HomeMy WebLinkAboutAgenda Packet - January 04, 2011 - CC r ire U,
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AGENDA
REGULAR MEETING OF THE CITY COUNCIL, AND
THE REDEVELOPMENT AGENCY
AZUSA AUDITORIUM TUESDAY, JANUARY 4, 2011
213 EAST FOOTHILL BOULEVARD 6:30 P.M.
AZUSA CITY COUNCIL
JOSEPH R. ROCHA
MAYOR
KEITH HANKS ANGEL CARRILLO
COUNCILMEMBER COUNCILMEMBER
URIEL E. MACIAS ROBERT GONZALES
COUNCILMEMBER MAYOR PRO-TEM
NOTICE TO THE PUBLIC
Copies ofstaffreports or other written documentation relating to each item ofbusiness referred to on the Agenda
are on file 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 of the Agenda, shall fill out a card requesting to
speak and shall submit it to the City Clerk-prior to the start of the City Council meeting. When called, eachperson
may address any item on or off the agenda during the public participation.
6:30 P.M.
CEREMONIAL
Presentation.of Certificates of Appreciation to the sponsors of the Golden Days Celebrity Softball Game event.
01/04/11 1 _
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 SEN, 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
TALLEY PROPERTY
Address: 619 - 621 N. Azusa Avenue, Azusa
Negotiator: RE Management Services LLC
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.
I. Call to Order
2. Pledge to the Flag
3. Invocation - Bishop Sergio A. Rios, Azusa 2nd Ward of The Church of Jesus Christ of Latter-Day Saints
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
1. Mayor Rocha—Request for proclamation for Ms.Nellie Cesena in honor of her retirement from the Azusa
Unified School District after 30+ years of service.
2. VULCAN PROJECT INFORMATION ITEM: RESPONSES AND DISCUSSION REGARDING
ONGOING COMMENTS AND QUESTIONS.
RECOMMENDED ACTION:
Receive the report and ask staff questions pertinent to the Vulcan Mining Project.
3. Discussion regarding change of date for January Utility Board Meeting due to conflict with CMUA Capital
Day.
01/04/11 2
q C. SCHEDULED ITEM
1. PUBLIC HEARING — COMMUNITY DEVELOPMENT BLOCK GRANT CDBG 37TH YEAR
PROGRAM (FY 2011/12).
RECOMMENDED ACTION: Open the Public Hearing, receive testimony and presentation of the
proposed projects-, close the Hearing. Adopt the Resolution No. l l-Cl, approving the 37h Year CDBG
projects.
. 2. PUBLIC HEARING—ACCEPTANCE OF 2010 JUSTICE ASSISTANCE GRANT FUNDS
RECOMMENDED ACTION:
Open the Public Hearing;receive testimony, close the Hearing. Accept grant funds in the amount of 521,748
to be used for the purchase of Mobile Digital Video Cameras for use in police vehicles.
D. CONSENT CALENDAR
The Consent Calendar adopting the printed recommended actions will be enacted with one vote. If
Councilmembers 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 DECEMBER 6 2010.
RECOMMENDED ACTION:
Approve Minutes as written.
2. HUMAN RESOURCES ACTION ITEMS
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 NOVEMBER 30 2010.
RECOMMENDED ACTION:
Receive and file the Report.
4. AZUSA CITY EMPLOYEES ASSOCIATION (ACEA) CONTRACT JULY 1 2010 THROUGH
JUNE 30. 2011
RECOMMENDED ACTION:
Adopt Resolution No. I 1-C2,approving the Azusa City Employees Association(ACEA)contract dated July
1, 2010 thru June 30, 2011.
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5. PURCHASE OF TOTAL STATION MAPPER KIT
RECOMMENDED ACTION:
Approve the purchase of a Sokkia Law Enforcement Remote Mapper Kit Total Station Model SRXS from
ABC Surveying Instruments of Glendale, CA in an amount not to exceed S 19,983.28 per Azusa Municipal
Code Section 2-522 (c), competitive bidding already completed under GSA# GS-07F-0104T for this
product.
6. MEMORANDUM OF AGREEMENT WITH THE LOS ANGELES REGIONAL INTEGRATED
LAW AND JUSTICE PROJECT ("LARILJP) REGARDING THE COPLINK SYSTEM.
RECOMMENDED ACTION:
Approve the Chief of Police to enter into the Memorandum of Agreement with the Los Angeles Regional
Integrated Law and Justice Project ("LARILJP") for the continued use of the "COPLINK" system and
authorize the Chief of Police to execute such MOA.
7. NOTICE OF COMPLETION —POLICE STATION HVAC REPLACEMENT (CIP #31010E)
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: Police Station HVAC Replacement (CIP #31010E) -
5173,376—Allison Mechanical Inc.
8. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE CITY.
RECOMMENDED ACTION:
Adopt Resolution No. 1 I-C3.
RECESS AS THE CITY COUNCIL AND CONVENE AS THE AZUSA REDEVELOPMENT AGENCY
E. AGENCY SCHEDULED ITEMS
None.
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 DECEMBER 6. 2010.
RECOMMENDED ACTION:
Approve Minutes as written.
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2. AGENCY TREASURER'S REPORT AS OF NOVEMBER 30 2010.
RECOMMENDED ACTION:
Receive and file the Report.
3. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE AGENCY.
RECOMMENDED ACTION:
Adopt Resolution No. 11-R1.
RECESS AS THE REDEVELOPMENT AGENCY AND RECONVENE AS THE AZUSA CITY COUNCIL
G. ORDINANCES/SPECIAL RESOLUTIONS
L AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, APPROVING THE
POWER SALES AGREEMENT WITH SOUTHERN CALIFORNIA PUBLIC POWER
AUTHORITY FOR THE LA PAZ SOLAR TOWER PROJECT
RECOMMENDED ACTION
Waive further reading and adopt Ordinance No. 11-01,approving the Power Sales Agreement with SCPPA
for LA PAZ Solar Tower Project:
H. ADJOURNMENT
1. Adjourn in memory of Victor Bracamontes II and Ms. Charlotte Swerstad.
UPCOMING MEETINGS:
January 18, 2011 (Tuesday) City Council Meeting—6:30 p.m. Azusa Auditorium.
January 24, 2011, Utility Board Meeting - 6:30 p.m. Light and Water Conference Room.
February 7, 2011, City Council Meeting— 6:30 p.m. Azusa Auditorium.
February 22, 2011, (Tuesday), City Council Meeting— 6:30 p.m. Azusa Auditorium.
In compliance with Government Code Section 54957.5, agenda materials are available for inspection by members of the
Public at the following locations: Azusa City Clerk's Office-213 E. Foothill Boulevard,Azusa City Library- 729 A.Dalton
Avenue, and Azusa Police Department Lobby- 725 N.Alameda,Azusa, California.
In compliance with the Americans with Disabilities Act,ifyou need special assistance to participate in a citi,meeting,please
contact the Citi,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.
01/04/11 - 5 -
REPORTS AND UPDATES
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: F.M. DELACH, CITY MANAGER/ro
DATE: JANUARY 4, 2011 MANAGEq/ro
SUBJECT: VULCAN PROJECT INFORMATION ITEM: RESPONSES AND DISCUSSION
REGARDING ONGOING COMMENTS AND QUESTIONS
RECOMMENDATION
That the City Council receives the report and asks staff questions pertinent to the Vulcan Mining
Project.
BACKGROUND
In the wake of some statements made by both opponents and proponents of the Vulcan Mining Project
and the Council approved Development Agreement(now the subject of Referendum),staff felt it would
be helpful to have a consolidation of factual data and information with which to address questions and
concerns by constituents. Included as an attachment to this report is a copy of the 51 questions and
answers previously brought to the City Council on May 17,2010,as well as the Matrix of Issues raised
by the City Council prior to approval of the project.
Staff is available to answer any questions that the City Council may have regarding this issue,however,
in-light of the current lawsuit with the City of Duarte it may not be appropriate to answer all questions
and staff will defer to the City Attorney.
FISCAL IMPACT
There is no fiscal impact at this time.
Attachments:
Questions and Responses from Public Review Process
Matrix of Issues Raised by City Council
Questions and Responses from Public Review Process
1. Are the plants to achieve reclamation coming from seeds or mature plants?
Reclamation will occur with both seed and plant. The proposed methods for revegetation
including the use of seeds and plants are presented in the DEIR, specifically in the Reclamation
Guidelines Figure 3-19, page 3-41. This graphic, which is a plan sheet in the reclamation plan,
outlines the reclamation guidelines including numbers 12. Seed materials (including a seed list)
and 13. Container materials. It also describes the methodologies for contouring, surface
preparation, irrigation and weed control. It also states the expected performance standards
required of the reclamation plan.
2. Why not use the 2009 production figure for the air quality baseline?
The baseline utilized for the EIR reflects the amount of production that occurred at the Azusa
Rock Quarry between 2007 and 2008. This data was used because it was the most recently
available at the time the Proposed Project air quality technical report was prepared. This lengthy
report (consisting of three separate volumes) was prepared for submission as part of the Project
Application, and thus predated the issuance of the Notice of Preparation for the Project. In order
to maintain a consistent analysis in the EIR, the entire EIR's baseline of analysis was set at the
same time range/rate of production. This baseline is based upon actual historical operational
production of the Quarry at the time that analysis was begun, and thus represents a reasonable
baseline for the purposes of CEQA. Note that since 1995, production at the Quarry has varied
considerably, with a peak production of 1.7 million tons per year and an average of about
700,000 tons per year. Insofar as CEQA would allow usage of a 1.7 million tons per year
baseline because that is the maximum amount of production that was actually historically
realized, a baseline of 1.1 million tons per year from the 2007-2008 time period is more
conservative.
3. Is it true that there are 20 blasts now and there will be 100 per year in the future?
The analysis in the Draft EIR disclosed that blasting currently occurs about 20 times per year,
which would be increased to a maximum of 100 blasting events per year under the Proposed
Project. This increase has been openly acknowledged by City staff throughout this process.
4. If so, does the 20,400 additional lbs. divided by 365 days result in exceeding emission
limits?
No. While the annual amount of blasting will increase. no more than one blast will occur per day
under the Proposed Project, the same as under existing conditions. Because the maximum
amount of blasting in any day will be the same under both existing conditions (i.e., the baseline)
and the Proposed Project, there is no net change in the amount of actual (not average) emissions
per day from blasting. The daily mass thresholds of significance for air pollution that the
SCAQMD has promulgated and that is used extensively in CEQA analysis focuses on whether a
project would result in an incremental increase in the amount of pounds per day of pollutant
emitted as compared to existing baseline conditions (the "mass daily emissions significance
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thresholds"). Thus, in conducting this analysis, the City properly did not attribute any increase in
day-specific emissions from blasting because on days on which there is blasting, the Proposed
Project would not differ from existing conditions at all.
Furthermore, it should be noted that the comment that the total amount of emissions from 100 or
80 blasts should be divided by 365 days (or 312 days) to come up with an "average" amount of
emissions per day due to blasting is inconsistent with this methodology because it would
essentially assume that there are 0.27 blasts per day (in the case of a division by 365 days) or
0.32 blasts per day (in the case of a division by 312 working days). This is nonsensical because
there either is a blast on a day, or there isn't; a third of a blast cannot occur. This analysis was
reviewed by the SCAQMD, and no objection was made to the City's application of SCAQMD's
own methodology.
It could be argued that focusing on a daily emission threshold obscures the fact that blasting
emissions would increase when viewed on an annual basis. However, the mass emissions
thresholds are designed by SCAQMD.to help implement its Air Quality Management Plan. The
AQMP is the action document designed to help the South Coast Air Basin achieve and/or
maintain attainment with the National Ambient Air Quality Standards ("NAAQS") and make
progress toward attainment of California Ambient Air Quality Standards (`CAAQS"), which are
health-based standards established pursuant to the federal and state Clean Air Acts. Some of
those standards are based on annual average levels of pollutants and others are based on the 24-
hour, 8-hour, and 1-hour average levels of pollutant concentrations in the air. The SCAQMD's
mass daily emissions thresholds are related to the 24-hour, 8-hour and 1-hour average NAAQS
and CAAQS. For example, the SCAQMD's NOx mass daily emission significance threshold was
based on the federal major source definition established for extreme ozone non-attainment areas
(the ozone standard is based on 8-hour average concentrations). Obviously, in order to
significantly affect a 24-hour or 8-hour air quality level (such as those established for PMio and
ozone, respectively), a certain quantity of pollutant would need to be emitted on a specific day,
as opposed to that same amount of pollutant being emitted piecemeal throughout the year (such
as an annual average). Thus, the fact that blasting occurred in January through August would
have very little to do with whether a blast on a day in September, for example, would make a
significant contribution towards the SCAB being in violation of a 24-hour (i.e., PMio) or 8-hour
(i.e., ozone) NAAQS.
Therefore, the comment that annual blasting emissions should be averaged on a daily basis and
compared to the daily mass emissions thresholds is not correct because it is not consistent with
the derivation and purpose of the mass daily emission thresholds.
Furthermore, it should be noted that long-term effects of the increase in annual blasting were
assessed in the EIR, in analyses other than that for the daily mass emission thresholds.
Specifically:
• Annual NOX/PM10/PM2.5 AAQS analysis. This analysis included the incremental
emissions of increasing blasting from 20 events per year to 100 events per year.
(Actually, the increase in Project blasting emissions was overestimated at 104 events per
year; because it was easier for the consultant to model 2 blasts per week as opposed to
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100 per year.) Each blasting event was modeled as a one hour release. More
specifically, Draft EIR Appendix C.2.3, sub-appendix D contains the results of the annual
ambient air quality standards (such as for NO2, PM10, and PM2.5); the Project's total
annual emissions from blasting (based on the greater frequency of blasting compared to
baseline) were incorporated into these analyses and all resulting concentrations did not
result in an exceedence of the ambient air quality standards (for NOz) or were below
either the SCAQMD's significance thresholds (for PM10 and PM2.5). (It should be noted
that the change in annual emissions with blasting was modeled even though the
"Resulting Concentrations (no blasting, ug/m)" table in Appendix D for the "Ambient
Air Quality Standards Impacts—Annual"wrongly implies that they were not; despite this
error in drafting, the analysis in the air quality report shows that no significant impacts
from increases in annual amounts of blasting would occur.)
• Cancer and chronic risk analyses. The effects of blasting emissions were included in
these analyses (100 per year for chronic and 75 per average year for cancer). These
emissions were conservatively averaged over the whole year rather than modeled as
specific one-hour events. This analysis was based on the total risk rather than the
incremental increase and the emissions were spectated into the appropriate toxic
components.
• Acute risk analysis. The total risk from the Project was modeled, rather than the
incremental increase in risk. Consequently, the particulate matter emissions from one
blasting event per day were included. These emissions were speciated into the
appropriate toxic components.
• Lastly, it should be noted that 99.3% of the cancer risk at receptor 2 (the nearest receptor
to the Quarry) is caused by diesel emissions and 0.7% is from crustal dust (including
blasting). Thus, the importance of blasting emissions to overall air quality impacts
should not be overstated.
.Based on the above, the comment regarding the addition of averaged daily blasting emissions on
the daily mass emissions thresholds of significance analysis is not correct.
5. Why weren't emissions from operation of the Reliance Plant considered?
The Reliance Plant is a separate project from that of the Quarry. It is located in a different
jurisdiction than the Quarry, is separately permitted, and draws aggregate for processing from
not just the Quarry but other sources of aggregate. Lastly, the environmental impacts of the
operation of the Reliance Plant were previously analyzed in other CEQA documents. For
instance, in the Conveyor System EIR/EA (SCH # 89010010), the environmental impacts of
conveying 6 million tons per year southward from the Quarry via the conveyor system for
processing and transport away were analyzed. As described on page 2-3 of that document, the
existing condition of at the time of analysis was for the processing and conveyance away of 3
million tons at both the Reliance and Owl Plants. With regard to air quality impacts, the EIR/EA
stated that"[r]egional air quality considerations for the project are minimal. On an overall scale
about 7 million tons per year of rock products are extracted, processed and hauled to market
now, and about 7 million tons would continue to be processed in the future." (Conveyor System
EIR/EA,p. 4-26.) On this basis, air quality impacts associated with the processing and hauling
to market of aggregate were determined to be less than significant. The fact that all six million
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tons per year of processing and hauling away to market will occur at the Reliance Plant does not
disturb this conclusion.
6. Is there a Government Code notice violation under section 65094?
Section 65094 of the Government Code reads as follows:
"Notice of public hearing"; Contents
As used in this title, "notice of a public hearing"means a notice that includes the date, time, and
place of a public hearing; the identity of the hearing body or officer, a general explanation of the
matter to be considered; and a general description, in text or by diagram, of the location of the
real property, if any, that is the subject of the hearing.
The City's notice contained all of the elements required by this section.
In the one reported case regarding this matter the court addressed whether a County could give
notice of a matter to be heard by the County Board even before the Planning Commission
finished its deliberations. That is not the case in our situation. In this case the Planning
Commission's decisions were well advertised,notice of the Planning Commission decision was
discussed in public and opponents of the project encouraged others to participate as they said that
they did not want the Council to agree with the Planning Commission decision.
7. Why were the new reports regarding geology, air,quality and traffic not made available
to the public?
The reports were prepared in response to comments from the Duarte City Attorney, including
comments released to the City on Thursday, April 16, which is the same day that the Council's
agenda packet was released. All of these reports were not finalized until after April 16, which
means that it was not possible to include them in the agenda packet (especially since the City is
closed on Fridays). Insofar as these reports were in response to comments made by Duarte and
the City released them to the public the very next day that the City was open, it seems
disingenuous to complain about limited amount of time Duarte left the City staff to prepare them
and release them.
S. What is the increase in production and how will that, with blasting, increase emissions?
See Response number 4 above. Production at the mine would increase from 1.1 million tons per
year to 6 million tons per year (at a maximum). The daily amount of blasting would be the same
as under existing conditions, but the annual amount of blasting could increase from 20 to 100
blasts per year. With regard to compliance with SCAQMD's daily mass emissions thresholds,
this annual increase in blasting does not affect the conclusion that Project emissions will be
beneath the thresholds, and thus less than significant impacts would occur.
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4. How will the well at the mouth of Fish Canyon be impacted?
It will not be impacted. In terms of the effect of the Project on groundwater levels, groundwater
pumpers in the Main San Gabriel Basin generally have a right to pump a certain portion of the
safe yield of the Basin each year. (The safe yield is the amount of water that is introduced to the
aquifer each year from aboveground, and therefore can be extracted without affecting the Basin's
overall reserves.) As described in the Utilities section of the HIR, the water needed for the
Project would fall within the Applicant's portion of the Basin's annual safe yield. Even if the
Applicant were to use more than its portion of the safe yield, its mandatory payment to the
Watermaster of replenishment fees would ensure that water is purchased for recharge back into
the Basin to make up for the overpumping. Thus, the overall sustainability of the Basin would
be preserved.
With regard to water quality, no significant impact would occur. Water that drains off the site
would be stored in a retention basin, where it would percolate into the subsurface. The Applicant
will not be applying any hazardous materials to the site that would contaminate runoff and thus
the Basin. Any runoff percolating would only contain sediment, which would be basically the
same material that the runoff is going to percolate through anyhow.
10. Does the submission of a 45-page comment letter render the EIR flawed?
The public is free to submit as many pages of comments on an EIR as it wishes. An EIR is only
"flawed" if it does not comply with CEQA. As staff has discussed in its responses, many of the
comments were without merit. Others merited revision to the Draft EIR, and those revisions are
before you as the Final EIR. CEQA anticipates that revisions to the Draft EIR may be necessary,
and identifying such areas is one of the purposes of the public comment process. In the judgment
of staff, the Final EIR complies with CEQA and is not"flawed."
11. Were SI pages of the ETR amended and revised? Does that mean the EIR was flawed?
As discussed above in Response 9, the point of a public review period is to allow the public to
provide feedback on what is. a draft document. The great majority of the comments received
were either without merit or only required further explanation in response. There were some
comments that warranted a change in the language of the Draft EIR, and there were some other
changes made through City staff s own initiative. CEQA fully anticipates that this can occur,
and CEQA does not require an EIR to be sent back for public review unless the changes
implicate new or substantially greater significant impacts that cannot be mitigated, as compared
to those that were discussed in the Draft EIR. None of the changes to the Draft EIR modified its
conclusions as to the significance of impacts, and thus the Final EIR is not flawed and need not
be recirculated.
12. Is there really the same amount of reserves on both sides of the mountain?
The reserves as calculated by VMC and presented in the DEIR and subsequent response to
comments are accurate and closely approximate calculations conducted by the city(Lilbum
Corporation) which are limited to the accuracy of data provided in the project application. There
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is no indication of volume discrepancies between those estimates made for the original 1988 plan
and those proposed in the 2009 proposed project. Volume calculation presented in the DEIR and
FEIR accurately represent the present conditions on site. Assertions made by the Save Our
Canyon group are based on a misconception that a report prepared in 2005 by Greystone
Environmental represents the actual conditions of volume on the site. This document does not
reflect the quarry conditions presented in the 2009 proposed plan. The application of the
Greystone quarry volume in predicting the available tonnage in the east quarry results in a series
of calculation assumptions and errors on behalf of Save Our Canyon. Lilburn Corporation has
revisited the volume calculation in comparison to the assertions made by Save Our Canyon and
Duarte's consulting geologist AGI and have prepared a memorandum in response.
13. Where is the proof that the micro-benching will work? No mining company has ever
done it?
Micro benching is a form of grading that reduces the size of cut slopes and increases the surface
face to provide a better ground surface for revegetation of a site. It reduces the linear appearance
(horizontal lines) typical of a high wall excavation effort and results in more natural looking
surface following successful revegetation. It has been proposed and applied in mine reclamation
since the 90's usually in relation to hard rock quarry operations that create very hard upright
bench walls that are stark in contrast to the original surface and difficult to revegetate due to
surface hardness. It is commonly applied in mass grading projects most visibly in road cuts.
Caltrans has used it regularly on freeway road cut although their emphasis has been on
landscaping not necessarily on native reclamation. The process does not differ dramatically from
typical hillside grading except the cuts are shorter in height and the slope are reduced to maintain
stability. The surface area increases slightly allowing for additional soil substrate to be applied.
Vegetation including seeding or planting is identical to standard revegetation procedures. The
process does require more grading effort to achieve the desired landforms. This does increase the
equipment man-hours and cost of construction. Vulcan does have a test plot employing micro
benching on their Azusa Rock Quarry. The FEIR provides examples of micro-benching
conducted by Cal Trans in Appendix C.1.6.
14. Has Caltrans done microbenching? Has it been successful?
Micro-benching has been employed in California primarily by the California Department of
Transportation (Caltrans) on road cuts in numerous locations throughout California for several
years. Micro-benching does provide a greater surface area allowing greater opportunity for soil
adherence and subsequent vegetative growth. Caltrans does not have the restrictive demands for
revegetation success criteria applied to the mining industry through SMARA, however their
landscaping efforts employing native plants without irrigation supplement have been successful
both visually and as erosion inhibitors. The intention of-micro-benching is to reduce the linear
horizontal landform associated with typical benching and the most difficult feature to
camouflage with revegetation. This technique would result in a dramatic visual improvement
over high wall benches in bard rock mines like those present at the existing site.
Typical of SMARA compliant reclamation plans in California, the proposed revegetation effort
is accompanied by a monitoring and maintenance period during which established performance
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standards are applied to the revegetation effort. These performance standards are listed by plant
category on Table 12 of Draft EIR Appendix A.8.2, along with remedial steps that are to be
taken to ensure that the standards are met. Revegetation is assured through financial bonds
provided by the owner/operator. The bonds would not be released until both the Department of
Conservation and the Lead Agency have determined that the reclamation goals have been met.
We believe that revegetation will be feasible due to the Reclamation Plan's mechanism and the
experience of Vulcan in revegetating disturbed areas on the site. With regard to the geotechnical
feasibility of micro-benching on the site, the fact that Caltrans has micro-benched a variety of
slopes throughout the State shows that the technique is adaptable to different soils and rock
types.
15. Why not amend the CUP to require a review by an environmental group comprised of
residents of Azusa and Duarte?
Approval or amendment of a Conditional Use Permit is a quasi-adjudicative decision. The state
planning law requires these decisions be made by the Planning Commission and City Council.
These legislative bodies cannot delegate their decision-making authority to members of the
public.
16. If the mining will cut off the Van Tassle ridge access how can the City guarantee trail
access?
The existing trail was established pursuant to an agreement between the City of Duarte and
Azusa Rock dated April 13, 1998 and recorded in 1999 (the "Trail Easement"). The recorded
easement (see Draft EIR Appendix C.10.1) specifies a 20-foot wide trail alignment on the Azusa
Rock Property. Pursuant to the terms of the easement, Vulcan has the discretion to relocate the
trail at its expense, provided that the construction of the relocated trail shall be equal to or better
than the existing trail (see also Draft EIR p. 4.10-1.).
The existing alignment is presented on Draft EIR Figure 4.10-1 (p. 4.10-2) and three potential
alternative trail realignments were presented to the City by Vulcan at the City's request. These
alignments are graphically displayed on Draft EIR Figure 4.10-2 (p. 4.10-10). The westernmost
option, although within Azusa's jurisdiction, is outside the boundaries of Vulcan's property.
Potential lack of rights-of-way precluded further consideration by the City. Two trail alignment
options within the project boundary remain feasible. One within the western setback perimeter of
the west 80 acres, similar to the existing trail; and one paralleling the eastern alignment of Fish
Creek. It should be noted that this analysis was presented in the interest of disclosure. The
easement agreement is a private agreement between Duarte and Azusa Rock (i.e., Vulcan) over
which the City of Azusa has no discretionary authority. Pursuant to the terms of the easement
agreement, Vulcan will be responsible for selecting a new alignment for the trail consistent with
the terms of the easement. Because the private agreement between Vulcan and Duarte legally
binds Vulcan to provide a relocated trail, staff believes that trail access will be guaranteed.
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17. Has the ON done a health study to compare statistics to other communities of the same
size?
A Health Risk Assessment was conducted to analyze the health risks associated with the
Proposed Project. A City-wide health study is therefore not necessary, especially since such a
study would be of very limited utility as it would be almost impossible to isolate the health risks
created by the Project from those created by every other source in the City and region (CEQA
requires that the impacts of the Project be focused,and not on every impact in the region).
IS. .Is the existing easement to access the falls extinguished?
The existing trail on Van Tassell Ridge will be closed once the Applicant begins preparations for
mining in that area. The easement will not be extinguished, however, since the easement grant
requires the Applicant to relocate the trail to a location of comparable quality. The EIR
discussed, in the Recreation section, two possible relocated trail alignments.
19. Is the project adding to pollution or not?
It emits pollutants, as do practically all other uses in California. However, the analysis shows
that the amounts of pollutants emitted are beneath the SCAQMD thresholds of significance, and
thus are less than significant.
20. Why not provide a picture of the re-simulation of view impact and what will happen
once the tree is removed?
Due to the visual nature of the existing and proposed activities and public concern expressed in
the scoping hearing, the Draft EIR focused very strongly on the aesthetic impacts associated with
the Proposed Project. This analysis is presented in Section 4.1, Aesthetics. Technical reports
submitted with the application and at the request of the City are presented in Volume II,
Appendix C.
Analysis was conducted comparing the existing conditions (current baseline) to the Proposed
Project and progress interval simulations at 5, 10, and 20 years. These simulations were rated
using the same BLM methodology. The impact to Viewpoint 5 (Greenback Avenue) (see Draft
EIR p. 4.1-32), would remain significant due to short-term construction exposure and alteration
to the existing ridgeline despite the implementation of a mitigation measure. The short-term
impacts would be reduced by application of micro-benclung reclamation techniques. However,
the impact remains significant since the proposed mitigation does not compensate for the altered
ridgeline and cannot be mitigated to a level of less than significant.
The EIR presents a realistic depiction of the Proposed Project's impacts on the hillside above
Greenbank Avenue and shows the earthwork associated with the Proposed Project. As the EIR
identifies the impact as significant and unavoidable, the removal of an individual tree will not
change the ultimate finding that there is a visual impact that cannot be mitigated. The
simulations presented were typical of points located through the area of impact. We do not
believe images to the west will indicate a different conclusion in the potential impact in this area.
8
a
The analysis resulted in a level of significant impact following mitigation. This is due primarily
to the lack of offset afforded by reclamation in eastern exposures visible in other viewpoints. The
angle of view to the west will provide a similar result and we anticipate that a finding of
significance will prevail throughout this area of view.
21.. Why hasn't monitoring of air quality been done at the fence line?
Monitoring needs to be done at a monitoring site that has been established and found to meet
EPA criteria. This has not previously been done by the SCAQMD, and it is not necessary to
determine project level impacts. Notably, the EIR did proceed with a discussion of silica dust
concentrations at the nearest EPA-compliant monitoring station, and found that those
concentrations are beneath regulatory standards. It bears noting that this monitoring station
would measure dust from a variety of sources, and not just from the Quarry, and thus the
project's contribution to the overall concentration level would be less than the overall level.
22. Why doesn't Vulcan make the trail available to people on the weekends? Why doesn't
Azusa require it as part of the agreement?
Vulcan makes the trail available to hikers on the weekends. Upon receiving at least two days
notice the will shuttle individual individuals to the trailhead and make an appointment to pick
them up. This is predicated on weather conditions permitting and is not permitted during fire
season at the request of the Unites States Forest Services. Therefore, the City Council does not
need to require Vulcan to provide access to the Fish Canyon Trail; however, the City Council
could mandate this requirement if desired.
23. Why does Section 2.1 of the Development Agreement require mining of the entirety of
the site?
Section 2.1 does not require mining of the entire property. The reference to the Site was a
drafting error and will be revised prior to the Council's action on the Development Agreement.
24. Why does the City have to give the money back and pay interest on it?
Originally the Agreement provided that the tax payment did not have to be made at all until the
time for challenging the project or any challenges were completely exhausted. Vulcan later
agreed to make the payment even before potential challenges were resolved,but wanted to make
sure that if for any reason the project is successfully challenged, they would get their money
back with interest. The proposal is a fair compromise and is recommended by staff.
25. Sow does the City know that Micro Benching works? Did the author of Land Forming
quoted in the EIR really support the Micro Benching?
The author of"Landforming"describes methods of grading to a more natural contour
representing more pleasing and naturally conforming earthwork. This includes applications in
mine reclamation. He recommends and instructs in this type of grading approach. The key to
microbenching is creating a reduced slope and soil substrate compatible environment to
9
accommodate improved revegetation. Appropriate drainage controls and irrigation where
appropriate are also a factor in revegetative success. VMC will be required to prepare a test plot
to determine their ability to successfully apply and maintain the techniques proposed enabling
them to reach the reclamation success criteria stipulated in the reclamation plan.
26. Why doesn't the City tighten up the reclamation language?
The Development Agreement contains a proposal to provide for a contingency plan in the event
that for whatever reason the reclamation as proposed is not as successful as planned. Vulcan did
not propose this language. In fact, Vulcan opposes this language because it believes that a
contingency plan is not needed. The City Attorney proposed the contingency plan language and
advises that it needs to be further negotiated and discussed. The City Attorney has also
recommended that the bond requirement to secure the reclamation should be included in the
development agreement.
27. Can the City please add a new mitigation measure to distinguish total amount of
overburden/aggregate?
As part of the mining operation, both hard aggregate rock and overburden (the non-sellable
gravel and dirt used for fill material) is removed. The Proposed Project is being conditioned to
limit the amount of mining to 6,000,000 tons per year. This limit would include both aggregate
and overburden. Therefore, there is not really a "mitigation measure" that can be applied to the
project that provides any additional clarification as to the estimated amounts of reserves and
overburden.
Further,mitigation measures are only required to mitigate significant impacts of the Project.
There are no significant impacts on the physical environment that such a mitigation measure
would address. Thus, such a mitigation measure is not needed. It should be noted that the City
will track the total amounts of overburden and aggregate that are extracted on a quarterly basis,
as such information will be needed to compute Vulcan's taxation (such information cannot be
made public, however).
28. Have the particulate matters affecting children been properly measured?
Particulate matter analyzed in the DEIR and the conclusions reached are appropriate for both
adults and children. Criteria pollutant standards and the monitors and models that test them are
adopted by AQMD in conjunction with EPA to reflect the regional conditions of the area in
question. Monitoring stations and the parameters of data collection are dictated by the EPA.
Resulting data is applicable to all human receptors including children.
29. Is it true that 60 acres will be preserved while 80 will be mined?
The existing east quarry has been partially disturbed by mining. The remaining undisturbed
portion of the 93.5 acre parcel is approximately 58.5 acres (see Table 3-4, page 3-22 DEIR)..The
west side proposed 80 acres is essentially undisturbed excluding roads and trails. If the proposed
project where to be approved the entire east side quarry, following reclamation of the existing
10
disturbed area would no longer be mined or disturbed. The majority of the west side quarry
excluding set backs and perimeters would be disturbed should the proposed project be approved.
30. Does the City have two conflicting reports on.how much aggregate is on the east and
west sides?
No the City does not have conflicting reports on how much aggregate is proposed to be mined.
The volumes proposed in the application have been reviewed and are shown to be accurate for
purposes of plan development. Variations in calculation results are within the range of acceptable
margins of error. Opponents to the project have presented reports that dispute the accuracy of
these reports. These are addressed in a separate memorandum regarding their assertions.
31. Why wasn't she provided with the aggregate reports and Vulcan information when she
made a Public Records Act request?
Ms. Cruz-Gonzalez requested any "reports and/or technical documents" in her PRA request. No
actual documents existed because the verification of volume calculations was done by Lilbun
Corporation on computer, without generation of a report or technical document. Contrary to her
subsequent statements, Ms. Cruz-Gonzalez did not request all computer files and underlying
data, etc., as these are not considered to be "documents." In order to provide her with a
document, the City had the volumetric calculation recreated and committed to hardcopy.
32. If the city approves the mining and there is a Santa Ana condition will the silica be
spread everywhere?
The Project is conditioned to not blast during high wind days in compliance with standard
conditions of permit pursuant to SCAQMD rule 403 and 1157.
33. Why is Azusa being threatened with Legal action by both Vulcan and Duarte?
Vulcan and the City of Duarte have both threatened the City with legal action. The City staff
and Council recognized the threat from the very beginning of the process and have handled the
application very carefully. Either Vulcan or Duarte will feel like they have "lost" if they do not
get the decision they desire. The only thing the City can do is properly process the application
and make a decision supported by facts and findings.
34. Why not form a sub-committee of elected officials to review options?
The applicant has a right to have its application processed by the City. The applicant is also
entitled to a fair and open process. Allowing a group of elected officials to agree among
themselves the property rights of the applicant would be improper.
35. Is there a better alternative?
The EIR considered a wide range of alternatives. Some of these alternatives were rejected after
initial consideration, and others were considered in detail and rejected. Staff was not able to
11
formulate a project alternative that was feasible, met the project objectives, and was
environmentally superior to the Project.
36. Why does the Development Agreement allow Vulcan to get out of Micro Benching for a
fee?
The Development Agreement contains a proposal to provide for a contingency plan in the event
that for whatever reason the reclamation as proposed is not as successful as planned. Vulcan did
not propose this language. In fact, Vulcan opposes this language because it believes that a
contingency plan is not needed. The City Attorney proposed the contingency plan language and
advises that it needs to be further negotiated and discussed. The fee was proposed by Vulcan and
the City Attorney believes that the fee needs to be reconsidered. Whatever the fees ends up
being it should serve as both an incentive and penalty to assure that the high-quality reclamation
promised is achieved.
37. What about the Florida lawsuit where Vulcan has not produced the reclamation that is
necessary?
Vulcan has never violated any reclamation standards or it environmental resource permit in
Florida for either of its two mining sites, according to Florida Department of Environmental
Protection's Bureau of Mining and Minerals Regulation.
38. Where is the $80 million performance bond requirement?
Ultimately Vulcan will be required to post a bond to secure the performance of the reclamation
plan. The requirement is in the reclamation plan documents,but the City Attorney recommends
adding it to development agreement as well.
39. Why not have an enforceable daily cap?
The City has imposed such a cap. Mitigation Measure AQ-la limits production to 19,000 tons
per day. Mitigation Measure AQ-ld further limits production to 6;060 tons per day until such
time as the Applicant updates its construction equipment fleet to meet the emission assumptions
of the air quality analysis.
40. Why not include a timeline to purchase new equipment?
Because Mitigation Measure AQ-ld prevents the Applicant from mining more than 6,060 tons
per day until it purchases new equipment, there is no need to impose a timeline on the Applicant
for fleet replacement. This rate of production is considered low enough to be .an adequate
incentive for the Applicant to update its fleet.
41. Why not prohibit blasting on high wind days?
The Applicant is prohibited from blasting on high wind days pursuant to condition of permit
SCAQMD rule 403 and 1157.
12
42. What kind of mining was going on a hundred years ago?
The Azusa Rock quarry operations have been conducted at the Project Site since the 1920s and
within the San Gabriel Canyon vicinity since the mid-1800s. Although there has been discussion
of prospectors panning for gold in the 1800's, the major operations have historically been for
sand and gravel,rip rap, and construction aggregate.
Following annexation of the Azusa Rock site and surrounding area into the City in November
1956, the Azusa City Council adopted Resolution No. 3546, which approved a Special Use
Permit (SUP) for the approximate 270-acre site. In February 1988, the City approved a
Reclamation Plan for the site (Planning Commission Resolution No. 2540), and adopted a
Mitigated Negative Declaration in accordance with the requirements of the California Surface
Mining and Reclamation Act of 1975 (SMARA (§2770(b)) and CEQA. The City council
amended the original SUP and added conditions as a CUP through Resolution No. 8553 in
December, 1988. Prior to that time, the existing permits assured the right to mine but the
responsibility to oversee the operator's reclamation became a shared responsibility between the
City and operator in cooperation with OMR. In 1988, the Azusa City Council established a 50-
year term for the mine (until 2038), unless extended through a subsequent discretionary process.
The 1988 CUP & Reclamation Plan approval (City Planning Commission Resolution No. 2540)
described the approximately 80-acre area on the western side of the Azusa Rock site as a "Future
Mining Area" (see Figure 3-5 of the Draft EIR).
In 1988, the California Department of Conservation, Division of Mines and Geology
(subsequently renamed, "California Geological Survey') published Open File Report (OFR) 88-
23 entitled, "Mineral Land Classification of Fish Canyon Quarry, Azusa Quadrangle, Los
Angeles County, California for Portland Cement Concrete and For Base Aggregate, December
1988." The OFR documented'the State Mining and Geology Board's classification of the Azusa
Rock site for Portland Cement Concrete (PCC)-quality and base aggregate and designated the
site Mineral Resource Zone — 2 (MRZ-2), indicating the presence. of a significant deposit of
construction aggregate.
In the early 1990s, Azusa Rock, Inc. and its parent company, Kirst Construction, Co., Inc. were
acquired jointly by CalMat Co. and New Owl Rock Products, Inc. In 1995, CalMat Co.
purchased New Owl Rock Products, Inc.'s interest in the companies, thus becoming the sole
owner of Kirst Construction Co., Inc. and Azusa Rock, Inc. Subsequently, ICGrst Construction
Co., Inc. was merged into CalMat, Co. and thereby ceased to exist. Azusa Rock, Inc. remains a
wholly owned subsidiary of CalMat Co. In 1999, CalMat Co. was acquired by Vulcan Materials
Company (Birmingham, Alabama), at which time Callvlat Co. became known as "Vulcan
Materials Company, Western Division."
13
43. How did the idea of improved reclamation in exchange for mining rights get into the
General PIan?
During the General Plan review process the idea to curb future mining was discussed at length.
The General Plan stated policies to achieve the goal of not permitting future mining. During the
• hearing process on the General Plan Vulcan's attorneys asserted several potential legal
challenges to the stated policies. Because the City was also processing the Rosedale project at
the time the City did not want to jeopardize the Rosedale project by fighting a General Plan legal
challenge. At the City Council meeting the City Manager, at the time, recommended the idea of
allowing Vulcan to prove its mining rights at a later time or to propose a plan to reclaim other
land that was not reclaimed to today's standards. The City Manager asked the City Council to
take a break and permit the City Attorney to draft the exception language at the meeting so that
the General Plan could be adopted and Vulcan would not challenge it.
44. Why can't Vulcan just mine their 80 acres and go away?
Vulcan has been actively mining on-site pursuant to the 1988 City Council approval. As
discussed, they have a vested right to continue mining on the east side towards Highway 39. If
the City denies the Proposed Project, the mining would continue as would reclamation using the
large "Mayan Steps" benching that is visible from throughout the area.
45. Why were residents denied their five-minute Power Point presentations? Why can't
citizens show their Power Points?
Staff anticipated hundreds of people to attend the public hearings and knew that many people
would speak. The process of checking Power Points and loading them onto City equipment or
allowing members of the public to hook up to the City equipment appeared to be a challenging
process. Members of the public were told that they could submit copies of Power Points to the
Council and could speak from those Power Points as the Council followed along.
46. What would be the loss if Vulcan was not able to obtain approval of the project?
If the Proposed Project were denied by the City, the primary loss would be the environmental
and visual benefits associated with the proposed project. Vulcan has a vested right to continue
mining on-site until their permit expires in 2035. The current approved reclamation involves
creating large 30 to 40 foot benches (referred to as the Mayan Steps). Should the Proposed
Project be denied, these large benches would continue throughout the east side and would be
visible from throughout Azusa and the surrounding area. Additionally, the Proposed Project sets
a maximum of 6 million tons per year that can be mined on-site. Currently, the South Coast Air
Quality Management District allows Vulcan to process 10.8 million tons. Lastly, numerous
financial benefits to the City would be lost including overburden payment, community benefit
fund monies, discounts on aggregate for City projects, and a scholarship fund.
14
47. Is it true that the highest elevation on the west is higher than the east side and that
mining on the west extends 200 feet deeper than it would on the east? So how is it that this
is supposed to be an equal swap?
Yes it is true that the elevation of the west side is higher than the elevation of the east side. Yes
the west side proposed quarry is 200 feet deeper than tbe� existing 1988 plan quarry floor
elevation. The swap is for volume of material not configuration of the quarry. Quarry design is
based on site characteristics and desired recoverable volume.
48. Did the City address the previous offsite landslides in the EIR?
No the city did not address the off site landslide issues in the EIR. The mapped slides were
evaluated during the aerial photograph review referenced in Section 4.5.1 of the Draft EIR. The
existence of the features cannot be confirmed or denied based on the photograph review. They
are not on site, they do not impact the proposed project, and they are not relevant to the analysis
at band. The project should not impact slides off site. If the 800-foot mine slope where to fail no
residences would be impacted.
49. Can a General Plan be internally consistent as required by the Government Code even
though there are inconsistent comments or goals?
A project is consistent with a General Plan if, considering all its aspects, it will further the
objectives and policies of the General Plan and not obstruct their attainment. Perfect conformity
is not required, but a project must be compatible with the objectives and policies of the General
Plan. Once a general plan is adopted, it is the elected city officials that examine the specifics of
a proposed project to determine whether it is "in harmony"with the policies stated in the plan. It
is not the role of the court to micro-mange development decisions.
50. Has Vulcan kept their promises?
It is important to note that Vulcan inherited the current reclamation plan from the previous
operator. The reclamation plan is the "blueprint" for how mining and reclamation are to occur
on-site and cannot be modified without approval by the City and the State Office of Mine
Reclamation. The current reclamation plan calls for the large step benching commonly referred
to as the "Mayan Steps." These steps are clearly visible from throughout the area and represent
what the mine is supposed to look like after reclamation under the current plan. Every two years,
the conditions of approval for the Vulcan project are analyzed by the City's Planning
Commission to ensure compliance. Over the past 23 years, Vulcan has never been found to be
out of compliance with their conditions of approval and has kept their promises. Staff's
recommendation of support for the Proposed Project would substitute a "micro-benching"
reclamation process that would remove the unsightly Mayan Steps.
51. Was the outreach to select the City's consultant sufficient?
Yes. A concern has been raised that the City did not conduct sufficient outreach to solicit and
hire a consultant to prepare the analysis. Staff prepared Requests for Proposals (RFP's) under
15
four subject areas (financial analysis, environmental analysis, geology analysis and planning)
that were circulated to a number of firms. Staff's goal was have a broad pool of candidates from
which to choose so that the City could have flexibility in selecting either one consultant to
perform all of the analyses required or individual consultants for each issue area. The City
interviewed a number of firms and ultimately selected the Lilburn Corporation because of their
vast experience with mining proiects and their ability to perform all of the tasks required by the
Project. One other firm, PMC, was a full-service firm that specialized in mining projects,
working only for public agencies. Although either firm could do the work necessary, in the end
staff selected Lilburr Corporation to receive the contract.
16
i
Matrix of Issues Raised by City Council
City Council Issue Result Where Addressed
Ensuring that Microbenching (landform) Section 2.5 of the
microbenching of the will begin immediately and Development Agreement.
Mayan Steps was will'be completed on the
completed within two (2) Mayan Steps within 2 years
years. with revegetation initiated
no later than the 1"rainy
season after the 2"1 year.
That a trailhead be The applicant will dedicate Section 2.12 of the
established. a 1.0 acre trailhead and trail Development Agreement.
easement to the City of
Azusa as well as complete a '
"common"trail adjacent to
Fish Creek that ends at the
bridge leading to Fish
Canyon Falls within 1 year.
That funding be set aside The applicant will construct Section 2.12 of the
for the trail head signage. and maintain descriptive Development Agreement.
signage at the trail head and
along the trail.
That revegetation efforts The applicant will commit Section 2.5 (c) of the
target replacement at 100% to a.successful revegetation Development Agreement.
of the existing native plant target of 100% of existing
coverage. native plant coverage
That there be no ambiguity In accordance with Section 2.16 of the
associated with the $80 SNWI A, a financial Development Agreement.
million bond. assurance bond for the
revised reclamation plan in
the amount of$81.125
million shall be obtained.
That the Council be given Monitoring for the Section 2.5 (d)of the
the ability to review the reclamation plan and Development Agreement
reclamation annually. financial assurance bond and Condition #6 of the Use
shall occur annually and, Permit.
upon being transmitted to
the State Office of Mine
Reclamation pursuant to
SMARA, shall be submitted
to the City Council for
review. The Conditional
Use Permit regulating the
operation of the quarry shall
be reviewed every two
years by the Planning
Commission for substantial
F1compliance.
That no mining occur after Applicant has agreed that Sections 2.15 and 2.13 of
2038 and that land be no mining will occur on-site the Development
to the City as after December 31, 2038, Agreement
open space. and that City have first right
of offer to purchase the east
80 acres.
Tbat on-site or proximity Applicant has agreed to pay Section 2.14 of the
monitoring occur per $15,000 toward the Development Agreement.
AQMD standards. purchase of one additional
PM 10 particulate monitor to
measure ambient
concentrations of PM 10
within the City of Azusa.
That, if any negative Should the City of A-zusa Condition#17 of the Use
impacts are found, the City I determine that a health and Permit.
be able to require thatsafety violation occurred on
operations cease until the the project site, the City
issues are corrected. shall have the ability to
require that the applicant
cease and desist all
operations until the health
and safety violation is
corrected.
That an additional I The applicant has agreed to Section 7theextraction surcharge be increase the Community Develop
collected for social Benefit,Fund for City
programs aid/or open space Programs extraction fee
acquisition. from $.05/ton to $.09/ton
with an annual CPI
escalator. The additional
80% increase would be
dedicated to the acquisition
and maintenance of open
snare.
That a portion of the The applicant would nor , n/a
proposed project he granted agree to such a condition as
for a seven(7) year period it could,jeopardize their
on the far west comer while existing approval and
reclamation occurred on the entitlement,
eastern portion of the site to
ensure that reclamation can
be successful and that a 3`1
party review.
3.
No mining on Van Tassel The applicant would not ir/a
Ridge. agree to a requirement that
Van Tassel Ridge not he
touched as it would.
significantly impact their
operations and ability to
provide environmental
mitigations. Additionally,
changing the scope of the
project could impact the
environmental
documentation previously
approved and potentially
necessitate re-analysis and
recirculation.
That reclamation of mining Because of the top-down n/a
phases, as finally reclamation approach., the
established, be completed applicant believes that each
within 3-5 years of mining phase of mining can be
in each phase being fully reclaimed within 3-5
completed. years of mining being
complete.
That the liquidated damages Language pertaining to Removed from Section 2.5
"loophole" of$1,000;000 Liquidated Damages has of the Development
be removed. been removed from the Agreement.
Development Agreement
That the aggregate The applicant has agreed to Section 2.10 of the
extraction fee be indexed by place a CPI escalator on the Development Agreement.
the CPI. proposed $.09/ton
Community Benefit Fund
for City Programs
extraction fee.
Ensuring that The applicant has agreed Section 2.5 (c)of the
microbenching of Mayan that microbenching of the Development Agreement.
Steps works before mining Mayan Steps will begin
occurs on the west side. immediately upon final
approval so that any mining
on the west side will be
concurrent.
�S
41
ol
gUFOR��F
AGENDA ITEM/PUBLIC HEARING
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: TITO HAES, DIRECTOR OF PUBLIC
�WORKS/ASSISTANT CITY MANAGER
VIA: F.M. DELACH, CITY MANAGER ;F`RI)o
DATE: JANUARY 4, 2011 �{
SUBJECT: COMMUNITY DEVELOPMENT BLOCK GRANT-37TH YEAR PROGRAM(FY 2011/12)
RECOMMENDATION
Open the public hearing, receive testimony and presentation of the proposed projects, and adopt the
resolution approving the 37`h Year Community Development Block Grant (CDBG) Program.
BACKGROUND
The City of Azusa has participated in the Community Development Block Grant(CDBG)Program since its
inception in 1974, utilizing these federal funds for various housing and community development projects
within the City. Annually,a public hearing is held to program the City's allocated CDBG funds for the next
fiscal year. The preliminary new allocation amount for 2011/12 is $650,981. There is an additional
$111,451.42 in prior year funds, totaling $762,432.42 available for programming into program
administration, local housing, public/social service, public improvements and community development
programs. In 2011/12,the 15%public service cap amount is$97,647.15 (15%of$650,98 1). The combined
public service projects cannot exceed this amount.
DISCUSSION
Staff received (4) non-public service and (4) public service proposals from City staff and nonprofit
organizations. Public service funding requests totaled $116,075.80 exceeding the public service cap by
$18,428.65. Request for non-public service projects met the budgeted amount. A copy of all the proposals
is attached for your reference.
Staff analyzed all of the submitted proposals. Analysis was based on, in order of importance, 1) benefit to
low/moderate income, 2) if the project is a City-staffed project, 3) number of Azusa residents assisted, 4)
whether the project is a continuing program, and 5)if the project is a City-based project. All applicants are
required to have administrative capacity to run and monitor a federally-funded program, and prior CDBG
funding experience is preferred.
I
Staff then analyzed the public service funding amounts requested. Since funding requests were higher than
the overall amount available for public service projects, staff has recommended revisions to the requested
amounts. Staff also took into account that all non-profits must be annually monitored at their site by City-
staff, incurring additional City staff hours. The following is a list of all the 37t'Year project proposals and
staff recommendations:
Administration/Planning Projects
Administration: This ongoing project provides reimbursement for the time spent administering the overall
CDBG program, including preparation of all reports, Memoranda of Understanding, contracts, reviews of
federally required documentation, financial and task monitoring, preparation of federally approved bid
packages,Davis-Bacon payroll compliance,office supplies and other general program administration costs.
The requested allocation of$65,098 is consistent with the 10% allowable amount for administration.
Capital Improvement Projects
Concrete Improvements: Due to budget constraints,the contracted annual sidewalk maintenance program
has been postponed since 2008. Although the Public Works Department responds to all immediate safety
issues on public right of way (e.g. uplifted sidewalks), it is still necessary to rely on contract repairs to
minimize the concrete repair backlog. Staff has identified 299 eligible locations in need of concrete
improvements(sidewalk, driveway approaches,ADA improvements and curb gutters). The designated areas
qualify for the CDBG low-moderate income requirements and were not included in 2008's sidewalk
maintenance program. This critical project will improve pedestrian safety and ADA access. Staff
recommends fully funding the project in the amount of$237,387.27.
Athletic Court Resurfacings: The athletic courts selected for this project have not been resurfaced since
2003 and have exceeded their life span. The acrylic latex coating prevents holes and cracks in the concrete,
provides visible boundaries and absorbs shock. The project will include the resurfacing of 20 athletic courts
at Memorial Park, Slauson Park and Gladstone Park. Staff recommends fully funding the project in the
amount of$34,680.
Housing and Code Enforcement Projects
Single Family Housing Rehabilitation Program: This owner-occupied single family housing rehabilitation
grant program is ongoing. The maximum grant amount allowed for a single family residence is $9,000.
Grants are used to correct code and safety violations in conjunction with the Code Enforcement/Community
Improvement Program, and make visible exterior improvements. Funds are provided based on income
eligibility of each applicant, i.e.,those households earning 80%or less of median income. Since 1991,this
program has assisted over 770 households with nearly $5M in improvements. Staff recommends fully
funding this project in the amount of$238,000. This would fund a minimum of 22 minor home repair grants
for $198,000, and project management costs for the CDBG grant program at $40,000.
Code Enforcement Program/CDBG: This project would continue to fund salaries and benefits of one full-
time community improvement inspector, and would provide additional code enforcement activities
concentrated in the eligible low-to-moderate income areas of the City. The continued funding of this code
enforcement position would allow for an additional 600 properties to be inspected annually,benefiting 2,000
households. This program will work in conjunction with the Single Family Housing Rehabilitation Program.
Staff recommends funding this project at $89,620.
2
Public Service Projects (Subject to the 15% Public Service Cap of$97,647.15)
Funding requests typically exceed the allowed amount and funding for public service projects has been
severely limited. It is always difficult to decide where to cut funding or delete a public service project.
Additionally, Los Angeles County has imposed a$10,000 minimum for any project funded,which decreases
the amount of projects that can be funded. Although all of the proposed projects in some way address
Azusa's community needs, staff recommendations focus on those projects that most closely comply with the
analysis guidelines listed above.
After School Playground Program: This City-staffed program is in its 16`h year of operation in conjunction
with the School District. After school programs have been statistically proven to have positive impacts in
preventing crime and vandalism. After school recreational and tutoring activities are currently provided at
six school sites; Murray, Powell, Dalton, Mountain View, Lee, and Gladstone Street Schools. These
programs service elementary-aged youth in conjunction with the Recreation and Family Services Department
and School District. In 2009/10, this program served 372 children ages 5-14 through a diversified, yet
structured program of school year activities including coaching,mentoring, and tutoring,and would serve at
least that amount in 2010/11. Azusa Unified School District provides the after school sites and grounds
maintenance for the program. Although$65,380.80 is requested, due to limited funding, staff recommends
funding this project a reduced amount of$59,672.15. During the City's 2010/11 budget process, staff will
recommend that the additional $5,708.65 be funded using General Funds.
Homework House: This Azusa-based project was initially approved by the City Council in 2000/01, and
will be in its I I 1 year. In FY 2009/10 this program assisted.155 youths from Kindergarten through 12"'
Grade, and provided tutoring, Summer Splash, and academic enrichment programs. A trained volunteer
tutoring staff provides individualized instruction. Teacher evaluations and assessment tests measure the
program's success. Homework House also offers ESL classes to the parents, and a computer lab for the
children. In January 2010,the program expanded to a 3`d location, including a Neighborhood Teen Center.
Homework House currently operates at the following locations: 561 E. 91h Street, 667 Glenfinnan (Atlantis
Gardens) and 777 E. Alosta Avenue (new location). This City-based program has been successful in
empowering a large number of at-risk Azusa children at a reasonable cost and is leveraged with funding
from several sources besides the City. Although Homework House has requested$21,000, due to funding
constraints, staff recommends funding this project at last years amount of$10,000.
Sr.Nutrition Site Manager: This City-staffed continuing project funds salaries and benefits of the part-time
Sr. Nutrition Site Manager for the City's Senior Nutrition Program. The Sr. Nutrition Site Manager works
an average of 25 hours per week, five days a week, supervising the Congregate and Home Delivered Meals
Programs at the Azusa Senior Center. In 2009/10, 390 senior clients were served 27,839 meals. The Sr.
Nutrition Site Manager coordinates both programs, trains the volunteer food service workers, and
coordinates special events geared toward educating the elderly on proper nutrition. This program is funded
with State grants, client donations, and subsidies from the City's General Fund. Although $19,695 was
requested, due to funding constraints, staff recommends funding this project at last year's amount of
$17,975.
Sr. Referral and Case Management: This continuing program complements existing programs offered to
seniors by the Azusa Senior Center. City-based referral and case management services are offered by social
workers from the Santa Anita Family Service, a nonprofit organization,directly to Azusa seniors out of the
Azusa Senior Center. Housing,nutrition,social security,disability and other concerns of the 55+population
3
of Azusa residents are addressed. In 2009/10, 250 seniors were assisted. Santa Anita Family Service has
requested funding of$10,000,and proposes to provide 748 hours of service in 2010/11. Staff recommends
funding this program in full the amount of$10,000.
CONCLUSION
Funding was requested for eight (8) projects, including four (4) public service projects. Although all the
proposed projects are important and/or socially significant, staff is recommending funding those projects
which are continuing projects,projects staffed by City employees,and City-based projects,all which benefit
low-to-moderate income Azusa residents. Although staff may recommend project funding levels, final
selection lies entirely with the City Council. This year, staff recommends funding all eight (8) projects.
Unfortunately,due to the available public service funds, staff has concentrated on those continuing projects
which are City-staffed and/or General Fund-funded, or City-based. A summary of all projects an unding
amounts is listed below:
CDBG FY 2011/12
New Year Funds: $650,981.00 Carryover Funds: 111,451.42 Total Funds Available $762,432.42
Re sted Recommended
Project ount Amount
Administration 10% ca $65,098.00 $65,098.00
Non-Public Service Projects $599,687.27 Available
CDBG Concrete Improvements $237,387.27 $237,387.27
Athletic Court Resurfacing $34,680.00 $34,680.00
Sin le Family Housing Rehabilitation $238,000.00 $238,000.00
Code Enforcement Program $89,620.00 $89,620.00
Subtotal: $599,687:27 $599,687.27
Excess of Non-Public Service Project funds to be pPsgrammed
Public Service Projects 15% Cap Limit of$0,647.16)
After School Program $65,380.80 $59,672.15
Homework House $21,000.00 $10,000.00
Sr. Nutrition Site Manager $19,695.00 $17,975.00
Sr. Referral & Case Management $10,000.00 $10,000.00
Subtotal: $116,075.80 $97,647.15
Overage of Cap Limit $18,428.65 0
TotalAmount.Pro ramnie in FY 2011112 $762;432.42:
FISCAL IMPACT
Approved project/will reflected in the 2011/12 Annual Budget. Recommended amount is based on
preliminary planning figures. Staff will make any minor adjustments to reflect actual grant allocation to the
City. Grant revenues reimbursing the various programs will offset project expenses of$762,432.42. CDBG
programs not only allow the City to respond to community needs with little impact to the general fund, but
decreases general fund subsidies on many programs.
Attachments: Resolution, Public Hearing Notice and CDBG Funding Request Proposals
4
r
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ADOPTING THE STATEMENT OF
COMMUNITY DEVELOPMENT OBJECTIVES AND SELECTING PROJECTS FOR FUNDING FOR THE
COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FOR FISCAL YEAR 2011-12
WHEREAS, the City of Azusa is participating under the County of Los Angeles Community Development Block
Grant Program; and
and WHEREAS,the City staff has considered and evaluated projects and programs fulfilling important community needs;
WHEREAS; the City Council has provided the opportunity for public input regarding the City's Community
Development Block Grant Program for the 2011-12 program year.
actions:NOW,THEREFORE,BE IT RESOLVED,that the City Council of the City of Azusa does hereby take the following
SECTION 1. Select and approve the Proposed Statement of Objectives and Projected Use of 37'h Year CDBG
Funds attached hereto as Exhibit A and submit the approved projects to the Community Development Commission.
SECTION 2. Approve inclusion of said projects in the City of Azusa Fiscal Year 2011-12 budget.
SECTION 3. Authorize the Mayor or authorized designee to execute all necessary contracts and agreements with
the Community Development Commission and with each approved recipient/subrecipient of the program,together with any
changes therein which may be approved by the City Manager and, as necessary, the City Attorney.
SECTION 4. Authorize staff to adjust the program budget as necessary to take into account the final CDBG
allocation from the U.S.Department of Housing and Urban Development and any amounts remaining unspent at the close of the
preceding fiscal year.
SECTION 5. The City Clerk shall certify the adoption of this resolution.
PASSED AND APPROVED this 4th day of January, 2011.
T
Mayor
I HEREBY CERTIFY that the foregoing Resolution was duly passed,approved,and adopted by the City Council of
the City of Azusa,at a regular meeting of said City Council held on the 4th day of January,2011,by the following vote of the
Council:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
City Clerk
N.V.GF.NDA REPoRhYII-0f-II ATACH -NT CDNGME WTIONFYIL.
EXHIBIT A
CDBG FY 2011112
New Year Funds: $650,981.00 Carryover Funds: 111,451.42 Total Funds Available: $762,432.42
Requested Recommended
Project Amount Amount
Administration 10% ca $65,098.00 $65,098.00
Non-Public Service Projects $599,687.27 Available
CDBG Concrete Improvements $237,387.27 $237,387.27
Athletic Court Resurfacing $34,680.00 $34,680.00
Single Family Housing Rehabilitation $238,000.00 $238,000.00
Code Enforcement Program $89,620.00 $89,620.00
Subtotal: $599,687.27 $599,687.27
Excess of Non-Public Service Project funds to be programmed
Public Service Projects 15% Cap Limit of$97,647.15
After School Program $65,380.80 $59,672.15
Homework House =$21,000.00 $10,000.00
Sr. Nutrition Site Mana er $17,975.00
Sr. Referral & Case Mana ement $10,000.00
Subtotal: $97,647.15
Overa a of Ca Limit 0
"Total Amount P.ro iammed in.FY 2011112 = $762;432 42
U:WGQ ARWORTWIL.11-AIIACW -COPGUSOLUTIOVFY I I POC
f PUBLIC HEARING NOTICE
NOTICE OF PROPOSED STATEMENT OF COMMUNITY DEVELOPMENT
OBJECTIVES AND PROJECTED USE OF COMMUNITY DEVELOPMENT BLOCK
GRANT FUNDS .
The City of Azusa has been allocated approximately $650,981 in new federal Community
Development Block Grant (CDBG) Funds for the 37`h Program Year (FY 2011-12), and has an
additional $111,451 of prior year funds. These funds are available for local housing,
public/social service, public improvement, and community development programs benefiting
low income residents. Funding for all public service projects is limited to $97,647 due to a 15%
public service cap imposed by HUD. Staff recommendations for the proposed statement and
projected use of these funds will be presented to Council at the public hearing.
The primary objective of the CDBG program is the development of viable urban communities by
providing decent housing and a suitable living environment, and expanding economic
opportunities, principally for persons of low- and-moderate income. In order to be eligible for
CDBG funding, a project must address at least one of the following national objectives:
• The activity must benefit low and moderate income persons; or
f • The activity must aid in the prevention or elimination of slums or urban blight; or
• The activity must meet a certified urgent need posing a threat to health and welfare.
All recommended programs will comply with one or more of these objectives.
NOTICE IS HEREBY GIVEN that the City of Azusa will hold a public hearing on January 4,
2011, at the hour of 7:30 P.M. or as soon thereafter as the matter may be heard in the City
Council Chambers, located in the Civic Auditorium, 213 E. Foothill Blvd., Azusa, CA. The
Azusa City Council will consider any oral or written comments, hear staff recommendations,
then direct staff to finalize the proposed statement of community development objectives and
projected use of CDBG funds. Anyone wishing to submit written comments should submit them
to the City Clerk's Office, City of Azusa, prior to the meeting.
Si usted quiere hacer un comentario o quiere mas informacion sobre esta noticia, usted puede Ilamar
a Israel Del Toro, a] numero (626) 812-5261.
G
y
Exhibit A-2
CDBG FY 2011112
(REVISED - 11412011)
New Year Funds: $597,289.00 Carryover Funds: 111,451.42 Total Funds Available: $708,740.42
Requested Recommended
Project Amount Amount
Administration 10% cap $59,728.90 $59,728.90
Non-Public Service Projects $559,418 Available)
CDBG Concrete Improvements $237,487.00 $218,645.80
Athletic Court Resurfacing $34,680.00 $31,942.22
Single Family Housing Rehabilitation $238,000.00 $219,210.15
f Code Enforcement Program $89,620.00 $89,620.00
Subtotal: $599,787.00 $559,418.17
Excess of Non-Public Service Project funds to be programmed
Public Service Projects 15% Cap Limit of$89,593.35
After School Program $65,380.80 $53,482.76
Homework House $21,000.00 $10,000.00
Sr. Nutrition Site Manager $19,695.00 $16,110.59
Sr. Referral & Case Management $10,000.00 $10,000.00
Subtotal: $116,075.80 $89,593.35
Overage of Cap Limit
i Amount Programmed in FY.2011/12 ($26,462) 0
Total
9 $708,740.42
V
I
1
i
(
yY:
" LOS ANGELES COUNTY
S
BULLETINCDBG
COMMUNITY DEVELOPMENT COMMISSION • 2 Coral Circle • Monterey Park,California 91755
NUMBER: 10-0031 SUBJECT: POTENTIAL REDUCTION IN FISCAL YEAR
(FY) 2011-
2012 COMMUNITY DEVELOPMENT BLOCK GRANT
(CDBG) FUNDING
DATE: December 30, 2010 EFFECnVE DATE: IMMEDIATELY PAGE 1 OF 1
TO: ALL PARTICIPATING CITIES
Federal government operations, including the CDBG Program, are currently being funded by a
continuing resolution through March 4, 2011. The national organizations that we participate in,
the National Association for County Community and Economic Development and the National
Community Development Association, have informed us that the CDBG Program may be
reduced to FY 2008 levels when a final budget is passed. This represents a reduction of
approximately 9% from current funding levels.
Since planning summaries are due by January 31, 2011, it is prudent that cities plan accordingly
in anticipation of a reduction in funding. The enclosed table summarizes the impact of such a
reduction on your City s allocation. The cities highlighted in bold show their allocations after the
'Section 108 payments have been deducted.
Please use these numbers when creating your proposed CDBG-funded activities for FY 2011-
2012 as well as making any exchanges. If your City has already submitted a "CDBG Exchange
of Funds" worksheet, please resubmit the worksheet with the new amounts to
Raymond.White0lacdc.ora.
If you have any questions, please contact Linda Jenkins, CDBG Manager, of my staff, at (323)
890-7168.
Sincerel ,
ZW-TER GONZALEZ, Director
Community Development Block Grant Division
TG:U:HR:RDW:rb
K:ICDBG COMMONIGPAIPAT BunednslPingEsMll-l2doo -
Enclosure
Strengthening Neighborhoods-Supporting lora!Economies-Empowering families-Promoting Individual Achievement .
FISCAL YEAR 2011-2012 CITY ANTICIPATED ALLOCATIONS BASED ON 9016 REDUCTION
CITY ALLOCATION CITY ALLOCATION
AGOURA HILLS $93,345 HERMOSA BEACH 90,603
ARCADIA 392,583 IRWINDALE 17,470
AVALON 30,469 LA CANADA-FLINTRIDGE 99,684
AZUSA i 597,289 LA HABRA HEIGHTS 23,669
BELL 661,629 LA MIRADA 287,426
BELL GARDENS 849,612 LA PUENTE 575,608
-553,735
295,877 LAVERNE 163,104
BEVERLY HILLS 254,144 LAWNDALE 431,402
BRADBURY 3,434 LOMITA 182,655
CALABASAS 89,989 MALIBU
77,371.
CERRITOS 342,470 MANHATTAN BEACH 143,626
CLAREMONT 206,017 MAYWOOD 510,180
-57,383
148,634 MONROVIA 369,031
COMMERCE 177,783 RANCHO PALOS VERDES 177,248
COVINA 426,646 ROLLING HILLS 6,396
CUDAHY 471,797 ROLLING HILLS ESTATES 27,375
299,005
CULVER CITY -164,487 SAN DIMAS 202,669
134,518
351,441
DIAMOND BAR 352,040 SAN FERNANDO -345,296
6,145
DUARTE 203,013 SAN GABRIEL 484,642
EL SEGUNDO 85,683 SAN MARINO 65,344
HAWAIIAN GARDENS 238,729 SANTA FE SPRINGS $175,912
1. I
*Vol
s
AGENDA ITEM/PUBLIC HEARING
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROBERT B. GARCIA, CHIEF OF POLICE
VIA: F.M. DELACH, CITY MANAGER �✓J
DATE: JANUARY 4, 2011
SUBJECT: ACCEPTANCE OF 2010 JUSTICE ASSISTANCE GRANT FUNDS
RECOMMENDATIONS
It is recommended that the City Council accept grant funds in the amount of$21,748 to be used
for the purchase of Mobile Digital Video Cameras for use in police vehicles.
BACKGROUND
The Azusa Police Department has been awarded a grant through the Justice Assistance Grant
Program in the amount of$21,748. The City has previously approved the purchase of a Mobile
Digital In-Car Video system and we would like to use the proposed funds to be used for the
purchase of additional cameras for the police fleet.
FISCAL IMPACT
There will be no immediate fiscal impact to the general fund; however, future, regular, and on-
going maintenance costs for the mobile digital video camera project will either be funded from
the general fund, grant funds and/or asset seizure funds.
Prepared by:
Cynthia Haebe, Crime Analyst
Sam Gonzalez, Captain
1
4
Notice of Public Hearing
NOTICE IS HEREBY GIVEN that the City Council of the City of Azusa will
hold a PUBLIC HEARING to consider valid requests with regard to the use of
approximately $21,748 from the Bureau of Justice Assistance Justice Assistance Grant
for Fiscal Year 2010-11. To be valid, a request must be made in writing.
Said PUBLIC HEARING will be held before the City Council of the City of
Azusa on Tuesday, January 4, 2011, at 7:30 P.M., or as soon thereafter as the matter may
be heard, in the Civic Auditorium, 213 E. Foothill Blvd., Azusa. Any person wishing to
testify may file a written statement prior to that time, and/or may appear and be heard.
If you challenge the proposed actions in Court, you may be limited to raising only
those issues you or someone else raised at the public hearing described in this notice, or
in written correspondence delivered to the City Clerk or City Council at, or prior to, the
Public Hearing.
�r-�-
N
ro
SIR
Ir
CITY OF AZUSA
MINUTES OF THE CITY COUNCIL
REGULAR MEETING
MONDAY,DECEMBER 6,2010—6:30 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.
CEREMONIAL
- Ceremonial
Certificate of Recognition was presented to Mr.Bill Baca Field Representative to Senator Gloria Romero, Cert B.Baca
in recognition of the many years of service to the City of Azusa Svs to City
Certificates of Recognition were presented to SCMAF-San Gabriel Valley and SCMAF Federation B Cert SCMAF
Division Girls Volleyball Champions. Girls Volleyball
Certificates of Recognition were presented to the Pee Wee Football Team Champions 2010. Cert Pee Wee
Football Team
CLOSED SESSION
The City Council recessed to Closed Session at 6:58 p.m. - Closed Session
1. CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code Sec 54957 61 Conf w/labor
Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and Negotiators
City Manager Delach
Organizations: AMMA,SEIU,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 Pavment `
a. ENTERPRISE PROPERTY Enterprise
Address: 229 S.Azusa Avenue(APN 8614-014-056,057 and 058) Property
Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff
Negotiating Parties: City of Azusa and City of Azusa Redevelopment Agency
The City Council reconvened at 7:36 p.m. 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 Father Gustavo Castillo of Saint Frances Flag Salute
of Rome Church Invocation
ROLL CALL
Roll Call
PRESENT: COUNCILMEMBERS: GONZALES.CARRILLO,MACIAS.HANKS,ROCHA
ABSENT: COUNCILMEMBERS: NONE
ALSO PRESENT: - Also Present
City Attorney Carvalho,City Manager Delach, Assistant City Manager Makshanoff. Police Chief Garcia,
Director of Public Works Haes, Administrative Services Director-Chief Financial Officer Kreimeier,
Director of Economic and Community Development Christiansen, Director of Recreation and Family
Services Jacobs, Recreation Superintendent Gonzales, Recreation Supervisor Gonzales. Revenue
Supervisor Cawte, Public Information Officer Quiroz, Assistant Director of Economic and Community
Development McNamara.Director of Utilities Morrow,City Clerk Mendoza.Deputy City Clerk Toscano.
3
PUBLIC PARTICIPATION - - _ -Pub Pan
Mr.Mike Lee addressed Council with several comments which included thanks to Bill Baca,Chief Garcia, M.Lee
City Manager Delach,Mayor and City Council for service to the City and all those who were in attendance Comments
at Veteran's of Foreign Wars preparing packages for soldiers. He also talked about the upcoming Special
- Election to be held on January 25, 2011, the Winter Fest, General Election March 8'and the Celebrity
Softball game on Sunday.
Mr. Jim Mc Junkin addressed Council talking about his history with the City of Azusa and expressed his J.McJunkin
opinion against mining is Azusa. Comments
Ms.Jeri Vogel addressed council and read several exerts from past articles in the L.A.times regarding the J.Vogel
Azusa Rock Quarry. Comments
Mr.Jorge Rosales addressed Council and commended Bill Baca for recognition received. He announced J.Rosales
that he is running for Azusa City Council and invited all to attend his campaign kick off event at Pioneer Comments
Park on Saturday. He addressed item regarding contract with Benchmark Resources as Mining Consultant
stating that they have ties to Vulcan and it's a conflict of interest.
Mr. Bruce Knoles addressed Council expressing his opinion regarding mining in Azusa and voiced his B.Knoles
opposition to the mining. Comments
Ms. Madelyn Pavne addressed Council announcing the 4's Annual Food and Toy Drive for the Azusa M.Pavne
Community Food Banks to be held on Tuesday December 7, 2010 from 7 a.m. — 10 a.m. at the Eagles Comments
Club.
Ms. Irene Villapania Executive Director of the Azusa Chamber of Commerce addressed Council providing 1.Villapania
an update on Chamber activities and reminded all to vote in.the Special Municipal Election on January 25, Comments
2011.
Mr. Russ Rentschler addressed Council regarding several items which included Mills Act, funds sent to R Rentschler
Sacramento, Measure A, Proposition 22, Highway 39 boulders, automated trash containers, candidates Comments
receiving contributions,CIP Football game,and his Alma Mater.
Ms. Sandra Rentschler addressed Council expressing her opinion in favor of Measure A and an S.Rentschler
investigation into Duarte regarding spending residents tax dollars on Measure A, Comments
Ms.Elizabeth Ramirez Executive Director of the Canyon City Alliance addressed Council talking about the E.Ramirez
grand opening of their office,and a scheduled campaign rally. Comments
Ms. Stephanie Mills addressed Council expressing her opposition to Measure A and her opinion regarding S.Mills
Vulcan Mining. Comments
Mr. Ian Scott addressed Council with several questions regarding Vulcan Mining, reports, production I.Scott
volume,tax due on overburden and expressing his opposition to Measure A. Comments
Ms.Peg Casey,Project Manager for Vulcan Materials addressed Council stating that have worked with the P.Casey
community to build trust and have been in compliance with everything. I Comments
City Manager Delach,Assistant Director of Economic and Community Development McNamara,and City Response to
Attorney Carvalho responded to questions posed during public participation regarding Vulcan Mining Questions
Project, loss of Redevelopment funds to the State, and curbside pickup. Lengthy discussion was held
regarding the Vulcan Project.
REPORTS,UPDATES COUNCIL BUSINESS AND ANNOUNCEMENTS-STAFF Rpts,Updates
Mayor Pro-Tem Gonzales thanked all involved in the Winter Fiesta, invited all to attend the Celebrity Gonzales
Softball Game at Gladstone Park on Sunday, December 12'', thanked staff for Christmas decorations on Comments
Azusa, and asked that consideration be given to cancel the December 20'"meeting so staff could be with
family.
Moved by Mayor Pro-Tem Gonzales,seconded by Councilmember Carrillo and unanimously carried to add Item of subse-
an item of subsequent need as consent calendar item D-14,regarding the request to cancel the City Council quent need
meeting of December 20,2010. Cancel 1220 rang
Mayor Pro-Tem Gonzales noted that residents of Azusa have requested an update of the City of Duarte Gonzales
situation with regard to recent newspaper reports.City Attorney Carvalho responded stating that there have Add'I Comments
been allegations made against the City of Duarte for potential misuse of public funds and they are being
investigated. He then asked that the meeting be adjourned in memory of Mike Gomez Sr., who passed
away last Friday.
12/06/10 PAGE TWO
Councilmember Macias announced that a representative of Wells Fargo has advised that there will be a free Macias
J Home Preservation Workshop where they will talk about how to modify mortgage,on December 816 and 9' Comments
at the Ontario Convention Center; for more information call (415) 3%-1660. He congratulated staff for
the decorations on Azusa Avenue, Recreation Superintendent Marc Gonzales for award for Outstanding
Service to the Southern California Athletic Association and IT Technical Analysis Jaime Prado for award
for submission of a GIS Map for Quality and IT Best Practices for their high level performance in
Municipal Government. He requested that the meeting be adjourned in memory of Raymond Avila and
keep in prayer Victor Bracamontes Sr.
Councilmember Carrillo noted that Ray Avila was not only a lifelong resident of Azusa, but founding Carrillo
member of the Human Relations Commission. He talked about the passing of Jack Hyser,Chief Financial Comments
Analysis for Los Angeles County and the great loss to all. He congratulated City Staff all they do and
wished a Happy Holiday to everyone.
Councilmember Hanks provided comments on the passing of Jack Hyser,a representative of SCAG,noting Hanks
the deep loss in his passing. He wished all a Merry Christmas. Comments
Mayor Rocha announced that the meeting would be adjourned in memory of Mike Gomez Sr., and Ray Rocha
Avila. He thanked staff for the Winter Fiesta event and decorations along Azusa Avenue. He stated that Comments
the Veterans Committee sent over 80 packages to U.S. Soldiers. He asked that anyone wishing to dispose
of tattered U.S. flags can bring them to a pick up place at City Hall. He announced a Holiday Open House
on Sunday at the Historical Museum and wished a Merry Christmas and Happy New Year.
SCHEDULED ITEMS Sched Items
PUBLIC HEARING - GENERAL PLAN AMENDMENT(GPA-2010 01) TO UPDATE THE CITY OF Pub Hrg
AZUSA HOUSING ELEMENT. Housing Element
Director of Economic and Community Development Christiansen addressed the issue stating that this is K.Christiansen
one of the seven mandatory elements of the General Plan and the only one approved by the State. The Comments
Planning Commission held two public hearings and approved the Housing Element on November 10,2010.
He stated that this is a policy document that will outline certain types of housing needed throughout the
community,what is being done to implement it and how to create policy to build and maintain housing in
the community.
Ms.Ruby Shalo of Hogle-Ireland.Inc.addressed Council and audience presenting the Housing Element for R.Shalo
the City of Azusa. She detailed the four main parts of the plan which consisted of needs assessment, Hogle-Ireland
constraints,resources and a housing plan. She responded to questions posed. Presentation
The Mayor declared the Hearing open. City Clerk read the affidavit of proof of publication of notice of Hrg Open
said hearing published in the San Gabriel Valley Tribune on November 19,2010.
Mr.Jorge Rosales submitted a document for the record and voiced his concern regarding housing that was J.Rosales
supposed to be built for low income families,specified needs households,and the overcrowded housing in Comments
Azusa He noted that the Housing Element has good housing element programs but not enough.
Moved by Mayor Pro-Tem Gonzales, seconded by Councilmember Hanks and unanimously carried to Hrg Clsd
close the Public Hearing.
Councilmember Macias offered a Resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING GENERAL Res. 10-C89
PLAN AMENDMENT NO.GAP-2010-02 2008-2014 HOUSING ELEMENT UPDATE. Housing Element
Moved by Councilmember Macias, seconded by Councilmember Hanks to waive further reading and
adopt. Resolution passed and adopted by the following vote of the Council:
AYES: COUNCILMEMBERS:GONZALES,CARRILLO.MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS:NONE
ABSENT: COUNCILMEMBERS:NONE
BUSINESS LICENSE REVOCATION HEARING—GREATER CHOICE Bus License
Revocation Hrg
Revenue Supervisor Cawte addressed the Hearing stating that the purpose was to consider the revocation of A.Cawte
a business named Greater Choice which represented to staff to be a general merchandise store when the Comments
license was obtained earlier this year but on November 2,2010 it was a subject of a search warrant by the
Police Department and it was discovered to be a marijuana dispensary which would not qualify for a
business license in Azusa;staff is recommending immediate revocation of the license. .
12/06/10 PAGE THREE
- Mr. Raza Lawrence, Attorney for Greater Choice, addressed the Hearing stating that this is a non-profit R.Lawrence - v
organization to distribute medical marijuana and that it is not fraudulent, there's no dishonesty-and that Attorney for u '
.general merchandise was the closest category to the business. He talked about the need for medical Greater Choice
marijuana which could lead to adverse affects,and that State Law Court of Appeals has found it legitimate
under California State Law;he cited court cases.
City Attorney Carvalho asked a series of questions to Revenue Supervisor Cawte and Mr. Lawrence.and City Attomey,
discussion was held regarding zoning and Section 18-31, of the Azusa Municipal Code which states: Comments
"Notwithstanding any provision in this Code to the contrary,any business,operation or use that cannot be
conducted or carried out without being in violation of state or federal law shall be prohibited in all planning
areas,districts,or zones within the city"
After additional discussion,it was noted that findings have been made as follows:on the application in the Discussion
description portion,the applicant did not describe the business as medical marijuana dispensary,although `
Mr. Lawrence advised that the business was a non-profit organization, the application stated it was a
corporation and a business license fee was paid; a non-profit would not have paid, no information was
disclosed that the business was a medical marijuana dispensary. Councilmember Carrillo reiterated that the
City of Azusa has not created a zone for the sale of medical marijuana.
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales and unanimously carried to Motion to
revoke business license number 027288 due to fraudulent statements and unlawful business activity. Revoke Bus Lie
Greater Choice
Councilmember Carrillo offered a Resolution entitled: -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, REVOKING Res. IO-C90
THE BUSINESS LICENSE OF GREATER CHOICE LOCATED AT 113 E.NEWBURGH ST.,AZUSA. Revoking Bus
Lie 027288
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales to waive further reading and
adopt. Resolution passed and adopted by the following vote of the Council:
AYES: COUNCILMEMBERS:GONZALES,CARRILLO.MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS:NONE
ABSENT: COUNCILMEMBERS NONE
INTRODUCTION AND FIRST READING OF AN ORDINANCE OF THE CITY COUNCIL Prop Ord Appvg
APPROVING A POWER SALES AGREEMENT BETWEEN THE CITY AND THE SOUTHERN Pwr Sales Agmt
CALIFORNIA PUBLIC POWER AUTHORITY FOR THE LA PAZ SOLAR TOWER PROJECT La Paz
Utilities Director Morrow presented a Power Sales Agreement with Southern California Public Power Dir ofUtil
Authority for the La Paz Solar Tower Project. He stated that this is a proposed"firstof--its-kind' solar G.Morrow
project which will provide an additional 2.5% of renewable energy to the City when operational in late Presentation
2014. There is no cost/obligation to Azusa other than the commitment to purchase green eneraw, from the
plant at an attractive contractually set price.He presented a diagram of the tower,and talked about how it
would function,he also presented a video of how the project would function and noted price to purchase is
set at$95.50 per megawatt hour for the first 15 years.
Mayor Pro-Tem Gonzales offered an Ordinance entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA,CALIFORNIA,APPROVING 1"Rdg Ord
THE POWER SALES AGREEMENT BETWEEN THE CITY AND THE SOUTHERN CALIFORNIA Pwr Sales Agmt
PUBLIC POWER AUTHORITY FOR THE LA PAZ SOLAR TOWER PROJECT. La Paz Solar Pjt
Moved by Mayor Pro-Tem Gonzales, seconded by Councitmember Hanks and unanimously carried to
waive further reading and introduce the proposed ordinance.
RESOLUTION APPROVING AND ADOPTING AMENDED APPENDIX OF THE CONFLICT OF
INTEREST CODE PURSUANT TO THE 2010 MANDATORY REVIEW AND FILED BIENNIAL
NOTICE.
Councilmember Carrillo offered a Resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OFTHECITY OF AZUSA,CALIFORNIA,APPROVING Res- 10-C91
AND ADOPTING AN AMENDED CONFLICT OF INTEREST CODE PURSUANT TO THE Conflict of
POLITICAL REFORM ACT OF 1974. Interest Code
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales to waive further reading and
adopt. Resolution passed and adopted by the following vote of the Council:
AYES: COUNCILMEMBERS:GONZALES,CARRILLO,MACIAS,HANKS,ROCHA _
NOES: COUNCILMEMBERS:NONE
ABSENT: COUNCILMEMBERS:NONE
12/06/10 PAGE FOUR
f
COUNCIL REOUEST FOR INFORMATION REGARDING POTENTIAL DEVELOPMENT CODE Potential Dev
AMENDMENT TO ADDRESS INCONSISTENCIES BETWEEN PERSONAL SERVICES AND Code Amend
BUSINESS.SERVICES IN THE DOWNTOWN TOWN CENTER
Assistant Director of Economic and Community Development McNamara stated that the item was brought C.McNamara
forth due to a question of Councilmember Macias as to why a real estate office would be allowed on the Comments
ground floor of a two-story building in the downtown while a law office would not. He stated that there are
development code amendments done to correct inconsistencies that are discovered while using the code and
this could be done in this instance.
Moved by Councilmember Macias, seconded by Mayor Pro-Tem Gonzales and unanimously carried to Direction to Staff
give direction to staff regarding a potential City initiated Development Code Amendment. Assistant City initiated
Director of Economic and Community Development McNamara advised that it will go before City Dev Code Amend
Planning Commission and placed before Council in about four months.
The CONSENT CALENDAR consisting of Items D-I through D-14 was approved by motion of Consent Calendar
Mayor Pro-Tem Gonzales, seconded by Councilmember Hanks, and unanimously carried with the D4,8, 10, 11,
exception of items D4, D-8, D-10,D-11,D-12, and D-14, which were considered under the Special Call 12,S 14 Spec
portion of the Agenda. Call
1. The minutes of the regular meeting of November 15,2010 and the special meetings of October 25' Min appvd
and November 22ntl,2010,were approved as written.
2. HUMAN RESOURCES ACTION ITEMS HR Action Items
Human Resources Action Items were approved as follows:
Merit Increase and/or Regular Appointment: R.Landeros,R.Lopez,and 1.Peek.
New Appointments: E.Coulter,F.Cueva,K.Rasmussen,and S.Henchey.
Separation: R.DiGuilio.
3. The City Treasurer's Report as of October 31,2010,was received and filed. Treas Rpt
4. SPECIAL CALL ITEM. Spec Call Item
5. Staff was authorized to solicit proposals (RFP's) for Traffic Signal Maintenance and Equipment REP Traffic
Services.
Sig Maint
6. Notice of Completion for Target Pedestrian Improvements Project No. 661 I0H — $348,831.82— NOC Target
Sully-Miller Contracting Company,Brea,CA 92821,was approved and authorization was given to Pedestrian Imp
file same with the Los Angeles County Clerk.
7. Authorization was given for the purchase of Evidence Inventory Management Svstem from File Evidence
OnQ(Evidence on Q),Inc.of Seattle,WA in the total amount of$38,795.90. The purchase is based Inventory
on competitive bid process completed by San Diego Data Processing Corporation (SDDPC), who Management
purchased system for the San Diego PD (Purchase Order No. pending — based on SDDPD RFP System
dated 8-6-10). This "piggyback" purchase is authorized by AMC Section 2-523(E) when the
competitive bid process has already been completed.
8. SPECIAL CALL ITEM. Spec Call Item
9. Amendment to Royal Coaches Auto Body and Towing Franchise Agreement.Section 15(B)(2),for Amend Royal
tow truck services with the City,was approved. Coaches Frchs
10. SPECIAL CALL ITEM. Spec Call Item
H. SPECIAL CALL ITEM. Spec Call Item
12. SPECIAL CALL ITEM. Spec Call Item
13. The following resolution was adopted and entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ALLOWING CERTAIN Res. 10-C97
CLAIMS AND DEMANDS AND SPECIFYING THE FUNDS OUT OF WHICH THE SAME Warrants
ARE TO BE PAID.
14. SPECIAL CALL ITEM. Spec Call Item
SPECIAL CALL ITEMS Spec Call Items
4. CONTRACT WITH BENCHMARK RESOURCES AS A MINING CONSULTANT FOR VARIOUS Contract
REVIEWS ASSOCIATED WITH SMARA (SURFACE MINING AND RECLAMATION ACT) wBenchmark
COMPLIANCE. Resources
12/06/10 PAGE FIVE
Mayor Rocha questioned Section 4.1 regarding Travel to site and performs scheduled inspection and J.Rocha
32.10.3 regarding side notes,of the Professional Services Agreement and Assistant Director of Economic Questions
and Community Development McNamara responded explaining each item. Benchmark mining ties to C.McNamara
- Vulcan and Madera County suing them;Mr. McNamara responded stating that Benchmark does not have City Attorney
any past,present or future conflicts of interest in completing the work specified and have only contracted Responses
with other lead agencies and the City Attorney Carvalho defined lead agencies of which Vulcan could have -
been an applicant;she provided scenarios and examples of similar situations.
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales and unanimously carried to Contract w/
approve Benchmark Resources to provide consultant services for various reviews associated with SMARA Benchmark
compliance,as well as biennial monitoring of the Fish Canyon/Azusa Rock mine Conditions of Approval, Various SMARA
and the City Manager was authorized to execute the City's standard professional services agreement for Reviews appvd
three years in the amount not to exceed$I 10,000.
S. CERTIFICATION OF ENVIRONMENTAL CONSULTING FIRMS FOR ENVIRONMENTAL Consulting firms
DOCUMENT PREPARATION. - - Envmtl Prep
City Manager Detach advised that he would like to add Specifica Services Inc. to the list of firms City Mgr
recommended for Certification. Add to list
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales and unanimously carried to List of Firms
certify the list of firms to provide consultant services for various environmental reviews associated with Certified
projects being processed through the City.
10. SUSPENSION OF STREET SWEEPING DURING CHRISTMAS EVE AND NEW YEARS EVE. Suspend St
Sweep
Mayor Rocha addressed this item requesting to suspend street sweeping the Friday after Thanksgiving due J.Rocha
to the high number of citations given during that holiday. Request
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales and unanimously carried Suspend StSweep
suspend street sweeping service on Christmas Eve,New Years Eve and Friday after Thanksgiving. list holidays
Councilmember Macias addressed both of the following items thanking Administrative Services Director- U.Macias
Chief Financial Officer Kreimeier and Negotiating Teams for both entities for working with the City during Thanks to all
these tough times and helping to work out something that was fair to all. Negotiations
11. AZUSA MIDDLE MANAGEMENT ASSOCIATION(AMMA)CONTRACT EFFECTIVE AUGUST Middle Mgmt
1,2010 THROUGH JULY 31,2011. Assoc.
Councilmember Carrillo offered a Resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING THE Res. 10-C92
MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY AND THE AZUSA MIDDLE MOU w/
MANAGEMENT ASSOCIATION EFFECTIVE AUGUST I,2010,THROUGH JULY 31,2011. AMMA
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales to waive further reading and
adopt. Resolution passed and adopted by the following vote of the Council:
AYES: COUNCILMEMBERS:GONZALES,CARRILLO,MACIAS.HANKS,ROCHA
NOES: COUNCILMEMBERS:NONE
ABSENT: COUNCILMEMBERS:NONE
12. AZUSA POLICE OFFICERS ASSOCIATION CONTRACT (AUGUST 1. 2010 THRU JULY 3L Azusa Police
2015)AND RELATED MATTERS AS INDICATED. Officer Assoc.
Councilmember Carrillo offered a Resolutions entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA AMENDING ESTABLIS14ED 10-C93
RULES AND REGULATIONS RELATING TO EMPLOYER-EMPLOYEE RELATIONS. Rules Regs
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA FOR EMPLOYER PAID IO-C94
MEMBER CONTRIBUTION. Emp Mbr
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA TO TAX DEFER EMPLOYER 10-C95
PAID MEMBER CONTRIBUTIONS—IRC 414(h)(2). Tax Defer Emp
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING THE 10-C96 -
MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY AND THE AZUSA POLICE MOU
OFFICERS ASSOCIATION EFFECTIVE AUGUST 1,2010,THROUGH JULY 31,2015. APOA
12/06/10 PAGE SIX
y Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales to waive further reading and
- adopt. Resolution passed and adopted by the following vote of the Council:
AYES: COUNCILMEMBERS:GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS:NONE
ABSENT: COUNCILMEMBERS:NONE
14.CONSIDERATION OF CANCELING THE CITY COUNCIL MEETING OF DECEMBER 20,2010. Cancel Mtg
Mayor Pro-Tem Gonzales explained that he requested that the meeting of December 20, 2010 be canceled R.Gonzales
in order that Council and staff be able to spend time with their families. Comments
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales and unanimously carried to Dec 20,2010
cancel the meeting of December 20,2010. It was also noted that if any urgent City business arose a special Mtg Canceled
meeting will be called and held.
THE CITY COUNCIL RECESSED AND THE REDEVELOPMENT AGENCY CONVENED AT Cncl Recess
10:31 P.M. THE CITY COUNCIL RECONVENED AT 10:46 P.M. Cncl Rend
ORDINANCES/SPECIAL RESOLUTIONS Ord/Spec Resos
Councilmember Carrillo offered an Ordinance entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, Ord. 10-08
PROHIBITING SLEEPING IN VEHICLES ON PUBLIC AND PRIVATE PROPERTY. Sleeping in
Vehicles
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Gonzales to waive further reading and Prohibition
adopt. Ordinance passed and adopted by the following vote of the Council:
AYES: COUNCILMEMBERS:GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS:NONE
ABSENT: COUNCILMEMBERS:NONE
It was consensus of Councilmembers to adjourn in memory of Mike Gomez Sr.,and Raymond Avila. Adjourn in
Memory of
M.Gomez
TIME OF ADJOURNMENT: 10:55 P.M. And R.Avila
CITY CLERK
NEXT RESOLUTION NO.2011-CI
NEXT ORDINANCE NO.2011-01.
12/06/10 PAGE SEVEN
f� f
1 .l't+OFt�?L
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 AtO
DATE: JANUARY 4, 2011
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 December 14,2010,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 ACTdON/EFF RAVG.E/STEP
DATE BASE'MO SALARY
PD Steve Martinez Police Officer Reg Appointment 6101/2
11/20/2010 $5,771.73
UTL Federico Langit Assistant Director of Reg Appointment 3557/5
Electrical Operations 11/04/2010 $10.609.73
UTL Jaroslaw Lehr Assistant Director of Merit Inc/Reg Appt 3570/5
Resource Manna,ment 11/17/2010 $12,042.46
B. NEW APPOINTMENT: The following appointments have been requested by department heads pursuant to
the Rules of The Civil Service System.
LRTMENT" NAME CLASSIFICATION . ` EFFECTIVERANGE/STEPDATE BASEMO. SALARY Leo Maldonado Water Production Operator II Pending Physical 5185/1
and Back ound $4,432.63
C. SEPARATION: The following separations are submitted for informational u oses.
DEPARTMENT r': -- NAME CLASSIFICATION EFFECTIVE DATE
PD Melissa Powel Police Records S ecialist III 12/30/2010
PD Jerome Arnold POliCe Sergeant 12/25/2010
PD John Fischer Police Officer 12/31/2010
FISCAL IMPACT
There is no fiscal impact, as positions listed are funded in approved department budgets.
^�4
1J �
s
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MARCENE HAMILTON, CITY TREASURER
DATE: JANUARY 4, 2011
SUBJECT: CITY TREASURER'S STATEMENT OF CASH AND INVESTMENT
BALANCES FOR THE MONTH OF NOVEMBER 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 November 2010.
BACKGROUND:
Transmitted herewith is the City Treasurer's Statement of Cash Balances for the City of Azusa
for the month of November 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 October 31, 2010 to November 30, 2010
is a net decrease of$775,764,56.
y
CITY OF AZUSA TREASURER'S REPORT
Treasury Checking Accounts and Certificates of Deposit November 30, 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-XXX1244 381,704.00
Stagecoach Sweep Account DDA XXX-XXX 1244 2,149,437.67
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 19,161.12
Section 108
0.970% Choice IV-Public Fund Account XXX-XXX2239 30,866.18
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 314,135.26
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 17,698,43
100,000 06/29/09 4.200% 1 Certificate of Deposit- 25467JG21 WFB 25467JG21 100,000.00
TOTALS 5,372,941.64
CITY OF AZUSA TREASURER'S REPORT
TREASURY INVESTMENTS - November 30,2010
Prepcuedby: M"ne Hamilton-Treasurer
Broker Face Amount Descri Hon Coupon Maturiv SeUlement M 'Yet Prlce
p Rate Dam Act, No. Date or
(Changes Market Value-
Monthly)
City of Azusa Investments- AAA Rated Fcdiral Agency Bonds
MZWO.W
Se, 2,007.000 FFCB 2.25002117!12 2.250'% 02/1]/12 3133 GNDJ 03/16/09 1.999,00000 . 102.000070 2,040.00000
Sec IAO.oco FHLB 2.25004113/12 1250% 04/1342 3133XTAW6 03116109 999.5001X1 102.3)5000 1023]50.07
nal 2.000.000 FHLMC 250004/08113 2.500% 04!08113 3128XHT 5 09N8/09 2.070.007.07 107.]23000 2.01 .4fi000
Sec 29W.W FFCB 1.60006.17!13 16Ws. 06/17/13 31331JRR6 0611]/10 2,000,000.00 100.500000 2,010.00000
x I.".000 FHLB2.0001VOW13 2.000% 12/09/13 3133XYPX] 06107/10 LOOO.OWW IW WIOW 1,000.31007
c 1.070.000 FHLB 1.15012/16/13 1.1507''. 12/16/1) 31)3701075 09116110 LOOO.00O.W 100.188000 1.001.880.00
ec 2900.000 FHLR 2.507 1]/2)11) 2.500°% 12123113 JISJXWJE3333333333333333333333 1223N9 1.99],(10.07 100.125000 2.02.500.00
Gilford Sec 1,000,000 FFCB 24200241114 2420%. 02/11/14 313311DL4 0241/10 1.000.00000 100.313000 1003,130.07
Gilford Sec 1,000.000 FHLB LOGO Step Up to 3% I.IKP% 11/19/15 31337IN77 11119/10 1070.00007 100.00000 1.0W.OW_00
Gil fold Sec 1,000,000 FFCB 20001123115 2.000% 11/23/15 31331BA9 112)/10 1.00000090 IW.W4070 1.070.940.07
Gil ford Sec IW.00 FHLB 2.4000324/14 2400"/e 03124114 3133XXLU9 0324/10 998.400.00 100.594000 1,005.940.00
Gilford5¢ 2,000.000 FFCB 2.45005/13/14 24509'. 0511344 31331JNMI 05/14/10 2.000.000.00 107.895000 2.017,50000
wachovies. 1000.000 FHLB 1.2500729114 1.250%. 0729/14 113370YK8 09117/10 1,000900W 100438000 1.00438000
Wachovia S. I.00,OW FHLB 14500825/14 1.450% 0825114 3133] 84 o82.540 1100000000 99.656000 996.560.0
Wachovia Sec 1.000,000 FF1014Iuu Ilu ll 1450% 0710614 31331/C4J (P)MIl0 1.000.000.00 100.031000 1.000310.W
Gilford Sec, 1000.000 FFCB 2,9500 OVl5 2.950% 0115115 313311CX9 0]102110 1,000.00000 1005WW0 1.005.000.0
Gilfmd Sec 2,000,000 FFCB 2.98004120115 2.980% 0428115 31)311187 0420110 2.000,000.00 102.125000 2.0423WW
WachoviaSx 7.000000 FHLB 2IN)Stc U to 3.300 2.0N% OS/IB/IS JI]J%YCC7 05.18.10 1.998]50- 101.375000 2.027.50.00
Wachm is S¢ 1.00.00 Ffl8I.00 St U to 4% 1.00090 0825115 JI]AOIZ9 0825110 LOOO.00O.W 10.074070 1.000.990.00
TOTALS x6,007,070 x5,99I,650.00 26,197,600.00
City 9f Azusa Investments - Certificates of Deposit-FDIC Insured
WachoviaSx 100.000.00 GE MONEY BANK 1.3104: 1022/13 361595UC] 10.'21110 IW.WOW 99605000 99,605.07
WachoviaSx 1W.000 METLIFE BANK,NA 1.310% 1028113 591557FHI 1021110 loo'N,iml 99604000 9.604.07
200,000.00 x00.000.00 1 1991209.00
WFB-CITY THIRD PARTY CUSTODIAL TRUST ACCT 0.240% N/A N/A NIA 3,815,000,001 107.071100 3,815,000.00
Light&Water Fund Investments - AAA Rated Fedcral'Agency Bands
Hieire Cailal 1.215,000W FHIB2.1009106/11 2.107°% 09/06/11 3133XTA97 03106/(X9 MrWIW.375"
0 10/113000 1.30.952.95
Hi Bins Ca ilal 2.1X1.000W FNMA 2.2500224/12 2.250% 022412 313UHUO 027109 100.375000Wachovia Sec 100.1210.07 FHLB 140)07/1113 1400% 07/12/13 31337020.9 O7/12/IO 0 107250000 1077,5070
GilfordStt 10000007 FHLB 16903112114 1690% 0811&14 313370GSI 08112/10 10793800 1093800Hi ins Ca itd 1.000.000 W FHLB 1]508125114 1.750"/e 0625114 313370HC 0&25/10 107}44000 1,07),44000
Hi ins Coital 2,000.000.07 FHLB 12009113114 1.200% 09113114 3137ORS9 09113110 100.250000 2.05.00707
Wachovia Sec 1000OOOW FHLB ISW ILI5.14 1.500% 12/15/14 3133]OIM9 09115110 IW.06300 1,000,630'0
TOTALS 9,215,070.0 - 9,2I5.W.W 9264,40x.95
WEIR-L&W THIRD PA RTY CUSTODIAL TRUST ACCT 0240% NIA N/A NIA 0,01 UX)rW0161 0,01
LAIF-CIT% LOCAL AGENCY INVESTMENT FUND 0454% N/A N/A. NIA 7,638,25056 IW.Wriwo 7,638,25056
TOTAL INVESTMENTS IN FEDERAL AGENCIES,WFB INSTITUTIONAL TRUSTS,and LAW -46,660,900:5] 0,114;46x.52
INTEREST RECEIVED FROM INVESTMENTS FISCAL YEAR-TO-DATE (From July 1,2010) 506,009.87
LTM1e'Principal"column ac@ns the balance on me last day of the month or the"histoid cost"spent m purchase a secunly.
The"Marks Vdue' is Ne curtrnl r eat wM1ichaucunry do be varied or sold.
Treasurer Rep's November 2010 71mes Romands
12/102010 6:32 PM
3 CITY OF AZUSA TREASURER'S REPORT y't
INVESTMENT INTEREST EARNINGS - Thru November 30,2010
Prepared by: Marcene Hamilton,Treasurer
Scheduled Scheduled Interest
Face Amount Net Amount Coupon Maturity Date AccUCusip No. Payment 2010/2011 Semi-Annual Received Fiscal
Rate Schedule Interest Payment Year to Date*
Earnings Amount
City of Azusa Investments - AAA Rated Federal Agency Bonds
1,000,00D 1,000,000 2.700% CALLED 3128X9UU2 721&1/21 D.00 13,500.00 11,250.00
2,000,000 2,000,000 3.680% CALLED- 31331GJ59 8/I8&2118 73,600.00 36,800.00 36,800.00
2,000,000 2,000,000 3.050% 1 CALLED - 3128X9XE5 - 824&224 61,000.00 30,5000D 30,500.00
2,000,000 2,000,000 2.450% 1 CALLED 3133XYR31 12/9&619 49,000.00 24,500.00 12350.00
1000,000 1000,000 3.000% 1 CALLED 3133XXH42 923&323 30,000.00 15,000.0) 15,000.00
1,000,000 1,000,000 2.500% CALLED 3133XY2A2 1028&428 25;000.00 12,500.00 12,500.00
1,000,000 999,250 L125% CALLED 313370VF2 9/14&3/14 '5,625.00 5,625.00 1,875.00
2,000,000 2,000,000 1.500% 1 CALLED 3133XYKV6 11/2&526 30,000.00 15,000.00 15,000.00
2,000,000 2,000,000 3.125% 1 CALLED 3133XSM70 • 11117&5/17 -62,500.00 31,250.00 31,250.00
2,000,000 1,999,000 2.250% 02/17112 3t331GND7 8116&2/17 45,000.001 22,500.00 22,500.00
1.000,000 999,500 2.250°/. 1 OV13/12 3133XTAW6 10113&4113 22,500.001 11,250.00 11,250.00
2,OM,000 2,000,000 2.500% 04/08113 3128X8TZ5 10/8&4/8 50,000.00 25,00.00 25,000.00
2,00.000 2,000,00 1.600% 06/17/13 31331JRR6 12/17&6117 32,000.001 16,000.0
1.000,00 1,000,M0 2.000% 12/09/13 3133XYPX7 1219&6/9 2D,000.00 10,000.0
1,000.000 1,00,000 1.150% 12/16/13 313370VW5 9/16&3116 5,750.00 5,750.00
L000.00 1,997,000 2.500% 1223113 3133XW7E3 12/23&6123 5D,MD.00 25,000.0
1,000,000 I,DM,000 2.420% 02/11/14 313311DL4 8111&2/11 24,20D.00 12,100.0 12,100.00
1.000,000 998,400 2.400% 03/24/14 3133XXLU9 924&3/24 24,00.00 12,000.00 12,000.00
2.000,000 2,000,000 2.450% 05/13/14 31331JNMI 11/13&5113 49,00.00 24,500.0 24,500.OD
1,000000 1,000,000 1.250% 07/29/14 313370YK8 729&1/29 4,583.33 6,250.00
1,000,000 1,000,000 10-3.0% 11119115. 31337IN77 11;19&5119 5,0)0:00 5,00000
1,000,000 1,000,000 2.000% 1123115 31331J3A9 11123&523 - 10,000.00 10,00000
I,MD,000 LOM.000 1.450% 0825/14 313370Q84 825&2125 7,250.00 7,250.00
1,00,000 1,000.000 1.450% 09102/14 31331JC43 912&312 7,250.00 7,250.00
1,00.000 1,000.000 2.950% 02/15/15 31331JCX9 82&2/2 29,500.0 14.750.00 14,75D.00
1.00,000 1.000,00 1.0-4.0% 02/25/15 313370129 825&225 5,000.00 5,00.00
2,000,000 2,000.000 2.980% 0420/15 31331JLB7 10120&4/20 59,600.00 29,800.00 29,800.00
2,000,000 1,998.750 2.000% 05/18/15 3133XYCC7 11/18&918 40,00.00 20,00.00 20,000.00
26,000,000 27,992,650.00 ACTIVE INVESTMENTS 827,358.33 454,D75.00 338,325.00
City of Azusa Investments -•Certificates of Deposit -FDIC:Insured
- - - _
100,00.0 100,000.00 1.300% 1022/13 361595UC3 10/22&422 626.85 648.22 (21.37)
10,000.00 100,000.00 1.3D0 10/28/13 591557FH1 1027&4/27 644.66 648.22 (3.56)
200,DOO.OD 1 - - 200,000.00 (24.93)
CITY-Wells Fargo Bank Institutional Third Party Custodial Money Market Account-Liquid Asset
.3,815,000.00 1 1 0.240% 1 /a I N/A Monthly - Per Balance and Raze 1,071.03
Light
Light&Water Fund Investments-AAA Rated Federal Agency Bonds
3,000;00 1 3,000,000 3:000% CALLED 13139BAEBI 729&-129 - 45,000.00 45,000.00 45,000.0
3.000,000 3,000,00D 3.680%- CALLED 31331GJ59 8/18&2/18 ..110,400.00 55,200.00 55,200.00
1.215,000 1,215,00 2.100% 09/06/11 3133XTA97 9/6&3/6 25,515.00 12,757.50 12,757.50
1,000,00 1,000,000 1.50% 12/15/14 313370UH9 9/15&3/15 7,500.00 7.500.00
2,000.000 2.00.000 1.200% 09/13/14 31337ORS9 9113&3/13 12,000.00 12,000.0
2.000,000 2.000,000 2.250% 02/24/12 3136FHCFO 824&2124 45,00.00 22,500.00 22,50D.00
1.00,000 1.00.000 1.400% 07/12/13 3133702W7 7/12&1/12 7,000.00 7,000.00
1.00,000 1,000.000 1.690% 08/12/14 313370GSI 8/12&2112 8,450.00 8,450.00
1.00,00 1,000.000 1.750°/ 08/25/14 313370HC5 8/25&2/25 8,750.00 8,750.00
9,215,000 9,215,000 JACTIVEINVESTMENTS1 269,61S.00 179;157.50 1 135,457.50
Light&Water Stablization-Wells Fargo Bank Institutional Third Party Custodial Money Market Account-Liquid Asset
0.01 0.240% NIA -NIA "Monthly Per Balance and Rate .482.2
CITY-Local Agency Investment Fund-Liquid Asset
7,638,250.56 - 1 .0,454% ' -N/A N/A - Qunncrly Per Balance and Raze 30,699.0
Fiscal Year: July 1-June 30 TOTAL INTEREST EARNED YTD 5M.009.87
U ,R
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: JANUARY 4, 2011
SUBJECT: AZUSA CITY EMPLOYEES ASSOCIATION (ACEA) CONTRACT - JULY 1, 2010
THROUGH JUNE 30, 2011
RECOMMENDATION
It is recommended that City Council adopt the resolution approving the Azusa City Employees
Association (ACEA) contract dated July 1, 2010 thru June 30, 2011.
BACKGROUND
Beginning this Spring, ACEA and City Administration began negotiating the terms of a new contract.
After several months of negotiations and good faith bargaining, ACEA and the City have reached
agreement on a(1) one year contract.
A summary of the proposed terms of the new ACEA Memorandum of Understanding include:
• Cost of Living Increase— 0%
• Flexible Benefit Contribution—increase the contribution from $1,224 to $1,287, which is
an amount equal to the 2011 CalPERS, Los Angeles County, Kaiser Family plan plus the
2011 Delta Dental PPO Family rate
• Sick Leave Accrual — eliminate the provision for cash out of sick leave upon retirement;
50% may still be converted to cash upon death and employees can continue to convert
100% of their accrued sick leave balance to PERS Credit
• Leave Days—two additional leave days for the term of the contract
See attached MOU for additional details.
FISCAL IMPACT r
'J
The total estimated cost associated with implementation of the attached MOU with ACEA is $52,080
(General Fund portion is $40,622). This reflects the cost of increasing the flexible benefit amount $62 per
month to keep pace with changes in the cost of health insurance. As insurance costs are calculated on a
Calendar year, this means 50% of the cost or $26,040 will be expended in the current fiscal year and the
remaining 50% will be expended in fiscal 2010-11.
Attachments:
1. Proposed Memorandum of Understanding
2. Resolution approving proposed MOU
RESOLUTION NO.
A RESOLUTION OF THE-CITY COUNCIL OF THE CITY OF AZUSA
APPROVING THE MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY AND THE AZUSA CITY EMPLOYEES
ASSOCIATION EFFECTIVE JULY 1, 2010 THROUGH JUNE 30,
2011
WHEREAS, the City Council acknowledges the Azusa City Employees 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 City
Employees Association (ACEA), and
WHEREAS, the Memorandum between the City of Azusa and the ACEA expired
June 30,2010,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 ACEA have
met on numerous occasions during the last 7 months and have discussed the issues between them
and have bargained in good faith, and
WHEREAS, management and ACEA have come to an agreement with regard.to
every issue, and
WHEREAS,the new Memorandum of Understanding between the City of Azusa and
the ACEA covering the period of July 1, 2010 through June 30, 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 4`" day of January, 2011.
MAYOR OF THE Ul I Y OF AZUSA
I HEREBY CERTIFY that the foregoing Resolution wqs duly passed by the City
Council of the City of Azusa at a regular meeting thereof held on the 4' day of January, 2011.
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF AZUSA
AND THE
AZUSA CITY EMPLOYEES ASSOCIATION
EFFECTIVE
JULY 1 , 2010 THROUGH JUNE 30, 2011
TABLE OF CONTENTS
1. TERM OF MEMORANDUM OF UNDERSTANDING............................................................................. 1
2. MAINTENANCE OF EXISTING BENEFITS........................................................................................... 1
3. SAVINGS CLAUSE ................................................................................................................................ 1
4. TOTAL COMPENSATION...................................................................................................................... 1
5. SEPARABILITY...................................................................................................................................... 1
6. IMPLEMENTATION................................................................................................................................2
7. NON-DISCRIMINATION.........................................................................................................................2
8. CITY RIGHTS.........................................................................................................................................2
9. WORKWEEK AND TIMEKEEPING INTERVAL.....................................................................................3
10. SALARY..................................................................................................................................................4
11. ADDITIONAL COMPENSATION / PREMIUM PAY ...............................................................................5
11.1. Acting Pay..................................................................................................................................5
11.2. Bilingual Pay..............................................................................................................................5
11.3. Callback......................................................................................................................................5
11.4. Deferred Compensation (Employer Paid) .................................................................................6
11.5. Equipment Allowance................................................................................................................6
11.6. Longevity Premium....................................................................................................................6
11.7. Overtime/Compensatory Time...................................................................................................6
11.7.1. Overtime Meal Policy....................................................................................................7
11.8. Paint Crew.................................................................................................................................7
11.9. Standby Pay ..............................................................................................................................7
11.10. Uniform Allowance.....................................................................................................................8
11.11. Weekend Assignment................................................................................................................8
12. COMPUTER LOAN PROGRAM.............................................................................................................8
13, DAMAGE TO PERSONAL EFFECTS....................................................................................................8
14. EMPLOYEE ASSISTANCE PLAN..........................................................................................................9
15. FLEXIBLE BENEFIT PLAN ....................................................................................................................9
16. LEAVE TYPES ..................................................................................................................................... 10
16.1. Bereavement Leave ..........................................:...............................................I..................... 10
16.2. Holidays................................................................................................................................... 10
16.3. Industrial Leave....................................................................................................................... 11
16.4. Sick Leave............................................................................................................................... 12
16.5. Vacation................................................................................................................................... 14
17. LICENSE RENEWAL............................................................................................................................ 15
18. LIFE INSURANCE................................................................................................................................ 15
19. LONGTERM DISABILITY INSURANCE.............................................................................................. 15
20. RETIREMENT ...................................................................................................................................... 15
1
~
21. TUITION REIMBURSEMENT............................................... -...................................... ....... - ........ 17
^
22. FLEXIBLE STAFFING POSITIONS ...................... .............................................................................. 18
23. JOB SHARING ..................................................................................................................................... 13
24. LAYOFF....... ............................................................... ... ... ............................................................2D
°
. 2
MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF AZUSA AND THE
AZUSA CITY EMPLOYEES ASSOCIATION
July 1, 2010 THROUGH June 30, 2011
This Memorandum of Understanding is entered into with reference to the following facts:
(1) The Azusa City Employees Association(ACEA)(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 as listed in Exhibits"A," attached hereto;
(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; and
(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 altered as
follows:
1. TERM OF MEMORANDUM OF UNDERSTANDING
The term of this Memorandum of Understanding (MOU)shall commence July 1, 2010, and shall continue in full force
and effect until June 30, 2011.
2. 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.
3. SAVINGS CLAUSE
Should any State or Federal law mandate the loss of revenue to the City as a result of the implementation of any
clause of this Memorandum of Understanding, or should any State or Federal law render a clause(s) of this
Memorandum of Understanding invalid, then those changes alone shall not be given effect and the remainder of this
Memorandum of Understanding shall be unaffected and shall remain in full force and effect.
4. 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.
5. 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.
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
6. IMPLEMENTATION
This Memorandum of Understanding is subject to approval of the City Council of the City of Azusa,and following such
approval shall be implemented by appropriate resolution(s) or ordinance(s) of the City Council.
7. NON-DISCRIMINATION
7.1.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 sea.
7.2.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.
8. CITY RIGHTS
8.1.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:
8.1.1 To manage the City generally and to determine the issues of policy.
8.1.2 To determine the existence or nonexistence of facts which are the basis of the Management
decision.
8.1.3 To determine the necessity and organization of any service or activity conducted by the City and
expand or diminish services.
8.1.4 To determine the nature, manner, means and technology, and extent of services to be provided
to the public.
8.1.5 To determine methods of financing.
8.1.6 To determine types of equipment or technology to be used.
8.1.7 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.
8.1.8 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.
8.1.9 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.
2
MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
8.1.10 To relieve employees from duties for lack of funds or lack of work or similar nondisciplinary
reasons.
8.1.11 To establish and modify productivity and performance programs and standards.
8.1.12 To discharge, suspend, demote or otherwise discipline employees for proper cause.
8.1.13 To determine job classification and to reclassify employees.
8.1.14 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.
8.1.15 To determine policies, procedures and standards for selection, training and promotion of
employees.
8.1.16 To establish employee performance standards including, but not limited to, quality and quantity
standards and to require compliance therewith.
8.1.17 To maintain order and efficiency in its facilities and operation.
8.1.18 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.
8.1.19 To take any and all necessary action to carry out the mission of the City in emergencies.
8.2.Conformance with Rules
The City shall have the right to exercise the rights provided in sections 3.1.9 through 8.1.16 of the Management
rights clause, in accordance with the Personnel Rules and Regulations as they exist as of May 16, 1988, and shall
exercise these rights in conformance with the Personnel Rules and Regulations.
8.3. 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 AdministrativeCode(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.
9. WORKWEEK AND TIMEKEEPING INTERVAL
9.1. Workweek
The regular workweek for all employees covered by this document 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)consecutive days a week and ten (10)
hours per day. Within certain departments there exists a compelling need for certain employees to work a five(5)
day forty (40) hour week. Upon a clear showing of need and with the affected employees consent, the
department head may schedule employees accordingly. 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.
9.1.1 Notwithstanding 9.1, 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.
9.1.2 Employees required to work a 5/8 schedule due to City operational needs, may be eligible for
an additional 8 hours of floating holiday time if the department Director with City Manager
3
MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
approval chooses to close the department the day after a designated holiday and it is one of
the employees scheduled work days.
For example,the library is traditionally closed on Thanksgiving Day, a City designated holiday.
The Director may choose with City Manager approval to close the library on the following
Friday. If an employee's regularly scheduled shift would require them to work the Friday, the
employee will receive 8 hours of floating holiday pay for that day.
Employees choosing to work a M-F schedule are not eligible for the extra floating holiday.
9.2. Workday
Except as provided in 9.1.1, the workday will consist of ten and one half(10'/) hours with one-half('/2) hour for
lunch and 40 minutes of breaks to be scheduled in light of the departmental policy.
The City reserves the right to determine the beginning and ending times of the workday.
9.3. 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.
10. SALARY
The current base monthly salaries of employees in the unit covered by this MOU are set forth in"Exhibit A."
10.1 Automatic Payroll Deposit
The City will continue to offer Automatic Payroll Deposit in cooperation with any bank that utilizes the
Automated Clearing House service.
11. ADDITIONAL COMPENSATION I PREMIUM PAY
11.1. 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 majority of 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 may decline the assignment to a higher classification.
An employee shall not continue acting in a temporary assignment for more than 90 working days in any fiscal
year.
An employee otherwise eligible for acting pay shall not be eligible during scheduled periods of vacation or when
on sick leave.
4
MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
11.2. 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-
If the registrar of voters requires that ballots be issued for the local area for languages other than Spanish,
employees with skill in those languages will be considered by the City Manager for compensation under this
section.
11.3. Callback
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 Callback with a minimum of(2) hours Callback compensation at the appropriate rate,
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 employee
who is continuing on duty for his/her normal work shift. For the purposes of this section only, the time starts
when the Callback call is received by the employee.
11.3.1 Appropriate Rate of Pay for Callback
The rate of pay for the first Callbackduring a twenty-four(24)hour period(defined for this section only as
4:00 p.m. to 4:00 p.m. the next calendar day)shall be at one and one-half(1'/) times the normal rate of
pay, except between 12 midnight and 5 a.m.,when the first call shall be compensated at double-time(2)
rate. All other Call backs during the same twenty-four (24) hour period as defined above shall be
compensated at the double-time (2) rate. Call backs may be entered as overtime or as compensatory
time off within applicable limits.
In the event that an employee is summoned to work before four o'clock(4 a.m.)in the morning he or she
shall be compensated at two (2) times the normal rate of pay until either he or she has a six hour rest
period.
In the event that an employee is summoned to work between 4 a.m. and 5 a.m. and is required to
continue to work, he or she shall be compensated one and one-half(1 1/2)times the regular rate of pay
for all work performed after 5 a.m. until he or she has a six (6) hour rest period.
All hours worked in excess of twelve (12) consecutive hours shall be compensated at two(2)times the
normal rate until the employee has a six (6)-hour break.
11.4. Deferred Compensation (Employer Paid)
The City shall provide $45 per month in deferred compensation to each employee.
11.5. Equipment Allowance
The City shall provide a personal Equipment Allowance of two hundred ten dollars ($210) per authorized
employee in the classifications listed below for up to two(2) pairs of safety shoes/boots or garment per year as
required by the department head. Those members of the association who are employed less than the fiscal
year shall have their Equipment Allowance prorated:
5
MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
Building Inspector
Building Technician
Business Resource Officer
Community Improvement Inspector
Engineering Associate
Engineering Assistant
Engineering Technician
Park Maintenance Crew Supervisor
Park Maintenance Supervisor
Park Maintenance Worker I
Park Maintenance Worker II
Park Maintenance Worker III
Purchasing Assistant
Senior Plans Examiner
Urban Forester
11.6. Longevity Premium
The monthly Longevity Pay for employees shall be in accordance with the following schedule.
10 yrs = $85
15 yrs =$175
20 yrs = $250
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.
11.7. Overtime/Compensatory Time
Employees shall be entitled to Overtime Pay or Compensatory Time off 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 Payor Compensatory Time off for Overtime Pay shall be accumulated in no less than fifteen 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 or the City Manager. Accumulated Compensatory Time not taken off in the
pay period in which it was earned, may be carried over to a maximum of one hundred sixty(160)hours(106.66
hours worked at time-and-one-half would equal 160 hours).
6
MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
11.7.1. Overtime Meal Policy
11.7.1.1 Beyond Regular Shift
When an employee is required to work continuous, unplanned overtime beyond his or her
regular shift, he or she shall be provided with a meal and time to eat the meal no more than
two hours after the commencement of such work and no less frequently than every four hours
actually worked thereafter or he or she shall receive a meal reimbursement of nine dollars for
each such period.
11.7.1.2 Outside of Regular Shift
When an employee is required to perform scheduled or unscheduled work outside of his or
her regular work hours, as a result of an emergency situation, he or she shall be provided with
a meal and the time to eat the meal no less frequently than every four (4) hours or a meal
reimbursement of nine dollars ($9) for each such four (4) hour period.
11.7.1.3 Before 5 a.m.
In the event that an employee is summoned to work before five o'clock in the morning(5 a.m.)
and is required to continue to work into his or her regular shift on the same task that he or she
was summoned for, he or she shall be provided with a meal and time to eat the meal no less
frequently than every four (4) hours or a meal reimbursement of nine dollars ($9) for each
such four(4) hour period.
11.8. Paint Crew
Any employee assigned to the paint crew in the Street Maintenance Division of Public Works who is scheduled to
work after 12 o'clock midnight will receive an additional twenty-five cents($0.25) per hour for each hour worked
after that time. This additional pay constitutes premium pay and is not to be considered as a part of the
employee's base salary.
11.9. Standby Pay
11.9.1. Definition
An employee shall receive Standby Pay when he or she is required to be available for work for twenty-
four(24) hours a day on seven (7) consecutive days.
11.9.2. Standby Pay
The City agrees to pay time and one-half(1'/:)for Standbytime with a minimum of two(2)hours per day,
which will result in three(3)hours of regular pay. The hours shall be entered on time sheets as Premium
Standby.
11.9.3. Qualifications
The Department Head shall determine which employees are qualified for Standby assignment. If an
Employee cannot serve on Standby due to insufficient practical knowledge, the Department Head shall
make an alternate assignment.
Standby assignment shall apply to those employees whose domicile is close enough to Azusa to permit
them to respond to a call out in one-half('/2) hour or less. Employees shall serve on a rotating basis.
11.9.4. Vehicle Assignment
The City agrees to provide an equipped vehicle to one employee for each department that has employees
on Standby. If more than one employee is on Standby at the same time, the vehicle shall be assigned to
7
MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
the employee whose domicile is geographically closest to the City's Corporation Yard. The assigned
standby vehicle shall not be used for personal business.
11.10. Uniform Allowance
Association 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.
11.11. Weekend Assignment
Within certain departments there may exist a need for certain employees to work a scheduled four(4)consecutive
day forty(40)hour workweek which includes Saturday and/or Sunday. Any employees so assigned shall receive
an additional One Dollar($1.00)per hour for those hours worked on Saturday or Sunday or both if included within
their forty(40) hour work week. This additional pay constitutes premium pay, and is not to be considered as part
of the employee's base salary.
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 2gZ 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 City's attorneys fees in any restitution process.
13. DAMAGE TO PERSONAL EFFECTS
If, in the course of business, an office employee's personal clothing or effects is accidentally damaged or destroyed,the
employee may submit a claim for reimbursement up to one hundred dollars($100)to the department head or his or her
designee, who shall have the authority to investigate the claim and recommend to the City Manager, or his or her
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 eye glasses or contact lenses and hearing aid devices are exempt from the one hundred dollar($100)limit.
14. EMPLOYEE ASSISTANCE PLAN
The City will continue to maintain the Employee Assistance Plan.
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
15. FLEXIBLE BENEFIT PLAN
15.1. 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.
15.2. Amourlt of Monthly Benefit
As of January 1, 2010,the Flexible Benefit Plan amount is one thousand two hundred twenty four dollars$1224.
Effective July 1, 2010,the City will maintain the Flexible Benefit Plan at one thousand two hundred twenty four
dollars ($1224) 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 selected by him/her exceed the amount of the FBP,the excess
shall be deducted from pre-tax wages of the employee.
15.2.1. Increases
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 one thousand
two hundred eighty seven dollars ($1287).
15.3. 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.
15.4. 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.
16. LEAVE TYPES
16.1. 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(in the position or place of a parent)may also be considered under certain
circumstances. Such leave shall not be charged against the employee's Sick Leave or Vacation. In addition to
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
Bereavement Leave, an employee may request up to two(2)days 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.
Bereavement Leave for close personal relationships other than listed relationships may be approved by
Department Head and Director of Human Resources.
16.2. Holidays
16.2.1 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 Schedule Month 2010-
20111
Independence Day July 5*
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 Y Ma 30*
* = Monday
An employees required to work a 5/8 schedule see 9.1.2.
16.2.2.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.
16.2.2.1. Leave Days
For the period of July 1, 2010 thru June 30, 2011 the City and the Association agree to grant
each employee two additional leave days of ten (10) hours each. All additional leave days shall
be requested in advance from the appropriate department head or division chief. Enough
employees shall remain at work during additional leave days so that the City's business may be
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
conducted. Additional leave days shall accrue on July 1, 2010 and must be taken by June 30,
2011, or the hours will be forfeited.
16.3. 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:
16.3.1 An employee granted Industria!Leave shall continue to be compensated at his regular rate of
pay in lieu of temporary disability payments.
16.3.2 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 16.3.1 above.
16.3.3 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 of six (6) months. Supporting medical documentation must
accompany such requests for leave and be submitted thirty(30)days prior to expiration date.
16.3.4 After 90 calendar days
Employees who are disabled because of a work related illness or injury receive Industrial
Leave pay in lieu of Total Temporary Disability payments and may supplement these
payments with sick leave, vacation leave or compensatory time off they have earned. If
deemed temporarily totally disabled or permanently disabled and unable to return to work,
employees may apply for Long Term Disability.
16.3.5 Prior to the end of the six(6)months of paid leave pursuant to this section,the employee may
apply for benefits under the City's long-term disability plan. If the employee is qualified to
receive benefits under the disability plan, vacation and sick leave shall accrue, and the city
shall continue to pay benefits under the City's Flexible Benefit Plan and CalPERS so far as
required by law for such employee for an additional six (6) month period. An employee
receiving long-term disability may be eligible to return to work on or before six(6)months from
the time employee began receiving long-term disability benefits. The employee shall notify
the department head as soon as practicable as to whether he or she will be returning to work
prior to the expiration of the six-month period in which the employee has been on
long term disability.
16.3.6 Except as provided in 16.3.2, no employee shall have accrued sick leave deducted while
on industrial leave. Vacation and Sick Leave shall accrue for an employee on Industrial
Leave.
16.3.7 Industrial Leave shall expire when one of the following conditions occurs:
16.3.7.1 Employee is able to return to work to his/her regular position.
16.3.7.2 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 Public Employees' Retirement
System:
16.3.7.3 The employee's condition is determined to be permanent or of an extended
duration.
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
16.3.7.4 The degree of disability precludes continued employment by the employee in
his/her present position.
16.3.7.5 After twenty-six (26)weeks of Industrial Leave payments.
16.3.8 Physicians may be assigned in compliance with the Health and Safety Code and the
Workers' Compensation Laws of the State of Californla (Ref.: Section 4600- Labor Code.)
16.4. 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.
A yearly evaluation period for the use of sick leave was established beginning on the first payday on or after
January. At the end of the time period, the Finance Department will analyze and report to the various
employees the amount of sick leave earned, less the amount used, and the net accrued during the calendar
year.
16.4.1. Reasons for Use of Sick Leave
Sick leave shall be granted for the following reasons:
16.4.1.1 Personal illness or physical incapacity.
16.4.1.2 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.
16.4.1.3 Enforced quarantine of the employee in accordance with Health Department
regulations.
16.4.1.4 Medical, dental, and optical appointments.
16.4.1.5 Personal Business not to exceed a maximum of thirty (30) 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.
Employees must provide advance notice for Personal Business Leave
whenever possible. 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 Leave 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.
16.4.2. Restrictions on Sick Leave
16.4.2.1 Disability arising from any sickness or injury purposely self-inflicted.
16.4.2.2 Sickness or disability sustained while on leave of absence, other than regular
vacation leave.
16.4.2.3 Disability or illness arising from compensated employment other than with the
City.
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
16.4.2.4 Sick leave use under Section 16.4.1.2 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 16.4.1.2 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.
16.4.3. Accrual and Use
Sick leave with pay shall accrue to employees 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.
16.4.4. Probationary Employee Sick Leave Usage
If the employees does not become permanent, all paid sick leave must be reimbursed to the City or
deducted from the employee's final paycheck.
16.4.5. 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.
16.4.6. One-Fourth Conversion
If the employee has used more than three, but not more than six days of sick leave, not including time
spent on Personal Business or Bereavement, he or she would have the following options:
16.4.6.1 Carry over the accrual and add it to his or her sick leave balance.
16.4.6.2 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 cashbut no combination of these n v
( e two), unused, unconverted leave
would then be added to the employee's sick leave balance.
16.4.7. One-Third Conversion
If the employee has used no more than three days of sick leave, not including time spent on Personal
Business or Bereavement, he or she would have the following options:
16.4.7.1 Carry over the accrual and add it to his or her sick leave balance.
16.4.7.2 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.
16.4.8. Conversion to Cash upon Death
Fifty percent(50%) of the employees accrued Sick Leave balance can be converted to cash upon
death (if he or she has attained permanent status).
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
16.4.9. 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 Section 26.4.8, to retirement service credit:
16.4.8. Conversion Deadline
A decision to convert sick leave according to the policies stated shall be made by March 31.
16.5. Vacation
16.5.1. Required Usage and Carryover
An employee shall be required to use one half('/z)of his/her annual vacation accrual yearly and shall be
able to carry over one half('/Z)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. Vacation
accrual in excess of the aforementioned maximum shall be paid off in four equal annual payments during
the term of the MOU; and future accrual which exceeds the aforementioned maximum, shall be paid to
the employee as it is accrued. In special cases where it has not been possible, due to work load and
other factors, for the employee to use his/her vacation before reaching the maximum,it shall be within the
department head's authority to authorize cash payment in lieu of time off.
16.5.2. Cash-In Policy
An employee may convert into pay up to 50% of his or her annual vacation accrual. An.employee may
convert into pay accrued vacation in excess of 50%of his or her annual accrual with the approval of the
Department Head or City Manager.
16.5.3. Accrual
Effective July 1, 2008 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 11th 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....210 hours per year
Through the 171"'year of employment.....218 hours per year
Through the 181" year of employment.....226 hours per year
Through the 191" year of employment.....234 hours per year
Through the 20`" year of employment.....240 hours per year
17. LICENSE RENEWAL
The City agrees to pay the cost of maintaining certification and licenses that are within the minimum requirements for
the licensee's job.
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MEMORANDUM OF.UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
18. LIFE INSURANCE
The City shall provide term life insurance equal to eighteen months of salary or $30,000, whichever is greater,
excluding Overtime, Standby, Callback and other forms of supplemental compensation, for each employee.
19. LONG TERM DISABILITY INSURANCE
19.1. The City shall maintain in effect for the term of this agreement a long-term disability plan covering
employees set forth herein. Said plan shall provide an employee with a maximum of two-thirds L) of
his/her base salary. An employee may utilize his/her accrued Sick Leave, Vacation, and/or
Compensatory Time to supplement the LTD payment so as to receive 100%of his/her base salary. The
LTD plan includes the following:
19.1.1 For the first 30 days of non-job related illness or injury, the employee will use accrued Sick
Leave, Compensatory Time or Vacation Leave; -
19.1.2 Provides 66.67% of the employee's monthly salary;
19.1.3 Commences after a 30 calendar day waiting period and provides a benefit to age 65;
19.1.4 The employee will be allowed to use accrued Sick Leave in conjunction with the long term
disability plan to provide for a full pay check,
19.1.5 At no time will an employee receive more than 100% of their base pay;
19.1.6 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.
20. RETIREMENT
The City shall continue its contract with the California Public Employees' Retirement System(CaIPERS)for 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.
20.1 Optional Benefits
20.1.1 The City's contract with the CaIPERS includes the additional benefit of Service Credit for
Unused Sick Leave.
20.1.2 The optional benefit of Two Year Additional Service Creditshall be discretionary with Council in
accordance with Government Code Section 20903.
20.1.3 The City's contract with the CaIPERS includes the Employer-Paid Member Contribution in base
pay during the final compensation period.
20.1.4. 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." After this has been completed, eligible employees with qualifying
military service can contact PERS and arrange to be billed for the service credit. The City shall
reimburse the employee for 25% of the amount of the bill. Eligibility for the 25%
reimbursement is limited to employees who are on the payroll on 7/1/95.
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
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.
20.1.5 If the CalPERS law is amended to allow a 2% @ 50 or 2'/z% @ 55 formula for Miscellaneous
employees, the City agrees to meet and confer with the Association. The City's agreement to
meet and confer under this provision is only an agreement to explore the possibility of adoption
of said formulas and does not constitute an agreement or commitment to adopt said formulas.
20.1.6 The Association and the City agree to reopen the contract for discussion on purchasing a
PARS retirement enhancement to the current CaIPERS retirement benefit. The cost to the City
will not exceed the provisions provided by this contract. The reopener will be completed by
December 31, 2006
20.2. Health Insurance During Retirement
Beginning with the first month after retirement,for Association employees who had at least twenty(20)years of
service with the City of Azusa, and who enroll or continue in the City's health insurance program, the City will
reimburse monthly to the employee the amount of one-half (Y�) of the premiums for such health insurance,
regardless of how many family members are enrolled. In the event that the employee is single or widowed, and
has no dependents, the City's contribution shall be equal to 100% of such premium. In the event that the
employee passes away and is survived by an eligible spouse, the benefit shall continue. But, if the employee
passes away and has no surviving spouse the benefit shall not carryover to the surviving dependents. This plan
shall remain in effect until the retiree, or eligible spouse, passes away, whichever occurs later. Otherwise the
benefit shall terminate. Once an individual has qualified for this provision, he or she shall retain this eligibility.
The minimum contribution (currently$16 per month)that the City pays directly to CalPERS shall be considered
to be part of the portion paid by the City.
202.1 Employees with at least ten consecutive years of service immediately preceding retirement
shall be eligible to utilize(for retiree health insurance only),their part-time employment that is a
part of their consecutive service. Such part-time employment shall be credited on an hour for
hour basis toward the minimum 20 years of service,with the City of Azusa, needed to become
eligible for this provision.
For Example:
If an employee retires and has worked 10,920 hours on a part-time basis (that is part of their
consecutive service prior to retirement), the City shall divide the 10,920 hours by 2,080 hours
(which is the equivalent value of one year of full time service),to determine the service credit.
10,920 divided by 2,080 is equal to 5.25 years of service.The part-time service shall be added
to the full time service to determine the twenty(20)year service credit needed for eligibility for
the Retiree Health Care provision of this MOU.
21. TUITION REIMBURSEMENT
21.1. Objective
The tuition reimbursement program is designed to encourage employees to continue their self-development by
enrolling in approved classroom courses which will:
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
21.1.1. Educate them in new concepts and methods in their occupational field and prepare them to
meet the changing demands of their job.
21.12. Help prepare them for advancement to positions of greater responsibility in the City of Azusa.
21.2. Eligibility
21.2.1. 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.
21.2.2. Courses must be (except where noted below in paragraphs 21.3.3. and 21.3.4.) 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.
21.2.3. Course work 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.
21.3. Courses may be eligible if they:
21.3.1. 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.
21.3.2. Do not duplicate training which the employee has already had or which is to be provided in-
house.
21.3.3. Do not duplicate previously taken courses unless special approval has been granted by the
department head and the Human Resources Division.
21.3.4. 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.
21.3.5. 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.
21.3.6. 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.
21.3.7. Are not taken on City time and must be certified that they are taken on the employee's off-duty
time.
21.3.8. Have been approved by the Department Head and the City Manager or his/her designee
before commencement of the class.
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
21.4. Reimbursement
21.4.1. The City shall reimburse employees for tuition, registration fees and texts required for the
eligible courses. Expenses for parking, travel, meals, processing fees, transcript fees,
materials and any other costs are not reimbursable.
21.4.2. Employees shall be reimbursed up to the dollar amount charged for the same numberof units
per term by California State University system. -
21.4.3. In order to be reviewed, each application must state exactly which units or credits the
employee is applying for and whether the courses submitted are core courses or
recommended electives for the approved major.
21.4.4. 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.
21.4.5. 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.
21.4.6. Application for reimbursement must be submitted within three months of the completion of the
approved course in order to be considered for reimbursement.
21.4.7. Upon termination from employment,employees shall be required to reimburse the Cityfor 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.
22. FLEXIBLE STAFFING POSITIONS
The following classifications shall be incorporated into a"Flexible Staffing" pattern effective July 1, 1995:
Account Specialist I, II & III
Assistant Planner, Associate Planner
Junior Accountant, Accountant and Senior Accountant
Librarian and Senior Librarian
Library Assistant I, II & III
Office Specialist I, II and Senior Office Specialist
Park Maintenance Worker I, II & III
Tree Trimmer and Senior Tree Trimmer
The first level classifications are apprentice classifications. Employees in these classifications shall be
promoted(on probationary status)to the second level classifications, respectively, upon successful completion
of one (1) year of service at the fifth (5th) salary step. If the series includes a third level, the second level
classifications shall be promoted (on probationary status) to the third level classifications, respectively, upon
successful completion of one (1) year of service at the fifth (5th) salary step and when, in the opinion of the
Department Head, the employee has retained the practical knowledge of the performance of all facets of the
duties required of the third level classification. In the event that the employee is not promoted as described
above, he or she shall be presented in writing the reason(s) for the denial of the promotion, and a list of the
area(s)of which the employee has insufficient knowledge to achieve the promotion. Nothing in this article shall
preclude management from promoting a qualified employee to a higher step/classification in their flex series.
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MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
23. JOB SHARING
23.1 Job Sharing Definition:
Bifurcation of the job duties(essential functions)of a full-time classification into two equal '/-time jobs
that total full-time work, generally 40 hours per week, 52 weeks per year.
23.2 Benefits:
A Job Sharing Employee shall receive, as applicable, benefits on the basis of one-half the rate
accorded to comparable full-time employees. No other method of pro-ration shall apply. For benefits
that have a time or service requirement to qualify to receive them, a year shall be defined as successful
completion of 2080 hours of service. Under Job Sharing, this will generally be 104 weeks at 20 hours
per week.
23.3 Job Sharing Employee:
One of a pair of employees,each of whom job shares by performing one-half of the essential functions
of a full-time classification and who works'/of the hours of the full-time class, generally 20 hours per
week, 52 weeks per year.
23.4 Vacancy of Job Share Position:
If one person occupying half of a job share position leaves the city or takes an extended leave,the City
may compel the person occupying the other half to convert to full time. If the person chooses not to
convert to full time, the City has the option to eliminate the job share positions and commence
recruitment for a full-time position.
23.4 Resumption of Full-Time Status.
If a Job Sharing Employee wishes to resume full-time work with the City, he or she shall seek
reassignment or transfer to a full-time position. Should the employee's department be unable to effect
such reassignment, the employee shall seek a transfer as prescribed under the Civil Service Rules,
23.5 Involuntary Conversion to or from Job Sharing Status.
Neither management nor employees shall convert full-time positions to job-sharing positions, or the
converse, without first consulting with the other party. If both parties are in agreement, as well as the
affected employees, the decision shall be memorialized via Personnel Action Request forms.
23.6 Salary Anniversary Date.
If an employee's appointment to a Job Sharing position is either as a new hire or by promotion, the
salary anniversary date shall be defined as that date which occurs upon successful completion of 2080
hours of service, generally 104 weeks at 20 hours per week. Such employees maybe considered fora
merit increase after successful completion of 1040 hours of service,generally 52 weeks at 20 hours per
week. Subsequent salary anniversary dates shall be defined as those dates which occur upon
completion of 2080 hours of service, generally 104 weeks at 20 hours per week. If an employee's
appointment to a Job Sharing position is not a new hire or promotion, the salary anniversary date shall
be based on his or her prior service, in accordance with the Civil Service Rules.
19
MEMORANDUM OF UNDERSTANDING, ACEA, JULY 1, 2010 THRU JUNE 30, 2011
24. LAY OFF
The City agrees that in the event employees represented by the Association are laid off from their
employment, 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.
20
y" 1^4
MEMORANDUM OF UNDERSTANDING
AZUSA CITY EMPLOYEES ASSOCIATION
July 1, 2010 THROUGH JUNE 30, 2011
AZUSA CITY EMPLOYEES ASSOCIATION
Mike Gaskins, ACEA Field Representative Date
Linda Vasquez, President Date
Debbie Lynnmoore, Vice President Date
CITY OF AZUSA
F.M. Delach, City Manager Date
Sonia Carvalho, City Attorney, Best Best & Krieger Date
Alan Kreimeier, Administrative Services Director/CFO Date
Kermit Francis, Interim Director of Human Resources Date
INDEX
Acting Pay (4)
Additional Compensation/ Premium Pay (4)
Automatic Payroll Deposit(4)
Bereavement Leave (9)
Bilingual Pay (5)
Callback (5)
Appropriate Rate of Pay for Callback (5)
City Rights (2)
Compensatory Time (6)
Computer Loan Program (8)
Damage to Personal Effects (8)
Deferred Compensation (Employer Paid) (5)
Employee Assistance Plan (8)
Equipment Allowance (5)
Flexible Benefit Plan (9)
Amount of Monthly Benefit (9)
Eligibility (9)
Increases (9)
Termination (9)
Flexible Staffing Positions (18)
Health Insurance During Retirement(16)
Holidays (10)
Designated Holidays (10)
Floating Holidays (10)
Industrial Leave (11)
Job Sharing (19)
Benefits (19)
Involuntary Conversion to or from Job Sharing Status (19)
Job Sharing Employee (19)
Layoff(18)
Resumption of Full-time Status (19)
Salary Anniversary Date (19)
Lay off(20)
License Renewal (14)
Life Insurance It 5)
Long Term Disability Insurance (15)
Maintenance of Existing Benefits (1)
Non-discrimination (2)
Overtime Meal Policy
Before 5 A.m. (7)
Overtime/compensatory Time (6)
Paint Crew (7)
Retirement (15)
Employer-paid Member Contribution It 5)
Health Insurance During Retirement(16)
Military Service. (15)
Optional Benefits (15)
Service Credit for Unused Sick Leave (15)
Two Year Additional Service Credit (15)
Salary (4)
Savings Clause (1)
Separability (1)
Sick Leave (12)
Accrual and Use (13)
Conversion Deadline (14)
Conversion to Service Credit upon Retirement (14)
One-fourth Conversion (13)
One-third Conversion (13)
Probationary Employee Sick Leave Usage (13)
Reasons for Use of Sick Leave (12)
Restrictions on Sick Leave (12)
Sick Leave During Vacation (13)
Standby (7)
Qualifications (8)
Vehicle Assignment (8)
Term of Memorandum of Understanding (1)
Total Compensation (1)
Tuition Reimbursement (16)
Courses May Be Eligible If They: (17)
Eligibility (17)
Objective (17)
Reimbursement (18)
Uniform Allowance (8)
Vacation (14)
Accrual (14)
Cash-in Policy (14)
Required Usage and Carryover(14)
Weekend Assignment (8)
Workweek and Timekeeping Interval (3)
Timekeeping Interval (4)
Workday (4)
Workweek (3)
CITY OF AZUSA ACEA"EXHIBIT h, ,
ACEA SALARY EFFECTIVE 0 710 112 01 0
CLASSIFICATION Bargaining Unit Benefits RANGE STEP 1 STEP 2 j. STEP 3 STEP 4 1 STEP 5
ACCOUNT SPECIALIST 1 ACEA ACEA 4150 ' 3242.42 1 3393.96 3553.11 3720.26 __3895.72
ACCOUNT SPECIALIST II _ ACEA I ACEA 4164 1 3695.56 j 3869.78 1 4052.74 4244.83 4446.54
ACCOUNT SPECIALIST III ACEA ACEA 4174 1 4060.11_1 4252.59 ! 4454.67 4666.89 4889.70
ACCOUNTANT ACEA ACEA 4189 1 4679.76 4903.20_1 5137.81 1 5384.19_1 5642.87
ACCTS PAYABLE SPECIALIST ACEA ACEA 4179 4256.50 4458.79 4671.20 14894.21 1 5128.37
ADMINISTRATIVE ANALYST Ate. ACEA 4192 4815.17 5045.39 5267.14 5540.95 j 5807A6
ADMINISTRATIVE SECRETARY ACEA _ ACEA 4174 4060.11 4252.59 1 4454.67 4666.891 4889.70_
ADMINISTRATIVE TECHNICIAN ACEA ACEA 4174 4060.11 4252.59 4454.6_714666.89 1 4889.70
ADULT ED& LITERACY COORD ACEA ACEA 4321 4098.63 4303.58 4518.72_] 4744.67_j_4981.89_
ASSISTANT PLANNER ACEA ACEA 4190 4724.45 4950.13_1 5187.10 ; 5_435.92 5697.19
ASSOCIATE PLANNER _ ACEA ' ACEA 4201 5246.55 5498.35 5762.72_L6040.29_1 _6331.79.
BUDGET ANALYST ACEA ACEA 4211 57 3 6051.54 6343.57 1 6650.20 �-6972.19
BUILDING INSPECTOR ACEA ACEA r 4199 1 5147.32 5394.16 5653.31 ; 5925.43 6211.19
BUILDING TECHNICIAN _ ACEA ACEA 4174 4060.11 4252.59 4454.67 4666.89 4889._70_
BUS DRIVER _� ACEA _ ACEA4158 3493.57 3657.74 3830.07 4011.05 ! 4201.0_3
BUSINESS RESOURCE OFFICER _f ACEA ACEA 1 4174 4060.11 4252.59 4454.671 4666.89 488_9.70
COMM IMPROVEMENT SUPERVISOR ACEA ACEA 1 4196 5002.15 5241.70 5493.23 5757.40_x_6034.73
COMMUNITY IMPROVEMENT INSPECTR _ ACEA ACEA 1 41714013.53 4203.21 4402.34 4611.43 4830.97
COMPUTER OPERATOR ACEA ACEA 4174 4060.11 4252.59 4454.67 4666.89 4889.70_
DEPUTY BUILDING OFFICIAL ACEA ACEA 4205 5722.98 6010.00 6310.15 6624.81 F6956.58_
DEVELOPMENT SERVICES ASSISTANT ACEA- CEA 4174 4060.11 4252.59 4454.67 4666.89 4889.70
ENGINEERING ASSISTANT ACEA ACEA 41864548.33 4765.21 4992.93 5232.02 5483.08_
ENGINEERING ASSISTANT II ACEA - ACEA - 4193 4852.60 5095.23 5349.99 1 5617.50 1 5898.38
ENGINEERING ASSOCIATE ACEA - ACEA 4222 6416.84 6727.12 7052.93 7395.06 j 7754.25
ENGINEERING TECHNICIAN ACEA ACEA 4165 3730.39 3906.36 j 4091.14 1_4285.18 1 4488.88_
_GEOGRAPHIC INFO SYS TECHNICIAN _ ACEA ACEA L4181 1 4307.61 L 4516.07 ! 4734.96 14964.84 j 5205.03
--------
INFORMATION TECH ANALYST ACEA ACEA I 4188 _ 4665.81 4888.31 5122_.65-�-I _5368.83 i 5626.88
JR ACCOUNTANT/PAYROLL SPECLST _ ACEA ACEA _' 4179_1 4256.50_1 4458_791 4671.20 j_ 4894.21 . 5128.37
LIB_R_ARIAN _ _ ACEA _� ACEA_ 41751409863_ 429301 _449712 ; _471146 _4936.48
LIBRARY ASSISTANT II _I ACEA ACEA 4150 2 42_ ; 324 i_3393 96 3553.11 3720.26 3895.72
LIBRARY CIRCULATION SUPERVISOR 1 __ ACEA ACEA 4166- ; 3780.86.1.396989 _4168.39 ! 437681 4595.65
LITERACY PROGRAM ASSISTANT i ACEA___; ACEA_ _ 4320 2695.31 1 2830.07 1_2971.56 J_3120 17 ]_3276.18
OFFICE_SPECIALIST I _ _ _i _ ACEA j _ ACEA 4133 2770.58 2898.61 3032.98 3174 11 ! 3322.26
OFFICE SPECIALIST II j ACEA _ ACEA 4143 _ 3038A1 3179.80 3328.23 j a484.10 ]_3647 79
PARK MAINT CREW SUPERVISOR ACEA ACEA X4184 _' 4�2:84675.49 4898 71 5133 09 5379 21
PARK MAINT SUPERVISOR ACEA ACEA 4196 5 5241.70 5493 23 5757 40 1 6034 73PARK MAINT WORKER I ACEAACEA X53 33490.43 3654.44 3826.59 4007.39
PARK MAINT WORKER III _ ACEA ACEA 4174 1 4060.11 4252.59 4454.67 l 4666.89 1 4889.70
PLANNING TECHNICIAN ACEA _ ACEA 4165 3730.39 3906.36 4091.14 4285.18 4488.88_
POWER RESOURCE SCHEDULER ACEA _ ACEA 4238 6755.15 7093.49 7447.65 7820.23 8211.22
PROGRAMMER ANALYST ACEA ACE 1A 44 92 4815.17 5045.39 ' 5287.14 5540.95_rL5807.46
PUBLIC WORKS INSPECTOR _ ACEA ACEA 4194 1 4947.46 5168.11 5440.84 1 5706.14 1_5984.82_
RECREATION COORDINATORACEA ACEA 4151 3315.67 3481.46 3655.49 3838.30 ! 4030.22_
RECREATION SUPERVISOR ACEA _1 ACEA 4197 1 5004.00 1 5254.20 1 5516.92 1 5792.75 6082.3_9_
REVENUE SUPERVISOR _ _ ACEA ACEA 4196 1 5002.15 x5241.70 1 5493.23 1_5757A0 1 6034.73
_SENIOR ACCOUNTA_ _____NT ', ACEA ACEA 4211 ! 5773.40 _6051.54 ' 6343.57 1 6650.201_6972.19_
SENIOR ADMIN TECH _ __ ACEA ACEA 1 4179 4256.50 4458.79 4671.20 4894.21 5128.37
SENIOR INFO TECH ANALYST _i ACEA ACEA 4214 5800.65 6D90.31 16394.40 1 6713.02 7047.43
SENIOR LIBRARIAN ACEA ACEA 4185 4505.37 4720.13 ! 4945.58 5182.32 5430.88
SENIOR OFFICE SPECIALIST ACEA I ACEA 4158 3493.57 3657.74 3830.07 4011.05 4201.03
SENIOR PLANNER ACEA ACEA 4207 5737.25 6024.11 1 6325.31 6641.58 6973.66
SENIOR PLANS EXAMINER 1 ACEA ACEA 1 4205 5722.98 6010.00 6310.15 6624.81 6956.58
SENIOR PROGRAMMER/ANALYST ACEA ACEA 4204 5326.57 5592.88 5872.51 6166.15 1 6474.45
TRANSPORTATION DISPATCHER ACEA ACEA 4163 3661.041 3833.54 4014.69 4204.901 4404.60_
TRANSPORTATION SUPERVISOR ACEA ACEA 1 4196 5002.15 5241.70 5493.23 ! 5757.40 1 6034.73_
TREE TRIMMER ACEA ACEA 4170 3909.94 4094.91 4289.06 j 4493.01 1 4707.11
URBAN FORESTER ACEA ACEA 1 4187 4646.97 , 4879.26 1 5123.18 1 5379.26 1 5648.17
1 July 1, 2010
t
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROBERT B. GARCIA, CHIEF OF POLICE
VIA: F.M. DELACH, CITY MANAGERA(ff
DATE: JANUARY 4. 2011
SUBJECT: PURCHASE OF TOTAL STATION MAPPER KIT
RECOMMENDATION
It is recommended that the City Council approve the purchase of a Sokkia Law Enforcement
Remote Mapper Kit Total Station Model SRX5 from ABC Surveying Instruments of Glendale,
CA in an amount not to exceed $19,983.28 per Azusa Municipal Code Section 2-522 (c),
competitive bidding already completed under GSA# GS-07F-0104T for this product.
BACKGROUND
The Police Department has received a grant from the California Office of Traffic Safety (OTS)
totaling $115,000. Of those funds $20,000 is earmarked for the purchase of a traffic collision
reconstruction system. Currently the Police Department Traffic Division uses an L.T.I. Total
Station that is approximately 8 years old and requires at least two employees to operate. There
are several pieces to the equipment making it cumbersome as well as somewhat confusing and
time-consuming to set up.
The new Sokkia Total Station possesses state-of-the-art technology that will assist officers to
better investigate and document the scene of serious injury and fatal traffic collisions. This new
technology allows for one employee to set up and begin operating the system remotely in just
minutes, which allows the second employee to simultaneously conduct other aspects of the
investigation, thereby reducing man-hours spent on the investigation.
1
Aside froth the time-saving aspects of using this equipment, the new technology also assists in
providing better and mdrre accurate measurements which produce more accurate documentation
and reconstruction of a collision scene.
FISCAL IMPACT
Adequate funds from the Office of Traffic Safety Grant (OTS) #AL1158 are available under
Account #28-20-310-075-7140. General Fund money will not be used for this purchase. The
system includes a two year manufacturer's warranty at no additional cost
Prepared by:
Cpl. Randy Schmidt
Traffic Division
2
A ;
l
. N
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROBERT B. GARCIA, CHIEF OF POLICE
VIA: F.M. DELACH, CITY MANAGERrhp
DATE: JANUARY 4, 2011
SUBJECT: MEMORANDUM OF AGREEMENT WITH THE LOS ANGELES REGIONAL
INTEGRATED LAW AND JUSTICE PROJECT ("LARILJP) REGARDING THE
COPLINK SYSTEM.
RECOMMENDATION
It is recommended that the City Council approve the attached Memorandum of Agreement with
the Los Angeles Regional Integrated Law and Justice Project("LARILJP") for the continued use
of the "COPLINK" system and authorize the Chief of Police to execute such MOA.
BACKGROUND
The mission of the LARILJP is to coordinate the development and implementation of a regional
justice information sharing system that will allow law enforcement agencies throughout Los
Angeles County, as well as law enforcement agencies in other regions of the State and beyond
which have entered into Intergovernmental Agreements (IGA's), to share information in their
case and records management systems. The goal is to protect the total community by efficiently
and effectively providing accessible, accurate information for the speedy investigation and
apprehension of terrorists and other law violators. The sharing of information shall be achieved
through the COPLINK System ("COPLINK").
By sharing public safety information, LARILJP participating agencies, and other participating
agencies as approved through IGA's, ("Agencies" or Agency") will be able to improve their
responses to terrorism and community crime. COPLINK provides sophisticated analytical tools
1
ti.
that will allow authorized users to discover links and relationships by providing consolidated
data across Los Angeles County. This will allow Agencies to solve previously "unsolvable"
incidents and investigate serial criminal activity.
The Azusa Police Department currently uses the COPLINK system, and it has provided useful
information which was used to apprehend and convict law violators.
As shown on the attached MOA, the Agencies must grant/authorize the Regional Terrorism
Intelligence and Integration System Governance Committee and Committee Chair to act on its
behalf in entering into IGA's. Additionally, Agencies authorize County Counsel to act as its
legal representative in entering into these IGA's. The IGA's will not require further approval,
and therefore, require a delegation, through approval of the MOA, to the Committee and
Committee Chair. According to the MOA, the IGA's will not have material changes adversely
affecting Agencies. Also, as noted below, the MOA grants authority to the Governance
Committee to determine the costs to be assigned to each Agency, although a specified formula is
not provided.
Under the MOA, each Agency is responsible for all liability arising out of that Agency's use of
the COPLINK system and/or the MOA. Additionally, the Agencies must hold the other
Agencies harmless for information posted on COPLINK or action taken as a result of that
information, regardless of whether the data is accurate or not.
FISCAL IMPACT
The Azusa Police Department has had the benefit of participating in COPLINK free of charge
thus far. This will continue through the calendar year 2011. In 2012, each participating agency
will need to contribute their portion of the cost. The future costs have not yet been determined.
Our participation in the COPLINK system will be reevaluated when the known cost is
determined.
Prepared by:
Captain John Momot
2
MEMORANDUM OF AGREEMENT
FOR THE
LOS ANGELES REGIONAL INTEGRATED LAW AND JUSTICE
PROJECT
AMONG THE
REGIONAL TERRORISM INTELLIGENCE AND INTEGRATION
SYSTEM PARTICIPATING AGENCIES
1) Overview
a) Background: The mission of the Los Angeles Regional Integrated Law and
Justice Project ("LARILJP") is to coordinate the development and implementation
of a regional justice information sharing system that will allow law enforcement
agencies throughout Los Angeles County, as well as law enforcement agencies
in other regions of the State and beyond which have entered into
Intergovernmental Agreements (IGA's), to share information in their case and
records management systems. The goal is to protect the total community by
efficiently and effectively providing accessible, accurate information for the
speedy investigation and apprehension of terrorists and other law violators. The
sharing of information shall be achieved through the COPLINK System
("COPLINK"). A "Contractor" (currently 12") shall install and maintain COPLINK.
b) Intended Benefits: By sharing public safety information, LARILJP participating
agencies and other participating agencies as approved through IGA's
("Agencies" or Agency") will be able to improve their responses to terrorism and
community crime. COPLINK provides sophisticated analytical tools that will allow
authorized users to discover links and relationships by providing consolidated
data across Los Angeles County. This will allow Agencies to solve previously
"unsolvable" incidents and investigate serial criminal activity.
c) Purpose: The purpose of this agreement ("Agreement") is to outline conditions
under which the Agencies will share and use information in COPLINK. By signing
this Agreement, Agencies, as well as all individuals who operate or use
COPLINK, agree to adhere to the guidelines specified in this Agreement.
d) Agency Participation: The LARILJP is a cooperative venture of justice agencies
in Los Angeles County, California. Any law enforcement agency in Los Angeles
County may apply to participate in LARILJP. To participate in LARILJP and have
Reaional Terrorism Intelligence and Intearation System — COPLINK
Memorandum of Agreement
access to COPLINK, an Agency applicant shall apply to the LARILJP
Governance Committee by submitting a proposal that outlines its intended use of
COPLINK, the type of data it intends to contribute, and any other information
requested by the Governance Committee. A simple majority vote of approval of
the Governance Committee is required to approve an Agency's participation in
COPLINK. Once approved, each Agency will proactively cooperate with other
participating Agencies, the Contractor, and its own system vendors and or
maintenance contractors to facilitate:
1) Network access and connectivity
2) Data extracts for engineering and testing purposes
3) Production extracts
4) Required modifications to their source systems
5) Regular data updates as agreed to during the design process
6) Timely review and approval of design documents and test results
e) Agency Withdrawal: An Agency may withdraw from participation in COPLINK at
any time by providing written notice to the LARILJP Governance Committee. If an
Agency wishes its data withdrawn from COPLINK, the withdrawing Agency shall
contact the Contractor and request data removal. The withdrawing Agency is
responsible for the cost associated with the removal of its data from COPLINIK.
II) AUTHORIZED RELEASE OF INFORMATION
a) Sharing of Information: Each Agency authorizes the release of information
residing in its records management system to all users of COPLINK as permitted
by law. It is the responsibility of each Agency to specify which data to share, as
well as any special requirements that may apply to certain kinds of information.
An Agency that does not want certain data made available from its records
management system to COPLINK is responsible for placing the appropriate
restriction indicator on the underlying data in the agency's internal records
management system or database.
Under the authority of this Agreement, all RTI IS Member Agencies grant their
authorization to the RTIIS Governance Committee and the Committee Chair for
the limited purpose of executing IGA's as approved by the County Counsel acting
Regional Terrorism Intelligence and Integration System — COPLINK
Memorandum of Agreement
as the Legal Representative of the RTIIS. When those Agreements are
,approved as authorized, they will not require further review or approval by each
participating agency. Such IGA's shall have no material changes adversely
affecting the participating agencies included in this Agreement.
California law prohibits the release of victim information in specific sex related
crimes, sealed juvenile records, and the release of summary criminal history to
unauthorized persons.
b) Limitation on Information Sharing: Information contributed by each Agency shall
only be shared withor released to those Agencies that have entered into this
Agreement or any approved IGA. Only authorized Agency employees who have
an approved login and password ("Authorized Users") will be allowed to access
or use information in the COPLINK System.
c) Liability: Each Agency is solely responsible for any and all liability, claim,
administrative proceedings, losses, expenses or any injury, including death or
damage of any kind whatsoever, whether actual, alleged or threatened, including
actual attorney fees, court costs, interest, defense costs and expenses
associated there with including the use of experts, and any other costs of any
nature without restriction incurred in relation to, as a consequence of, or arising
out of the Agency's use of the COPLINK system and/or its performance under
this Agreement.
d) Internal Audit: Each Agency shall name a System Administrator, who shall
conduct an internal audit on a periodic basis to ensure information is reasonably
up to date and user queries are made for legitimate law enforcement purposes.
COPLINK will require each Authorized User to input the reason for the requested
information before any information is generated. This information shall be
recorded on COPLINK, and retained to allow the System Administrator to
complete the internal audit.
III) INFORMATION OWNERSHIP
a) Ownership: Each Agency retains control of all information it provides through
COPLINK. Each Agency is responsible for creating, updating, and deleting
records in its own records management system or database, according to its own
policies. Each Agency shall use its best efforts to insure the completeness and
accuracy of its source data.
Regional Terrorism Intelliaence and Intearation System — COPLINK
Memorandum ofAareement
b) Unauthorized Requests: Requests for information in COPLINK that is not
authorized for viewing will be referred to the Agency that authored or originated
the requested information ("Source Agency").
c) Prohibition Against Release of Information: No Agency nor Authorized User shall
release or make available any information it has accessed to any person or entity
not authorized to access the COPLINK system, or to any third party without the
prior written approval of the Source Agency, or as required by law.
d) Public Record Requests Subpoenas and Court Orders: Any Agency receiving a
public records request, subpoena, or court order ("Legal Request") for
information in COPLINK authored by or originated by another Agency shall
respond to the Legal Request, and shall immediately provide a copy of the Legal
Request to the Source Agency System Administrator.
IV) UNDERSTANDING ON ACCURACY OF INFORMATION
a) Accuracy of Information: Agencies agree that the data maintained in COPLINK
consists of information assumed to be accurate. Agencies will participate in
several testing sessions, to validate and ensure that its information is accurate.
However, data inaccuracies can arise from multiple reasons (e.g., entry errors,
misinterpretation, outdated data, etc.). It shall be the responsibility of the Agency
requesting or using the data to confirm the accuracy of the information with the
Source Agency before taking any enforcement-related action.
b) Timeliness of Information: Each Agency shall determine the frequency with
which its data will be refreshed in COPLINK. In addition, each Agency has its
own policy regarding the speed at which incidents are recorded in its internal
records management systems. Since changes or additions to data do not get
updated in COPLINK on a real-time basis, Agencies recognize that information
may not always be timely and relevant. It shall b the responsibility of the
requesting Agency to confirm the timeliness and relevance of the information with
the Source Agency. Additionally, a data refresh schedule will be published by
each System Administrator to enable a user to determine the potential timeliness
of each Agency's data.
c) Hold Harmless: To the extent permitted by law, Agencies agree to hold Source
Agencies harmless for any information in COPLINK, or any action taken as a
result of that data, regardless of whether the data is accurate or not, or any time
delay associated with changes, additions, or deletions to the information
Re Tonal Terrorism Intelligence andIntegration System — COPLINK
Memorandum of Agreement
contributed. This hold harmless provision shall not apply to the willful misconduct
or gross negligence of Source Agencies.
V) USER ACCESS
a) Login Application Process: Each Agency's System Administrator is responsible
for management of user accounts at that Agency. Each Agency agrees that all
Authorized Users shall be current employees and be authorized to review
criminal history data for legitimate purposes. Each potential user shall submit a
request for a login and password to the Agency System Administrator. The
Agency System Administrator shall have discretion to deny or revoke individual
access.
b) Login Assignment: Each Authorized User will be issued a user login and a default
password by the Agency System Administrator. Upon logging into COPLINK for
the first time, each Authorized User will change the default password to another
password. Authorized Users may be assigned to groups that have different levels
of access rights based on the level of restriction of the information.
c) Provision of Agreement: The Agency System Administrator must provide a copy
of the terms and conditions of this Agreement to all Authorized Users when they
are issued a login ID for the system.
d) Intended Use: Each Authorized User agrees that COPLINK, the information
contained in it, and the networking resources it provides are to be used solely for
purposes consistent with the mission of the LARILJP. Authorized Users
acknowledge that the information COPLINK will be shared and used for authorize
purposes only as permitted by law. Authorized Users shall not use or share the
information for any unethical, illegal, or criminal purpose.
e) Limitations on Use of Logons: An Authorized User may not access COPLINK by
using a name or password that was assigned to another user. An authorized
User cannot give his or her password to another person, including another user,
to access the system.
f) Audit Trail: Each transaction on COPLINK is logged and an audit trail is created.
Each Agency System Administrator shall maintain the audit trail for a minimum of
three years. Requests for transaction logs shall be made in writing by the Agency
System Administrator, who shall provide the logs to the requesting party within a
reasonable amount of time.
Regional Terrorism Intelliaence and Integration System — COPLINK
Memorandum of Agreemenf
g) Termination of Logins: Each Agency System Administrator is responsible for
timely removal of any login accounts as Authorized Users leave the Agency, fail
to meet the requirements of this Agreement, or are denied access by the Agency
System Administrator for any other reason.
VI) CONFIDENTIALITY OF INFORMATION
a) Information Confidentiality: Information in COPLINK is confidential and is not
subject to public disclosure, except as required by law. Only Authorized Users
are allowed to view and use the information in COPLINK. The Information will
otherwise be kept confidential.
b) Internal Requests for Information: An Authorized User who receives a request
from a non-authorized requestor for information in COPLINK shall not release
that information, but may refer the requestor to the Source Agency.
c) Removal or Exoungement of Records: LARILJP shall determine a schedule for
record deletion, removal expungement, and other edits. Any Agency that seeks
to edit a record sooner than the scheduled time shall contact the Contractor
directly and arrange for the change to be manually processed.
VII) SYSTEM ACCESS
a) Network Access: Access to COPLINK will be provided by a private network
maintained by the Los Angeles County Sheriffs Department or any other secure
network configuration that is mutually acceptable to the member agencies or
others with which an approved IGA has been executed.
b) System Availability: COPLINK shall operate 24-hours a day, 7-days a week, with
downtime limited to those hours required for any necessary maintenance
activities.
VIII) SYSTEM MAINTENANCE
a) Under the authority of this Agreement, all RTI IS Member Agencies grant their
authorization to the RTIIS Governance Committee and the Committee Chair for
the limited purpose of implementing a business model or funding mechanism for
ongoing maintenance of the RTIIS system. Upon that business model or funding
mechanism being identified, it may be implemented without further review or
approval by each participating agency, to sustain the integrity of the RTIIS
system.
Reaional Terrorism Intelligence and Integration System — COPLINK
Memorandum ofAareement
IX) AGREEMENT TERMS
a) Term: This agreement will commence on the date that it is adopted by the
first LARILJP participating Agency, and shall last until the last Agency
withdraws, pursuant to section i.e. of this agreement. -
b) Changes to Agreement: Additional law enforcement agencies may be
added to LARILJP by signing an amended copy of the Agreement,
accepting its terms and conditions, and obtaining an approval by a simple
majority of the LARILJP Governance Committee. Based on ongoing
monitoring of COPLINK, Agencies may propose other changes to this
Agreement. Such proposals require the approval of a simple majority of
the participating Agencies.
c) Supplemental Policies: An Agency may add individual guidelines for its
own computers or networks providing they do not conflict with the
provisions of this agreement.
d) Sanctions for Non-Compliance: Any Agency that violates the guidelines of
this may be disconnected from the COPLINK system. The Agency will be
provided with a 60-day written notice of the violation, and the opportunity
to correct the violation. Failure to meet the guidelines will result in the
termination of System access for the offending Agency. All disputes
concerning access shall be determined by a simple majority vote of the
LARIJP Governance Committee.
X) SIGN-OFF EXECUTION OF AGREEMENT
By executing this agreement, each Agency acknowledges that it has received a
copy of this agreement, and will comply with its terms and conditions. The
individual executing this Agreement certifies that the person signing it is
authorized by its Party to bind the represented agency to the terms and
conditions of this amended Agreement. This Memorandum of Agreement may be
executed in one or more counterparts, each of which will deemed an original, but
all of which together will constitute one and the same instrument. A complete
original will be kept on file with the Los Angeles County Police Chiefs'
Association. For all other purposes, facsimile signatures are acceptable as
originals.
Regional Terrorism Intelligence and lntearation System— COPLINK
Memorandum ofAareement
CITY OF ALHAMBRA
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism_Intelligence and Integration System - COPI INK
Memorandum ofAareement
CITY OF ARCADIA
City Representative Date
Print Name
Title
City Attorney Date
Re Tonal Terrorism Intelligence and Integration System— COPLINK
Memorandum of Agreement
CITY OF AZUSA
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism_lntelliaence and Integration System — COP-LINK
Memorandum of Agreement
CITY OF BALDWIN PARK
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLINK
Memorandum of Agreement
CITY OF BELL
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLM
Memorandum of Agreement
CITY OF BELL GARDENS
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLINK
emorandum of Agreement
CITY OF BEVERLY HILLS
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPUNK
Memorandum of Aareement
CITY OF BURBANK
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System — COPLINK
Memorandum of Agreement
CITY OF CLAREMONT
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPL INK
_Memorandum of Agreement
CITY OF COVINA
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLINK
Memorandum of Agreement
CITY OF CULVER CITY
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPLINK
Memorandum of Agreement
CITY OF DOWNEY
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPLINK
Memorandum of Agreement
CITY OF EL MONTE
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPi M
Memorandum ofAgreement
CITY OF EL SEGUNDO
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPLINK
Memorandum of Aareement
CITY OF GARDENA
City Representative Date
Print Name
Title
City Attorney Date
Regional TerrorismIntelliaence and Integration System — COP INK
Memorandum of Aareemen
CITY OF GLENDALE
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLINK
Memorandum of Aareement
CITY OF GLENDORA
City Representative Date
Print Name
Title
City Attorney Date
egfonal Terrorism Intelligence and Integration System - COEL NK
Memorandum of Agreement
CITY OF HAWTHORNE
City Representative Date
Print Name
Title
City Attorney Date
Reaional Terrorism Intelligence and Integration System - COPLINK
Memorandum of Agreement
CITY OF HERMOSA BEACH
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System COPLINK
Memorandum of Aareemen
CITY OF HUNTINGTON PARK
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLINK
Memorandum of Agreement
CITY OF INGLEWOOD
City Representative Date
Print Name
Title
City Attorney Date
'Regional Terrorism Intelligence and Integration stem Cop INK
Memorandum of Agreement
CITY OF IRWINDALE
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System — COPLINK
Memorandum of Aareement
CITY OF LA VERNE
City Representative Date
Print Name
Title
City Attorney Date
'Regional Terrorism Intelligence and Integration System CAP/ rNK
Memorandum of Agreement
CITY OF LONG BEACH
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLINK
Memorandum of Agreement
CITY OF LOS ANGELES
City Representative Date
Print Name
Title
City Attorney Date
'Regional Terrorism Intelligence and Integration System _ COP CNK
Memorandum ofAgreemen
COUNTY OF LOS ANGELES
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPLINK
Memorandum of Agreement
CITY OF MANHATTAN BEACH
City Representative Date
Print Name
Title
r
City Attorney Date
Regional Terrorism Intelligence and Integratlnn Sy—stem_ rnpL uuu
Memorandum of Agreement
CITY OF MONROVIA
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism ►ntelliaence and Integration System - COPLINK
Memorandum of Agreement
CITY OF MONTEBELLO
City Representative Date
Print Name
Title
City Attorney Date
Re Tonal Terrorism Intelligence and Integration System— COPLINK
Memorandum ofAareement
CITY OF MONTEREY PARK
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPLINK
Memorandum ofAareement
CITY OF PALOS VERDES ESTATES
City Representative Date
Print Name
Title
City Attorney Date
'Regional Terrorism Intelligence and Integration System _ COP tNK
Memorandum of Agreement
CITY OF PASADENA
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLINK
Memorandum of Agreement
CITY OF POMONA
City Representative Date
Print Name
Title
City Attorney Date
'Regional Terrorism Intelligence and integration Svstam COPi rout
Memorandum of Aareement
CITY OF REDONDO BEACH
City Representative Date
Print Name
Title
City Attorney Date
Rectional Terrorism Intelligence and Integration System— COPLINK
Memorandum oiAgreement
CITY OF SAN FERNANDO
City Representative Date
Print Name
Title
City Attorney Date
'Regional Terrorism Intelligence and Integration System COPLI K,
Memorandum of Agreement
CITY OF SAN GABRIEL
City Representative Date
Print Name
Title
City Attorney. Date
Reaional Terrorism lntelliaence and Integration System— COPLINK
Memorandum of Agreement
CITY OF SAN MARINO
City Representative Date
Print Name
Title
City Attorney Date
"Regional Terrorism Intelligence and Integration Stam CCE INK
Memorandum of Aareemen
CITY OF SANTA MONICA
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System— COPLINK
Memorandum of Aareemenf
CITY OF SIERRA MADRE
City Representative Date
Print Name
Title
City Attorney Date
e
Regional Terrorism Intelligence and Integration Cvcfcm COP/M
Memorandum of Agreement
CITY OF SIGNAL HILL
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPLINK J
a
Memorandum of Agreement
CITY OF SOUTH GATE
City Representative Date
Print Name
Title
City Attorney Date
'Regional Terrorism Intelligence and Integration System - COPLINK
• Memorandum of Agreement
CITY OF SOUTH PASADENA
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPLINK
Memorandum of Agreement
CITY OF TORRANCE
City Representative Date
Print Name
Title
City Attorney Date
' Regional Terrorism Intelligence and Integration system COPLINK
• Memorandum of Agreement
CITY OF VERNON
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration System - COPUNK
Memorandum of Agreement
CITY OF WEST COVINA
City Representative Date
Print Name
Title
City Attorney Date
Regional Terrorism Intelligence and Integration Sys-tem _ QQP purr
Memorandum of Agreement
CITY OF WHITTIER
City Representative Date
Print Name
Title
City Attorney Date
f
h1.�F qZL
U � _
P
C"9<TFOR�`�A
i.•
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: TITO HAES, PUBLIC WORKS DIRECTOWASSISTANT CITY MANAGER
VIA: F.M. DELACH, CITY MANAGER*
DATE: JANUARY 4, 2011
SUBJECT: NOTICE OF COMPLETION — POLICE STATION HVAC REPLACEMENT (CIP
931010E)
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.
1. Police Station HVAC Replacement (CIP #31010E) - $173,376—Allison Mechanical Inc.
BACKGROUND
In 2009, the Azusa Light and Water Department was successful in securing funding for the replacement
of HVAC equipment at the Police Station via the Energy Efficiency and Conservation Block Grant
Program, funded for the first time via the American Recovery and Reinvestment Act.
On January 19, 2010 the City Council awarded a contract to Allison Mechanical in the amount of
$173,820. The delivery of the units was delayed to the unique specifications of the equipment, the
HVAC units required hardware that would allow them to operate as a hybrid system with Ice Energy
Cooling units. Six (6) of the HVAC units are currently providing daytime cooling with ice that is
generated overnight. The application of this new technology translates in significant energy savings over
a conventional unit.
FISCAL IMPACT
Project was completed under the Council approved $173,820 amount.
Attachments: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 stated below in the property hereinafter described:
2. The full time of the owner is The Citv 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,STRIKE"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 asjoint 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_November 16,2010 . The work done was:
Police Station HVAC ReDlacement (CIP#31010E)
8. The name of the contractor,if any,for such work of improvement was:
Allison Mechanical,Redlands CA February 15 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 Police Station
10. The street address of said property is 729 N.Alameda Ave.,Azusa CA 91702
(IF NO STREETADDRESS HAS BEEN OFFICIALLY ASSIGNED,INSERT"NONE')
Dated:
Joseph R.Rocha,Mayor JSIGNATURE OF OWNER OR CORPORATE OFFICER OF OWNER NAMED IN PARAGRAPH 2 OR HIS AGENT)
I,the undersigned,say: 1 am the person who signed the foregoing notice of completion.I have read said notice of completion and know its
contents,.and the facts stated therein are true of my own knowledge. 1 declare under penalty of perjury that the foregoing is true and correct.
Executed on at -
(DATE) (CIT]',COUNTY,d STATE)
(SIGNATURE)
' ypFnyZ ac.r....
(J;
tiR n4-
CITY OF AZUSA
MINUTES OF THE REDEVELOPMENT AGENCY --
REGULAR MEETING
MONDAY,DECEMBER 6,2010—10:31P.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,HANKS,ROCHA
ABSENT: DIRECTORS: NONE
ALSO PRESENT: Also Present
General Counsel Carvalho, Executive Director Delach, Assistant Executive Director Makshanoff,
Department Heads,Secretary Mendoza,Deputy Secretary Toscana.
AGENCY SCHEDULED ITEMS Sched Items
ATLANTIS GARDENS PROJECT-DEVELOPER SELECTION Atlantis Gardens
Director of Economic and Community Development Christiansen presented information and K.Christensen
recommendations for the subject item. Directors expressed their appreciation for the effort put into Comments
selection of the developer.
Mr. Ben Philips of Mercy Housing, developer for Atlantis Gardens, expressed appreciation for being B.Philips
chosen as the developers for the project,and responded to questions posed. - Comments
Moved by Director Gonzales, seconded by Director Macias and unanimously carried to approve the Mercy Housing
following: Approved as
Developers
1.Accept the recommendation of the Agency's Ad Hoc Affordable Housing Subcommittee to select Mercy For Atlantis
Housing("Developer")as the developer for the Atlantis Gardens Project.2.Direct the Executive Director Gardens
to commence negotiations with Developer for an Affordable Housing Agreement("Agreement")and to Project
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
Anal vsis far the Atlantis Gardens Affordable Housing Project ("RFP") and authorize the Executive
Director to circulate said RFP to qualified.firms.
The CONSENT CALENDAR consisting of items F-1 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 15,2010 were approved as written. Min appvd
2. The Agency Treasurer's Report as of October 31,2010 was received and filed. Treas Rpt
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-R37
ALLOWING CERTAIN CLAIMS AND DEMANDS TO BE PAID OUT OF REDEVELOPMENT Warrants
AGENCY FUNDS.
SPECIAL CALL ITEMS Spec Call Items
None. None.
It was consensus of the Redevelopment Agency Board Members to adjourn. Adjourn
TIME OF ADJOURNMENT: 10:46 P.M.
SECRETARY
NEXT RESOLUTION NO. 11-R1.
12/06/10 PAGE TWO
U �
AGENCY CONSENT ITEM
TO: HONORABLE CHAIRPERSON AND AGENCY MEMBERS
FROM: MARCENE HAMILTON, REDEVELOPMENT AGENCY TREASURER
G
DATE: January 4, 2011
SUBJECT: REDEVELOPMENT AGENCY OF THE CITY OF AZUSA TREASURER'S
STATEMENT OF CASH BALANCES FOR THE MONTH OF NOVEMBER 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 November
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 November 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$706,926.72. Cash received totaled$706,926.72,
and disbursements of$0.00 were made.
The Agency is the issuer of several Merged Project Tax Allocation Bonds. Of the total cash and
investments of$9,254,251.50, Wells Fargo Bank,the fiscal agent, held$4,112,117.10 on behalf of
the Agency. These funds are restricted for payment of debt service on the bonds and special bond-
funded projects. The remaining $5,142,134.40 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:EG
CITY OF AZUSA ;
REDEVELOPMENT AGENCY
T4.4EASURY BOOK BALANCES-CASH AND INVESTMENTS
NOVEMBER 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 $1,046,11608 FDIC up to$100,000.00 Ongoing 0.000% $1.046.116.08
4100,000 collaterized by 110%in govn't securities
Local Agepcy Investment Fund(1-AIF) $20,000,000.00 4,096,018.32 Backed by faith 8 credit of the State of California Ongoing 0.454% 4,103,861.58
SUBTOTAL CASH AND INVESTMENTS
HELD BY AGENCY TREASURER: $5,142,134.40 $5,149,977.66
Interest Collections: 50.00
CASH AND INVESTMENTS HELD BY FISCAL AGENT -
2003 Meroed Protect Tax Allocation Bond.
2003A Special Fund
AIM GoVt Portfolio No limit 0.35 Investments in direct gbloalmns of the U.S.Treasury Ongoing 0.000% 0.35
200M Interest Account
AIM Gott Portfolio No limit 0.30 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% 0.30
2003A Principal Account
AIM Gov't Portfolio No limit 0.76 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% 0.76
2003A Reserve Account
Reliance Cedificate of Deposit No limit 1,085,192.59>S10g000 collateiized by 110%in go,ml securities 12104/14 0.010% 1,085,192.59
Reliance Trust Co.Cash Equivalent Mmkt No limit 11.365.81 N1A Ongoing O.00D% 11,385.81
AIM GoVt Portfolio No limit 1,149.90 Investments in direct obligations of the U.S.Treasury Ongoing 0.000% 1,149.90
2003 Merged Project Tax Allocation Bonds Subtotal: $1,097,729.71 $1,097,72911
Interest Collections: $0.12
2005 Merged Protect Tax Allocation Bonds
2005 Special Fund
Wells Fargo Advantage Govt Mmkt No limit - $9.142.12 N/A Ongoing 0.010% $9,142.12
2005 Interest Account
Wells Fargo Advantage GoVt Mmkt No limtl 0.15 N/A Ongoing 0.000% 0.15
2005 Redevelopment Fund
AIM Institutional Prime-Cash MgmVMMk No limit 0.00 N/A Ongoing 0.000% 0.01)
2005 Reserve Account
Reliance Certificate of Deposit No limit 869.259.17 410D,000 collatenzed by 110%in govmt securities 12104/14 0.010% 869,259.17
Reliance Trust Go.Cash Equivalent Mmkt No limit 0.03 N/A Ongoing O.00D% 0.03
2005 Merged Project Tax Allocation Bonds Subtotal: 5878.401.47 $878,401.47
Interest Collections: $0.08
2007A Merged Protect Tax Allocation Bond.
2007A Bond Fund
Wells Fargo Advantage 100%Treasury Mmdt No limit $0.92 N/A Ongoing 0.000% $0.92
2007A Interest Account
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.37 N/A Ongoing 0.000% $0.37
2007A Principal Account
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.32 N/A Ongoing 0.000% $0.32
2007AMerged Project Tax Allocation Bonds Subtotal: $1.61 $1.61
Interest Collections: $0.00
2007a Merged Project Tax Allocation Refunding Bonds
20078 Bond Fund
Wells Fargo Advantage 100%Treasury Mmkl No limit $3,078.08 N/A Ongoing 0.000% 53,078.08
20078 Interest Account -
y CITY OF AZUSA
REDEVELOPMENT AGENCY
TREASURY BOOK BALANCES-CASH AND INVESTMENTS
NOVEMBER 2010
Maximum
Deposits Cost Interest Mkt
Bank Accounts Allowed Amount Pledged Securities Maturity Rate Value`
Wells Fargo Advantage 100%TreasuryMmkl No limit $0.09 NIA Ongoing 0.000% $0.09
20078 Principal Account
Wells Fargo Advantage 100%Treasury Mmkl No limit $0.07 NIA Ongoing 0.000% $D.07
20078 Reserve Fund
Reliance Certificate of Deposit No limit 325,N2.50>S100,000 collaterized by 110%in govn't securities 12/04114 0.010% 325,042.50
Reliance Trust Co.Cash Equivalent Mmkt No limit 0.00 NIA Ongoing 0.000% 000
20078 Merged Project Tax Allocation Bonds Subtotal: S326,12014 $328,120.74
Interest Collections: S0.03
2008A Merged Protect Tax Allocation Bon
2008A Bond Fund
Wells Fargo Advantage 100%Treasury Mmkt No limit $8,668.11 NIA Ongoing 0.010% $8,668.11
2008.4 Interest Amount
Wells Fargo Advantage 100%Treasury Mani No limit $0.21 NIA Ongoing 0.000% $0.21
2008A Reserve Fund
Reliance Trust Co.Savings and Cert.of Deposit No limit $655.240.76 4100,000 collateral by 110%in govn't securities 12/19/13 2.650% 655,240.76
Reliance Trust Co.Cash Equivalent Mmkt No limit $0.01 WA Ongoing 0.000% 0.01
2008A Redevelopment Fund
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.06 NIA Ongoing 0.000% 5006
2008A Merged Project Tax Allocation Bonds Subtotal: $663,909.15 $663,909.15
Interest Collections: $0.07
20088 Merged Project Tax Allocation Hausino Bonds
20088 Bond Fund
Wells Fargo Advantage Government Mmkt No limit $20,471.49 WA Ongoing 0.010% $20,471.49
20D8B Interest Account
Wells Fargo Advantage Government Mmkt No limit $0.31 N/A Ongoing 0000% $0.31
20088 Reserve Fund
Reliance Trust Co.Savings and Cert.of Deposit No limit $1.123,4B2.50 >$100.000 collaterized by 110%in govn t securities 1121113 4.000% 1,123,4B2.50
Reliance Trust Co.Cash Equivalent Mmkl No limit $0.02 NIA Ongoing 0.000% 0.02
20088 Law 8 Moderate Income Housing Fund
Reliance Trust Go,Cash Equivalent Mmkl No limit 0 00>$100,00D collaterized by 110%in goon I securities Ongoing 0.000% 0.00
Wells Fargo Advantage Govemmenl Mimi No limit $0.10 N/A Ongang 0.01)0% 0.10
20088 Merged Project Tax Allocation Bonds Subtotal: $1,143,954.42 $1,143,954.42
Interest Collections: $0.17
SUBTOTAL CASH AND INVESTMENTS
HELD BY FISCAL AGENT: $4,112,117.10 $4,112,117.10
Total-Azusa Redevelopment Agency -
Cash and Investments: $9,254,251.50 $9,262,094.76
Total Interest Collections: $0.47
Source.of Market Value Information:
Wells Fargo Corporate Tni Trustee - -
LocalAgencylnvestment 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 govemed by
strict regulations described in the Trust Indentures.
'Market Value is the current price at which a security can be traded or sold.
Z
CITY OF AZUSA REDEVELOPMENT AGENCY
AGENCY TREASURER'S STATEMENT OF CASH
AND INVESTMENT COST BALANCES
NOVEMBER 2010
Beginning Cash Balance $8,547,324.78
(All Restricted and Unrestricted Accounts & Investments)
Receipts (All Sources) 706,926.72
Disbursements 0.00
Ending Cash Balance $9,254,251.50
(All Restricted and Unrestricted Accounts & Investments)
i
Mar ene amil on,Agency Tre surer
Z
WARRANT REGISTER NO. 5
WARRANTS DATED 11/01/10 THROUGH 11/15/10 FIS 2010-1
FOR REDEVELOPMENT AGENCY MEETING OF 1-04-11
t
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 DOES RESOLVE AS
FOLLOWS:
SECTION 1. That the following claims and demands have been audited as required bylaw 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 - $ 33.361.06
80-125-CBD CAPITAL PROJECTS FUND 46,981.49
80-135-WED CAPITAL PROJECTS FUND
80-I85-RANCH CAPITAL.PROJECTS FUND
80-165-624-2008A TAX ALLOCATION BONDS
81-155-TAX INCREMENT SET-ASIDE FWD _ 9.830 89
81-165-LM MRG TAB08B HS 626.890.00
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: $ 717.063 44
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 cop hereof in his own records.
ADOPTED AND APPROVED THIS DAY OF 2011.
Chairman
I 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 2011.
AYES: AGENCY MEMBERS:
NOES: AGENCY MEMBERS:
ABSTAIN: AGENCY MEMBERS:
ABSENT: AGENCY MEMBERS:
Secretary
City of Azusa HP 9000 12/28/10 O P E N H O L D D B LISTING Enti Nage pace 1
DED 28, 2010, 3:47 HK ---req: Fd=-------leg: GL JL---loc: BI-TECH---jdu: 789731 #J16104---p�m�00 <1.34> rpt id: OHFLTR02
SECEST FU\D Coles: 80-82 ; Check Issue Dates: 110110-111510
PE ID PE Nage AM= N ER / JOB N v= h=ioe Nara-x D_- c ipticn St Disc. Pte. Dist. ATT.
V11440 P,UVP CRaJP, 8000000000-2724 63658 FLEX ALMIIQ FROG PD 0.00 2.47
F= i� d: 0.00
Paid: 2.47
Total: 2.47
V00363 AZLEA CHAM ER OF 8010110000-6630 3097 FY 2010/2011 AZU FD 0.00 2,712.15
PETDd0.00
d:: 2,712.15
Total: 2,712.15
V01305 AM)SA CTTY EnDLD 8000000000-3035 2610/1001022 PY422/10 PD 0.00 285.00
=ETDUjDaid: 0.00
d: 285.00
Tbtal: 285.00
V10604 AZJSA MIIIJLB WN 8000000000-3020 2618/1001022 PY422/10 PD 0.00 35.00
= LhMd: 0.00
Paid: 35.00
Total: 35.00
V05804 BEST BEST & KRIE 8010125000-6301/505900-6301 638693 NERGOD DISIRICT; FD 0.00 63.00
V05804 BEST' BEST & KRIE 8010125000-6301 638693 NE= DISIRICT• FD 0.00 2,961.00
V05804 BEST BEST & KRIE 8010110000-6301 636347 N)T4=) DISIRIC;f FD 0.00 1,050.00
V05804 BEST BEST & KRIE 8010125000-6301/505900-6301 636347 N� DISIRIC-I FD 0.00 168.00
V05804 BEST FST & KRIS 8010110000-6301 638694 CBS INt7 FD 0.00 147.68
V05804 BEST BEST & KRIE 8010125000-6301/505900-6301 638695 V.I3JY FCNIL�2;INV FD 0.00 13,191.42
V05804 BEST BEST & KRTE 8010125000-6301/505900-6301 633962 V. FCW E2;INV FD 0.00 9,058.80
V05804 BEST BEST & = 8010125000-6301/505825-6301 633961 INV.#6339 PD 0.00 1,218.00
V05804 BEST BEST & KRIE 8110155000-6301 633959 Ifs] M3D INV 6339 FD 0.00 739.16
V05804 BEST BEST & KRIE 8010110000-6301 636348 CBS BILLBOA -IN PD 0.00 398.98
V05804 BEST BEST & KRIE 8110155000-6301/505320-6301 636346 LCW MID-INV#6`363 PD 0.00 546.00
V05804 BEST BEST & KRTE 8010125000-6301/505900-6301 636349 FOS^IM AffQ.INV#6 FD 0.00 10,882.87
V05804 BEST BEST & KRIE 8010125000-6301/505800-6301 633960 A= DISTRICT; PD 0.00 252.00
V05804 BFST BEST & KRIE 8010125000-6301/508000-6301 633960 A= DISTRICT; PD 0.00 1,814.34
V05804 BEST BEST & KRIE 8010110000-6301 633960 NE= DISTRICT; PD 0.00 1,197.00
V05804 BEST BEST & = 8010110000-6301 638693 NER2ED DISIRICT; PD 0.00 693.00
V05804 EAST BEST & KRTE 8010125000-6301/508000-6301 638693 NE= DISIRICT; PD 0.00 210.00
City of Azusa HP 9000 12/28/10 O P E N H O L D D B L I S T I N G By P�-_�Entity Nave paqe 2
DEC 28, 2010, 3:47 FM ---req: ROBY-------leg: GL JL---lcc: BI-TECH---job: 789731 #J16104--pgn: CH400 <1.34> rpt id: ClIFLTR02
SECETT FUD Clxies: 80-82 ; Check Issue Dates: 110110-111510
PE ID PE Nene ACCLCNI NLN�ER / JCB N[NEE2 Invoice Nurrber D.scripticr St Disc. Art. Dist. Ant.
d: 44,591.25
Tbtal: 44,591.25
02537 CLW COV,4\MMQQNT I 8010110000-6527 =535 1860085 PD 0.00 500.00
02537 CLW Ct7)ER14RU I 8010110000-6572 =535 1860085 FD 0.00 120.00
02537 CLW G17VERgvENF I 8010110000-6530 =535 1860085 PD 0.00 68.23
V02537 CDW C?JVlR4vEVP I 8010110000-6563 =535 1860085 FD 0.00 100.01
PETD d: 0.00
Paid: 788.24
Tbtal: 788.24
06783 =SIF= 8000000000-3010 1310/1001022 1001022 FY 22/10 PD 0.00 267.00
V06783 =Si=V06783 10 FD 0.00 125.08
CTITSIREET 8000000000-3010 000000000-3010 2310%1001022 PPYY 22/10 FD 0.00 720.92
PEIDL�d: 0.00
Paid: 1,113.00
Tbtal: 1,113.00
07721 DESvUD M RCELLO 8010125000-6345 297319 =/II�PP APPPSL Pfd 0.00 3,500.00
PETD lll�e: 0.00
Paid: 3,500.00
Total: 3,500.00
V00331 FEDERAL EXPRE M 8010110000-6625 725924953 117052788/D.HAAR PD 0.00 57.34
00331 FEDERAL EXPRESS 8010110000-6625 725924953 117052788/E.PAEG PD 0.00 61.08
= Lluxid: 0.00
Paid: 118.42
Total: 118.42
V12263 FUDR SES E9C 8110165626-7105 EV9377 606 CIEZVFI[YRllV A PD 0.00 1,890.00
V12263 FUR SE%93Z ESC 8110165626-7105 EQ9377 606 A FD 0.00 660,000.00
V12263 FUR SWaZ = 8110165626-1198 EV9377 606 GLEDE'ISYAN A PD 0.00 -35,000.00
= d:T 0.00
626,890.00
Total: 626,890.00
City of Azusa HP 9000 12/28/10 O P E N H 0 L D D B LISTING Pie
lUE, I 28, 2010, 3:47 FM ---1�: R M-------leg: Q JL---loc: BI-'ISH---jcb: 789731 #J16104---pgm: �00t<t1.34 rpt id: CH LTR02
SE[FST FUND ODJe.s: 80-82 ; Check Issue bites: 110110-111510
PE ID PE Nare AL= NUvEER / JCB NUvEER Invoice Nisrber Des=pticri St Disc. Atrt. Dist. Art.
V93874 ICM% REITREMWr 8010110000-6175 7176 AML PLAN FEE 40 FD 0.00 125.00
PEIDUlumai d: 0.00
Paid: 125.00
'Ibtal: 125.00
V03126 L Na)IN NMCI\AL 8000000000-3010 1320/1001022 PY#22/10 PD 0.00 45.00
V03126 LII�OLN WICI\AL 8000000000-3010 2325/1001022 PY#22/10 PD 0.00 50.00
PEID d: 0.00
Paid: 95.00
'Ibtal-: 95.00
V10322 M & T BANK 8000000000-3010 102910 ICMA 457 DEFERRE PD 0.00 369.17
PED ch id: 0.00
Paid: 369.17
Total: 369.17
V12282 MISS AZLFA 8010110000-6630 101210 2011SCMLARSHIP FD 0.00 5,000.00
V12282 MISS AZLGA 8010110000-6630 101210 2011SCHLARSEUP Fid 0.00 10,000.00
P= Lh�x'�id: 0.00
Paid: 15,000.00
Total: 15,000.00
V12457 SEFF'ER PE= CAS 8010110000-6625 082310 Prog= Else PD 0.00 92.19
V12457 SE= PEITY CAS 8010110000-6240 082310 Mileage Relrrburs PD 0.00 46.00
V12457 SER PEFIY CAS 8010110000-6530 082310 Office SLE-plies EIJ 0.00 9.54
PEID d: 0.00
Paid: 147.73
'Ibtal: 147.73
V10053 SUZEARD INSURAN 8000000000-3044 1221/1001022 PY#22/10 PD 0.00 132.64
PEID d: 0.00
d: 132.64
1btal: 132.64
V06107 U.S. BW CORP P 8010110000-6625 110210 STAR=(E1 SI) FD 0.00 111.20
City of Azusa HP 9000 12/28/10 O P E N H 0 L D D B LISTING By Pet'scal/Ehtity Narre Paqe 4
DEE 28, 2010, 3:47 FM ---req: RUBY-------leg: M JI,--- BI-=---jcb: 789731 #J16104--p9n: CE400 <1.34> rpt id: CHTMR02
SE= FU\D Cod s: 80-82 ; Check Issue Kites: 110110-111510
PE ID PE Na e ALLCZ.NT NU49 ER / JCB NUEER Invoice NArbex De=pticn St Disc. Dirt. Dist. Pmt.
PEID d: 0.00
Paid: 111.20
Total: 111.20
V11824 URBr1N FUTURES IN 8010110000-6345 0810014 MNTLYREI.;]NV PD 0.00 3,766.19
V11824 LRBAN FUTURES IN 8110155000-6345/505320-6345 0810013 GZ1MLT.SVC.;INV PD 0.00 2,975.00
V11824 LE13AN FUILFM IN 8010125000-6345/505800-6345 0810014 M=Y RET. ; PD 0.00 78.46
V11824 URBAN FUTURES IN 8010110000-6345 0810013 CC7�134LT.SVC. ; PD 0.00 4,968.75
V11824 URBAN FUTURES IN 8110155000-6345/505320-6345 0810014 N=Y REI. ;INV PD 0.00 5,570.73
V11824 URBAN FUI= IN 8010125000-6345/505800-6345 0810013 QZ\14LT.SW.;INV PD 0.00 1,911.25
V11824 URBAN FUIURES IN 8010125000-6345/650201-6345 0810014 V=Y RET.;INV PD 0.00 784.62
PEID 0.00
Paid: 20,055.00
Total: 20,055.00
V00388 VERIZCN 8010125000-7130/505500-7130 6268150706081610 ACCT #0114111103 PD 0.00 887.73
PEID d: 0.00
Paid: 887.73
Tbtal: 887.73
V04678 VERDIN WIRELESS 8010110000-6915 0909129402 0909129402/BLACSC PD 0.00 92.38
V04678 VERIZCN WIRELESS 8010110000-6915 0909140281 0909140281/AIRCA PD 0.00 12.06
PES ikrtaid: 0.00
Paid: 104.44
Total: 104.44
GRAND TOTAL d: 0.00
'Vd: 717,063.44
Tbtal: 717,063.44
•
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
r
a
Solar Tower Project Power Sales Agreement between SCPPA and such Project Participant (the
"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
purchase 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
percentage 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 Citys
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.
3
6. Pursuant to Section 54241 of the Government Code of the State of California, this v
Ordinance 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 54342 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 fi•om and after its enactment, this Ordinance shall take effect and be
in full force, in the manner provided by law.
PASSED AND ADOPTED this day of 2011.
Joseph R. Rocha.
Mayor of the City of Azusa
4
, 1
STATE OF CALIFORNIA )
COUNTY OF LOS .ANGELES
CITY OF AZUSA )
1, 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
5
11/20/2010 EXECUTION COPY t
P
LA PAZ SOLAR TOWNER PROJECT
POWER SALES AGREEMENT
BETWEEN
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
AND
CITY OF AZUSA, CALIFORNIA
Dated as of November 1, 2010
TABLE OF CONTENTS
Page
I. PARTIES ........................................................................................................................... 1.
2. RECITALS, CONSTRUCTION AND PRELIMINARY MATTERS.............................. l
3. AGREEMENT................................................................................................................... 9
4. DEFINITIONS................................................................................................................... 9
4.1 Aereement.............................................................................................................. 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.................................................. IS
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
901879212 i
TABLE OF CONTENTS
(continued)
Page
6.12 Compliance with the Power Purchase Agreement and Transmission
Arrangements....................................................................................................... 3 3
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
S. 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
TaxLaw 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
90197S21.' 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.....................................................................
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; LIP.BILITY........................................................................ 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
9ois7s21.2
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.; Restrictions on Disposition of Purchaser's 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 Tennination 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.....:............................................
21.2 Agreement Subject to the Indenture .................................................................... 62
21.; 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
l; 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
901878212 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-I
F — POWER PURCHASE AGREEMENT BETWEEN SOUTHERN
CALIFORNIA PUBLIC POWER AUTHORITY AND ENVIROMISSION
(USA) INC. DATED AS OF NOVEMBER 1, 2010......................................................F-I
90187821 - Y
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 lavas 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 draftin; 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
901878212 1
i 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-tern 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.; 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
90187821.2 7
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, includin, 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 Agreement.
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
90187921.2 3
9 Purchaser and otber 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.
90187s272 - 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. Eased
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
90187921.2
plans and measures by which to provide appropriate project financing in
connection with such potential acquisitions.
3.16 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 veneration 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 carving 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., 6
L
the Coordinating Committee and the Board of Directors may from time to p
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 ALrreement 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
90187821.2 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.
?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
90189921.2 $
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 4.4.1 S. 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 anv 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 Iicenses 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.
90187931.2 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, regulator},
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.; 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.
90187521.2 l l
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 Proiect 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 may be 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.
901979212 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 1 i 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 Monthlv 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,
9018782-r.' 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
90187821.2 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.
4.5.3 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.
4.5.4 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 Monthlv 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
90187811.2 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 for 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.i 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 Project 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 Pourer 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 Participanfs
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.
S. 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 1$
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
9uisray.z 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 Purchasers 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 Budaet. 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
901878212 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 detemiine 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
90197521.2 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 Coordinatini* 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, includim, 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
90187521.2 72
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 terms 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
90197831.2 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, teleg=raph, telex, letter, e-
mail or by any combination thereof, to the extent pennitted 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.; 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 6,and Section 7 of this Agreement.
90187921.2 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
includitlg, 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 mana4l.tement 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
vo i s7s2 i 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 anv 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.
6.2.1 i 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.
90197821: 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 otherwise 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 Afn-eements. 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 A<_)reement
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
90187921.2 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 energ}, delivery arrangements, transmission contracts,
or other Project Agreements.
6.2.—2 6 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 to]-
under
orunder 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 Manaeement 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,
90157821.2 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
90I97821.2 30
associated with the Project, and (6) any other action necessary or
appropriate to carry forth Section L3 of this Agreement.
63.8 Budgeting. 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.
63.9 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.
63.11 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
ccountingrecords 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.
90187821.2 - 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
90187821.2 3?
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 Monthlv 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.' 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 Purchasers 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.' 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 Ownershiu 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
4.95 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 anv 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
901878_'I? 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 anlounts due for such Month by Purchaser with
respect to the items of Monthlv 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
Balling 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 Monthlv 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 Monthlv 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. I£ 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
90187821.2 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 -
♦. I
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 Pavment 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
90197821.2 38
w
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 Purchasers 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 Purchaser's electric revenue
fund.
90187821.2 39
8.6 Liti¢ation. 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 Purchasers 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 Deliverv. 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, firming, 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 Purchasers 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.
90187821.2 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 Lava 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
90197921.2 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
Desi_mated 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 Facilitv 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
sn i s7sz i, 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 Special Pavment Obligations 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
90187821.2 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 anv 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 anv 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 1.' 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 perform; 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
15.3 Cured Pavment 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 Payment Default. If at anv 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
arty 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 Proiect 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
901575212 48
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.
155.2 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 155.1 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 thirdarties, all in accordance with applicable iaw provided,
P PP � P >
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 assiLmed 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
90187921.2 49
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.
90167821.2 50
15.7 Use of Operative 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 Don-Defaulting-
Project
on-DefaultingProject 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 4.95 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
1.3.9.2 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.
15.93 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 AmAication of Moneys Received from Step-Up Invoices Relatine 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 4.95 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.
1`3.10.2 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.
901878212 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 Monevs 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 Monevs 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 Participants 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
901818a1 2 53
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.
1:5.13.2 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.
15.1 3.3 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
90187521.2 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.? 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
90197821.2 JJ
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 requited 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,
90187521.2 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-performance
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
b;y 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 Concerning 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 Pavment 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 R 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
lam; 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
Affeement 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
901 97821.2 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
20.53 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
90187921.2 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 A:>_reement 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 Comnliance 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
90197821.2 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 nor 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 FOLLO K7S]
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 Agreernent, 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 I 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 Faciliry. "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 Bud¢et. 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 not 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. Bllline 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 anv 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.
90197821.2 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. Coordinatin, 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.
90197821.2 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 Pavment 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. Deliv_ery Point Output cost component. "Delivery Point Output cost component" is
defined in Section 4.5.1.
32. Delivery Point Output Cost Share. "Delivery Point Output Cost Share' is defined in
Section 4.5.
33. Delivery Tenn 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.
90197921-2 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
inspecting, 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. Dynamic 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. Eby. "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. Facilitv Capacity. "Facility Capacity' shall have the meaning provided in the Power
Purchase Agreement.
43. Facilitv Enerev. "Facility Energy" shall have the definition set forth in the Power
Purchase Agreement.
90187821, 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 Maieure. "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 Ener,v. "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.
9oix7a i. 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, 1986, 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. New Facilitv. "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
90187921.2 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 anv Month.
78. Pavment Default Period. That period of time during which a Payment Default exists.
9018782 L= 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 Deliv TA". 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 Securitv 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
instrument or other device or mechanism providing for the ability to acquire the solar .
tower project or the Facility or an ownership interest therein.
ST 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 Asreements. 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 Supplv 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
euis7s'i.z 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 agreements, 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. Project 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 Participants . 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 terns of this
Agreement
96. Proiect Purchase tion. "Project Purchase Option" shall have the meaning provided in
the Power Purchase Agreement.
97. Proiect 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. Project 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 Utilitv 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 Facilitv Capacity Share. "SCPPA Facility Capacitv 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 Jesult 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. Studv 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.
901 97821.2 A-13
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. [Reserved].
90187821.2 A-14
APPENDIX B*
SCHEDULE OF PROJECT PARTICIPANTS
CAPACITY AMOUNTS
OUTPUT ENTITLEMENT SHARES
PROJECT COST SHARES
POINTS OF DELIVERY
Project Particivants 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% 1-t8 8 12% 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
lID 15 MW 100.0000% 14.8515% 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 l0 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
90187821.2 F3_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
c..1-
.�uwiauvu
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,
90 97821.2 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 11-62790/. 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% 11.8812%
Glendale
100.0000% 100.0000% 4.8515% 4.8515%
IID
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.l of this Agreement.
**Less applicable transmission losses.
90187821.2 G-1
�s
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 Distriet][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 Californial[the City Charter of the City of Glendale][the laws of the
90187821.1 D_1
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][tbe 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 terns, 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 parry 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
X
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,
901878'1.1 D-3
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:
I. 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
Y
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. 1 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. Heleeson, 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
artA
L.
•
S
AZUSA«
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: JANUARY 4, 2011
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 December 14,2010,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 ACTION/EFF RANGE/STEP
DATE BASE MO SALARY
PD Steve Martinez Police Officer Reg Appointment 6101/2
11/20/2010 $5,771.73
UTL Federico Langit Assistant Director of Reg Appointment 3557/5
Electrical Operations 11/04/2010 $10,609.73
UTL Jaroslaw Lehr Assistant Director of Merit Inc/Reg Appt 3570/5
Resource Management 11/17/2010 $12,042.46
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
UTL Leo Maldonado Water Production Operator II Pending Physical 5185/1
and Background $4,432.63
C. SEPARATION: The following separations are submitted for informational purposes.
DEPARTMENT ! NAME CLASSIFICATION EFFECTIVE DATE
PD Melissa Powel Police Records Specialist III 12/30/2010
PD Jerome Arnold Police Sergeant 12/25/2010
PD John Fischer Police Officer 12/31/2010 J�
FISCAL IMPACT
There is no fiscal impact, ( /
s as positions listed are funded in approved department budgets. �at(./(l�