law and that
the same are hereby allowed in the amounts and ordered paid out of the Redevelopment Agency Funds as
hereinafter set forth:
80-110-REDEVELOPMENT ADMINISTRATION FUND $ 6.529.07
80-125-CBD CAPITAL PROJECTS FUNDj 075 35
80-135-WED CAPITAL PROJECTS FUND
80-185-RANCH CAPITAL PROJECTS FUND
80-165-624-2008A TAX ALLOCATION BONDS 71235.57
57
81-155-TAX INCREMENT SET-ASIDE FUND 4,020.00
81-165-LM MRG TAB08B HS
82-125-CBD DEBT SERVICE FUND
82-135-WED DEBT SERVICE FUND
82-165-MERGED PROJECT TAX ALLOCATION BONDS -
82-185-RANCH CENTER DEBT SERVICE FUND
TOTAL ALL FUNDS: $ 85.859 99
SECTION 2. That the Secretary shall certify to the adoption of this resolution and shall deliver a
certified copy thereof to the Agency Treasurer and shall retain a certified atpy thereof in his own records.
ADOPTED AND APPROVED THIS DAY OF 2010.
Chairman
1 HEREBY CERTIFY that the foregoing resolution was duly adopted by the Redevelopment Agency of the
City of Azusa at a regular meeting thereof, held on the day of 2010.
AYES: AGENCY MEMBERS:
NOES: AGENCY MEMBERS:
ABSTAIN: AGENCY MEMBERS:
ABSENT: AGENCY MEMBERS:
Secretary
ty of Azusa HP 9000 11/30/10 O P E N H 0 L D D B LISTING By �/Ehtity Nacre Page
Ci
, MV 30, 2010, 1:57 RSI ---req: =-------leg: GL JL---loc: BI-TECH---job: 785290 W15098--P3n 1"400 <1.34> xpt id: CHFLIR02
SECFZ-T FLUID mss: 80-82 ; Check Issue Cates; 101610-103110
PE ID PE Nacre AC= NMER / JOB NDEER Invoice NLTber Les=ipticn St Disc. Part. Dist. Part.
V05613 A T & T 8010110000-6915 6263345464092410 0517751058001/62 PD 0.00 9.37
PEID Id: 0.00
d: 9.37
Total: 9.37
00270 AMIEN5 SERVICES 8010125000-6815/505800-6815 364722000093010 624N SAN GNIZIEL RV 0.00 175.33
PEID Ut0.00
Pa d: 0.00
Total: 0.00
Reversed: 175.33
V00363 AZ[1SA CH4vBER OF 8010110000-6630 3080 FY 2010/2011 AZU M 0.00 2,712.15
FEID Umdd: 0.00
P : 2,712.15
Total: 2,712.15
01305 AZUSA CITY EnDLD 8000000000-3035 2610/1001021 M21/10 PD 0.00 285.00
P= Uipaid: 0.00
Paid: 285.00
Total: 285.00
00365 AZ�LCA LIGHT & WA 8010110000-6904/505820-6904 030846301092310 628 GG\50470 -6904 000643301092910 E L PPD 0..00 728.81
00 469.94
P= d: 0.00
Paid: 1,198.75
Total: 1,198.75
07432 BARR & CLARK DU 8110155000-6650 21095 LBP INSPECTICN/9 PD 0.00 200.00
MID 0.00
Paid: 200.00
Thtal: 200.00
V12477 C.T.& F. IIQC 8010165624-2745 50459 Ccntracts� P�b�l�//Co PD 0.00 -8,026.18
V12477 C.T.& F. INC
C 8010165624-7170/661107170 50459 TA1�Ef INIERSECT PO 0.00 80,261.75
P= Urp�dd: 0.00
City of Azusa HP 9000 11/30/10 O P E N H 0 L D D B LISTING By Pers�/Eritity Nave Pie 2
IUB i�V 30, 2010, 1:57 R7 ---req: RUBY-------leg: GL ,IL---loc: BI-TEM---job: 785290 W15098--pin: CH400 <1.34> rpt id: CHMR02
SELECT FUSE) Codes: 80-82 ; Check Issue Dates: 101610-103110
EDE ID EE Naree AC-rL[Nl' NUvBER / JOB NUMBER Invoice Thurber De=pticn St Disc. Art. Dist. Ant.
-- — �- Paid: 72,235.57
Total: 72,235.57
V04281 CALIFORNIA RECEV 8110155000-6230 27789 MRvEE UP /6655 PD 0.00 3,820.00
PEID LIV: 0.00
Paid: 3,820.00
Total: 3,820.00
V06783 CITISIREET 8000000000-3010 2315/1001021 PY#21/10 PD 0.00 125.08
PEID Laid: 0.00
Paid: 125.08
Total: 125.08
V11556 DELTA DENIAL 8000000000-3052 101210 PIS FREi =010 PD 0.00 360.58
PEID ihux2id: 0.00
Paid: 360.58
Total: 360.58
V11555 LE LIA.05PE L)SA 8000000000-3052 3749208 HAD PRIIK =010 FD 0.00 31.70
PEED Ururaid: 0.00
Paid: 31.70
Notal: 31.70
V08010 LUKE'S LAI\DSO�PI 8010125000-6815 5489 SERVICES JULY201 PD 0.00 5,130.00
V08010 LUKE'S LUPI 8010125000-6815/505800-6815 101510 ]DUPLICATEP F 0.00 -4,700.00
V08010 LUKE'S LAMPS 8010125000-6815/505800-6815 5535 CLEAN UP 813 809 PD 0.00 2,600.00
PEID U72idd: 0.00
PPaaii : 3,030.00
Total: 3,030.00
V00331 FEDERAL EXPRESS 8010125000-6625/505320-6625 724338436 117052788/P.SILV PD 0.00 45.35
PEID skid: 0.00
Paid: 45.35
Total: 45.35
V05574 IFM MRIVPAIN RE 8010110000-6493 CW7738CMg7745 CDV7738-O\V7745 PD 0.00 134.14
City of Azusa HP 9000 11/30/10 O P E N H 0 L D D B LISTING By Person/Entity Nate Paqe 3
NJV 30, 2010, 1:57, FM ---req: RUBY-------leg: GL JL---lcc: BI-=---jcb: 785290 #a5098--pg-n: CH400 <1.34> rpt id: CHFLIR02
SELECT' FUTD Ctchs: 80-82 ; Check Issue Rtes: 101610-103110
PE ID PE Nacre ACLCYNi' NUMBER / JCB NLNBER Invoice NlaTber Descripticn St Disc. Ant. Dist. Ant.
PEID 0.00
d: 134.14
Total: 134.14
V03126 LTN3MN NATTCMI, 8000000000-3010 2325/1001021 PY#21/10 PD 0.00 50.00
PEID d: 0.00
Paid: 50.00
Total: 50.00
V10322 M & T BINK 8000000000-3042 10/12/10 MmICPL CPRE REI PD 0.00 50.00
V10322 M & T BINK 8000000000-3010 101210 401A CMIRIBJITO FD 0.00 673.00
V10322 M & T BANK 8000000000-3010 10/12/10 IOVA 457 DEFFZ2RE PD 0.00 489.77
PEIDd: 0.00
Paid: 11212.77
Total: 1,212.77
V08056 SI7aI\EMD IIZUPN 8000000000-2725 093010 LIFE PREM OCIOBE FD 0.00 95.20
V08056 S'BWTsRD INSURAN 8000000000-3044 093010D DISABILITY PREM PD 0.00 290.14
MID Lhuzzid: 0.00
Paid: 385.34
Total: 385.34
V00388 VERIZCN 8010110000-6915 6261975078092810 626-1975078 PD 0.00 19.62
PEID d: 0.00
P�Lid: 19.62
Tbtal: 19.62
V00876 VVLc2U K,ZC�T KJR A 8000000000-3010 2335/1001021 PY#21/10 PD 0.00 4.57
PEIDd: 0.00
Paid: 4.57
Total: 4.57
GRAND TOTALd: 0.00
d: 85,859.99
Total: 85,859.99
Reversed: 175.33
ORDINANCE NO. -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA,
CALIFORNIA, PROHIBITING SLEEPING IN VEHICLES ON PUBLIC
AND PRIVATE PROPERTY
THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY ORDAIN AS
FOLLOWS:
Section 1. Chapter 74 of the Azusa Municipal Code shall be amended to add
a new Section 74-439.1 to read as follows:
Sec. 74-439.1. Sleeping in Vehicles is Prohibited.
It shall be unlawful for any person to lodge or sleep, on or about any
automobile, truck, trailer, camper, recreational vehicle or similar vehicle in or on any
public street, public park areas, right—of-way, or public or private parking lot or other
public property within the City's jurisdictional boundaries.
Section 2. If any section, subsection, sentence, clause, phase, or portion of
this Ordinance is for any reason held to be invalid or unconstitutional by the decision of
any court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have adopted this Ordinance, and each section, subsection, subdivision, sentence,
clause, phrase or portion thereof, irrespective of the fact that any one or more sections,
subsections, subdivisions, sentences, clauses, phrases or portions might subsequently
be declared invalid or unconstitutional.
Section 3. This Ordinance shall become effective thirty (30) days after its
adoption.
Section 4. The City Clerk shall certify the adoption of this Ordinance and shall
cause the same to be posted as required by law.
PASSED, APPROVED, AND ADOPTED this day of 2010.
Joseph Rocha
ATTEST: Mayor .
Vera Mendoza
City Clerk