HomeMy WebLinkAbout2019 04 17NOTICE AND CALL
OF A
SPECIAL MEETING
OF THE
CITY COUNCIL
TO THE MEMBERS OF THE AFOREMENTIONED AGENCIES AND THE CITY CLERK OF
THE CITY OF BALDWIN PARK
NOTICE IS HEREBY GIVEN that a Special Meeting is hereby called to be held on
WEDNESDAY, APRIL 17, 2019 at 5:30 PM. at City Hall — 31d Floor Conference Room 307,
14403 East Pacific Avenue, Baldwin Park, CA 91706.
Said Special Meeting shall be for the purpose of conducting business in accordance with
the attached Agenda.
NO OTHER BUSINESS WILL BE DISCUSSED
Dated: April 11, 2019.
Manuel Lozano
Mayor
AFFIDAVIT OF POSTING
I, Lourdes Morales, Chief Deputy City Clerk of the City of Baldwin Park hereby certify under
penalty of perjury under the laws of the State of California that the foregoing agenda was posted
on the City Hall bulletin board not less than 24 hours prior to the meeting of April 17, 2019.
Lourdes Morales,
Chief Deputy City Clerk
AGENDA
BALDWIN PARK
CITY COUNCIL
SPECIAL MEETING
Please note
time and
APRIL 17, 2019 o�at�on
5:30 PM
CITY HALL - 3r°' Floor, Conference Room 307
14403 EAST PACIFIC AVENUE
BALDWIN PARK, CA 91706
(626) 960-4011
H U B O F
....
SAN�,CaAE KIEL "o
'V.. E '
Manuel Lozano - Mayor
Monica Garcia - Mayor Pro Tem
Alejandra Avila - Council Member
Paul C. Hernandez - Council Member
Ricardo Pacheco - Council Member
PLEASE TURN OFF CELL PHONES AND PAGERS WH/LE MEET/NG /S /N PROCESS
POR FA VOR DE APA GAR SUS TELEFONOS CEL ULARES Y BEEPERS DURANTE LA JUNTA
PUBLIC COMMENTS COMENTARIOS DEL PUBLICO
The public is encouraged to address the City Se invita al publico a dirigirse al Concilio o cualquiera
Council or any of its Agencies listed on this otra de sus Agencias nombradas en esta agenda, para
agenda, but only on any matter posted on this hablar solamente sobre asunto publicado en esta
agenda. If you wish to address the City Council or agenda. Si usted desea la oportunidad de dirigirse al
any of its Agencies, you may do so during the Concilio o alguna de sus Agencias, podra hacerlo
PUBLIC COMMUNICATIONS period noted on durante el periodo de Comentarios del Publico
the agenda. Each person is allowed three (3) (Public Communications) anunciado en la agenda. A
minutes speaking time. A Spanish-speaking cada persona se le permite hablar por tres (3) minutos.
interpreter is available for your convenience. Hay un interprete para su conveniencia.
CITY COUNCIL
SPECIAL MEETING – 5:30 P.M.
CALL TO ORDER
ROLL CALL: Council Members: Alejandra Avila, Paul C. Hernandez, Ricardo
Pacheco, Mayor Pro Tern Monica Garcia and Mayor Manuel Lozano
PUBLIC COMMUNICATIONS
Three (3) minute speaking time limit
Tres (3) minutos sera e/ limite para hablar
THIS IS THE TIME SET ASIDE TO ADDRESS THE CITY COUNCIL
PLEASE NOTIFY THE CITY CLERK IF YOU REQUIRE THE SERVICES OF AN INTERPRETER
No action may be taken on a matter unless it is listed on the agenda, or unless certain emergency or special
circumstances rcumstances exist. The legislative body or its staff may: 1) Briefly respond to statements made or questions asked
by persons; or 2) Direct staff to investigate and/or schedule matters for consideration at a future meeting.
(Government Code §54954.21
ESTE ES EL PERIODO DESIGNADO PARA DIRIGIRSE AL CONCILIO
FAVOR DE NOTIFICAR A LA SECRETARIA SI REQUIERE LOS SERVICIOS DEL INTERPRETE
No se podra tomar acci6n en alg6n asunto a menos que sea incluido en la agenda, o a menos que exista alg6na
emergencia o circunstancia especial. El cuerpo legislativo y su personal podran: 1) Responder brevemente a
declaraci6nes o preguntas hechas por personas; o 2) Dirigir personal a investigar y10 fijar asuntos para tomar en
consideraci6n en juntas proximas. [Codigo de Gobiemo §54954.2]
OPEN SESSION/STUDY SESSION
1. Dog Park Location Options
Director of Recreation and Community Services Manuel Carrillo
2. Digital Street Banners/Art in Public Places and Bulletin Displays Park Sign Locations
Director of Public Works Sam Gutierrez
RECESS TO CLOSED SESSION
3. Conference With Legal Counsel—Existing Litigation
Pursuant to paragraph (1) of subdivision (d) of Government Code Section 54956.9:
Case Name: Hadsell v. City of Baldwin Park Case No. BC548602
Case Name: Salcedo v. City of Baldwin Park Case No. BC676398
Case Name: Jason Adams v. City of Baldwin Park Case No. 2:19-cv-00297
Case Name: Maria Delgado v. City of Baldwin Park Case No. BC635496
Workers Comp Case Name: Lili Hadsell WC Case No. ADJ 10091998
4. Public Employee Appointment (GC §54957):
Position: Chief of Police
5. Real Property Negotiations Pursuant to Government Code §54956.8:
A. Property: 4145 Puente Avenue (CAN 17-01)
Negotiating Parties: City of Baldwin Park and Edward Avakyan, Jenome
Research
B. Property: 14551 Joanbridge Street (CAN 17-02)
Negotiating Parties: City of Baldwin Park and Lih Ping Henry Liou, Baldwin Park
TALE Corp.
C. Property: 4150 Puente Avenue (CAN 17-06)
Negotiating Parties: City of Baldwin Park and Shaun Bershatski, RUKLI, Inc.
D. Property: 13111 Spring Street & 428 Cloverleaf Drive (CAN 17-07)
Negotiating Parties: City of Baldwin Park and Ming Hong Huang, 428 Cloverleaf,
LLC.
E. Property: 5117 Calmview Avenue (CAN 17-08)
Negotiating Parties: City of Baldwin Park and Victor Chevez and Helen Chau,
Casa Verde Group
F. Property: 13467 Dalewood Street (CAN 17-09)
Negotiating Parties: City of Baldwin Park and Darrin Oganesian and Ryan
Oganesian, RD Baldwin Park
G. Property: 14837 & 14841 Ramona Boulevard (CAN 17-10)
Negotiating Parties: City of Baldwin Park and Phil Reyes, and Alexis Reyes,
Organic Management Solutions, LLC.
H. Property: 5148 Bleecker Street (CAN 17-12)
Negotiating Parties: City of Baldwin Park and Sergio Torres, Enrique Vega and
Moses Acosta, Medical Grade Farms BP
I. Property: 15023 Ramona Boulevard (CAN 17-13)
Negotiating Parties: City of Baldwin Park and Shaun Szameit, Joshua Pierce and
Kevin Huebner, Kultiv8 Group, LLC.
J. Property: 4621 Littlejohn Street (CAN 17-15)
Negotiating Parties: City of Baldwin Park and Teresa Tsai, GSC Capital Group
K. Property: 5157 Azusa Canyon Road (CAN 17-17)
Negotiating Parties: City of Baldwin Park and Mike Sandoval and Ed Barraza,
Elite Green Cultivators
L. Property: 5175 Commerce Drive (CAN 17-18)
Negotiating Parties: City of Baldwin Park and Linda Thong, Pacific Cultivation,
LLC.
M. Property: 13450 Brooks Drive, Unit A & C (CAN 17-27)
Negotiating Parties: City of Baldwin Park and Jonathan Yuan Kai Lee, Jefferson
Liou, and Jerrell Austin Shepp, Cloud Control, Inc.
N. Property: 4802 Littlejohn Street (CAN 17-28)
Negotiating Parties: City of Baldwin Park and Marco Perez and Ren Yoneyama,
VRD, Inc.
O. Property: 13460 Brooks Drive (CAN 17-31)
Negotiating Parties: City of Baldwin Park and Sigrid Lopez and Artem
Karapetyan, Green Health Industries, LLC.
P. Property: 1529 Virginia Avenue (CAN 18-01)
Negotiating Parties: City of Baldwin Park and Erik Intermill, Esource LLC
6. Conference With Legal Counsel—Anticipated Litigation
Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Government
Code Section 54956.9:
Potential Case(s): Three (3)
RECONVENE IN OPEN SESSION
REPORT FROM CLOSED SESSION
ADJOURNMENT
CERTIFICATION
I, Lourdes Morales, Chief Deputy City Clerk of the City of Baldwin Park hereby that, certify under
penalty of perjury under the laws of the State of California that the foregoing agenda was posted
on the City Hall bulletin board not less than 24 hours prior to the meeting of April 17, 2019.
/11
Or
co f
les
Chief Deputy City Clerk
PLEASE NOTE: Copies of staff reports and supporting documentation pertaining to each item on this agenda are available
for public viewing and inspection at City Hall, 2n' Floor Lobby Area or at the Los Angeles County Public Library in the City
of Baldwin Park. For further information regarding agenda items, please contact the office of the City Clerk at (626) 960-
4011 ext. 466 ore-maillmorales@baidwinpark.com.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please
contact the Public Works Department or Risk Management at (626) 960-4011. Notification 48 hours prior to the meeting
will enable staff to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 34.102.104 ADA TITLE
ll)
BALDWIN PARK CITY COUNCIL
REGULAR MEETING
APRIL 17, 2019
11 PIM
COUNCIL CHAMBER
14403 E. Pacific Avenue
Baldwin Park, CA 91706
(626) 960-4011
V"ALIEY
t),1,� ..
a
Manuel Lozano - Mayor
Monica Garcia - Mayor Pro Tem
Alejandra Avila - Council Member
Paul C. Hernandez - Council Member
Ricardo Pacheco - Council Member
PLEASE TURN OFF CELL PHONES AND PAGERS WHILE MEETING IS IN PROCESS
POR FAVOR DE APAGAR SUS TELEFONOS CELULARES Y BEEPERS DURANTE LA JUNTA
PUBLIC COMMENTS
The public is encouraged to address the City
Council or any of its Agencies listed on this
agenda on any matter posted on the agenda or on
any other matter within its jurisdiction. If you wish
to address the City Council or any of its Agencies,
you may do so during the PUBLIC
COMMUNICATIONS period noted on the agenda.
Each person is allowed three (3) minutes
speaking time. A Spanish speaking interpreter is
available for your convenience.
COMENTARIOS DEL PUBLICO
Se invita al publico a dirigirse al Concilio o cualquiera otra
de sus Agencias nombradas en esta agenda, para hablar
sobre cualquier asunto publicado en la agenda o
cualquier tema que este bajo su jurisdiccion. Si usted
desea la oportunidad de dirigirse al Concilio o alguna de
sus Agencias, podra hacerlo durante el periodo de
Comentarios del Publico (Public Communications)
anunciado en la agenda. A cada persona se le permite
hablar por tres (3) minutos. Hay un interprete para su
conveniencia.
Any writte • poabtfic rec;„ tt relc'dt ng To �i s agenda ,t(sp°a .i.te <a,)-, tt'�ni a.'�io, oas`t;ulate'tt�3Jgs a Council
t..p
that indistributed to fl -m City C'L,.ir less f,ae72 hours, pa , to nial r,-, tin,,"?# e ti4)ii A,"fo S.bfi
i z.,4;pe€. d°*., n
at City Hall in the k.. i:.,y Cie his office %.. a '14403 _, aciFC-venue, 3P,i coC. ?essai€e ss htt,rta 111uai?.2A
- T/-,xC,l s"da a , 7:3 a,m.. 6:00 s, nn }
CITY COUNCIL
REGULAR MEETING — 7:00 PM
CALL TO ORDER
INVOCATION
PLEDGE OF ALLEGIANCE
• Presentation of the Colors by the Baldwin Park Police Department Honor Guard
ROLL CALL
Council Members: Alejandra Avila, Paul C. Hernandez, Ricardo
Pacheco, Mayor Pro Tem Monica Garcia and Mayor Manuel Lozano
REPORT FROM CLOSED SESSION
ANNOUNCEMENTS
This is to announce, as required by Government Code section 54952.3, members of the City
Council are also members of the Board of Directors of the Housing Authority and Finance
Authority, which are concurrently convening with the City Council this evening and each Council
Member is paid an additional stipend of $30 for attending the Housing Authority meeting and
$50 for attending the Finance Authority meeting.
PROCLAMATIONS COMMENDATIONS & PRESENTATIONS
• Proclamation for National Public Safety Telecommunications Week
• Introduction of new Baldwin Park Police Employees:
Officer Alex Alarcon
Officer Oscar Alcon
Officer Summer Anaya
Dispatcher Erin Sanchez
• Certificate Recognition in honor of Waste Management Baldwin Park Scholarship and
Internship Winners
PUBLIC COMMUNICATIONS
Three (3) minute speaking time limitg
Tres (3) minutos sera el limite para hablar
THIS IS THE TIME SET ASIDE TO ADDRESS THE CITY COUNCIL
PLEASE NOTIFY THE CITY CLERK IF YOU REQUIRE THE SERVICES OF AN INTERPRETER
No action may be taken on a matter unless it is listed on the agenda, or unless certain emergency or special circumstances
exist. The legislative body or its staff may: 1) Briefly respond to statements made or questions asked by persons; or 2) Direct
staff to investigate and/or schedule matters for consideration at a future meeting. [Government Code §54954.2]
ESTE ES EL PERIODO DESIGNADO PARA DIRIGIRSE AL CONCILIO
FAVOR DE NOTIFICAR A LA SECRETARIA SI REQUIERE LOS SERVICIOS DEL INTERPRETS
No se podra tome accion en algGn asunto a menos que sea incluido en la agenda, o a menos que exista alguna emergencia o
circunstancia especial. El cuerpo legislativo y su personal podran: 1) Responder brevemente a declaraciones o preguntas
hechas porpersonas; o 2) Dirigir personal a investigar y/o fijar asuntos para tomar en consideracion en juntas proximas. (Codigo
de Gobierno §54954.21
City Council Agenda Page 2
CONSENT CALENDAR
All items listed are considered to be routine business by the City Council and will be approved with one motion. There will be
no separate discussion of these items unless a City Councilmember so requests, in which case, the item will be removed from
the general order of business and considered in its normal sequence on the agenda.
1. Warrants and Demands
Staff recommends that Council ratify the attached Warrants and Demands Register.
2. Treasurer's Report — February 2019
Staff recommends that Council receive and file the Treasurer's Report for February 2019.
3. Meeting Minutes
Staff recommends that Council receive and file the following Meeting Minutes:
A. Meeting Minutes of the Special City Council Meeting held on April 3, 2019.
4. Consider and Approve License Agreement with the Boys & Girls Club of West San
Gabriel Valley
Staff recommends that City Council:
1. Consider and approve the License Agreement with the Boys & Girls Club of
West San Gabriel Valley.
5. Adoption of Resolution No. 2019-011, "A Resolution of the City Council of the City
of Baldwin Park, California, Approving the Engineer's Report for the Landscape
and Lighting Maintenance Assessment District for FY 2019-2020, Declaring the
Intent to Levy and Collect Assessments, and Setting a Time and Place for a Public
Hearing"
Staff recommends that the City Council adopt Resolution No. 2019-011 entitled, "A
Resolution of the City Council of the City of Baldwin Park, California, Approving the
Engineer's Report for the Landscape and Lighting Maintenance Assessment District for
FY 2019-2020, Declaring the Intent to Levy and Collect Assessments and Setting a Time
and Place for a Public Hearing."
6. Adoption of Resolution No. 2019-012, "A Resolution of the City Council of the City
of Baldwin Park, California, Approving the Engineer's Report for the Citywide Park
Maintenance Assessment District for FY 2019-2020, Declaring the Intent to Levy
and Collect Assessments, and Setting a Time and Place for a Public Hearing"
Staff recommends that the City Council adopt Resolution No. 2019-012 entitled, "A
Resolution of the City Council of the City of Baldwin Park, California, Approving the
Engineer's Report for the Citywide Park Maintenance Assessment District for FY 2019-
2020, Declaring the Intent to Levy and Collect Assessments and Setting a Time and Place
for a Public Hearing."
City Council Agenda
Page 3
7. Adoption of Resolution No. 2019-013, "A Resolution of the City Council of the City
of Baldwin Park, California, Adopting the Fiscal Year 2019-20 Project List to be
Funded by Senate Bill 1 (SB1) — the Road Repair and Accountability Act"
It is recommended that the City Council:
1. Adopt Resolution No. 2019-013, "A Resolution of the City Council of the City of
Baldwin Park, California, Adopting the Fiscal Year 2019-20 Project List to be
Funded by Senate Bill 1 (SB1) — the Road Repair and Accountability Act"; and
2. Authorize the Finance Director to appropriate projected FY 2019-20 SB1 funds
in the amount of $1,269,643; and
3. Authorize the Director of Public Works to file necessary documentation to
satisfy SB 1 funding requirements and act as the signature authority.
8. Consideration of Approval for an Appropriation of Additional Funds for
Extraordinary and Unscheduled Maintenance Cost Related to the Citywide Traffic
Signal and Street Lighting Maintenance Program
It is recommended that the City Council:
1. Authorize the Director of Finance to appropriate $55,000 from unappropriated
funds from Fund #251 — Landscape Lighting Maintenance District (LLMD) for
FY 2018/2019 to cover the increase in extraordinary and unscheduled
maintenance costs; and
2. Authorize the Director of Finance to make necessary budget adjustments to
allow payments as approved for FY 2018/2019.
9. Adoption of Resolution No. 2019-014, "A Resolution of the City Council of the City
of Baldwin Park, California, Adopting the Amended Fee Schedule for Solid Waste
Collection and Recycling Services, to Reflect Consumer Price Index (CPI)
Increases for Fiscal Year 2019-2020"
It is recommended that the City Council adopt Resolution No. 2019-014 "A Resolution of
the City Council of the City of Baldwin Park, California, Adopting the Amended Fee
Schedule for Solid Waste Collection and Recycling Services to reflect Consumer Price
Index (CPI) Increases for Fiscal Year 2019-2020."
10.Approval of Design -Build Contract with Merge Conceptual Design, LLC. for
Professional Services for an Art in Public Space Project, including Artwork, Design,
Fabrication and Installation of Signs, Structures and Digital Displays
Staff recommends City Council to authorize the Mayor to execute a Design -Build
Agreement with Merge Conceptual Design, LLC. to complete the design, fabrication and
installation the Public Art Project, including signs and digital marquee display in the
amount not -to -exceed $616,360.
11. Housing Element Progress Report 2018
It is recommended that the City Council receive and file the report
City Council Agenda
Page 4
12. Second Reading of Ordinance No. 1438 Entitled: "An Ordinance of the City Council
of the City of Baldwin Park, California, Authorizing the City of Baldwin Park to Enter
Into a Development Agreement with Rukli, Inc. for the Distribution of Cannabis at
the Real Property Located at 4150 Puente Avenue (APN: 8437-014-014 and 8437-
022-008) within the City of Baldwin Park"
Staff recommends that the City Council waive reading and adopt Ordinance No. 1438,
entitled: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BALDWIN PARK,
CALIFORNIA, AUTHORIZING THE CITY OF BALDWIN PARK TO ENTER INTO A
DEVELOPMENT AGREEMENT WITH RUKLI, INC. FOR THE DISTRIBUTION OF
CANNABIS AT THE REAL PROPERTY LOCATED AT 4150 PUENTE AVENUE (APN:
8437-014-014 and 8437-022-008) WITHIN THE CITY OF BALDWIN PARK".
13.Adoption of Resolution No. 2019-016, Joining California Choice Energy Authority
and Other Related Actions
Staff recommends that the City Council:
1. Adopt Resolution No. 2019-016 Entitled: " RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF BALDWIN PARK CALIFORNIA AUTHORIZING
THE CITY'S ENTRY INTO A JOINT EXERCISE OF POWERS AGREEMENT
REGARDING THE CALIFORNIA CHOICE ENERGY AUTHORITY AND
DIRECTING THE TAKING OF FURTHER ACTIONS RELATED THERETO";
and
2. Authorize and direct staff to enter into an Administrative Services Agreement
with California Choice Energy Authority; and
3. Authorize and direct staff to enter into a Security Agreement with River City
Bank; and
4. Authorize and direct staff to enter into an Intercreditor and Collateral Agency
Agreement with River City Bank and Secured Creditors; and
5. Authorize and direct staff to enter into a Deposit Account Control Agreement
with River City Bank; and
6. Approve Baldwin Park CCA program name "Baldwin Park Resident Owned
Utility District (B -PROUD)".
CITY COUNCIL ACTING AS SUCCESSOR AGENCY OF THE DISSOLVED COMMUNITY
DEVELOPMENT COMMISSION
CONSENT CALENDAR
All items listed are considered to be routine business by the City Council and will be approved with one motion. There will be
no separate discussion of these items unless a City Councilmember so requests, in which case, the item will be removed from
the general order of business and considered in its normal sequence on the agenda.
SA -1 Successor Agency to the Dissolved Community Development Commission
of the City of Baldwin Park Treasurer's Report — February 2019
Staff recommends that Council receive and file the Treasurer's Report.
City Council Agenda
Page 5
REPORTS OF OFFICERS
14.Approve and Adopt Resolution No. 2019-015 Entitled, "A Resolution of the City
Council of the City of Baldwin Park, California, Appointing Representatives and
Alternates as Official Representatives of the City"; and Review and Appoint
Members to the Established Committees, as Appropriate
Staff recommends City Council rescind Resolution 2019-001 and complete the review
and appointment of members to the positions of delegates and alternates of the
established committees and organizations presented in Resolution No. 2019-015,
entitled: "A Resolution of the City Council of the City of Baldwin Park, California,
Appointing Representatives and Alternates as Official Representatives of the City".
CITY COUNCIL / CITY CLERK / CITY TREASURER / STAFF REQUESTS &
COMMUNICATIONS
Requests by Councilmember Ricardo Pacheco for City Council discussion and direction to staff
on the following:
Discussion and direction to staff to contract with a developer to facilitate the acquisition
of vacant properties located at 3715 and 3726 Puente Avenue to build affordable housing.
The surrounding residents adjacent to these buildings are experiencing an increase in
transient crimes by individuals being harbored in these buildings. Many residents have
complained about criminal activity, drugs users, threats of violence, and trespassing of
private properties.
• Discussion and direction to the City Attorney to conduct research and advise whether rent
control may be regulated by a municipal agency, such as the City of Baldwin Park under
the State of California's current Statutes. At our last City Council Meeting, constituents
requested the City Council consider rent control options as many Baldwin Park renters
have expressed concerns with rent increases of 25% or more during City Council
Meetings and other city functions and seek relief from their City Council representatives.
Discussion and direction to staff to bring forth an ordinance for City Council's
consideration granting the City authority to demolish or obtain a conservatorship to
improve vacant buildings sanctioned as a nuisance. Due to neglectful property owners
who own vacant buildings, and in response to multiple complaints, the City Council should
seek legal remedies to ensure buildings become compliant in accordance with our
Municipal Code.
ADJOURNMENT
City Council Agenda
Page 6
CERTIFICATION
I, Lourdes Morales, Chief Deputy City Clerk of the City of Baldwin Park hereby certify that, under
penalty of perjury under the laws of the State of California that the foregoing agenda was posted
on the City Hall bulletin board not less than 72 hours prior to the meeting. Dated this 11th day of
April, 2 19.
Lourdes Morales,
Chief Deputy City Clerk
PLEASE NOTE: Copies of staff reports and supporting documentation pertaining to each item on this agenda are available for
public viewing and inspection at City Hall, 2nd Floor Lobby Area or at the Los Angeles County Public Library in the City of
Baldwin Park. For further information regarding agenda items, please contact the office of the City Clerk at (626) 960-4011
ext. 466 or via e-mail at Imorales@baldwinpark.com.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please
contact the Public Works Department or Risk Management at (626) 960-4011. Notification 48 hours prior to the meeting will
enable staff to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 34.102.104 ADA TITLE II)
City Council Agenda Page 7
ITEM NO.
TO: Honorable Mayor and Members of the City Council
FROM: Rose Tam, Director of Finance tp�
DATE: April 17, 2019
SUBJECT: City of Baldwin Park's Warrants and Demands
SUMMARY
Attached is the Warrants and Demands Register for the City of Baldwin Park to be ratified by the City
Council.
RECOMMENDATION
Staff recommends that the City Council ratify the attached Warrants and Demands Register.
FISCAL IMPACT
The payroll for the last period was $522,802.69 and the attached General Warrants Register was
$657,023.52 for a total amount of $1,179,826.21.
BACKGROUND
The attached Claims and Demands report format meets the required information as set out in the
California Government Code. Staff has reviewed the requests for expenditures for the appropriate
budgetary approval and for the authorization from the department head or its designee. Pursuant to
Section 37208 of the California Government Code, the Chief Executive Officer or his/her designee
does hereby certify to the accuracy of the demands hereinafter referred. Payments released since the
previous City Council meeting and the following is a summary of the payment released:
1. The last payroll of the City of Baldwin Park consists of check numbers 200120 to 200158.
Additionally, Automated Clearing House (ACH) Payroll deposits were made on behalf of City
Employees from control number 12986 to 13250 for the period of March 10, 2019 through
March 23, 2019, inclusive; these are presented and hereby ratified in the amount of
$522,802.69.
2. General Warrants, with the bank drafts in the amount of $158,536.93 and checks from 223611
to 223808 in the amount of $498,486.59 for the period March 25, 2019 to April 8, 2019,
inclusive; in the total amount of $657,023.52 constituting of claims and demands against the
City of Baldwin Park, are herewith presented to the City Council as required by law, and the
same hereby ratified.
LEGAL REVIEW
Not Applicable
ATTACHMENT
1. Expense Approval Report
Attachment 1
Expense Approval Report
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ITEM NO. 02
TO: Honorable Mayor and Members of the City Council
FROM: Rose Tam, Director of Finance f*-✓
DATE: April 17, 2019
SUBJECT: Treasurer's Report — February 2019
SUMMARY
Attached is the Treasurer's Report for the month of February 2019. The Treasurer's Report lists all
cash for the City which includes the Baldwin Park Financing Authority, the Housing Authority, and the
Successor Agency to the Community Development Commission (CDC). All investments are in
compliance with the City's Investment Policy and the California Government Code.
RECOMMENDATION
Staff recommends that Council receive and file the Treasurer's Report for February 2019.
FISCAL IMPACT
None
BACKGROUND
City of Baldwin Park Investment Policy requires the Treasurer's Report be submitted to the Mayor
and City Council on a monthly basis.
LEGAL REVIEW
Not Applicable
ATTACHMENT
1. Exhibit "A", Treasurer's Report
Exhibit "A"
Treasurer's Report
CITY OF BALDWIN PARK
TREASURER'S REPORT
2!28!2019
I INVESTMENT
INTEREST
PURCHASE
MATURITY
PAR
CURRENT
BOOK
MARKET I
DESCRIPTION
RATE
DATE
DATE
VALUE
PRINCIPAL
VALUE
VALUE r
State of Cagfornis Local Agency kweshnent Fund (LAIF)
Cay4neluding General Fund i all other Special Revenue Funds
2.39%
Varies
Varies
f 29,763,464.64
S 29,763,464.64
$ 29,753,464.64
$ 29,753,464.64
Housing Authority
2.39%
Varies
Varies
13,670.22
13,570.22
13,570.22
13,570.22
CaiifficMe of Deoosa
29,787,024.88
29,767,024.86
29,767,024.96
28,767 024.86
Citibank National Association (Mutual Securities)
2.66%
1/25/2019
1/25/2021
250,000.00
260,000.00
260,000.00
249,945.00
American Express Cenurlon (Mutual Sec -rides),
1.60%
4/1212017
4112/2019
260,000.00
250,000.00
260,000.00
249,812.50
Ever6ankJacksokwi0e (Mutual Semaiaes)
1.65%
416/2017
4116/2019
260,000.00
260,000.00
260,000.00
249,777.50
Gokknan Sachs Sk USA NY (Mutual Securities)
2.25%
1124/2018
1/24/2020
260,000.00
260,000.00
260,000.00
249,497.50
Sable Mae Sk SLT Lake City UT (Mutual Securities)
2.26%
1/24/2018
1/24/2020
260,000.00
250,000.00
250,000.00
249,487.50
Safra National Batik New Yak (Cantata)
2.00%
4/16/2018
411612019
260,000.00
250,000.00
260,000.00
249,917.50
Morgan Stanley Bank N A Utah (CanteNa)
2.64%
419/2018
4120/2020
260,000.00
260,000.00
250,000.00
260,297.50
Barclays Bank Dal (Canella)
3.05%
1219/2018
12/21/2020
260,000.00
260,000.00
260,000.00
261,695.00
2,000,000.00
2,000,000.00
2,000,000.00
2,000,330.00
US Treasury BM (UBS)
2.07%
3/29!2018
3/28/2019
1,000,000.00
1.000,000.00
11000,000.00
988,046.00
Fiscal Agent Funds (TnmUDebt Service Fund)
varies
Varies
Varus
7,590,97265
7,580,972.66
7,690,972.56
7,890,972.456
Fiscal Agent Funds - Successor Agency (TnpbDeW Service Func
Varies
varies
Varies
153,323.47
163,323A7
163,323A7
153,327.47
7,744,286.02
7,744,296.02
7,744,296.02
7,744,298.02
$ 40.511,320.88 $ 40.511.32086) 40 511,520 i8 S 40609,886.89
Totallnvestments $ 40,511,32028
Cash with Bank of the West
Cit' Checking
$186,824.35
Money Market Pia
132,746.01
City Miscellaneous Cash
269,121.31
Successw Agency
336,618.12
Housing Authority
266,235.27
Financing Aulhorlly
0.00
Investment Brolkeraus
81.13
Total Cash with Bank orthe West 3,360,139.26
Total Cash and investments $ 43.871,46014
Schedule of Cash and Investments includes city-wide assets as included in the Comprehensive Annual Financial ReporL
• There was no investment maturity/purchase transactions made for the month of February 2019 and several deposltslwitlhdrewahh were
made through the Local Agency Investment Fund.
• Fiscal Agent Funds amounting to $7,590,972 are from the Measure M Bond offering.
In compliance with the California Govemment Code Section 53646 et seq., I hereby certify that sufficient investment
liquidity and anticipated revenues are available to meet the City's expenditure requirements for the next six months
that all Investments are in compliance to the City's Statement of Investment Policy.
Approved by:
i
R se Tam
Director of Finance
ITEM NO.
STAFF REPORT
TO: Honorable Mayor and Members of the City Council
FROM: Lourdes Morales, Chief Deputy City Clerk
DATE: April 17, 2019
SUBJECT: Meeting Minutes
SUMMARY
The City Council held a Special City Council Meeting on April 3, 2019.
RECOMMENDATION
Staff recommends that the City Council approve meeting minutes for the following City Council
Meetings:
• Special Meeting of April 3, 2019
FISCAL IMPACT
There is no fiscal impact associated with this item.
BACKGROUND
Not applicable
ALTERNATIVES
Not applicable
LEGAL REVIEW
This report does not require legal review.
ATTACHMENTS
1. Special Meeting Minutes of April 3, 2019
Attachment 1
Special Minutes 04/03/19
MINUTES
BALDWIN PARK CITY COUNCIL STUDY SESSION
AND SPECIAL MEETING
April 3, 2019, 5:30 P.M.
3rd Floor Conference Room 307 -14403 E. Pacific Avenue, Baldwin Park, 91706
CALL TO ORDER
The meeting was called to order at 5:35 p.m. by Mayor Lozano.
ROLL CALL
PRESENT:
Council Member Alejandra Avila
Council Member Paul C. Hernandez
Council Member Ricardo Pacheco
Mayor Pro Tem Monica Garcia
Mayor Manuel Lozano
PUBLIC COMMUNICATIONS
Mayor Lozano opened Public Communications at 5:35 p.m.
Bertha Seveda requested clarification be provided on the type of proposed cannabis
business location proposed for a particular location and inquired whether all cannabis
businesses followed similar guidelines.
Mayor Lozano closed Public Communications closed at 5:35 p.m.
OPEN SESSION
1. Art in Public Places and Digital Displays Update
By Director of Public Works Sam Gutierrez
Sam Gutierrez Director of Public Works provided background information on the
progression of the program for Art in Public Spaces.
Chief Executive Officer Shannon Yauchzee announced this presentation contained a brief
overview of the intent of the project and additional steps such as community input and
direction by the City Council would be presented at a later time.
John Beshay Engineering Manager presented the City Council with visual examples of
possible signage and art to be placed in no more than three locations and provided
estimate timelines for each step of the process as well as cost estimates.
Council Member Pacheco asked which funding source would be utilized for the
completion of the project, the amount of signs to be placed around the city and whether
Special Meeting of 04/03/19 Page 1 of 5
staff had assessed how many signs could be completed based on the amount of funding
allocated.
Staff responded the project would be funded by the public art account to be used for one
but no more than three signs and the amount of signs would depend on the decorative
style selected by the governing body.
Mayor Pro Tem Garcia requested additional options be provided to the City Council for
consideration and inquired if additional funding could be allocated. Additionally, Mayor
Pro Tem Garcia asked whether the consultant's rates were competitive
Staff stated they received three quotes and the consulting firm was selected based on
cost estimate and performance evaluations and funding from billboards could be used.
Council Member Avila asked if the warranty could be extended and if other options were
available.
Mr. Gutierrez stated he would examine the warranty further and additional options would
be brought back for City Council's consideration.
Mayor Pro Tem Garcia requested a presentation be provided by the art consultant at the
next meeting to express their wishes as to how they engage the community and have a
better understanding of the project.
The City Council recessed into closed session at 6:12 p.m.
RECESS TO CLOSED SESSION
2. Conference With Legal Counsel -Existing Litigation
Pursuant to paragraph (1) of subdivision (d) of Government Code Section 54956.9:
Case Name: Hadsell v. City of Baldwin Park I Case No. BC548602
Case Name: Salcedo v. City of Baldwin Park Case No. BC676398
Case Name: City of Baldwin Park v. City of Irwindale Case No. BS163400
Case Name: Jason Adams v. City of Baldwin Park Case No. 2:19-cv-00297
Case Name: Maria Delgado v. City of Baldwin Park Case No. BC635496
Workers Comp Case Name: Leaonard Avila WC Case No. ADJ10942219
Workers Comp Case Name: James Kolback WC Case No. ADJ10642596
Workers Comp Case Name: Lili Hadsell WC Case No. ADJ10091998
Special Meeting of 04/03/19 Page 2 of 5
3. Public Employee Appointment (GC §54957):
Position: Chief of Police
4. Real Property Negotiations Pursuant to Government Code §54956.8:
A. Property: 4145 Puente Avenue (CAN 17-01)
Negotiating Parties: City of Baldwin Park and Edward Avakyan, Jenome
Research
.r
B. Property: 14551 Joanbridge Street (CAN 17-02)
Negotiating Parties: City of Baldwin Park and Lih Ping Henry Liou, Baldwin
Park TALE Corp.
C. Property: 4150 Puente Avenue (CAN 17-06)
Negotiating Parties: City of Baldwin Park and Shaun Bershatski, RUKLI,
Inc.
D. Property: 13111 Spring Street & 428 Cloverleaf Drive (CAN 17-
07)
Negotiating Parties: City of Baldwin Park and Ming Hong Huang, 428
Cloverleaf, LLC.
E. Property:
5117 Calmview Avenue (CAN 17-08)
Negotiating Parties:
City of Baldwin Park and Victor Chevez and Helen
Chau, Casa Verde Group
F. Property:
13467 Dalewood Street (CAN 17-09)
Negotiating Parties:
City of Baldwin Park and Darrin Oganesian and Ryan
Oganesian, RD Baldwin Park
G. Property:
14837 & 14841 Ramona Boulevard (CAN 17-10)
Negotiating Parties:
City of Baldwin Park and Phil Reyes, and Alexis Reyes,
Organic Management Solutions, LLC.
H. Property: 5148 Bleecker Street (CAN 17-12)
Negotiating Parties: City of Baldwin Park and Sergio Torres, Enrique Vega
and Moses Acosta, Medical Grade Farms BP
I. Property: 15023 Ramona Boulevard (CAN 17-13)
Negotiating Parties: City of Baldwin Park and Shaun Szameit, Joshua
Pierce and Kevin Huebner, Kultiv8 Group, LLC.
J. Property: 4621 Littlejohn Street (CAN 17-15)
Negotiating Parties: City of Baldwin Park and Teresa Tsai, GSC Capital
Group
K. Property: 5157 Azusa Canyon Road (CAN 17-17)
Special Meeting of 04/03/19 Page 3 of 5
Negotiating Parties: City of Baldwin Park and Mike Sandoval and Ed
Barraza, Elite Green Cultivators
L. Property: 5175 Commerce Drive (CAN 17-18)
Negotiating Parties: City of Baldwin Park and Linda Thong, Pacific
Cultivation, LLC.
M. Property: 13450 Brooks Drive, Unit'A & C (CAN 17-27)
Negotiating Parties: City of Baldwin Park and Jonathan Yuan Kai Lee,
Jefferson Liou, and Jerrell Austin Shepp, Cloud
Control, Inc.
N. Property: 4802 Littlejohn Street (CAN 17-28)
Negotiating Parties: City of Baldwin Park and Marco Perez and Ren
Yoneyama, VRD, Inc.
O. Property: 13460 Brooks Drive (CAN 17-31)
Negotiating Parties: City of Baldwin Park and Sigrid Lopez and Artem
Karapetyan, Green Health Industries, LLC.
P. Property: 1529 Virginia Avenue (CAN 18-01)
Negotiating Parties: City of Baldwin Park and Erik Intermill, Esource LLC
5. Conference With Legal Counsel—Anticipated Litigation
Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of
Government Code Section 54956.9:
Workers Compensation Case:
Timothy Cardiel Workers Comp Case No. 16-128534
Potential Case(s): Two (2)
ADJOURNMENT
There being no further business, motion was made by Mayor Lozano, seconded by
Council Member Avila, to adjourn the meeting at 7:10 p.m.
Special Meeting of 04/03/19 Page 4 of 5
REPORT ON CLOSED SESSION*
Mayor Lozano stated no reportable action was taken.
Manuel Lozano, Mayor
ATTEST:
Jean M. Ayala, City Clerk
APPROVED:
Special Meeting of 04/03/19 Page 5 of 5
STAFF REPORT
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ITEM NO.
Honorable Mayor and Members of the City Council C
Manuel Carrillo Jr. Director of Recreation & Community SbrOces
April 17, 2019
111Y
SUBJECT: Consider and Approve License Agreement with the Boys &
Girls Club of West San Gabriel Valley
SUMMARY
The purpose of this staff report is for the City Council to consider and approve a License Agreement
with the Boys & Girls Club of West San Gabriel Valley (BGCWSGV).
RECOMMENDATION
Staff recommends that City Council:
1.) Consider and approve the License Agreement with the Boys & Girls Club of West San Gabriel
Valley.
FISCAL IMPACT
This three (3) year License Agreement will generate $73,212 annually and $221,382 over the term of
the agreement. The revenue has been recorded under the general fund.
BACKGROUND
The City entered its first License Agreement with the East Valley Boys & Girls Club(EVBGC) of
Baldwin Park at their December 6, 2006 City Council Meeting, since the execution of the agreement,
City has generated $7,39,384 in revenue. Currently, the BGCWSGV provides daycare services to
families in Baldwin Park and surrounding communities. On or about July 1, 2016 the EVBGC became
a subsidiary of the BGCWSGV. The Day Care program provides care for toddlers through school
aged children from 6:00am to 6:00pm. The Day Care program occupies approximately 15,020 square
feet of classroom/office use and outdoor enclosed patio/play area exclusively for BGCWSGV's private
use. In addition, the EVBGC of Baldwin Park administers a Los Angeles County Family Preservation
Program, which provides a wide array of services to families in the court system.
The term of the existing License Agreement is expiring on June 30, 2019; staff has met with the
BGCWSG to negotiate new terms of the License Agreement including the fee schedule for the
upcoming contract period. The new proposed License Agreement is attached is for a three (3) year
period to end on June 30, 2021. The lease agreement includes all utilities and also specifies the
responsibility of the BGCWSGV to conduct all repairs for appliances exclusively assigned to
BGCWSGV. The City will no longer stock paper goods for the BGCWSG at the start of each day. In
addition, the City will provide a bus shelter ad space to promote their daycare services, the
BGCWSGV will design and print as per city's specifications.
The Department is aware of the demographics in the local area and feels comfortable with the rates
and decision to sign a lease with the BGCWSGV. The BGCWSGV currently uses 15,020 sq. ft. of the
Esther Snyder Community Center which includes; classrooms, office space and playground/patio.
The Department will be charging the BGCWSGV for the use of the exclusive premises at a monthly
fee of $6,101. The term of the agreement includes a total of 6% increase; 3% commencing year one
(1) and year three (3). If approved, at the end of the new agreement the total revenue generated will
be $960,766 over the fifteen (15) year license agreement.
ALTERNATIVES
The alternative is to not approve the proposed License Agreement with the Boys & Girls Club of West
San Gabriel Valley and provide direction to staff.
LEGAL REVIEW
The City Attorney has reviewed the agreement and has approved it as to form.
ATTACHMENT
1.) Attachment A - License Agreement
Attachment "A"
License' Agreement
Attachment A
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made and entered into by and between the CITY OF
BALDWIN PARK, a municipal corporation (hereinafter "City"), and BOYS & GIRLS CLUB OF
BALDWIN PARK (dba THE EAST VALLEY BOYS & GIRLS CLUBI, a California non-profit
corporation (hereinafter "Club"). (City and Club are each a "Party" and are collectively the
"Parties.")
RECITALS
A. City is the owner of a facility known as the Esther Snyder Community Center
(the "Community Center").
B. Club has operated and conducted business under its current name since 1990,
on July 1, 2016 became a subsidiary of the Boys & Girls Club of West San
Gabriel Valley (hereinafter "West Club") but it is expected that on or about July
1, 2019, Club will be dissolved In the event of a merger between Club and West
Club, West Club will succeed to the rights and obligations of Club under this
License Agreement.
C. Club has operated a day care program at the Community Center since 1990.
Club presently uses the facilities described on Exhibit A attached hereto and
incorporated herein by this reference (the "Day Care Facilities").
D. City has generally allowed use of the Day Care Facilities without charge; to
permit Club to provide day care that is as affordable as possible. Costs of
operating and maintaining the Community Center have, however, increased
over the years, and City can no longer fully subsidize this service.
NOW, THEREFORE, the Parties hereto do hereby agree as follows:
1. LICENSE GRANTED.
A. City hereby grants to Club an exclusive license, subject to the terms and
conditions of this License Agreement, to utilize the Day Care Facilities for
the purposes of providing a program for the non-medical care of children
from age 2 through 12. The Day Care Facilities may be utilized from 6:00
a.m. until 6:00 p.m., Monday through Friday, throughout the year, with the
exception of the days the Community Center is closed (presently New
Year's Day, Presidents' Day, Memorial Day, Labor Day, Veterans' Day,
Thanksgiving Day, and Christmas Day).
B. In addition, City agrees Club may utilize the laundry room and kitchen
facilities at the Community Center, including but not limited to the freezers,
2.
3.
refrigerators, and ice machine contained therein, to the extent and under
such terms and schedule as established exclusively by City staff so as to
reasonably effectuate appropriate joint use of such areas. City Staff's
decision shall be final. Such areas together with the Day Care Facilities are
hereinafter referred to as the "Premises."
COMPENSATION.
Effective July 1, 2019, compensation for use of the Premises shall be paid
monthly. The rate of compensation shall be six thousand one hundred one
dollars ($6,101.00) per month, and remain as set forth in the chart below:
Effective Date
July 1, 2019
July 1, 2020
July 1, 2021
Monthly Rate
$6,101.00
$6,101.00
$6,284.00
All payments shall be made on or before the tenth (10th) day of the month for
which the compensation is due.
MAINTENANCE AND REPAIR.
A. Except as set forth herein, City shall solely be responsible for ordinary care
and maintenance of the Premises, such as for minor repairs to the Day Care
Facilities or any fixtures or equipment located therein, including, but not
limited to plumbing repairs such as required to fix a leaky faucet or unplug a
toilet.
B. City shall be solely responsible for all Capital Improvements to the
Premises. For purposes of this License Agreement, Capital Improvements
shall include major repairs, such as to the air conditioning system, main
sewer line, or electrical panel at the Community Center, as well as any
remodeling of or addition to any building at the Community Center.
C. The City shall power wash the entrance to the Club at least two (2) times a
year.
4. UTILITIES.
City shall be solely responsible for all costs of utilities other than telephone
service provided to the Day Care Facilities. Club shall, at its sole cost and
expense, provide a phone system in the Day Care Facilities, which shall be
separate from the phone system provided by City to the Community Center.
5. LIABILITY.
Club agrees to defend, indemnify and hold City and its officers, agents and
employees free and harmless from any and all loss, claim, demand or judgment
for injury to persons or property arising out of or connected in any way with
Club's use and occupancy of the Premises; provided, however, that Club shall
not be required to defend, indemnify or hold any such persons (including the
City) free and harmless from any loss, claim, demand or judgment resulting
from the gross negligence, willful misconduct or reckless conduct of City or any
of its officers, agents and employees. Club shall promptly give notice to City of
any claim or suit instituted or filed against it for any alleged act involving liability
of either Club or City arising out of Club's operations under this Agreement.
6. INSURANCE.
Club shall, during the term of this Agreement, provide to the City, and keep in
effect liability insurance in amounts and with such companies as is customary
and standard for facilities of the size of the Premises and operated with a
similar purpose, which liability insurance shall be subject to the reasonable
approval of City. City and its officers, agents, and employees shall be an
additional insured on each insurance policy provided by Club. Each of the
policies of insurance shall bear an endorsement providing for a thirty (30) day
notice of cancellation to be given to the City prior to the effective date of such
cancellation.
Prior to the effective date of this License Agreement, Club shall file an
endorsement of insurance with City reflecting the existence of the insurance
required by this section.
Should Club fail to provide to the City or maintain at all times during the term of
this License Agreement the insurance required by this section and such failure
continues for fifteen (15) business days after written notice from City to Club,
City at its sole discretion, may:
(a) terminate this Agreement and remove all property of Club from the
Community Center, and store the same at Club's expense; or
(b) obtain, at Club's expense, the required insurance coverage.
Failure of Club to maintain insurance as required by this section shall not be
deemed to waive or otherwise affect Club's indemnification obligations as set
forth in Section 5, above.
8.
9.
10.
SIGNS AND ADVERTISEMENTS.
Club shall display no signs or advertising matter of any kind on the Premises
unless and until approved in writing by the City. City shall include annually one
(1) daycare ad space (of 1/8" page — 2 3/" W x 3 7/8" H) on the Baldwin Park
NOW publication at no cost to the Club. City shall provide one (1) daycare ad
space only (48"W x 72"H) on the City's Bus Shelter Advertisement at no cost to
the Club. Club must design (city must approve design) and print as per
specifications. City to include a web link to the Club's website.
FIXTURES AND EQUIPMENT.
Club shall maintain and repair at its sole cost and expense all City owned
appliances exclusively assigned to the Club. Club shall provide, install, and
maintain at its sole cost and expense all equipment necessary for the operation
of a day care center. Any and all such equipment, including furniture, trade
fixtures, and appliances, shall be approved by the City before installation, but
shall remain the property of Club and may be removed by Club at the
termination of this License Agreement, provided, however, that, if such removal
occasions any damage to the Premises, the cost of repair shall be borne by
Club.
CONTROL AND REPAIR OF COMMUNITY CENTER.
Except as set forth herein, City shall have full and retain absolute control of the
Community Center and all appurtenances and Premises thereto during the term
of this License Agreement and shall have the right to make changes and
alterations thereto as City may determine in its sole discretion; provided that
Club shall be entitled to a day -for -day rent abatement for each day that any
such repairs, changes or alterations by City materially interfere with Club's use
of the Community Center or any appurtenance and Premises thereto.
CONDUCT OF OPERATIONS.
Club shall at all times conduct
manner, and in accordance with
applicable to such business as
State of California, and Federal
applicable requirement in the BE
exists or may exist in the future.
11. PERMITS AND LICENSES.
its operations in a professional and orderly
all the laws, ordinances, rules and regulations
set forth by the City, County of Los Angeles,
Government, including, but not limited to, any
ildwin Park Municipal Code, as the same now
Club shall obtain and maintain in full force and effect any and all permits or
licenses that may be required by law in connection with the operation of a Day
Care Facilities.
12.
13.
14
TAXES.
This License Agreement does not create any interest in real property.
However, if it is determined that the License granted herein creates any taxable
interest for any purpose, then Club, as additional rental, shall promptly pay all
taxes which may be lawfully levied
personal, including, but not limited to,
the operation hereunder.
RIGHT OF ENTRY.
upon such property interest, real or
any possessory interest tax involved in
City and its authorized representatives, agents, and employees shall have the
right to enter upon the Day Care Facilities at any and all reasonable times and
upon reasonable prior notice to Club during the term of this License Agreement
for the purpose of inspection to determine whether or not Club is complying with
the terms and conditions hereof, or for any other purpose incidental to the rights
of City; provided that any such entry shall not materially interfere with the
conduct of Club's business at the Premises
USE.
Club shall not assign any rights relating to this License Agreement or allow the
Premises or any part thereof to be used or occupied by any other person for
any purpose without the prior written consent of the City, nor shall Club assign
this License Agreement nor convey any of the rights or privileges granted
herein, without the prior written consent of City;- provided, however, that, for
the purposes of this License Agreement, any merger between Club and West
Club and/or any acquisition by West Club of Club (any such transaction
hereinafter referred to as a "Permitted Transfer" shall not be deemed an
assignment under this section or otherwise violate this License Agreement and,
in the event of a merger between Club and West Club, West Club shall be
permitted to succeed to all of the rights and obligations of Club under this
License Agreement. If an assignment, (other than a Permitted Transfer, which,
for purposes of clarity, is not an assignment under this License Agreement,) by
process of Court or otherwise, is attempted, or in the event of the insolvency or
bankruptcy, either voluntary or involuntary, of Club, City may, at its sole option,
terminate and cancel this License Agreement, in which event all rights of Club
hereunder shall immediately cease and be terminated.
15. SURRENDER OF POSSESSION.
Club agrees to yield and deliver to City possession of the Day Care Facilities at
the termination of this License Agreement in good condition and in accordance
with the express obligations hereunder, except for reasonable wear and tear,
casualty and condemnation, subject to the provisions of this License Agreement
with respect to removal by Club of certain property upon such termination.
Upon termination, Club further agrees to execute and deliver to City a good and
sufficient document of relinquishment, if and when requested to do so by City.
16. WAIVER OF CLAIMS.
Club hereby expressly waives any and all claims for compensation for any and
all loss or damage sustained by reason of any defect, deficiency, or impairment
of the Premises or any part thereof, including but not limited to any defect,
deficiency, or impairment of the water or sewer system, heating or air
conditioning system, or electrical apparatus or wires furnished for the Premises,
existing on the date hereof, and expressly releases and discharges City from
any and all demands, claims, actions, and causes of action from any of the
aforesaid; provided, however, that notwithstanding the foregoing, Club does
not waive any claims related to any defect, deficiency or impairment of all or
any part of the Premises if such defect, deficiency or impairment is caused by
the gross negligence, willful misconduct or reckless conduct of the City.
Club further understands and agrees that in the event of damage to the
Community Center or any portion thereof, including but not limited to damage to
the Premises or any portion thereof, the determination as to whether to repair or
replace such damaged area shall be within the sole discretion of City; provided,
however that if City shall determine to repair or replace such damage area, City
.shall take all commercially reasonable steps to cause the damage to be
repaired or replaced (as applicable) as soon as reasonably practicable; and
provided, further, that if such damage shall render the Premises uninhabitable,
untenantable, destroyed -or unusable for the purposes for which this license
Agreement has been granted and either (a) City determines not to undertake to
repair or replace such damage or (b) Club and City do not agree to such
damage can be repaired within six (6) months from the date of such damage,
this License Agreement may be terminated by either Party. Notwithstanding the
forgoing, in the event of damage to the Premises, or any portion thereof, Club
shall be entitled to an abatement of the rent proportionate to the portion of the
Premises so damage until such time as such damage has been repaired or
replaced.
17. NOTICES.
All notices required to be given under the terms of this Agreement shall be
given by United States mail, postage prepaid, addressed as follows (or at such
other address for a party as specified in a notice given in accordance with this
Section 17):
City: City of Baldwin Park
Attn: Director of Recreation and Community Services
14403 East Pacific Avenue
Baldwin Park, CA 91706
Club: Boys & Girls Club of Baldwin Park
Attn: Executive Director
4100 Baldwin Park Boulevard
Baldwin Park, CA 91706
18. TERM.
The term of this License Agreement shall be for a period of three (3) years,
commencing July 1, 2019, unless sooner terminated as provided herein.
Notwithstanding the foregoing, either Party may terminate this License
Agreement, with or without cause, by giving the other Party not less than thirty
(30) days written notice.
19. ENTIRE AGREEMENT AND EFFECTIVE DATE.
Date:
ATTEST:
City Clerk
Date:
This License, including exhibits, executed by the Parties contains the entire
agreement of the parties regarding the subject matter hereof and supersedes
any and all prior negotiations and agreements, including that certain License
Agreement by and between City and Club, effective July 1, 2016, and which
was scheduled to terminate as of June 30, 2019 (the "Existing Agreement"). By
this reference the Existing Agreement is hereby terminated as of the effective
date of this License Agreement, which is July 1, 2019.
Executed at Baldwin Park, California, on the days hereafter set forth.
CITY OF BALDWIN PARK
By:
Manuel Lozano, Mayor
BOYS & GIRLS CLUB OF BALDWIN PARK
By:
Executive Director
EXHIBIT A
EAST VALLEY BOYS AND GIRLS CLUB AND
BOYS & GIRLS CLUB OF WEST SAN GABRIEL VALLEY
6 Classrooms (24ft. x 30ft. = 720 sq. ft. each room)
720 sq. ft. x 6 rooms = 4,320 sq. ft.
1 Day Care Director's office (12ft. x 14ft. = 168 sq. ft.)
1 Staff workroom (11 ft. x 16ft. = 176 sq. ft.)
1 Staff lounge (8ft. x 12ft. = 96 sq. ft.)
2 Enclosed playground/patio areas (9,325 sq. ft.)
1 Kitchen shared w/ city (12ft. x 15ft., 10ft. x 13ft., 10ft. x 12ft. = 430 sq. ft.)
1 Laundry room shared w/ city (1 Oft. x 12ft. = 120 sq. ft.)
1 Executive Director's office (1 Oft. x 11 ft. = 121 sq. ft.)
1 Administrative office (8ft. x 11 ft. = 88 sq. ft.)
1 Family Preservation administrative office (8ft. x 11ft. = 88 sq. ft.)
1 Hallway/administrative office (8ft. x 11 ft. = 88 sq. ft.)
4 Reserved parking spaces for Club vehicle parking
In addition the Club may request the use of other City facilities as listed below
through the facility request process as long as the request does not incur
additional cost to the City. If additional fees are incurred those fees shall be
passed on to the Club. Additional facilities available upon availability include:
pool, arts & craft room, dance studio, technology center, basketball gym,
splash pad and amphitheater.
Total 15,020 sq. ft.
STAFF REPORT
ITEM NO. 5
TO: Honorable Mayor and Members of the City Council
FROM: Sam Gutierrez, Director of Public Work
DATE: April 17, 2019
SUBJECT: Adoption of Resolution No. 2019-011, "A Resolution of the
City Council of the City of Baldwin Park, California,
Approving the Engineer's Report for the Landscape and
Lighting Maintenance Assessment District for FY 2019-2020,
Declaring the Intent to Levy and Collect Assessments, and
Setting a Time and Place for a Public Hearing"
SUMMARY
This item adopts a resolution approving the Engineer's Report; declares the intention to levy and
collect assessments and sets a date and time for a Public Hearing for the Citywide Landscape and
Lighting Maintenance Assessment District for FY 2019-2020. The recommended hearing date is
June 5, 2019.
RECOMMENDATION
Staff recommends that the City Council adopt Resolution No. 2019-011 entitled, "A Resolution of
the City Council of the City of Baldwin Park, California, Approving the Engineer's Report for
the Landscape and Lighting Maintenance Assessment District for FY 2019-2020, Declaring
the Intent to Levy and Collect Assessments and Setting a Time and Place for a Public
Hearing."
FISCAL IMPACT
The following table summarizes the District revenue and expenditure status:
FY 2019-20 Estimated Revenue
_..._..._ .... _... _......__.....--.... _..... ..... ....... ..... _...... _...__................ _ ......................... _.....
Assessment Revenue
County Ad Valorem Tax
Penalties, Late Taxes, Earnings
Total Revenue
FY 2019-20 Projected Expenditures
Maintenance and Operation
Total
FY 2019-20 Operating Reserve / Deficit
_..
_...__..............__....._.... -_...... ............................................... ....... ...... ..... -..... ..... ...... ...... _......................
Projected Fund Balance June 30, 2020
Beginning Fund Balance (July 1, 201
.._........_............--..._..._.......__............�......._.....__...---...__..._._...............
.....
..........................................
FY 19-20 Revenues
FY 19-20 Expenditures
$914,600
$774,000
$101,500
$1,790,100
_._._.._._._........ ...... .......... :.....
._.....
$1,603,600
$1,603,600
$..... 5
$1,790,100
$1,603,6001
BACKGROUND
The City has an annual program for the maintenance of landscaping and lighting improvements, as
well as open space improvements, including the maintenance and operation of traffic signals, street
lights, median landscaping and street trees. It is recommended that the City continue providing this
program through special assessments.
On March 6, 2019 the City Council approved a resolution which authorized initiating the FY 2019-
2020 Citywide Landscaping and Lighting Maintenance Assessment District (LLMD) and ordered the
preparation of the Engineer's Report.
The preparation of the Engineer's Reports has been completed. The Engineer's Report details the
legal mechanism to re-establish the district, summarizes the costs and expenditures of the District,
and explains the methodology of distributing the assessments for obtaining the district revenues.
ALTERNATIVES
None.
LEGAL REVIEW
Due to the recurring and unchanging nature of this item additional legal review is not required.
ATTACHMENTS
1. Resolution No. 2019-011
2. LLMD — Engineer's Report
Attachment 1
Resolution No. 209-011
Attachment 1
RESOLUTION NO. 2019-011
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BALDWIN PARK,
CALIFORNIA, APPROVING THE ENGINEER'S REPORT FOR THE CITYWIDE PARK
MAINTENANCE ASSESSMENT DISTRICT FOR FY 2019-2020, DECLARING THE
INTENT TO LEVY AND COLLECT ASSESSMENTS, AND SETTING A TIME AND
PLACE FOR A PUBLIC HEARING
WHEREAS, pursuant to the Provisions of Division 15, Part 2 of the Streets and Highways
Code of the State of California, being known as the "Landscaping and Lighting Act of
1972" and Article XIIID of the State Constitution an Engineer's Report has been prepared
consisting of plans and specifications, an estimate of the cost, a diagram of the
Maintenance District and an assessment relating to what is now designated as:
CITY OF BALDWIN PARK CITYWIDE
LANDSCAPE AND LIGHTING MAINTENANCE ASSESSMENT DISTRICT
(Hereinafter referred to as "District"); and
WHEREAS, this City Council has now carefully examined and reviewed the Report as
presented and is satisfied with each and all of the items and documents as set forth
therein and is satisfied that the assessments, on a preliminary basis, have been spread
in accordance with the benefits received from the maintenance to be performed as set
forth in said Report.
WHEREAS, the provisions of said Division 15, Part 2, require a written report in
accordance with Chapter 3 (commencing with Section 22620).
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BALDWIN PARK
DOES RESOLVE AS FOLLOWS:
SECTION 1. That the above recitals are all true, correct, and are hereby incorporated
herein.
SECTION 2. That the Report as presented, consisting of the following:
a. Plans and Specifications
b. Estimate of the Cost
C. Diagram of the Maintenance District
d. Assessment of the Estimated Cost
Resolution No. 2019-011
Approval of Engineer's Report
Landscaping and Lighting Maintenance District
Page 2
is hereby approved and is ordered to be filed in the office of the City Engineer as a
permanent record and to remain open for public inspection.
SECTION 3. That it is the intention of the City Council, consistent with the public interest
and convenience, to levy and collect annual assessments for FY 2019-2020 for the
construction and continued maintenance of certain public facilities within the Citywide
Landscape and Lighting Maintenance Assessment District, all to serve and benefit said
District as said area is shown and delineated on a map shown in the Engineer's Report
on file in the office of the City Engineer, open for public inspection, and herein so
referenced and made a part hereof.
SECTION 4. That a public hearing shall be held before this City Council, in the Council
Chambers, 14403 E. Pacific Avenue, Baldwin Park, on Wednesday, June 5, 2019, at the
hour of 7:00 p.m. pursuant to the "Landscaping and Lighting Act of 1972" and Article XIIID
of the State Constitution, for the purposes of hearing protests, comments, or objections
in reference to the annual levy of assessments and the extent of the works and
maintenance of improvements, and this Council's determination whether the public
interest, convenience, and necessity require the improvements.
SECTION 5. That the City Clerk is hereby authorized and directed to publish a copy of
this Resolution in the San Gabriel Valley Examiner, a newspaper of general circulation in
said City; said publication shall not be less than ten (10) days before the date of said
Public Hearing.
SECTION 6. For any and all information relating to the procedures, protest procedure,
documentation and/or information of a procedural or technical nature, the public's
attention is directed to the office listed below as designated:
Sam Gutierrez, Director of Public Works
City of Baldwin Park
(626) 813-5255
SECTION 7. That the City Clerk shall certify to the passage and adoption of the
Resolution and the Minutes of the meeting shall so reflect the presentation of the
Engineer's Report.
Resolution No. 2019-011
Approval of Engineer's Report
Landscaping and Lighting Maintenance District
Page 2
PASSED, APPROVED, AND ADOPTED this 17th day of April 2019
MANUEL LOZANO
MAYOR
ATTEST:
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF BALDWIN PARK )
I, Jean M. Ayala, City Clerk of the City of Baldwin Park do hereby certify that the foregoing
Resolution No. 2019-011 was duly adopted by the City Council of the City of Baldwin Park
at a regular meeting thereof held on April 17, 2019 and that the same was adopted by the
following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JEAN M. AYALA
CITY CLERK
Attachment 2
LLMD — Engineer's Report
CITYWIDE LANDSCAPING AND
LIGHTING MAINTENANCE DISTRICT
ASSESSMENT ENGINEER'S REPORT
PURSUANT TO THE LANDSCAPE AND LIGHTING ACT OF 1972, PART 2
DIVISION 15 OF THE STREETS AND HIGHWAYS CODE, ARTICLE XIII.D. OF
THE CALIFORNIA CONSTITUTION AND THE PROPOSITION 218 OMNIBUS
IMPLEMENTATION ACT (GOVERNMENT CODE SECTION 53750 ET SEQ)
Fiscal Year 2019-20
Prepared for:
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CITY OF BALDWIN PARK
DEPARTMENT OF PUBLIC WORKS
ENGINEERING DIVISION
Prepared by,
Community Economic Solutions
April 10, 2019
City of Baldwin Park
Citywide Landscaping and Lighting Maintenance District Page i
CITY OF BALDWIN PARK
ASSESSMENT ENGINEER'S REPORT
CITYWIDE LANDSCAPING AND LIGHTING
MAINTENANCE DISTRICT
FISCAL YEAR 2019-20
The Streets and Highways Code, Part 2, Division 15, Article 4, commencing with
Section 22565, directs the preparation of the annual report for each fiscal year for which
assessments are to be levied and collected to pay the costs of the improvements
described herein.
SECTION DESCRIPTION PAGE
Report........................................................................................................... 1
Part A - Plans and Specifications for the Improvements ................................ 3
Part B - An Estimate of the Costs of the Improvements ................................. 4
Part C - A Diagram for the Assessment District ............................................. 5
Part D - An Assessment of the Estimated Costs of the Improvements........... 6
Part E - Assessment Roll............................................................................... 8
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City of Baldwin Park
Citywide Landscaping and Lighting Maintenance District Page 1
FISCAL YEAR 2019-20
CITY OF BALDWIN PARK
ASSESSMENT ENGINEER'S REPORT PREPARED
PURSUANT TO THE PROVISIONS OF THE
LANDSCAPING AND LIGHTING ACT OF 1972
SECTION 22500 THROUGH 22679
OF THE CALIFORNIA STREETS AND HIGHWAYS CODE
Whereas the Council of the City of Baldwin Park, California, did, pursuant to the provisions of the
Landscape and Lighting Act of 1972, being Part 2 of Division 15 of the Streets and Highways Code
of the State of California, adopt the Resolution of Initiation ordering the preparation and filing of the
Assessment Engineer's Report in accordance with Chapter 1, Article 4 commencing with Section
22565.
Section 22567 directs that the report shall refer to the City of Baldwin Park Citywide Landscaping
and Lighting Maintenance District (the "Assessment District") by its distinctive designation, specify
the fiscal year to which the report applies, and, with respect to that year, shall contain all of the
following:
Part A Plans and specifications for the improvements.
Part B An estimate of the costs of the improvements.
Part C A diagram for the assessment district.
Part D An assessment of the estimated costs of the improvements.
A preliminary report is then filed with the City Clerk in accordance with Section 22623 for
submission to the legislative body. The legislative body may approve the report as filed, or it may
modify the report and approve it as modified. Now, therefore, the following Assessment Engineer's
Report is hereby submitted consisting of five (5) parts as follows:
PART A: PLANS AND SPECIFICATIONS FOR THE IMPROVEMENTS
This part contains the plans and specifications which are required to show and describe the
existing and proposed improvements in accordance with Section 22568. The plans and
specifications need not be detailed, but shall be sufficient if they show or describe the general
nature, location, and extent of the improvements. If the assessment district is divided into zones,
the plans and specifications shall indicate the class and type of improvements to be provided for
each such zone. The Plans and specifications for the improvements listed in Part A are on file with
the City Engineer. Such plans and specifications are incorporated herein by reference.
PART B: AN ESTIMATE OF THE COSTS OF THE IMPROVEMENTS
This part contains an estimate of the costs for maintenance of the improvements within the District
for Fiscal Year 2019-20 pursuant to section 22569, including incidental costs and expenses in
connection therewith. This estimate is on file with the City Engineer. The estimate of the costs of
the improvements for the fiscal year shall contain estimates for all of the following:
(a) The total costs for improvements to be made that year, being the total costs of constructing
or installing all proposed improvements and of maintaining and servicing all existing and
proposed improvements, including all incidental expenses.
(b) The amount of any surplus or deficit in the improvement fund to be carried over from a
previous fiscal year.
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City of Baldwin Park
Citywide Landscaping and Lighting Maintenance District Page 2
(c) The amount of any contributions to be made from sources other than assessments levied
pursuant to this part.
(d) The amount, if any, of the annual installment for the fiscal year where the legislative body
has ordered an assessment for the estimated cost of any improvements to be levied and
collected in annual installments.
(e) The net amount to be assessed upon assessable lands within the assessment district,
being the total improvement costs, as referred to in subdivision (a), increased or decreased,
as the case may be, by any of the amounts referred to in subdivision (b), (c), or (d).
PART C: A DIAGRAM FOR THE ASSESSMENT DISTRICT
This part incorporates, by reference, the "Assessment Diagram", which is a diagram of the
Assessment District showing the exterior boundaries of the Assessment District and the lines and
dimensions of each lot or parcel of land within the Assessment District in accordance with Sections
22570 and 22571. The diagram for an assessment district shall show (a) the exterior boundaries
of the assessment district, (b) the boundaries of any zones within the district, and (c) the lines and
dimensions of each lot or parcel of land within the district. Each lot or parcel shall be identified by a
distinctive number or letter. The lines and dimensions of each lot or parcel of land shown on the
diagram shall conform to those shown on the county assessor's maps for the fiscal year to which
the report applies. The Diagram has been prepared and is on file with the City Engineer. The
Assessor's maps and records are incorporated by reference herein and made part of this Report.
PART D: ASSESSMENT OF THE ESTIMATED
COSTS OF THE IMPROVEMENTS
This part contains an assessment of the estimated cost of the improvements on each benefited lot
or parcel of land within the Assessment District in accordance with Section 22572. The assessment
shall refer to the fiscal year to which it applies and shall do all of the following:
(a) State the net amount, determined in accordance with Section 22569, to be
assessed upon assessable lands within the assessment district, which shall include
an amount sufficient to pay the principal and interest due during the fiscal year from
each parcel on any bonds or notes issued pursuant to Section 22662.5.
(b) Describe each assessable lot or parcel of land within the district.
(c) Assess the net amount upon all assessable lots or parcels of land within the district
by apportioning that amount among the several lots or parcels in proportion to the
estimated benefits to be received by each lot or parcel from the improvements.
According to Section 22573, the net amount to be assessed upon lands within an assessment
district may be apportioned by any formula or method which fairly distributes the net amount
among all assessable lots or parcels in proportion to the estimated benefits to be received by each
such lot or parcel from the improvements.
PART E: PROPERTY OWNER LIST & ASSESSMENT ROLL
This part contains a list of the County of Los Angeles Assessor's parcel numbers, and the net
amount to be assessed upon benefited lands within the Assessment District.
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City of Baldwin Park
Citywide Landscaping and Lighting Maintenance District Page 3
PART A
PLANS AND SPECIFICATIONS FOR THE IMPROVEMENTS
The facilities, which have been constructed within the City of Baldwin Park, and those which may
be subsequently constructed, will be operated, serviced and maintained as generally described as
follows:
DESCRIPTION OF IMPROVEMENTS
FOR THE CITY OF BALDWIN PARK
CITYWIDE LANDSCAPING AND LIGHTING
MAINTENANCE DISTRICT
FISCAL YEAR 2019-20
The proposed improvements include the construction, operation, servicing and maintenance of
landscaping, traffic signals, street lighting and appurtenant facilities in public streets and public
rights-of-way within the Assessment District; including but not limited to, personnel, electrical
energy, utilities such as water, materials, contracting services, and other items necessary for the
satisfactory operation of these services described as follows:
Landscapina and Appurtenant Facilities
Landscaping, planting, shrubbery, trees, irrigation systems, hardscapes, fixtures, sidewalk and
curb and gutter maintenance adjacent to street trees, and appurtenant facilities, in public street
and public rights-of-way, including parkways, medians and dedicated easements within the
boundary of said Assessment District.
Lighting and Appurtenant Facilities
Poles, fixtures, bulbs, conduits, equipment including guys, anchors, posts and pedestals,
metering devices and appurtenant facilities as required to provide safety lighting and traffic
signals in public streets and public rights-of-way and easements within the boundaries of said
Assessment District. Power for the street lights and traffic signals shall be furnished by the
Southern California Edison Company or its successors and shall be adequate for the intended
purpose. Rates for power shall be those authorized by the Public Utilities Commission, State of
California.
Maintenance means the furnishing of services and materials for the ordinary and usual
maintenance, operation and servicing of the landscaping, public lighting facilities and appurtenant
facilities, including repair, removal or replacement of all or part of any of the landscaping, public
lighting facilities or appurtenant facilities; providing for the life, growth, health and beauty of the
landscaping, including cultivation, irrigation, trimming, spraying, fertilizing and treating for disease
or injury; the removal of trimmings, rubbish, debris and other solid waste; and the cleaning,
sandblasting and painting of walls and other improvements to remove or cover graffiti.
Servicing means the furnishing of water for the irrigation of the landscaping and the maintenance
of any of the public lighting facilities or appurtenant facilities and the furnishing of electric current or
energy, gas or other illuminating agent for the public lighting facilities, or for the lighting or
operation of landscaping or appurtenant facilities.
The plans and specifications for the improvements, showing the general nature, location, and the
extent of the improvements, are on file in the office of the City Engineer and are incorporated
herein by reference.
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Citywide Landscaping and Lighting Maintenance District Page 4
PART B
AN ESTIMATE OF THE COSTS OF THE IMPROVEMENTS
The estimated cost of the construction, operation, servicing and maintenance of the improvements
for Fiscal Year 2019-20, as described in Part A, are summarized herein and described below. All
costs include administration and utilities where applicable.
CITY OF BALDWIN PARK
CITYWIDE LANDSCAPING AND LIGHTING
MAINTENANCE DISTRICT
FY 2019-20
Budget
Estimated Beginning Fund Balance 7/1/2019 $674,975
FY 2019-20 Estimated Revenue
Assessment Revenue $914,600
County Ad Valorem Tax $774,000
Penalties, Late Taxes, Earnings $101,500
Total Revenue $1,790,100
FY 2019-20 Projected Expenditures
Street Lighting $552,100
Landscaping $785,100
Traffic Signals $266,400
Total Expenditures $1,603,600
FY 2019-20 Operating Reserve / Deficit $186,500
Projected Fund Balance 6/30/2020
Beginning Fund Balance $674,975
FY 2019-20 Estimated Revenue $1,790,100
FY 2019-20 Projected Expenditures $1,603,600
Projected Fund Balance 6/30/2020 $861,475
The 1972 Act requires that a special fund be set-up for the revenues and expenditures of the
District. Funds raised by assessment shall be used only for the purpose as stated herein. A
contribution to the District by the City may be made to reduce assessments, as the City Council
deems appropriate. Any balance or deficit remaining on July 1 must be carried over to the next
fiscal year.
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Citywide Landscaping and Lighting Maintenance District Page 5
PART C
A DIAGRAM FOR THE ASSESSMENT DISTRICT
The diagram of the Assessment District showing the exterior boundaries of the Assessment District
and the lines and dimensions of each lot or parcel of land within the Assessment District is required
in accordance with Sections 22570 and 22571. Each lot or parcel shall be identified by a distinctive
number or letter. The lines and dimensions of each lot or parcel of land shown on the diagram shall
conform to those shown on the county assessor's maps for the fiscal year to which the report
applies.
The Diagram has been prepared and is on file with the City Engineer. The boundaries of the
District are coterminous with the boundaries of the City of Baldwin Park. A diagram showing the
exterior boundaries of the District and the lines and dimensions of each lot or parcel of land within
the District has been submitted to the office of the City Clerk of the City of Baldwin Park, and is
hereby made a part hereof by reference.
The lines and dimensions of each lot or parcel within the District are those lines and dimensions
shown on the maps of the Assessor of the County of Los Angeles. The Assessor's maps and
records are incorporated by reference herein and made part of this report.
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Citywide Landscaping and Lighting Maintenance District Page 6
PART D
ASSESSMENT OF THE ESTIMATED COSTS OF THE IMPROVEMENTS
GENERAL
Part 2 of Division 15 of the Streets and Highways Code, the Landscaping and Lighting Act of 1972,
permits the establishment of assessment districts by cities for the purpose of providing certain
public improvements which include construction, operation, maintenance and servicing of street
lights, traffic signals, parks and landscaping.
The 1972 Act requires that maintenance assessments be levied according to benefit rather than
according to assessed value. Section 22573 of the 1972 Act requires that maintenance
assessments must be levied according to benefit rather than according to assessed value. This
Section states:
"The net amount to be assessed upon lands within an assessment district may be
apportioned by any formula or method which fairly distributes the net amount among
all assessable lots or parcels in proportion to the estimated benefit to be received by
each such lot or parcel from the improvements."
"The determination of whether or not a lot or parcel will benefit from the
improvements shall be made pursuant to the Improvement Act of 1911 (Division 7
(commencing with Section 5000)) [of the California Streets and Highways Code]."
In addition, Article XIIID, Section 4(a) of the California Constitution limits the amount of any
assessment to the proportional special benefit conferred on the property. Because assessments
are levied on the basis of benefit, they are not considered to be a tax governed by Article XIIIA of
the California Constitution.
The 1972 Act permits the designation of zones of benefit within any individual assessment district if
"by reasons or variations in the nature, location, and extent of the improvements, the various areas
will receive different degrees of benefit from the improvement" (Sec. 22547). Thus, the 1972 Act
requires the levy of a true "assessment" rather than a "special tax."
ASSESSMENT METHODOLOGY
The landscaping, lighting and traffic signals are for the benefit and enjoyment of all properties
within the District and all parcels benefit from the maintenance of the improvements. The
assessment of cost upon each parcel was apportioned in accordance with the estimated benefit
received. Traffic signal maintenance costs are assessed throughout the district on a per parcel
basis. The criteria for the assessment spread of lighting and landscaping is as follows:
1. Rectangular lots - street frontage
2. Irregular lots - width of lot at setback line
- average of front and rear lot line lengths or
- street frontage, whichever is most representative of benefit
3. Flag lots - one-half of total footage to each of the two lots
4. Corner lots - the narrowest frontage
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Citywide Landscaping and Lighting Maintenance District Page 7
Excepted from the assessment would be the areas of public streets, public avenues, public lanes,
public roads, public drives, public courts, public alleys, public easements and rights -of -ways, public
greenbelts and public parkways, and that portion of public property that is not developed and used
for business purposes similar to private commercial, industrial and institutional activities.
BENEFIT ZONES
The District is divided into four benefit zones. Zone 1 includes all residential parcels and Zone 2
includes all commercial and industrial parcels that are assessed for street lighting and traffic signal
maintenance. Zone 3 includes all commercial, industrial and residential parcels that are assessed
for landscaping maintenance. Zone 4 includes the West Ramona Residential Redevelopment
Project (Tract Nos. 39090, 39635, 40746, 42828 and 41956) and is assessed for landscaping,
lighting and traffic signal maintenance.
The proposed assessment for Fiscal Year 2019-20 is derived by apportioning a part of the total
cost shown in Part B among the assessable parcels in proportion to the estimated benefits.
A portion of the Assessment District Revenues is derived from Countywide Property Taxes or the
Ad Valorem Tax. The City receives this amount as part of its tax apportionment and has
designated a percentage to be used for lighting and landscape purposes.
Description
Frontage and
Parcel Counts
Proposed
Assessment
Assessment
Revenues*
Zone 1 & 2 (Street Lighting)
2. Commercial / Industrial
91,933 L.F.
$0.5543 / L.F.
$ 50,959
1. Residential
653,126 L.F.
$0.2809 / L.F.
$ 183,463
Zone 3 (Landscaping)
All Parcels
(excluding Zone 4)
745,059 L.F.
$0.7513 / L.F.
$ 559,763
Zone 4 (LightsA andscaping)
Tract # 39090, 39635,
40746, 42828, & 41956
160 Lots
$36.01 / Lot
$ 5,762
Parcel #1164
14 Lots
$51.44 /Lot
$ 720
Zone 2(Traffic Signals)
Commercial / Industrial
(including Parcel #1164
878 Lots
$11.87 /Parcel
$ 10,422
Zone 1 & 4 (Traffic Signals)
All Parcels
13,823 Lots
$7.49 /Lot
$ 103,534
Grand Total
$ 914,622
The assessor's parcel number and the amount of assessment upon each lot or parcel are shown
on the assessment roll. Upon confirmation by the City Council this data will be submitted to the
Los Angeles County Auditor -Controller for the inclusion on the 2019-20 tax roll.
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Citywide Landscaping and Lighting Maintenance District Page 8
PART E
PROPERTY OWNER LIST AND ASSESSMENT ROLL
The assessment set forth for each parcel is shown on the Assessment Roll for the District,
submitted separately, as "Assessment Roll for City of Baldwin Park, Landscaping and Lighting
Maintenance District, Fiscal Year 2019-20", which exhibit is incorporated by reference herein and
is on file in the office of the City Clerk.
The Assessment Roll lists all parcels within the boundaries of the District as shown on the
Assessment Diagram, Part C herein, and on the last equalized roll of the Assessor of the County of
Los Angeles, which is by reference made part of this report.
Assessments are not levied upon public streets, utility easements, right-of-way, and common
areas.
A list of names and addresses of the owners of all parcels within this District is shown on the last
equalized Property Tax Roll of the Assessor of the County of Los Angeles, which by reference is
hereby made a part of this report. This list is keyed to the Assessor's Parcel Numbers as shown
on the Assessment Roll on file in the office of the City Clerk of the City of Baldwin Park.
engreportlMprelim Community Economic Solutions
STAFF REPORT
ITEM NO.
TO: Honorable Mayor and Members of the City Council
FROM: Sam Gutierrez, Director of Public Works
;%
DATE: April 17, 2019
SUBJECT: Adoption of Resolution No. 2019-012, "A Resolution of the
City Council of the City of Baldwin Park, California,
Approving the Engineer's Report for the Citywide Park
Maintenance Assessment District for FY 2019-2020,
Declaring the Intent to Levy and Collect Assessments, and
Setting a Time and Place for a Public Hearing"
SUMMARY
This item adopts a resolution approving the Engineer's Report; declares the intention to levy and
collect assessments and sets a date and time for a Public Hearing for the Citywide Park
Maintenance Assessment District for FY 2019-2020. The recommended hearing date is June 5,
2019.
RECOMMENDATION
Staff recommends that the City Council adopt Resolution No. 2019-012 entitled, "A Resolution
of the City Council of the City of Baldwin Park, California, Approving the Engineer's Report
for the Citywide Park Maintenance Assessment District for FY 2019-2020, Declaring the
Intent to Levy and Collect Assessments and Setting a Time and Place for a Public Hearing."
FISCAL IMPACT
The following table summarizes the District revenue and expenditure status:
FY 2019-2020 Beginning Fund Balance (July 1 2049)
Estimated Revenues
.._ ... _....... ....... .... __........ _....... _.................. ..._-._.............. _.......... __............................... _._...._... _._.._....._._._.._..........................._._.._.._.__:._.._._.._._..... _............................. .........................
Proposed PMD Revenue _......... _.....................................
......._._._._.._._.._._._._...._._................:_........................
$774,700
........... ._._........... _._._..... ._........................
.... _... _...... ....... ._............... _.._..__.... _...... ___._..... _...... _................... _...._............ ................. _._.._._._.............. _... ...................... .._._....._.... .............. .............
City Contribution - General Fund
$44,180
_... _......_....... .._............ _.._...... ...... _......... _..._......... ...................... __..................... _.......... _._.._._._.............. _... _......................_............_...... _._............ _........................................._..... ..... _.
Total Estimated Funds Available
.... ._._.._._.b_._...._.._._._._._ ... ._.._................_...
$844,480
Projected Expenditures
.... _... _...... __......_.................. .._........ ... ........ _............. _........._............................................... _...._._._._.._.._._.._...._..... _.._.......................... _._.... ........ ...._... .... ............... _..............................................._._.4_._...._...........
...._................. .... ....... _._..:-
Park Maintenance and Operation
$818,880
... ._..............._..... ...... __.______..
_..._...... ....... ._........................ ....... .................. _.... _........... _...... _............... _.................... _._.._._... _._.._._...._... _._........................._......... ........... ._..... _.................................. _... _... .........................
Total Projected Expenditures
._._._............_._..
$818,880
Projected Ending Fund Balance (June 30 2020)
$20, y
The total cost of the District for FY 2019-2020 is estimated to be $818,880. The City anticipates
revenue of $774,700 from the FY 2019-2020 Citywide Park Maintenance Assessment District. A
General Fund transfer of $44,180 will be included in the recommended FY 2019-2020 budget to
cover the District shortfall.
BACKGROUND
The purpose of the Citywide Park Maintenance Assessment District (PMD) is to serve as
mechanism for the financing of operations and maintenance associated with City Parks. It is
recommended that the City continue these parks maintenance programs and fund them through
special assessments provided by the PMD.
In 1996, City of Baldwin Park property owners approved the formation of a Park Maintenance
Assessment District to financially support these programs, and the PMD's formation was
established in conformance with Proposition 218.
On March 6, 2019 the City Council approved a resolution which authorized initiating the FY
2019-2020 PMD and ordered the preparation of the Engineer's Report.
ALTERNATIVES
None.
LEGAL REVIEW
Due to the recurring and unchanging nature of this item additional legal review is not required.
ATTACHMENTS
1. Resolution No. 2019-012
2. PMD — Engineer's Report
Attachment 1
Resolution No. 2019-012
Attachment 1
RESOLUTION NO. 2019-012
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BALDWIN PARK,
CALIFORNIA, APPROVING THE ENGINEER'S REPORT FOR THE CITYWIDE PARK
MAINTENANCE ASSESSMENT DISTRICT FOR FY 2019-2020, DECLARING THE
INTENT TO LEVY AND COLLECT ASSESSMENTS, AND SETTING A TIME AND
PLACE FOR A PUBLIC HEARING
WHEREAS, pursuant to the Provisions of Division 15, Part 2 of the Streets and Highways
Code of the State of California, being known as the "Landscaping and Lighting Act of
1972" and Article XIIID of the State Constitution an Engineer's Report has been prepared
consisting of plans and specifications, an estimate of the cost, a diagram of the
Maintenance District and an assessment relating to what is now designated as:
CITY OF BALDWIN PARK CITYWIDE
PARK MAINTENANCE ASSESSMENT DISTRICT
(Hereinafter referred to as "District"); and
WHEREAS, this City Council has now carefully examined and reviewed the Report as
presented and is satisfied with each and all of the items and documents as set forth
therein and is satisfied that the assessments, on a preliminary basis, have been spread
in accordance with the benefits received from the maintenance to be performed as set
forth in said Report.
WHEREAS, the provisions of said Division 15, Part 2, require a written report in
accordance with Chapter 3 (commencing with Section 22620).
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BALDWIN PARK
DOES RESOLVE AS FOLLOWS:
SECTION 1. That the above recitals are all true, correct, and are hereby incorporated
herein.
SECTION 2. That the Report as presented, consisting of the following:
a. Plans and Specifications
b. Estimate of the Cost
C. Diagram of the Maintenance District
d. Assessment of the Estimated Cost
Resolution No. 2019-012
Approval of Engineer's Report
Park Maintenance District
Page 2
is hereby approved and is ordered to be filed in the office of the City Engineer as a
permanent record and to remain open for public inspection.
SECTION 3. That it is the intention of the City Council, consistent with the public interest
and convenience, to levy and collect annual assessments for FY 2019-2020 for the
construction and continued maintenance of certain public facilities within the Citywide
Park Maintenance Assessment District, all to serve and benefit said District as said area
is shown and delineated on a map shown in the Engineer's Report on file in the office of
the City Engineer, open for public inspection, and herein so referenced and made a part
hereof.
SECTION 4. That a public hearing shall be held before this City Council, in the Council
Chambers, 14403 E. Pacific Avenue, Baldwin Park, on Wednesday, June 5, 2019, at the
hour of 7:00 p.m. pursuant to the "Landscaping and Lighting Act of 1972" and Article XIIID
of the State Constitution, for the purposes of hearing protests, comments, or objections
in reference to the annual levy of assessments and the extent of the works and
maintenance of improvements, and this Council's determination whether the public
interest, convenience, and necessity require the improvements.
SECTION 5. That the City Clerk is hereby authorized and directed to publish a copy of
this Resolution in the San Gabriel Valley Examiner, a newspaper of general circulation in
said City; said publication shall not be less than ten (10) days before the date of said
Public Hearing.
SECTION 6. For any and all information relating to the procedures, protest procedure,
documentation and/or information of a procedural or technical nature, the public's
attention is directed to the office listed below as designated:
Sam Gutierrez, Director of Public Works
City of Baldwin Park
(626) 813-5255
SECTION 7. That the City Clerk shall certify to the passage and adoption of the
Resolution and the Minutes of the meeting shall so reflect the presentation of the
Engineer's Report.
Resolution No. 2019-012
Approval of Engineer's Report
Park Maintenance District
Page 2
PASSED, APPROVED, AND ADOPTED this 17th day of April 2019
MANUELLOZANO
MAYOR
ATTEST:
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF BALDWIN PARK )
I, Jean M. Ayala, City Clerk of the City of Baldwin Park do hereby certify that the foregoing
Resolution No. 2019-012 was duly adopted by the City Council of the City of Baldwin Park
at a regular meeting thereof held on April 17, 2019 and that the same was adopted by the
following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JEAN M. AYALA
CITY CLERK
Attachment 2
PMD — Engineer's Report
CITYWIDE PARK MAINTENANCE
ASSESSMENT DISTRICT
ASSESSMENT ENGINEER'S REPORT
PURSUANT TO THE LANDSCAPE AND LIGHTING ACT OF 1972, PART 2
DIVISION 15 OF THE STREETS AND HIGHWAYS CODE, ARTICLE XIII.D. OF
THE CALIFORNIA CONSTITUTION AND THE PROPOSITION 218 OMNIBUS
IMPLEMENTATION ACT (GOVERNMENT CODE SECTION 53750 ET SEQ)
Fiscal Year 2019-20
Prepared for:
A
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A -A IEL .o
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JAWJ P
CITY OF BALDWIN PARK
DEPARTMENT OF PUBLIC WORKS
ENGINEERING DIVISION
Prepared by.
Community Economic Solutions
April 10, 2019
City of Baldwin Park
Citywide Park Maintenance Assessment District Page i
CITY OF BALDWIN PARK
ASSESSMENT ENGINEER'S REPORT
CITYWIDE PARK MAINTENANCE
ASSESSMENT DISTRICT
FISCAL YEAR 2019-20
The Streets and Highways Code, Part 2, Division 15, Article 4, commencing with
Section 22565, directs the preparation of the annual report for each fiscal year for
which assessments are to be levied and collected to pay the costs of the improvements
described herein.
SECTION DESCRIPTION PAGE
ExecutiveSummary ....................................................................................... 1
Report............................................................................................................ 2
Part A - Plans and Specifications for the Improvements ................................. 4
Part B - An Estimate of the Costs of the Improvements .................................. 5
Part C - A Diagram for the Assessment District .............................................. 6
Part D - An Assessment of the Estimated Costs of the Improvements............ 7
Part E — Property Owner List and Assessment Roll ...................................... 15
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EXECUTIVE SUMMARY
The purpose of the Citywide Park Maintenance Assessment District is to generate revenues for the
financing of the installation, maintenance and servicing of parks and recreational improvements, and
certain facilities directly in support of such improvements and programs.
Based on the provisions of the Landscape and Lighting Act of 1972, Article XIII.D. of the California
Constitution (Proposition 218), and the Proposition 218 Omnibus Implementation Act, Baldwin Park
property owners approved the formation of a Citywide Park Maintenance Assessment District and
established assessments thereof beginning in Fiscal Year 1997-98. In June 2002, the City was
unable to obtain the necessary property owner approval to increase the assessment rates to cover
the increased costs of park maintenance. Consequently, the General Fund has been subsidizing
the differences between the actual cost and the revenue from the assessment.
This report is pursuant to and in compliance with Articles XIII.0 and XIII.D of the California
Constitution and the Landscaping and Lighting Act of 1972. Based on the findingsin this report, the
assessment roll is generated wherein each Assessor's Parcel Number in the City of Baldwin Park is
identified along with the amount assessed for the Park Maintenance Assessment District for Fiscal
Year 2019-20. The assessment roll is included as part of this report, but is not bound herein.
For Fiscal Year 2019-20, the Citywide Park Maintenance Assessment District is proposed to
generate revenue of approximately $774,700, while the cost of park maintenance is budgeted at
$818,880. The difference of $44,180 will be covered by a contribution from the City's General Fund
of $44,180 less any beginning fund balance in the Park Maintenance Assessment District Fund.
The City has made an effort to reduce this program's impact on the General Fund, and over the last
several years the City has steadily reduced park maintenance costs.
The General Fund contribution is for general benefits and is not assessed. The proposed Fiscal
Year 2019-20 assessments are 2.708% higher than last year based on the CPI adjustment allowed
by the Citywide Park Maintenance Assessment District during its formation.
DISTRICT FINANCIAL SUMMARY
FY 2019-20 Beginning Fund Balance (July 1, 2019)
Estimated Resources
Assessment District Revenue + Delinquencies FY 2019-20
Operating Reserve Available FY 2018-19
City Contribution - General Fund, FY 2019-20
Total Estimated Funds Available, FY 2019-20
Projected Liabilities
Park Maintenance and Operation
OH & Transfers In/Out
Total Projected Liabilities, FY 2019-20
Fund Balance
$4,176
$774,700
$21,424
$44,180
$844,480
$818,880
$0
$818,880
776
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FISCAL YEAR 2019-20
CITY OF BALDWIN PARK
ASSESSMENT ENGINEER'S REPORT PREPARED
PURSUANT TO THE PROVISIONS OF THE
LANDSCAPING AND LIGHTING ACT OF 1972
SECTION 22500 THROUGH 22679
OF THE CALIFORNIA STREETS AND HIGHWAYS CODE
Whereas the Council of the City of Baldwin Park, California, did, pursuant to the provisions of the
Landscape and Lighting Act of 1972, being Part 2 of Division 15 of the Streets and Highways Code
of the State of California, adopt the Resolution of Initiation ordering the preparation and filing of the
Assessment Engineer's Report in accordance with Chapter 1, Article 4 commencing with Section
22565.
Section 22567 directs that the report shall refer to the City of Baldwin Park Citywide Park
Maintenance Assessment District (the "Assessment District") by its distinctive designation, specify
the fiscal year to which the report applies, and, with respect to that year, shall contain all of the
following:
Part A - Plans and specifications for the improvements.
Part B - An estimate of the costs of the improvements.
Part C - A diagram for the assessment district.
Part D - An assessment of the estimated costs of the improvements.
A preliminary report is then filed with the City Clerk in accordance with Section 22623 for submission
to the legislative body. The legislative body may approve the report as filed, or it may modify the
report and approve it as modified. Now, therefore, the following Assessment Engineer's Report is
hereby submitted consisting of five (5) parts as follows:
PART A: PLANS AND SPECIFICATIONS FOR THE IMPROVEMENTS
This part contains the plans and specifications which are required to show and describe the existing
and proposed improvements in accordance with Section 22568. The plans and specifications need
not be detailed, but shall be sufficient if they show or describe the general nature, location, and
extent of the improvements. If the assessment district is divided into zones, the plans and
specifications shall indicate the class and type of improvements to be provided for each such zone.
The Plans and specifications for the improvements listed in Part A are on file with the City Engineer.
Such plans and specifications are incorporated herein by reference.
PART B: AN ESTIMATE OF THE COSTS OF THE IMPROVEMENTS
This part contains an estimate of the costs for maintenance of the improvements within the District
for Fiscal Year 2019-20 pursuant to section 22569, including incidental costs and expenses in
connection therewith. This estimate is on file with the City Engineer. The estimate of the costs of the
improvements for the fiscal year shall contain estimates for all of the following:
(a) The total costs for improvements to be made that year, being the total costs of constructing
or installing all proposed improvements and of maintaining and servicing all existing and
proposed improvements, including all incidental expenses.
(b) The amount of any surplus or deficit in the improvement fund to be carried over from a
previous fiscal year.
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(c) The amount of any contributions to be made from sources other than assessments levied
pursuant to this part.
(d) The amount, if any, of the annual installment for the fiscal year where the legislative body
has ordered an assessment for the estimated cost of any improvements to be levied and
collected in annual installments.
(e) The net amount to be assessed upon assessable lands within the assessment district, being
the total improvement costs, as referred to in subdivision (a), increased or decreased, as the
case may be, by any of the amounts referred to in subdivision (b), (c), or (d).
PART C: A DIAGRAM FOR THE ASSESSMENT DISTRICT
This part incorporates, by reference, the "Assessment Diagram", which is a diagram of the
Assessment District showing the exterior boundaries of the Assessment District and the lines and
dimensions of each lot or parcel of land within the Assessment District in accordance with Sections
22570 and 22571. The diagram for an assessment district shall show (a) the exterior boundaries of
the assessment district, (b) the boundaries of any zones within the district, and (c) the lines and
dimensions of each lot or parcel of land within the district. Each lot or parcel shall be identified by a
distinctive number or letter. The lines and dimensions of each lot or parcel of land shown on the
diagram shall conform to those shown on the county assessor's maps for the fiscal year to which
the report applies. The Diagram has been prepared and is on file with the City Engineer. The
Assessor's maps and records are incorporated by reference herein and made part of this Report.
PART D: ASSESSMENT OF THE ESTIMATED
COSTS OF THE IMPROVEMENTS
This part contains an assessment of the estimated cost of the improvements on each benefited lot
or parcel of land within the Assessment District in accordance with Section 22572. The assessment
shall refer to the fiscal year to which it applies and shall do all of the following:
(a) State the net amount, determined in accordance with Section 22569, to be assessed upon
assessable lands within the assessment district, which shall include an amount sufficient to
pay the principal and interest due during the fiscal year from each parcel on any bonds or
notes issued pursuant to Section 22662.5.
(b) Describe each assessable lot or parcel of land within the district.
(c) Assess the net amount upon all assessable lots or parcels of land within the district by
apportioning that amount among the several lots or parcels in proportion to the estimated
benefits to be received by each lot or parcel from the improvements.
According to Section 22573, the net amount to be assessed upon lands within an assessment
district may be apportioned by any formula or method which fairly distributes the net amount among
all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot
or parcel from the improvements.
PART E: PROPERTY OWNER LIST & ASSESSMENT ROLL
This part contains a list of the County of Los Angeles Assessor's parcel numbers, and the net
amount to be assessed upon benefited lands within the Assessment District.
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PART A
PLANS AND SPECIFICATIONS FOR THE IMPROVEMENTS
The facilities, which have been constructed within the City of Baldwin Park, and those which may be
subsequently constructed, will be operated, serviced and maintained as generally described as
follows:
DESCRIPTION OF IMPROVEMENTS
FOR THE CITY OF BALDWIN PARK
CITYWIDE PARK MAINTENANCE ASSESSMENT DISTRICT
FISCAL YEAR 2019-20
The items that may be funded through the District are defined in the Landscaping and Lighting Act
of 1972 (the Act) as Improvements. The Act defines Improvements to include the installation,
maintenance and servicing of several types of landscaping and park and recreational improvements
and facilities as shown below. However, the District can only assess for the special benefit that can
be shown to be conferred from these improvements to the properties in the District.
Installation
■ The installation or planting of landscaping.
■ The installation or construction of statuary, fountains and other ornamental structures and
facilities.
■ The installation or construction of any facilities which are appurtenant to any of the foregoing or
which are necessary or convenient for the maintenance or servicing thereof, including, but not
limited to, grading, clearing, removal of debris, the installation or construction of curbs, gutters,
walls, sidewalks, or paving, or water, irrigation, drainage, or electrical facilities.
■ The installation of park or recreational improvements, including, but not limited to, land
preparation, such as grading, leveling, cutting and filling, sod, landscaping, irrigation systems,
sidewalks and drainage; lights, playground equipment, play courts and public restrooms.
■ The acquisition of land for park, recreational or open -space purposes.
■ The acquisition of any existing improvement otherwise authorized.
Maintenance
Maintenance means the furnishing of services and materials for the ordinary and usual
maintenance, operation and servicing of any improvement, including:
■ Repair, removal or replacement of all or any part of any improvement.
■ Providing for the life, growth, health and beauty of landscaping, including cultivation, irrigation,
trimming, spraying, fertilizing or treating for disease or injury.
■ The removal of trimmings, rubbish, debris and other solid waste.
■ The cleaning, sandblasting and painting of walls and other improvements to remove or cover
graffiti.
Servicing
Servicing means the furnishing of electric current, or energy, or other illuminating agent and water
for the irrigation of any landscaping, the operation of any fountains, or the maintenance of any
improvements.
Plans and specifications of the improvements within the District are on file in the office of the City
Engineer and are incorporated herein by reference. Maps showing the location of parks within the
District are on file in the office of the City Clerk and incorporated herein by reference.
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PART B
AN ESTIMATE OF THE COSTS OF THE IMPROVEMENTS
The estimated cost of the construction, operation, servicing and maintenance of the improvements
for Fiscal Year 2019-20, as described in Part A, are summarized herein and described below. All
costs include administration and utilities where applicable.
CITY OF BALDWIN PARK
CITYWIDE PARK MAINTENANCE ASSESSMENT DISTRICT
FY 2019-20
Budget
FY 2019-20 Beginning Fund Balance (July 1, 2019) $4,176
Estimated Revenues
Assessment Revenue $774,700
General Fund Contribution $44,180
Operating Reserve Available $21,424
Total Revenue $840,304
Total Estimated Funds Available, FY 2019-20 $844,480
FY 2019-20 Projected Expenditures
Park Maintenance and Operation $818,880
Total Projected Expenditures, FY 2019-20 $818,880
FY 2019-20 Operating Reserve / Deficit $25,600
Projected Ending Fund Balance (June 30, 2020)
Beginning Fund Balance
$4,176
Revenues
$840,304
Expenditures
$818,880
Operating Reserve
$25,600
Projected Ending Fund Balance (June 30, 2020) $29,776
The 1972 Act requires that a special fund be set-up for the revenues and expenditures of the
District. Funds raised by assessment shall be used only for the purpose as stated herein. A
contribution to the District by the City may be made to reduce assessments, as the City Council
deems appropriate. Any balance or deficit remaining on July 1 must be carried over to the next
fiscal year.
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PART C
A DIAGRAM FOR THE ASSESSMENT DISTRICT
The diagram of the Assessment District showing the exterior boundaries of the Assessment District
and the lines and dimensions of each lot or parcel of land within the Assessment District is required
in accordance with Sections 22570 and 22571. Each lot or parcel shall be identified by a distinctive
number or letter. The lines and dimensions of each lot or parcel of land shown on the diagram shall
conform to those shown on the county assessor's maps for the fiscal year to which the report
applies.
The City of Baldwin Citywide Park Maintenance Assessment District includes all parcels of land
within the City's corporate boundaries. Reference is made to the Los Angeles County Assessor's
maps for a detailed description of the lines and dimensions of all parcels within the District. A map
showing the exterior boundaries of the District is on file in the City Clerk's Office and incorporated
herein by reference.
The lines and dimensions of each lot or parcel within the District are those lines and dimensions
shown on the maps of the Assessor of the County of Los Angeles. The Assessor's maps and
records are incorporated by reference herein and made part of this report.
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PART D
ASSESSMENT OF THE ESTIMATED COSTS OF THE IMPROVEMENTS
GENERAL
Section 22573 of the Landscaping and Lighting Act of 1972, being Part 2, of Division 15 the State
California Streets and Highways Code, states that, "the net amount to be assessed upon lands
within an assessment district may be apportioned by any formula or method which fairly distributes
the net amount among all assessable lots or parcels in proportion to the estimated benefits to be
received by each such lot or parcel from the improvements." As the assessments are levied on the
basis of benefit, they are not a tax, and therefore, are not governed by Article XIIIA of the California
Constitution.
As a result of the passage of Proposition 218 by voters on November 5, 1996, Articles XIIIC and
XIIID have been added to the California Constitution. The new procedural and approval process
outlined in these Articles applies to new assessment districts and increased assessments. In
addition, properties owned by 'public agencies, such as a city, county, state or the federal
government, must now be assessed by law unless it can be demonstrated that they receive no
special benefit.
Specifically, the assessment methodology for the Citywide Park Maintenance Assessment District
will have to:
■ Demonstrate special benefit to assessed parcels over and above the benefits conferred on
the public at large: "Special benefit" means a particular and distinct benefit over and above
general benefits conferred on real property located in the district or to the public at large.
General enhancement of property value does not constitute "special benefit'."
■ Separate the general benefits from the special benefits conferred to parcels: "Only special
benefits are assessable, and an agency must separate the general benefits from the special
benefits conferred on a parcel. "
■ Determine the special benefit that should be attributed to public agency parcels within the
new District boundary: "Parcels within a district that are owned or used by any agency, the
State of California or the United States shall not be exempt from assessment unless the
agency can demonstrate by clear and convincing evidence that such publicly owned parcels
in fact receive no special benefit."
ASSESSMENT METHODOLOGY
The District assessment is based on land use such that property owners are assessed in proportion
to the special benefits received. The land uses defined below are descriptive of all parcels expected
to exist in the City of Baldwin Park in Fiscal Year 2019-20. In the event there is a question regarding
the land use designation of any parcel in the District, the City Engineer will be responsible for
administratively assigning one of the land uses listed below.
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TABLE 1— FY 2019-20 LAND USE DEFINITIONS
Land Use Code
Land Use Description
SFR
Single family residential parcels
CONDO
Condominium or town home parcels
MFR
Multiple family residential parcels (2 dwellings or more)
MH
Mobile homes or Mobile Home Parks
NONRES
Commercial and industrial parcels
INSTITUTION
Institutional — Parcels owned by non-profit organizations
VACANT
Parcels without a building or similar structure - designated for each
land use
GOVT
Parcels owned by a public agency
EXE
Parcels exempt from the assessment, because they do not benefit
from park maintenance (sliver, open space, common area, railroad,
or utility easement parcels)
SPECIAL BENEFIT ANALYSIS
Articles XIIIC and XIIID of the California Constitution require that a parcel's assessment may not
exceed the reasonable cost of the proportional special benefit conferred on that parcel. The Articles
provide that only special benefits are assessable. The general benefits must be separated from the
special benefits conferred on a parcel, a special benefit being a particular and distinct benefit over
and above general benefits conferred on the public at large, including real property within the
district. The general enhancement of property value does not constitute a special benefit.
The Open Space Element within the General Plan for the City of Baldwin Park notes that the City is
almost completely built out, and open space is limited to existing parks, school grounds, utility
rights-of-way, and water channel areas. Within the City, over 530 acres of these properties are
designated as open space. Baldwin Park offers five City parks and seventeen school playgrounds
for recreation.
In 1996, Morgan Park underwent a 2.5 acre expansion, where a new Community Center and Senior
Center were built. In 2005, Barnes Park, located in the southwest quadrant of the City, was
completely renovated and a 3,300 square foot recreation center was constructed. In 2008, the
15,270 square foot Arts and Recreation facility adjacent to City Hall was completely renovated, and
the Senior Center underwent a 3,500 square foot expansion to create additional meeting space,
restrooms and reception area. In 2009, new playground equipment was installed in Morgan Park
and in 2010 that same play area was upgraded with recreation water features and public art
amenities.
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Morgan Park offers the most activities of any recreation area in the City, including boxing,
horseshoes, basketball and volleyball. Morgan Park is centrally located; with the other City parks
located south and west near the City's periphery. The area north of Los Angeles Street contains six
elementary school sites, but no parks. About 60 percent of Baldwin Park's City park area is located
south of Ramona Boulevard.
Baldwin Park's recreation facilities and parks are vital to the community, especially for the high-
density residential developments, which do not provide adequate play areas for their residents.
Upon full build -out, it is expected that the City will have a ratio of 3 acres of parks, including school
areas, for each 1,000 residents. This ratio is well within the National Recreation and Parks
Association recommended standard of 2.5 acres per 1,000 residents. The majority of the City's
parkland is under the control of the Baldwin Park Unified School District, with the City controlling 10
percent of the total parkland.
Parks and recreational activities are managed by the City of Baldwin Park through a division of the
City organization. As such, all parks administration and planning are centralized while recreational
activitiesare conducted on a community -wide basis to take advantage of existing park facilities.
This approach promotes the parks as a system or network to be used on a Citywide basis, rather
than on a service radius basis which may be more common in other jurisdictions. All of the parks
and recreational facilities are equally accessible to all the properties in the District.
The maintenance of parks and recreational improvements provide a particular and distinct special
benefit to parcels within the District. The desirability of parcels within the District is specifically
enhanced by the presence of well-maintained parks and recreational facilities which are available for
the use and enjoyment of residents, customers, clients, employees and visitors of the assessed
parcels. The presence of properly maintained parks readily accessible to properties within the
District means that the owners and visitors of the assessed parcels may enjoy the benefits of such
improvements while avoiding the expense of privately installing and maintaining similar
improvements.
Only the parks summarized in this Report are funded through the District. The other open space
areas that contribute to the open space element of the City are funded separately. The location of all
the parcels in the District was found to be within 1 3/4 miles of at least one park, and 3/4 mile of at
least one recreational facility in the District.
Although some properties in the District are within 3/4 mile of more than one park, it was determined
that residents cannot use the facilities of more than one park at one time, so the assessment rates
are established at a uniform level throughout the District.
In addition to providing opportunities for recreational use, the proper maintenance of park and
recreational facilities improves the aesthetics of parcels within the District. Proper maintenance of
landscaping reduces pollution and noise, provides for open space and the planting of otherwise
barren areas, and reduces property -related crimes within the District, especially vandalism, through
the removal and abatement of graffiti.
The U.S. Department of the Interior, National Parks Service, in a publication of June 1984,
concluded that, "An investment in parks and recreation helps reduce pollution and noise, makes
communities more livable, and increases property value." All of the above benefits contribute to a
specific enhancement of the quality of life and property values related to each of the assessable
parcels within the District.
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In addition, the operation and maintenance of the City's parks confers a particular and distinct
special benefit upon assessed parcels within the District, as follows:
■ The proper maintenance of parks and appurtenant facilities specially benefits parcels within
the District by improving the physical and visual environment and making the District area
more desirable.
■ Parcels within the District are specially benefited when public infrastructure including parks
are in place, safe, clean and well maintained.
■ The proper maintenance of parks by the District provides increased District -wide
attractiveness to prospective buyers.
• The desirability of parcels within the District is specifically enhanced by the presence of well-
maintained parks which are available for the use and enjoyment of the property owners and
the visitors of the assessed parcels.
■ Having properly maintained parks readily accessible to properties within the District means
that the owners and visitors of the assessed parcels may enjoy the benefits of such
improvements available for use while avoiding the expense of privately installing and
maintaining similar improvements.
■ The proper maintenance of landscaped parks provides increased attractiveness of the
District as a place to live, work and do business.
■ Spraying and treating of landscaping for disease and weed control reduces the likelihood of
insect or weed infestation spreading to the landscaping located on properties within the
District.
GENERAL BENEFIT ANALYSIS
In addition to the special benefits received by the parcels in the District, there are general benefits
conferred on the public at large by the maintenance, operation and servicing of park and
recreational facilities.
Census data and socio-economic characteristics for the City of Baldwin Park would generally
indicate a higher than average park usage by local residents. The higher densities and a greater
number of persons per household as documented by census data would indicate a higher than
average special benefit from the funded park improvements. Additionally, in higher density areas
such as the District, the value of the open spaces afforded by parks is at a particular premium.
However,parks and recreational facilities are an important part of any thriving community. The
general benefit arising from the park and recreational improvements can be measured by examining
the usage of the facilities by the public at large. Each park has been examined to determine the
average number of registrations received by the Recreation and Community Services Department
for individuals or teams from outside of the District boundaries. The percentage of out -of -district
registrations to total registrations is used to determine that portion of the park budget related to
general versus special benefit. City staff has determined that out -of -District registrations equal
approximately 15 percent of all registrations. Thus, 15 percent of the assessment budget will be
assigned as general benefit. In addition, the City has elected to contribute an additional amount
over and above the 15 percent level in order to maintain assessments at approximately the same
amount as in prior years.
FORMULA
The formula recognizes that properties have different levels of benefit depending upon the typical
population associated with the type of land use. The formula considers these differences and fairly
distributes the special benefit among all residential parcels and lots within the District. Each of the
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City of Baldwin Park
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special benefits identified above in "Special Benefit Analysis" are considered to benefit each parcel
in proportion to the typical population associated with the parcel's land use as reported by the City of
Baldwin Park Planning Division.
In order to establish the proportionate share of benefit from any one parcel of land in relation to the
total benefit to the District, it is necessary to establish a benchmark to relate that one parcel to all
others. This benchmark is called the Equivalent Dwelling Unit. The District uses a single family
residence as the benchmark Equivalent Dwelling Unit. All other land uses, as represented on the
County Assessor's master property file, will be compared to the benchmark of the Single Family
Residence to gain a comparative Equivalent Dwelling Unit ("EDU") based on population data as
found in the 1990 Census Data for Baldwin Park, as provided by the City of Baldwin Park's Planning
Division.
Following is a discussion of EDU values for each type of land use within the Assessment District.
The EDU values for condominiums, multi -family and mobile homes are based upon a comparison of
the average population per household for single-family residences versus the average household
population in condominiums, multi -family and mobile homes. The calculation of each EDU value is
shown below:
For Single Family Residential:
Single family population per household 4.06
Single family population per household 4.06
For Condominium Residential:
Condo population per household 3.75
Single family population per household 4.06
For Multi -Family Residential:
Multi -family population per household 4.25
Single family population per household 4.06
For Mobile Home Residential:
Mobile Home population per household 2.03
Single family population per household 4.06
= 1.00 EDU's/unit
= 0.92 EDU's/unit
= 1.04 EDU's/unit
= 0.50 EDU's/unit
The EDU values for commercial, office, business and industrial land uses ("non-residential") are
based on a comparison of the typical single family lot acreage versus the actual size of the non-
residential use. Special benefit to non-residential parcels results from the use of recreational
facilities by employees and customers, which generally increases in number as the parcel size
increases. Therefore, the assessment on non-residential property is based on acres, as opposed to
residential parcels which are based on dwelling units.
Within the District, the typical single-family parcel size is 8,500 square feet. Approximately 20
percent of each acre of residential land, on average, is dedicated for streets and other public uses
resulting in a net acreage available for the subdivision of approximately 4.10 lots per acre, which is
rounded down to 4 lots per acre. Therefore, using the single family residence as a base, an acre of
non-residential property receives the same number of EDU's as an acre of residential property, that
is, 4 EDU per acre.
Non-residential lots @ 4 lots per acre
Single family EDU @ 1.00 per lot = 4.00 EDU's /acre
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Furthermore, non-residential parcels more than half an acre and less than an acre is assigned a
minimum of 4 EDU per parcel to reflect the minimum benefit these parcels receive. Non-residential
parcels below one-half acre are assigned 50 percent of 4.0 EDU's, or 2.0 EDU's per parcel.
The EDU value for the institutional, church, school, college and day care land uses ("institutional") is
calculated at one (1) EDU per parcel. This per parcel assessment rather than per acre assessment
is in recognition of this land use category's traditionally lower demand for park facilities as indicated
by the City's Recreation and Community Services staff. In addition, institutional parcels receive less
benefit than other non-residential parcels in the District from the operation, maintenance and
servicing of parks in the City for several reasons. Institutional parcels function differently than non-
residential parcels in that they: 1) typically operate fewer days in the week, 2) generally have an
inconsistent number of people using the facilities daily, and 3) have a less intensive use than the
property size alone would indicate because in general, the institutional parcels in the District contain
large green areas that function as open space. Therefore, the institutional parcels should be
assessed at a lower level than the non-residential parcels, and are assigned 1 EDU per parcel.
As a result of the passage of Proposition 218, the assessment methodology for the Park
Maintenance Assessment District has to determine the special benefit attributable to public agency
parcels within the District boundary. Section 4 of the Proposition states, "Parcels within a district
that are owned or used by any agency, the State of California or the United States shall not be
exempt from assessment unless the agency can demonstrate by clear and convincing evidence that
such publicly owned parcels in fact receive no special benefit. "
In comparison to non-residential and institutional parcels, governmental properties also benefit from
the proper maintenance of parks, since such parks attract potential customers and employees as
shown below. Certain governmental parcels benefit from the District because the proper
maintenance, operation and servicing of parks:
■ reduces property -related crimes against properties within the District, especially vandalism,
through the abatement of graffiti;
■ improves the aesthetics of public parcels through the proper maintenance of landscaping
and the planting of otherwise barren areas;
■ reduces pollution and noise in surrounding areas throughout the provision of open space;
and
■ by improving the physical and visual environment and making the District area a more
desirable and attractive place to work and do business.
Additionally:
■ Having properly maintained parks readily accessible to the public properties means that the
public agencies may enjoy the benefits of such improvements available for use while
avoiding the expense of privately installing and maintaining similar improvements; and
■ Spraying and treating of landscaping for disease and weed control reduces the likelihood of
insect or weed infestation spreading to the landscaping located on public properties within
the District.
However, governmental parcels receive less benefit than other non-residential parcels in the District
from the operation, maintenance and servicing of parks in the City. For instance, a portion of most
public properties are used as park and/or recreation areas. This portion of these properties does
not benefit from the District improvements because it provides the same use and function that the
funded improvements provide. Additionally, governmental properties generally do not benefit from
the resale value of their properties. Consequently, the specific benefit of increased property value
that is conferred to other properties in the District is not conferred to governmental properties.
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Therefore, the governmental parcels are assessed at one-quarter the rate of non-residential uses,
but as the size of the parcel increases, the benefit increases, and therefore, the assessment
amount increases.
The special benefit to undeveloped property in the residential, non-residential and institutional land
use categories is based on the assumption that such undeveloped property benefits from the
ongoing maintenance of recreational facilities because the facilities will be in good and ready
condition in the future when the vacant property is developed. For the purposes of this Engineer's
Report, the special benefit to undeveloped property is assigned a value corresponding to 40 percent
of the developed property EDU values for the same land use designations. This discounted value
recognizes the reduced current value due to the uninhabited nature of the property.
Finally, parcels of raw land and homeowner's association common area are assigned an EDU value
of zero (0), based on a projection that these parcels are likely never to develop and therefore will
receive no benefit from the improvements. Similarly, railroad right-of-way parcels, public utility right-
of-way and well site or reservoir site parcels, water rights parcels, and other similar land uses are
also assigned an EDU value of 0, because of little or no possibility for residential or non-residential
or institutional development and therefore no benefit.
The following table sets forth the population per unit as shown in the 1990 City of Baldwin Park
census data, the equivalent dwelling units as discussed above, and the resulting assessment
amount per unit, parcel or acre.
Land Use Description
Population
Per Unit
Equivalent
Dwelling
Units
FY 2019-20
Assessment
Single Family Residential
4.06 / unit
1.00"/ unit
$37.52 / unit
Vacant Single Family Residential
-----
0.401 parcel
$15.011 parcel
Condominium(per unit
3.75 / unit
0.921 unit
$34.521/ unit
Multi -Family (per unit
4.25 / unit
1.041 unit
$39.021/ unit
Mobile Homes r unit
2.03 / unit
0.50!/ unit
$18.761.1 unit
Non -Residential >_ 1 acre(per acre
4.00 / acre
4.00 / acre
$150.08=/ acre
Non -Residential >_ .5 acre - < 1 acre(perparcel)
4.00 / parcel
4.00 / parcel
$150.08'/ parcel
Non -Residential < .5 acre rparcel)
4.00 / parcel
2.00 / parcel
$75.041/ parcel
Vacant Non -Residential >_ 1 acre(per acre
-----
1.60'/ acre
$60.031/ acre
Vacant Non -Residential z .5 acre - < 1 acre(perparcel)
-----
1.601/ parcel
$60.03M/ parcel
Vacant Non -Residential < .5 acre rparcel)
-----
0.80' / parcel
$30.02 /parcel
Vacant Multi -Family Residential >_ 1 acre(per acre
-----
1.60'/ acre
$60.03/ acre
Vacant Multi -Family Residential >_ .5 acre - < 1 acre(perparcel)
-----
1.601 parcel
$60.031/ parcel
Vacant Multi-FamilyResidential <.5 acre (per parcel)-----
0.80 / arcel
$30.021/ parcel
Instutional r parcel)1.00
! parcel
1.001 arcel
$37.521,/ parcel
Vacant Instutional rparcel)
-----
0.40 / parcel
$15.01=/parcel
Government >_ 1 acre
4.00 / acre
1.001 acre
$37.52;/ acre
Government >_ .5 acre - < 1 acre
4.00 / arcel
1.001 parcel
$37.52=/parcel
Government <.5 acre
4.00 / parcel,
0.50!-/ parcel
$18.761/ parcel
Exemption
-----
0.001 parcel,
$0.001/ parcel
parkreportlMprelim Community Economic Solutions
City of Baldwin Park
Citywide Park Maintenance Assessment District Page 14
ENGINEERING AND INCIDENTAL EXPENSES
All parcels within the District benefit from the ongoing operation of the District. Therefore, all
parcels assessed in the District receive a proportional share of the administrative costs for the
District based on their assessment for park maintenance.
THE MAXIMUM ASSESSMENT AND ANNUAL ADJUSTMENT
The Maximum Assessment is the annual assessment shown in the Assessment Roll, on file in the
Office of the City Clerk and by this reference incorporated herein. Commencing with Fiscal Year
2006-2007 and for each year thereafter, the assessment for the District is subject to an Annual
Adjustment limit. The Annual Adjustment shall not exceed the change in the Consumer Price Index
("CPP'), All Urban Consumers, for the Los Angeles -Anaheim -Riverside Area from March of the
current year to March of the previous calendar year. For Fiscal Year 2019-20 the calculation is as
follows:
March 2018 to March 2019 Consumer Price Index:
March 2019: 271.311
March 2018: -264.158
7.153 / 264.158 = 0.02708 * 100 = 2.708%
Future annual assessments within this limit may be approved by the City Council without additional
property owner ratification. These limits may be exceeded only with a majority property owner
approval of either: 1) a supplemental assessment; 2) a revision of or supplement to the maximum
assessment and/or adjustment formula, or 3) any other methodology amenable to the property
owners within the District boundary.
The assessor's parcel number and the amount of assessment upon each lot or parcel are shown on
the assessment roll. Upon confirmation by the Council this data will be submitted to the Los Angeles
County Auditor -Controller for the inclusion on the 2019-20 tax roll.
parkreportlMprelim Community Economic Solutions
City of Baldwin Park
Citywide Park Maintenance Assessment District Page 15
PART E
PROPERTY OWNER LIST AND ASSESSMENT ROLL
The assessment set forth for each parcel is shown on the Assessment Roll for the District,
submitted separately, as "Assessment Roll for City of Baldwin Park, Citywide Park Maintenance
Assessment District, Fiscal Year 2019-20", which is incorporated by reference herein and is on file
in the office of the City Clerk.
The Assessment Roll lists all parcels within the boundaries of the District as shown on the
Assessment Diagram, Part F herein, and on the last equalized roll of the Assessor of the County of
Los Angeles, which is by reference made part of this report.
A list of names and addresses of the owners of all parcels within this District is shown on the last
equalized Property Tax Roll of the Assessor of the County of Los Angeles, which by reference is
hereby made a part of this report. This list is keyed to the Assessor's Parcel Numbers as shown on
the Assessment Roll on file in the office of the City Clerk of the City of Baldwin Park.
parkreportlMprelim Community Economic Solutions
STAFF REPORT
ITEM NO. 7
TO: Honorable Mayor and Members of the City Council
FROM: Sam Gutierrez, Director of Public Works
DATE: April 17, 2019
SUBJECT: Adoption of Resolution No. 2019-013, "A Resolution of the
City Council of the City of Baldwin Park, California,
Adopting the Fiscal Year 2019-20 Project List to be Funded
by Senate Bill 1 (SB1) — the Road Repair and Accountability
Act"
SUMMARY
Approval of Resolution No. 2019-013 will adopt and incorporate a projects improvement list in
conformance with Senate Bill 1 (SB 1) - The Roads Repair and Accountability Act of 2017 (RMRA)
for FY 2019-20.
RECOMMENDATION
It is recommended that the City Council:
1) Adopt Resolution No. 2019-013, "A Resolution of the City Council of the City of
Baldwin Park, California, Adopting the Fiscal Year 2019-20 Project List to be
Funded by Senate Bill 1 (SB1) — the Road Repair and Accountability Act"; and
2) Authorize the Finance Director to appropriate projected FY 2019-20 SB1 funds in the
amount of $1,269,643; and
3) Authorize the Director of Public Works to file necessary documentation to satisfy SB 1
funding requirements and act as the signature authority.
FISCAL IMPACT
In order to receive an apportionment, the City is required to annually expend from its General Fund
in the amount of $289,950 for street, road, and highway purposes per the maintenance of effort
(MOE) requirement of the Streets and Highways Code.
The following is the projected funds for FY 2019-20:
t=uu triu, ice:
k :'
SB1 — Road Repair and Accountability Act Projected FY 2018-19 Funds
$1,269,643
Total Funds
$1,269,643
BACKGROUND
On April 28, 2017, Governor Jerry Brown signed Senate Bill (SB) 1, known as the Road Repair
and Accountability Act of 2017. SB 1 was created to address basic road maintenance,
rehabilitation and critical safety needs on both the state highway and local streets road system.
Funding for the program is administered by the California Transportation Committee (CTC) and
the State of California Controllers Office (SCO). SB1 emphasizes the importance of accountability
and transparency in the delivery of transportation programs. Therefore, to be eligible for funding,
cities and counties must annually provide basic project reporting to the CTC for projects
anticipated to utilize RMRA funds. On December 6, 2017, the CTC adopted an initial report of
cities and counties eligible to receive funds.
DISCUSSION
Current fund estimates indicate that the City of Baldwin Park will be eligible to receive
approximately $1,216,360 in FY 2019-20. To be eligible to receive RMRA funding, the City must
prepare and submit a project list annually to the CTC by May 1St of each year. The City must also
provide a public record which documents that the proposed projects have been adopted in the
operating or capital budget.
To ensure that the City of Baldwin Park remains eligible to receive RMRA funds for FY 2019-20,
Staff has identified two (2) projects to submit by the May 1, 2019 deadline. The projects for FY
2019-20 funding have been identified as follows:
1. Puente Avenue Street Rehabilitation. Work includes 2 -inch cold -mill of the roadway
and placing new asphalt layer. The project also includes upgrade/replacement of
accessible ramps, minor curb and gutter repairs, traffic signal loop replacement, and
restriping.
2. South Garvey Avenue/Dalewood Street Improvements. This project will consist of
reconstruction of portions of the street structural section including sub -surface
preparation, subgrade and constructing aggregate base and asphalt concrete (AC)
pavement sections. The project also includes construction of sidewalk,
upgrade/replacement of accessible ramps and major curb/gutter repairs.
ALTERNATIVES
1. The City Council may choose not to approve Resolution No. 2019-013 and thereby
relinquishing its allocation of RMRA funding. This action is not recommended as the City
may risk losing an estimated $21.5 million over the next 10 years. This funding is needed
to bring necessary and critical street and road improvements to the City's road network.
2. Provide Staff with Alternative direction.
LEGAL REVIEW
This report has been reviewed and approved by the City Attorney as to legal form and content.
ATTACHMENTS
1. Resolution No. 2019-013
2. 2019-20 Project List and Location Map
Attachment 1
Resolution No. 2019-013
RESOLUTION NO. 2019-013
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BALDWIN PARK TO ADOPT THE FISCAL YEAR 2019-20 PROJECT
LIST TO BE FUNDED BY SENATE BILL 1 (SBI) — THE ROAD
REPAIR AND ACCOUNTABILITY ACT
WHEREAS, Senate Bill 1 (SB 1), the Road Repair and Accountability Act of 2017
(Chapter 5, Statutes of 2017) was passed by the Legislature and Signed into law by the
Governor in April 2017 in order to address the significant multi -modal transportation funding
shortfalls statewide; and
WHEREAS, SB 1 includes accountability and transparency provisions that will
ensure the residents of our City are aware of the projects proposed for funding in our
community and which projects have been completed each fiscal year; and
WHEREAS, the City must include a list of all projects proposed to receive funding
from the Road Maintenance and Rehabilitation Account (RMRA), created by SB 1, in the
City budget, which must include a description and the location of each proposed project, a
proposed schedule for the project's completion, and the estimated useful life of the
improvement; and
WHEREAS, the City, will receive and estimated $1,269,643 in RMRA funding in
Fiscal Year 2019-20 from SB 1; and
WHEREAS, the City has undergone a robust public process to ensure public input
into our community's transportation priorities (the project list); and
WHEREAS, the City used a Pavement Management System to develop the SB 1
project list to ensure revenues are being used on the most high-priority and cost-effective
projects that also meet the communities' priorities for transportation investment; and
WHEREAS, the 2016 California Statewide Local Streets and Roads Needs
Assessment found that the City's streets and roads are in a good condition and this revenue
will help us increase the overall quality of our road system and over the next decade will
bring our streets and roads into an "excellent" condition; and
WHEREAS, cities and counties own and operate more than 81 percent of streets and
roads in California, and from the moment we open our front door to drive to work, bike to
school, or walk to the bus station, people are dependent upon a safe, reliable local
transportation network; and
WHEREAS, modernizing the local street and road system provides well -paying
construction jobs and boosts local economies; and
Resolution No. 2019-013
SB1 — Road Repair and Accountability Act
FY 2019-20 Project List
Page 2
WHEREAS, police, fire, and emergency medical services all need safe reliable roads
to react quickly to emergency calls and a few minutes of delay can be a matter of life and
death; and
WHEREAS, maintaining and preserving the local street and road system in good
condition will reduce drive times and traffic congestion, improve bicycle safety, and make
the pedestrian experience safer and more appealing, which leads to reduce vehicle
emissions helping the State achieve its air quality and greenhouse gas emissions
reductions goals; and
WHEREAS, restoring roads before they fail also reduces construction time which
results in less air pollution from heavy equipment and less water pollution from site run-off;
and
WHEREAS, the SB 1 project list and overall investment in our local streets and roads
infrastructure with a focus on basic maintenance and safety, investing in complete streets
infrastructure, and using cutting-edge technology, materials and practices, will have
significant positive co -benefits statewide.
NOW THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
The City Council of the City of Baldwin Park, California:
1. The foregoing recitals are true and correct.
2. The City of Baldwin Park is adopting the following list of projects planned to be
funded with Road Maintenance and Rehabilitation Account revenues:
1. Puente Avenue Street Rehabilitation. Work includes 2 -inch cold -mill
of the roadway and placing new asphalt layer. The project also includes
upgrade/replacement of accessible ramps, minor curb and gutter
repairs, traffic signal loop replacement, and restriping.
2. South Garvey Avenue/Dalewood Street Improvements. This project
will consist of reconstruction of portions of the street structural section
including sub -surface preparation, subgrade and constructing
aggregate base and asphalt concrete (AC) pavement sections. The
project also includes construction of sidewalk, upgrade/replacement of
accessible ramps and major curb/gutter repairs.
Resolution No. 2019-013
S131 — Road Repair and Accountability Act
FY 2019-20 Project List
Page 3
PASSED, APPROVED, AND ADOPTED this 17th day of April 2019.
MANUEL LOZANO
MAYOR
ATTEST:
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF BALDWIN PARK )
I, Jean M. Ayala, City Clerk of the City of Baldwin Park do hereby certify that the foregoing
Resolution No. 2019-013 was duly adopted by the City Council of the City of Baldwin Park
at a regular meeting thereof held on April 17, 2019 and that the same was adopted by the
following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JEAN M. AYALA
CITY CLERK
Attachment 2
2019-20 Project List and
Location Map
Resolution No. 2019-013
S61 — Road Repair and Accountability Act
FY 2019-20 Project List
Page 4
S131 — Road Repair and Accountability Act
Fiscal Year 2019-20 Project List
Isla:
Pro Descri tion
Puente Avenue Street Rehabilitation. Work includes 2 -inch cold -mill of the
roadway and placing new asphalt layer. The project also includes
upgrade/replacement of accessible ramps, minor curb and gutter repairs, traffic
signal loop replacement, and restriping.
2
South Garvey Avenue/Dalewood Street Improv eilitC. 'This pn*
of reconstruction of portions of the street structural section including sub�surFace
preparation, subgrade and constructing aggregate base and asphalt concrete (AC)`
pavement sections. The project also includes construction of sidewalk,
upgrade/replacement of accessible ramps and major curb/gutter repairs.
FISCAL YEAR 2019-20 PROJECT LIST
FUNDED BY SENATE BILL 1 (SB1)
7_1
I/L.�J1yf BALDWIN PARK BV
Q PUENTE AVENUE STREET REHABILITATION: WORK INCLUDES 2 -INCH
COLD -MILL OF THE ROADWAY AND PLACING NEW ASPHALT LAYER. THE PROJECT
ALSO INCLUDES UPGRADE/REPLACEMENT OF ACCESSIBLE RAMPS, MINOR CURB
AND GUTTER REPAIRS, TRAFFIC SIGNAL LOOP REPLACEMENT, AND RESTRIPING.
Q SOUTH GARVEY AVENUE/DALEWOOD STREET IMPROVEMENTS: THIS
PROJECT WILL CONSIST OF RECONSTRUCTION OF PORTIONS OF THE STREET
STRUCTURAL SECTION INCLUDING SUB -SURFACE PREPARATION, SUBGRADE AND
CONSTRUCTING AGGREGATE BASE AND ASPHALT CONCRETE (AC) PAVEMENT
SECTIONS. THE PROJECT ALSO INCLUDES CONSTRUCTION OF SIDEWALK,
UPGRADE/REPLACEMENT OF ACCESSIBLE RAMPS AND MAJOR CURB/GUTTER
REPAIRS.
STAFF REPORT
ITEM NO. Is
TO: Honorable Mayor and Members of the City Council
FROM: Sam Gutierrez, Director of Public Works
Fn
DATE: April 17, 2019
SUBJECT: Consideration of Approval for an Appropriation of Additional
Funds for Extraordinary and Unscheduled Maintenance Cost
Related to the Citywide Traffic Signal and Street Lighting
Maintenance Program
SUMMARY
This item seeks City Council consideration for the approval of an appropriation of additional funds in
the amount of $55,000 for the Traffic Signal and Street Lighting Maintenance Program. The additional
fund appropriation will help mitigate costs due to unscheduled and extraordinary maintenance in
response to an increase in traffic collisions, damages due to weather, and the aging of equipment.
RECOMMENDATION
It is recommended that the City Council:
1. Authorize the Director of Finance to appropriate $55,000 from unappropriated funds in Fund
#251 — Landscape Lighting Maintenance District (LLMD) for FY 2018/2019 to cover the
increase in unscheduled and extraordinary maintenance costs; and
2. Authorize the Director of Finance to make necessary budget adjustments to allow payments
as approved for FY 2018/2019.
FISCAL IMPACT
There is no impact to the general fund. The appropriation will come from the unappropriated fund
balance in Fund #251 Landscape Lighting Maintenance District (LLMD) in the amount of $55,000 as
follows:
D'escripflon
Fund #251 —Acct. #251-50-561-51111-00000
Available Unappropriated
Fund Balance
Fund 251 — Landscape and Lighting Maintenance
District (LLMD)
$562,655
Total Available Funds
$562,655
Appropriate
Fund #251 —Acct. #251-50-561-51111-00000
$55,000
Total Appropriation
1 $55,000
BACKGROUND
The City of Baldwin Park's Traffic Signal and Street Lighting system is comprised of 60 traffic signal
systems, approximately 430 street lights, and 19 traffic control safety devices. On September 5, 2018
City Council awarded a maintenance contract to Siemens Mobility, Inc. (SMI) for the maintenance of
these systems which includes preventative maintenance of city -owned traffic signal systems, street
lights and traffic control safety devices. The contract also included rates for unscheduled and
extraordinary work. The contract was awarded in a not -to -exceed amount of $100,000, while the overall
maintenance costs for Traffic Signal and Street Lighting Maintenance Program were budgeted in an
amount of $125,000 in the FY2018-2019 operations budget.
Appropriation of Additional Funds
Traffic Signal and Street Lighting Program
DISCUSSION
As a measure for transitioning from the previous contractor to SMI, a significant part of the scope of
work in the current contract is to perform routine and preventive maintenance activity on a monthly
basis to identify, log and preempt potential corrective issues within the Traffic Signal and Street Lighting
system. This proactive approach would allow the City to plan and budget for maintenance of necessary
improvements. Through the routine and preventive maintenance scope, SMI discovered that there were
significant deficiencies in the general system, particularly when it pertains to the condition of
underground electrical conduits and the general condition of traffic system controllers. Routine
inspections also identified various traffic signal systems that were not performing as designed due to
missing vehicle detection loops that were damaged and not previously repaired and signal timing
adjustments that were either not logged or not within the specifications of the original design. To
mitigate costs arising from this work, staff changed the scope from a monthly basis to a quarterly basis.
However, the biggest and most notable impact has been from a steady increase in unscheduled and
extraordinary maintenance work.
Unscheduled and extraordinary maintenance is largely unforeseen but it's necessary for response to
traffic collisions, damages due to weather, and emergency repairs of aging or damaged equipment. In
the past several years the City has experienced an increase in the number of collisions with traffic
signal poles, and street lights. Despite the efforts to mitigate costs, unscheduled and extraordinary
repairs have continued through this year mainly due to the aging traffic signal and lighting systems and
an increase in vehicle collisions involving traffic signal lighting poles and controllers. After an incident,
the City and SMI make all efforts to perform the repairs quickly and efficiently to resume the safe and
normal operations of the street. Often, these repairs come at a significant cost. Although the City has
sought restitution for damages, the reality is that in most cases costs are rarely or not at all recovered.
It is expected that the infusion of additional funds will cover projected maintenance costs for the
remainder of the current fiscal year.
ENVIRONMENTAL REVIEW
The City's traffic signal and streetlight repair and maintenance activities are categorically exempt under
Class 1 of the current California Quality Act Guidelines.
ALTERNATIVES
The City Council may choose:
1. The City Council may choose not to approve the appropriation request; however, this action is
not recommended as vital and crucial traffic signal and street lighting maintenance services
would have to cease for the remainder of the fiscal year. This may have a negative impact to the
City in terms of potential liability issues that may arise from the lack of maintenance.
2. City Council may direct staff with a desired alternative.
LEGAL REVIEW
This report has been reviewed and approved by the City Attorney as to legal form and content.
ATTACHMENTS
None required.
STAFF REPORT
ITEM NO. I
TO: Honorable Mayor and Members of the City Council
FROM: Sam Gutierrez, Director of Public Work
DATE: April 17, 2019
SUBJECT: Adoption of Resolution No. 2019-014, "A Resolution of the
City Council of the City of Baldwin Park, California,
Adopting the Amended Fee Schedule for Solid Waste
Collection and Recycling Services, to Reflect Consumer
Price Index (CPI) Increases for Fiscal Year 2019-2020"
SUMMARY
This report seeks adoption of Resolution No. 2019-014, adopting the amended fee schedule for
Solid Waste Collection and Recycling Services per contractual annual rate adjustments to reflect
Consumer Price Index (CPI) increases. Pursuant to the terms of the existing agreement, Waste
Management, Inc. (WM) has submitted a request for rate adjustments to all customers based on
increases in the CPI. This year the CPI adjustment is the only proposed change to the fee
schedule, there are no other fees being considered.
RECOMMENDATION
It is recommended that the City Council adopt Resolution No. 2019-014 "A Resolution of the
City Council of the City of Baldwin Park, California, Adopting the Amended Fee Schedule
for Solid Waste Collection and Recycling Services to reflect Consumer Price Index (CPI)
Increases for Fiscal Year 2019-2020."
FISCAL IMPACT
Revenue increases in franchise fees for the annual rate increase, based on CPI, will mirror the
change in CPL
BACKGROUND
On September 4, 2013, the City Council authorized the execution of a ten-year Franchise
Agreement with Waste Management, Inc. to provide exclusive collection of residential refuse and
disposal of solid waste. On September 3, 2014, City Council adopted Resolution No. 2014-031
establishing annual increases based on the Consumer Price Index (CPI), for all residential,
commercial, industrial and multifamily residential customers through July 1, 2019. On August 3,
2016, the City Council adopted Resolution No. 2016-141 approving various new fees and
continuing the annual increases based on the CPI through, and inclusive of, July 1, 2019.
DISCUSSION
In compliance with the Franchise Agreement, Waste Management, Inc. has submitted an annual
rate increase equal to the percentage increase in the Consumer Price Index (CPI). The Franchise
Agreement with Waste Management allows for an annual review of the commercial and residential
refuse rates and an adjustment based on the CPI. The formula allows for 100% of the average
increase between the CPI for Garbage and Trash Collection U.S. City Average, published by the
United States Department of Labor, Bureau of Labor Statistics. This proposed annual adjustment
to all rates, fees and charges will take effect on July 1 of each year beginning in 2016. This
proposed annual adjustment will be no more than 5% as is specified in the Franchise Agreement.
Any percentage increase that exceeds the annual 5% cap will be carried forward to the next year
and added to future rate increases. This year the CPI increase is 3.96%.
The terms of the Franchise Agreement require that certain increases receive City Council
approval. Further, the Franchise Agreement also requires that all changes to fees for solid waste
services must be compliant with Proposition 218 which requires that a public hearing be held to
consider all public testimony and protest regarding the proposed changes. Since the only
proposed change that is being considered this year is the annual CPI increase and Resolution No.
2016-141 approves annual CPI increases through, and inclusive of, July 1, 2019, a Public Hearing
is not required.
ALTERNATIVES
Concerning the annual CPI rate increases — If, after exercising its powers reasonably and in good
faith, the City Council chooses to not implement the rate increases contained in the Franchise
Agreement and requested by the Franchisee, the Franchisee has 60 days after rejection to request
that the City negotiate reductions in programs, service and fees to compensate the Franchisee for
the negative and material impact that the disapproval has on the Franchisee's business
operations.
LEGAL REVIEW
This report has been reviewed and approved by the City Attorney as to legal form and content.
ATTACHMENTS
1. Resolution No. 2019-014
2. Rate Sheets
Attachment 1
Resolution No. 2019-014
RESOLUTION NO. 2019-014
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BALDWIN
PARK, CALIFORNIA, ADOPTING THE AMENDED FEE SCHEDULE
FOR SOLID WASTE COLLECTION AND RECYCLING SERVICES,
TO REFLECT CONSUMER PRICE INDEX INCREASES
WHEREAS, Proposition 218 requires the City to conduct a hearing not less
than forty-five (45) days after mailing a notice of proposed property related fee
increases to those upon which the fees will be imposed;
WHEREAS, a duly noticed public hearing regarding the proposed increase to
fees for solid waste service was conducted on August 3, 2016 at 7:00 pm in the City
Council Chambers;
WHEREAS, Proposition 218 requires that the City shall not impose the proposed
fee if written protests against the proposed fee are presented by a majority of record
owners of identified parcels;
WHEREAS, written protests regarding the proposed solid waste collection fee
increases were accepted from the public and considered before the close of the public
hearing;
WHEREAS, a tally of the written protest against the proposed solid waste fee
increases shows less than a majority of accounts have submitted written protests
against the proposed solid waste fee increases;
NOW THEREFORE, IT IS HEARBY RESOLVED AS FOLLOWS:
SECTION 1. Annual Rate Increases: Beginning July 1, 2019, and continuing
through June 30, 2020, all rates, fees and charges for all residential, commercial and
multifamily accounts shall be adjusted by the percentage increase in the Consumer
Price Index, CUSROOOOSEHG02 CPI -U Garbage and Trash Collection, US City
Average, not seasonally adjusted.
SECTION 2. Annual Rate Increase Cap: With respect to any annual rate
increase, the amount of the annual adjustment shall not exceed five percent (5%) for
any fiscal year. Any percentage increase calculated pursuant to Section 1 which exceed
the annual cap of five (5%) for any fiscal year shall be carried forward and added to
future percentage rate increases; provided, however, that the total increase for any
future fiscal year is not more than the annual rate cap for that year.
SECTION 3. This year the CPI increase is 3.96% beginning July 1, 2019.
PASSED, APPROVED, AND ADOPTED this 17th day of April 2019.
MANUELLOZANO
MAYOR
ATTEST:
STATE OF CALIFORNIA
COUNTY OF LOS ANGELESSS:
CITY OF BALDWIN PARK
I, Jean M. Ayala, City Clerk of the City of Baldwin Park do hereby certify that the foregoing
Resolution No. 2019-014 was duly adopted by the City Council of the City of Baldwin Park at
a regular meeting thereof held on April 17, 2019 and that the same was adopted by the
following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
JEAN M. AYALA
CITY CLERK
Attachment 2
Rate Sheet
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a
STAFF REPORT
ITEM NO. 10
TO: Honorable Mayor and Members of the City Council
FROM: Sam Gutierrez, Director of Public Works
DATE: April 17, 2019 (�?A
SUBJECT: Approval of Design -Build Contract with Merge Conceptual
Design, LLC. for Professional Services for an Art in Public
Space Project, including Artwork, Design, Fabrication and
Installation of Signs, Structures and Digital Displays
SUMMARY
This report seeks City Council consideration for approval of a Design -Build Agreement with Merge
Conceptual Design, LLC. to complete the design, fabrication and installation of the Public Art Project,
including signs and a digital marquee display.
RECOMMENDATION
Staff recommends City Council to authorize the Mayor to execute a Design -Build Agreement with Merge
Conceptual Design, LLC. to complete the design, fabrication and installation the Public Art Project,
including signs and digital marquee display in the amount not -to -exceed $616,360.
FISCAL IMPACT
The approval of this action will have no impact on the City's General Fund. This project is funded
through the Public Art Fees and Measure R Local Return Funds. The funds available for the project
and the estimated cost for services are as follows:
BACKGROUND/ DUSCUSSION
The goal of the project is to create distinctive Public Art features at site-specific locations within the
City. The artwork will identify the City by reflecting the community's early days and expressing the City's
current modern-day character. The project will include unique artwork and incorporate a digital marquee
display to create a visual representation of the Baldwin Park community while offering respect to its
heritage. The project will also complement the new landscape median improvements and hardscape
that were recently installed.
In September 2018, the City released an advisory seeking professional services for Public Art
Consulting and project management. A committee comprised of Planning and Public Works staff,
received, reviewed and evaluated proposals based on the design firm's qualifications and experience.
Each firm presented staffing plans, work plans, perceived project levels, and experience with similar
projects. After completion of the evaluation process the committee selected Barker and Associates as
the highest rated proposer and executed a Consulting Services Agreement with the firm. Subsequently,
Barker and Associates introduced Merge Conceptual Design, LLC. (MCD) to the committee as the
proposed public artists for the project. After meeting with MCD, the selection committee determined
that they would be a good fit for the project. MCD offered innovative ideas for public art work design
elements and identified with the City's long and rich history.
DUSCUSSION
The City will work with the Public Art Consultant and MCD to develop concept plans, line of site studies,
renderings, maintenance requirements, and other descriptive materials as deemed necessary by the
Public Works Director and submit and present selected concepts for recommendation to City Council.
The artwork will be inspired by local community artist and follow the direction and recommendations
from the City Council. In coordination with the City, MCD will hold community input meetings and make
presentations to City Council to demonstrate the progress and direction of the work.
Subsequent to completion of the design, plans and specifications, MCD will commence construction
and installation of the art piece. For this work, a design -build method of contracting is recommended
due to the intricate nature of the work. Design -build contracting can systematically reduce the project
schedules by allowing early fabrication to begin while design --on other components may continue.
Approval of this report will allow MCD to commence the project using this process. As the designer,
MCD will be the most knowledgeable in dealing with the challenges of construction and installation of
the artwork. Also, MCD will be most equipped when dealing with construction changes as this process
will eliminate the need for Requests for Information (RFI's) for clarification of ambiguities a third -party
might discover in the design plans.
Given the time constraints, the design -build process will help expedite construction. Project design is
anticipated to begin in May 2019 and project completion is anticipated early to mid -2020.
ENVIRONMENTAL REVIEW
The subject Public Art Signs and Digital Marquee Display Project is exempt from the California
Environmental Quality Act (CEQA) pursuant to a Class 1 (Section 15201, Existing Facilities),
subsection (c) exemption, which includes the repair, maintenance, and/or minor alteration of existing
highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities (this
includes road grading for the purpose of public safety) The key consideration for a Class 1 exemption
is whether the project involves negligible or no expansion of an existing use.
ALTERNATIVES
1. The City Council may choose not to enter into a Design -Build Agreement with Merge
Conceptual Design, LLC. and direct staff to circulate a Request for Proposal (RFP) for services.
This option will delay the overall project schedule.
2. Provide Staff with alternate direction.
LEGAL REVIEW
This report has been reviewed and approved by the City Attorney as to legal form and content.
ATTACHMENTS
1. Design- Build Agreement with Merge Conceptual Design, LLC.
Attachment 1
Design Build Agreement
merge conceptual design LLC
Design — Build Agreement Page 1 of 6
DESIGN BUILD AGREEMENT
THIS AGREEMENT is made and entered into this 17th day of April, 2019 by and
between the City of Baldwin Park, ("City"), and merge conceptual design, LLC ("Consultant").
In consideration of the following mutual covenants, provisions and agreements, and
other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City
and Consultant agree as follows:
1. SCOPE OF SERVICES. Consultant agrees to perform during the term of this
Agreement, the tasks, obligations, and services set forth in the "Scope of Services" attached to
and incorporated into this Agreement as Exhibit "A" (the "Services")
2. COMPENSATION. City shall pay Consultant for the Services pursuant to the
terms of this Agreement and the schedule and milestones set forth in Exhibit B at a not -to -
exceed compensation amount of $616,360.00.
3. TIME FOR PERFORMANCE. Consultant shall perform the services above
described in a timely manner in accordance with the professional standard practices and
pursuant to the schedule set forth in Exhibit B. In the event that Consultant's performance of
Services is delayed for any reason, City may elect to extend this Agreement on a month-to-
month basis. Unless otherwise agreed by the Parties, such extensions shall not entitle
Consultant to any further compensation.
4. AUDIT OR EXAMINATION. Consultant shall keep all records of funds received
from City and make them accessible for audit or examination for a period of three years after
final payments are issued and other pending matters.
5. STATUS OF CONSULTANT. Consultant shall provide all necessary personnel,
equipment and material, at its sole expense,. in order to perform the services required of it
pursuant to this Agreement. For the purpose of this Agreement, Consultant shall be deemed,
for all purposes, an independent contractor and shall have control of all work and the manner in
which it is performed. Consultant shall be free to contract for similar services to be performed
for other entities while under contract with City. Consultant is not an agent or employee of City,
and is not entitled to participate in any pension plan, insurance, bonus or similar benefits City
provides for its employees. Consultant shall be responsible to pay and hold City harmless from
any and all payroll and other taxes and interest thereon and penalties, therefore, which may
become due as a result of services performed hereunder.
6. ASSIGNMENT. This Agreement is for the specific services with Consultant as
set forth herein. Any attempt by Consultant to assign the benefits or burdens of this Agreement
without written approval of City is prohibited and shall be null and void; except that Consultant
may assign payments due under this Agreement to a financial institution.
7. RIGHT TO UTILIZE OTHERS. City reserves the right to utilize others to perform
work similar to the Services provided herein. However, the City acknowledges and agrees that
any services provided by Consultant will be unique to Consultant and City will not take
Consultant's work product or any portion thereof to be completed, fabricated, installed, or
otherwise used in any way without specific written permission from Consultant.
merge conceptual design LLC
Design — Build Agreement Page 2 of 6
8. COMPLIANCE WITH LAW. Contract services shall be provided in accordance
with the applicable laws and regulations of all governmental agencies that are in force at the
time services are performed. Consultant shall be responsible for becoming aware of and
staying abreast of all such laws and ensuring that all services provided hereunder conform to
such laws. However, City shall inform Consultant of any specific rules or permitting
requirements that may impact Consultant's services or delivery of work product. The terms of
this Agreement shall be interpreted according to the laws of the State of California.
9. LIABILITY. Consultant shall indemnify, and hold harmless City, its officials,
officers, and employees against any and all actions, claims, damages, liabilities, losses or
expenses of whatsoever kind, name or nature, including legal costs and reasonable attorneys'
fees, whether or not suit is actually filed, and any judgment rendered against City and/or its
officials, officers, or employees that may be asserted or claimed by any person, firm, or entity
arising out of Consultants' negligent performance, or the negligent performance of its agents,
employees, subcontractors, or invitees, as well as, negligent acts or omissions of Consultant,
it's agents, employees, subcontractors or invitees, however, this indemnity clause shall not
apply if there is concurrent passive or active negligence on the part of City, or its officials,
officers, agents or employees.
10. INSURANCE. Consultant shall maintain insurance coverage in accordance with
the following during the course of its performance hereunder:
(A) Comprehensive General Liability Insurance (including premises and
operations, contractual liability, personal injury and independent Consultants'
liability) with the following minimum limits of liability:
(1) Personal or Bodily Injury -- $1,000,000, single limit, per occurrence; and
(2) Property Damage -- $1,000,000, single limit, per occurrence; or
(3) Combined single limits -- $2,000,000.
(B) Comprehensive Automobile Liability Insurance including as applicable
own, hired and non -owned automobiles with the following minimum limits of
liability:
(1) Personal or Bodily Injury -- $1,000,000, single limit, per occurrence; and
(2) Property Damage -- $1,000,000, single limit, per occurrence; or
(3) Combined single limits -- $2,000,000.
(D) Worker's Compensation Insurance that complies with the minimum
statutory requirements of the State of California.
(E) Prior to commencement of services hereunder, Consultant shall provide City
with a certificate of Insurance reflecting the above, and an endorsement for
each policy of insurance which shall provide:
(1) The City, and its officials, officers, agents and employees are named
as additional insured (with the exception of Worker's Compensation);
(2) The coverage provided shall be primary (with the exception of
Worker's Compensation) as respects to City, its officials, officers,
agents or employees; moreover, any insurance or self-insurance
merge conceptual design LLC
Design — Build Agreement
Page 3 of 6
maintained by City or its officials, officers, agents or employees shall
be in excess of Consultants' insurance and not contributed with it.
(3) The insurer shall provide at least thirty (30) days prior written notice to
City of cancellation or of any material change in coverage before such
change or cancellation becomes effective.
(F) With respect to Workers' Compensation Insurance, the insurer shall agree to
waive all rights of subrogation against City and City personnel for losses
arising from work performed by Consultant for City, and the insurer's
agreement in this regard shall be reflected in the Workers' Compensation
Insurance endorsement.
11. OWNERSHIP OF DOCUMENTS. All of the documents required to be prepared
pursuant hereto shall, upon the completion thereof, be deemed for all purposes to be the
property of City. City's ownership of documents includes any and all analysis, computations,
plans, correspondence and/or other pertinent data, information, documents, and computer
media, including disks and other materials gathered or prepared by Consultant in performance
of this Agreement, but specifically excludes any and all intellectual property rights to these
documents and other material. Such work product shall be transmitted to City within ten (10)
days after a written request therefore. Consultant may retain copies of such products. Any re-
use by City shall be at the sole risk of City and without liability to Consultant. Any reuse by City
shall be for informational purposes only and cannot be used to create or provide any of the
Services listed in Exhibit A
12. RECORDS AND INSPECTIONS. Consultant shall maintain full and accurate
records with respect to all services and matters covered under this Agreement. City shall have
free access at all reasonable times to such records, and the right to examine and audit the
same and to make transcripts therefrom, and to inspect all program data, documents,
proceedings and activities. Consultant shall maintain an up-to-date list of key personnel and
telephone numbers for emergency contact after normal business hours.
13. TAXPAYER IDENTIFICATION NUMBER. Consultant shall provide City with a
complete Request for Taxpayer Identification Number and Certification, Form W-9, as issued by
the Internal Revenue Service.
14. CONFLICT OF INTEREST. Consultant agrees that any conflict or potential
conflict of interest shall be fully disclosed prior to execution of contract and Consultant shall
comply with all applicable federal, state and county laws and regulations governing conflict of
interest.
15. POLITICAL ACTIVITY/LOBBYING CERTIFICATION. Consultant may not
conduct any activity, including any payment to any person, officer, or employee of any
governmental agency or body or member of Congress in connection with the awarding of any
federal contract, grant, loan, intended to influence legislation, administrative rulemaking or the
election of candidates for public office during time compensated under the representation that
such activity is being performed as a part of this Agreement.
16. RIGHT TO TERMINATE. City may terminate this Agreement at any time, with or
without cause, in its sole discretion, with thirty (30) days written notice.
merge conceptual design LLC
Desiqn — Build Aqreement Page 4 of 6
17. EFFECT OF TERMINATION. Upon termination as stated in Paragraph "16" of
this Agreement, City shall be liable to Consultant only for work performed and expenditures
made in the course of rendering Services by Consultant up to and including the date of
termination of this Agreement, unless the termination is for cause, in which event Consultant
need be compensated only to the extent required by law. Consultant shall be entitled to
payment for work satisfactorily completed to date, based on proration of the compensation set
forth in Exhibit "B" attached hereto. Such payment will be subject to City's receipt of a close-out
billing.
18. LITIGATION FEES. Should litigation arise out of this Agreement for the
performance thereof, the court shall award costs and expenses, including reasonable attorney's
fees, to the prevailing party. In awarding attorney's fees, the court shall not be bound by any
court fee schedule but shall award the full amount of costs, expenses and attorney's fees paid
and/or incurred in good faith. "Prevailing Party" shall mean the party that obtains a favorable
and final judgment. Should litigation occur, venue shall be in the Superior Court of Los Angeles
County. This paragraph shall not apply and litigation fees shall not be awarded based on an
order or otherwise final judgment that results from the parties' mutual settlement, arbitration, or
mediation of the dispute.
19. COVENANTS AND CONDITIONS. Each term and each provision of this
Agreement to be performed by Consultant shall be construed to be both a covenant and a
condition.
20. INTEGRATED AGREEMENT. This Agreement represents the entire Agreement
between the City and Consultant. No verbal agreement or implied covenant shall be held to
vary the provisions of this agreement. This Agreement shall bind and inure to the benefit of the
parties to this Agreement, and any subsequent successors and assigns.
21. MODIFICATION OF AGREEMENT. This Agreement may not be modified, nor
may any of the terms, provisions or conditions be modified or waived or otherwise affected,
except by a written amendment signed by all parties.
22. DESIGNATED` REPRESENTATIVES. The Consultant Representative (A)
designated below shall be responsible for job performance, negotiations, contractual matters,
and coordination with the City. The City Representative (B) designated below shall act on the
City's behalf as Project Manager.
(A) CONSULTANT
merge conceptual design LLC
1618 Ocean Park Blvd
Santa Monica, CA 90405
(310) 581 5343
(B) City of Baldwin Park
Att.: Sam Gutierrez
14403 East Pacific Avenue
Baldwin Park, CA 91706
(626) 960-4011 ex. 460
merge conceptual design LLC
Design — Build Agreement Page 5 of 6
23 NOTICES. Notices pursuant to this Agreement shall be in writing and may be
given by personal delivery or by mail. Notices shall be directed to City's Designated
Representative identified in Paragraph "22" of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day first
above written.
CITY OF BALDWIN PARK
By:
Manuel Lozano, Mayor
Dated:
CONSULTANT: merge conceptual design LLC
Digitally signed by Claudia Re($enberger
DN: cn=Claudia Reisenberger , ou,
By: email=reisenowski@earthlinnt-US
a e: ZU 19.U4.r
Printed Name: Claudia Reisenberger
Title: member, LLC
Dated: April 10th 2019
ATTEST:
By:
Jean M. Ayala, City Clerk
Dated:
Approved as to form:
By:
Robert Tafoya, City Attorney
Dated:
merge conceptual design LLC
Design — Build Agreement
EXHIBIT A
SCOPE OF SERVICES
Page 6 of 6
EXHIBIT A
SCOPE OF SERVICES
Subject to the terms and conditions of the Consultant Agreement (the "Agreement") to which this
Exhibit A is attached, and the Schedule and Milestones set forth in Exhibit B also attached to the
Agreement and incorporated by reference, City, in collaboration with public art consultant Barker
& Associates Public Art Advisory (the "Public Art Consultant"), wishes to commission merge
conceptual design, LLC ( the "Consultant") to design, fabricate and install or cause its agents to
fabricate and install one but no more than three public art features (the "Artwork") for installation
within the city's public right of way (the "Sites") identified by the City Council. Consultant
agrees to meet with Art Consultant, and City staff as necessary and/or specifically set forth in
Exhibit B, throughout all stages of the project.
1. ARTWORK. The goal of the Artwork is to create a gateway and marker(s) for the City,
conveying the unique identity of the City to visitors and residents alike. The Artwork will include
the following elements:
a. A decorative / public art component that conveys and represents the City's
identity;
b. Lettering that identifies the "City of Baldwin Park"; and
A digital display that will be used to convey city messages to passersby. The content of the digital
display will be generated and continuously updated by the City.
C. Consultant agrees that Artwork design is to be coordinated with City of Baldwin
Park Downtown Improvement Project and First and Last Mile Project (together the "Streetscape
Improvements Project"), with the goal of the Artwork and Streetscape Improvements Project to
complement each other aesthetically. Consultant is not responsible for the design of elements of
the Streetscape Improvements Project separate from the Artwork. Consultant will be available via
phone, email and in up to five in-person meetings for coordination with City and/or any
representatives, agents or contractors working on behalf of the City for the Streetscape
Improvement project team. Number of meetings related to the development of the Artwork is not
limited, and Consultant will be available to meet as necessary as part of this Scope of Services.
2. CONSULTANT'S COMPENSATION AND EXPENSES. The overall project budget
of $616,360 will cover all aspects of the Artwork as described in this Scope of Services, including
design, fabrication, and installation, as well as meetings with City representatives as needed to
accomplish the Artwork. Consultant is responsible to deliver finished Artwork not exceeding the
overall project budget.
a. Compensation. City will pay Consultant the total amount of not to exceed six
hundred sixteen thousand three hundred sixty Dollars ($616,360.00) (the "Contract Amount")
pursuant to Exhibit B. This Contract Amount will cover all costs associated with the Design,
Fabrication and Installation of the Artwork as described in detail in this Scope of Services.
b. Payment Procedure. Payment as set forth under this Agreement will be made
payable to "merge conceptual design LLC" and will be remitted by check to the Consultant.
Consultant agrees to stay current with Consultant's obligations to subcontractors and shall
provide lien waivers or equivalent confirmations that subcontractors have been appropriately paid
out of the funds paid to Consultant within appropriate time limits and as applicable by law. All
invoices should be detailed enough that someone not familiar with this Agreement could
reasonably determine the basis for the invoice charges. All invoices received by the end of the
month shall be paid no later than the end of following month. In the event that Consultant does
not stay current with Consultant's obligations to subcontractors and/or cannot produce lien
waivers or equivalent confirmations, City will not be obligated to pay Consultant's invoice.
C. Payment Retention. As reflected in the payment schedule set forth in Exhibit B,
five percent (5%) of the construction budget will be withheld as a retained amount to be paid 30
days after recording of Notice of Completion by the City.
3. SITE. In coordination with the City Council, City Staff and the Public Art Consultant,
Consultant will gain an understanding of the goals for several sites under consideration and will
establish team consensus of potential siting possibilities for the Artwork and a corresponding
division of the overall budget among several Sites. Upon determination of the potential sites, City
will provide Consultant with the available as -built street improvements plan as well as any base
drawings available for the specific areas at the potential sites where the Artwork may be installed.
City will provide contacts to all utility companies to verify utility locations, but it will be the
responsibility of Consultant to contact the companies to obtain all records of utility
locations. Thereafter, City and Consultant shall meet to assess the information and mutually
determine the most suitable potential locations for foundations for the Artwork. Consultant will
hire a contractor to do "pot -holing" at the potential sites to confirm suitability for construction of
foundations for the Artwork. After confirming the viability of the sites (the "Sites"), but before
beginning any digging, Consultant or Consultant's contractor will call Underground Service Alert
of Southern California (811) to provide further information (if any) and final verification
regarding location of utilities in order to minimize the potential for any damage to utilities. In the
event that Consultant encounters any unanticipated issues at the Sites despite adhering to the
aforementioned protocol, Consultant will work with City to resolve such issues by either moving
the utilities or by moving the location of the foundations to another location at the Site or to an
entirely new Site (also selected pursuant to the steps set forth herein). Any cost necessitated from
the remedy of unanticipated issues as described above will be borne by the City.
4. SCHEMATIC DESIGN. Upon execution of the Agreement and receipt of payment
pursuant to Exhibit B, Consultant shall develop a schematic design proposal (the "Schematic
Design") as follows:
a. Community Outreach. Consultant agrees that an important aspect of this project
is community involvement: the Artwork should be sensitive to community and user needs, while
demonstrating a commitment to design integrity and functionality. Thematic and aesthetic
development should be responsive to the interests, concerns, and values identified in the public
input process. As possibilities present themselves throughout the design process, Consultant may
wish to subcontract with local Consultants or artisans for various aspects of the design or
fabrication of the Artwork. In such case, Consultant will gain approval by City prior to
subcontracting. In order to allow Consultant to develop a relevant schematic design, City / City
Staff will identify a core group of stake holders to be included in the design process (Working
Group), including representatives from the City as well as community representatives (i.e. people
with particular local knowledge, neighborhood associations, etc.). Consultant, with the help of
City / City Staff, will organize working group meetings as reasonably needed as well as one open
public meeting in order to introduce the project to the general public and solicit input. Consultant
will follow up with additional community outreach and research as indicated in these meetings.
b. Schematic Design. Pursuant to community outreach and Site selection,
Consultant will create Schematic Design based on the limitations and opportunities of the Sites
and project budget. The Schematic Design documents shall include, but may not be necessarily
limited to, Site plans, perspective sketches and/or renderings, and general descriptive views and
elevations including proposed materials and fixtures. Consultant shall determine space and
location requirements with pertinent engineers/consultants as required, and shall review
Schematic Design with sub -consultants as necessary. Consultant shall prepare an estimate of
probable construction cost based on all available data. The Schematic Design shall be sufficient
to communicate ideas to a non-technical audience, such as members of the public, City boards
and commissions. Following review by City, Working Group, and City staff, Consultant shall
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document any revisions to the Schematic Design and present optional design features and
variations. Consultant will present revised Schematic Design at an open community meeting to
the general public and provide a format for public feedback. Consultant will present revised
Schematic Design to City for approval.
5. DESIGN DEVELOPMENT. Following approval of the Schematic Design by City, and
relevant commissions, the Consultant shall develop the design documents (the "Design"). As
Design develops, the Consultant shall be responsible for conferring with and obtaining
preliminary review from regulatory agencies such as Public Works Department, City Council,
Planning Commission. Consultant will meet with staff as required and shall make presentations
to City commissions/boards as reasonably needed. The Design may include initial proposals,
design concepts, drawings and models or other appropriate plans and renditions of Consultant's
Design.
a. Compliance. Consultant shall revise Design as required for code compliance. The
Design shall take into consideration and incorporate all pertinent material guidelines, and
maintenance and safety criteria; all State and Federal requirements, including but not limited to
codes and regulations referenced and provided by the City, the Americans with Disabilities Act
("ADA"), the Uniform Federal Accessibility Standards as published in the Federal Register, and
the rules governing national, state and local historic sites.
b. Approval. Upon completion of Design, Consultant will work with Art Consultant to
submit Design to City for approval. City shall review the Design and give approval or disapproval
of the Artwork within ten (10) business days, or longer if mutually agreed, following receipt of
the Design. If City approves the Design, the Design will be attached to this Agreement as Exhibit
C and incorporated herein by reference, City shall make the payment as indicated in Exhibit B
and Consultant shall proceed with Fabrication Plans. If City disapproves the Design as
submitted, City shall indicate the nature and reason(s) for the disapproval in writing to Consultant
within ten (10) business days, -or longer if mutually agreed. Upon receipt of the notification of
City's disapproval, Consultant shall have ten (10) business days, or longer if mutually agreed, to
address City's reasons for disapproval and resubmit the Design. City shall then have another ten
(10) business days, or longer if mutually agreed, to review the resubmitted design. If City
approves the Design, City shall make the payment as indicated in Exhibit B and Consultant shall
proceed to Fabrication. If approval or disapproval by City takes longer than 10 days,
performance schedule (Exhibit B) will be revised accordingly.
If City disapproves the Design as resubmitted, City and Consultant shall meet to discuss whether
further redesign will cure City's concerns and if so, a reasonable time frame within which to
accomplish the cure. If no cure is accomplished, City may terminate this Agreement with no
further obligation to Consultant. In the event of termination, all intellectual property regarding
the Design remains with Consultant and City may not use Consultant's Design or any derivative
thereof.
6. CONSTRUCTION DOCUMENTS. Upon approval of the Design by City and all
administrative bodies, the Consultant shall provide City with Construction Documents for the
Design that comply with all City standards, including final drawings (Site plan, construction plan
and details, engineering plans/calculations, etc.) and specifications. Consultant will ensure that
subcontractors provide Construction Documents that include all City standards and forms
including requirement for bonds that contractor needs to have (attached as Exhibit D). Consultant
shall prepare a final itemized cost estimate, and determine alternates if applicable. Construction
Documents shall include all details pertaining to the fabrication and execution of the Design for
the Artwork as well as the necessary specifications for Installation at the Site ("Site
Specifications"), including structural design and traffic control design.
a. Engineering. Consultant is responsible for obtaining appropriate engineering
services from licensed professionals as necessary for proper Fabrication and Installation of the
3
structural and sculptural components of the Artwork, including a California licensed structural
engineer and a California licensed traffic engineer. The engineering work shall be performed by
qualified engineers and/or other design professionals who are licensed and insured in the State of
California, and in a manner consistent with applicable standards of professional skill, care and
diligence. Further, Consultant will consult with a lighting consultant to assist with design and
specifications for lighting preferences.
b. Miscalculations. Any miscalculations in the Plans that are due to the Consultant
receiving inaccurate drawings or other documents from City or City's agents may cause delay in
the fabrication, construction, delivery and/or installation of the Artwork and the City will bear the
cost, if any, of correcting such miscalculations. Any miscalculations that are due to error of the
Consultant or her subcontractors may cause delay in preparation of the Site and/or installation of
the Artwork and Consultant will bear the cost, if any, of correcting such miscalculations.
c. Materials. Materials chosen for the Artwork should take into consideration pertinent
requirements and City's desire that the Artwork be easily maintained and durable. The materials
selected should be as resistant as possible to environmental elements that may hasten
deterioration. Materials selected have to be presented to Public Works Director for approval and
comply with relevant codes.
d. Approval. Upon completion of the Construction Documents, Consultant will work
with Art Consultant to submit the Plans to City for approval. City shall review the Construction
Documents and give approval or disapproval of the same within ten (10) business days, or longer
if mutually agreed, following receipt of the Construction Documents. If City approves the
Construction Documents, City shall make the payment as indicated in Exhibit B and Consultant
shall proceed with Fabrication. Upon approval of the Construction Documents, that portion of
the Construction Documents pertaining to the Fabrication of the Artwork shall be added to and
hereby incorporated into the Design specifications set out in Exhibit C to this Agreement: That
portion of the Construction Documents pertaining to preparation of the Site and Installation shall
be added to this Agreement as Exhibit D and incorporated by this reference. If City disapproves
the Construction Documents as submitted, City shall indicate the nature and reason(s) for the
disapproval in writing to Consultant within ten (10) business days, or longer if mutually agreed.
Upon receipt of the notification of City's disapproval, Consultant shall have ten (10) business
days, or longer if mutually agreed, to address City's reasons for disapproval and resubmit the
Construction Documents. City shall then have another ten (10) business days, or longer if
mutually agreed, to review the resubmitted Construction Documents. If City approves the
Construction Documents, City shall make the payment as indicated in Exhibit B and Consultant
shall proceed to Fabrication. If approval or disapproval by City takes longer than 10 days,
performance schedule (Exhibit B) will be revised accordingly.
If City disapproves the Construction Documents as resubmitted, City and Consultant shall meet to
discuss whether further work will cure City's concerns and if so, a reasonable time frame within
which to accomplish the cure. In the event of termination, all intellectual property regarding the
Design remains with Consultant and City may not use Consultant's Design or any derivative
thereof.
7. FABRICATION. Upon approval of the Design and Construction Documents and receipt
of payment pursuant to Exhibit B, the approved Design and Construction Documents shall be
attached to this Agreement as Exhibit C and thereby incorporated into this Agreement.
Consultant shall proceed with the fabrication of the Artwork ("Fabrication"), in substantial
conformity with the Design and Construction Documents approved by City as set forth in Exhibit
C.
a. Access for Review. Art Consultant, as City's representative, will be given
access to the Artwork during reasonable business hours at Consultant's or fabricator's studio and
/ or fabrication facility in order to review the Artwork and Consultant's or fabricator's progress
with fabrication of the Artwork. Alternatively, City and/or Art Consultant may request
photographic documentation of Consultant's progress to verify each stage that triggers payment
pursuant to the schedule set out in Exhibit A.
b. Notification of Completion. Consultant will notify City in writing pursuant to
the terms of the Agreement when the Artwork is completed and ready for delivery and
installation. Upon receipt of notice, City will have ten (10) business days, or longer if mutually
agreed, to -inspect the Artwork for conformity with the Design and structural requirements and to
give approval or disapproval of the Artwork. If approval or disapproval by City takes longer than
10 days, performance schedule (Exhibit B) will be revised accordingly.
C. Approval. If City gives approval, and such approval shall not be unreasonably
withheld, Consultant shall receive payment pursuant to Exhibit B and will proceed with delivery
and installation of the Artwork. If City disapproves the Artwork, City shall provide Consultant
written notice of such disapproval within ten (10) business days, or longer if mutually agreed,
Consultant shall have ten (10) business days, or longer if mutually agreed, to address City's
reasons for rejection of the fabricated Artwork. City shall then have another ten (10) business
days, or longer if mutually agreed, to review the Artwork. If City approves the Artwork, City
shall make the payment as indicated in Exhibit B and Consultant shall proceed with delivery and
installation. If approval or disapproval by City takes longer than 10 days, performance schedule
(Exhibit B) will be revised accordingly.
If City again disapproves the Artwork as fabricated, the parties agree to work together in good
faith to resolve the situation and reach a mutually agreeable solution. If the parties are unable to
agree on a solution, either party may choose to terminate this Agreement. Consultant shall retain
the fabricated work and may at her sole option elect to destroy or resell the Artwork. All
intellectual property associated with the Design remains with Consultant and City may not use
Consultant's Design or any derivative thereof.
8. CHANGES. Changes that do not affect the artistic integrity of the Artwork may occur or
be requested at any time during the course of this Agreement. Minor changes in form, shape,
materials and color may be made at the discretion of Consultant for the refinement of the Design
of the Artwork. Any major change, including but not limited to a change in the scope, design,
color, size or material of the Artwork, which affects cost, installation, site preparation
maintenance and concept as represented in the Design ("Significant Change"), by either
Consultant or as requested by City must be requested in writing and approved by the other party
in writing.
a. If Consultant wishes to make a Significant Change to the Artwork
Consultant will notify City of the Significant Change in writing at the address provided in the
Agreement. City will provide a written response within ten (10) calendar days, or longer if
mutually agreed. If response by City takes longer than ten days, performance schedule (Exhibit
B) will be revised accordingly.
b. If City accepts Consultant's request for Significant Change, City's
written indication of acceptance should include a complete statement of the scope of the accepted
changes and any applicable changes to costs.
C. If the City requests a Significant Change, Consultant shall provide City a
written response within ten (10) business days, or longer if mutually agreed, as to whether
Consultant feels the requested Significant Change is appropriate, and if so, the feasibility and cost
associated with such requested Significant Change. City will then have ten (10) business days, or
longer if mutually agreed, within which to approve or disapprove the terms of implementing such
Significant Change. If approval / disapproval by City takes longer than ten days, performance
schedule (Exhibit B) will be revised accordingly.
d. If City rejects Consultant's terms for implementing the requested
Significant Change, the parties agree to work together in good faith to resolve their lack of
agreement and reach a mutually agreeable solution. If the parties are unable to agree on a
solution, either party may choose to terminate this Agreement. Consultant shall retain the
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fabricated work and may at her sole option elect to destroy or resell the Artwork. All intellectual
property associated with the Design remains with Consultant and City may not use Consultant's
Design or any derivative thereof.
9. DELIVERY. Upon completion of Fabrication, after conferring with Art Consultant to
confirm that Site is ready for delivery, and as long as all Exhibit B payments are current,
Consultant or Consultant's agent(s) will pack, crate, insure, transport and deliver the sculptural
components of the Artwork to the Site in conformance with the delivery schedule set forth in
Exhibit B.
a. Visual Inspection. Upon Delivery of the Artwork to the Site, unless
otherwise agreed by the parties, City will have a reasonable opportunity to visually inspect the
Artwork for defects prior to installation. Upon determining that (i) the Artwork is in
conformance with the specifications set forth in Exhibit C and (ii) Consultant is in substantial
compliance with the other terms of this Agreement which City has not waived, City will allow the
Artwork to be installed and make the payment due pursuant to Exhibit B. If, within 5 business
days from the day of Delivery, City has not raised any objections to the Artwork as delivered, the
Artwork will be deemed ready for installation. In the event that City notifies Consultant within 5
business days that the Artwork is defective and/or does not conform in some way to the terms as
set forth in this Agreement, Consultant will have a reasonable opportunity to cure any defects.
b. Delay. In the event that City is not ready for Delivery to the Site due to
any reason beyond the control of Consultant, and wishes Delivery to the Site be delayed, City will
be responsible for providing appropriate storage or paying the actual cost of storing the Artwork,
if any, and any associated cost of storing the Artwork until such time as the City is ready for
Delivery to the Site, including demobilization and remobilization costs.
10. SITE PREPARATION AND INSTALLATION. According to Construction
Documents approved by City, Consultant shall subcontract for the preparations of the foundations
on Site with a contractor that meets the City's requirements as conveyed to Consultant.
Consultant will contract for the installation of the Artwork in accordance with the schedule and
specifications for Installation as attached hereto in Exhibits B and C and incorporated into this
Agreement. Consultant agrees to perform all on site preparation and installation work according
to the State of California's Prevailing Wage Rules, and agrees to require all of Consultant's
subcontractors involved in on-site preparation and installation to abide to the State of California's
Prevailing Wage Rules.
a. Permits. Consultant will collaborate with the City's Public Works
Director to obtain all permits necessary for the Installation of the Artwork. A "No fee" permit
will be issued by the City to a qualified contractor.
b. Site Preparation and Access. Consultant will be responsible for all
expenses, labor, and equipment necessary to prepare the Site for Installation, including but not
limited to the foundation for the Artwork, as detailed in Exhibit C. Consultant and their
designated assistants will have free access to the Site at all times during the Installation.
Consultant will be responsible for inspecting the Site prior to Installation to verify that the Site
has been properly prepared to receive the Artwork. Consultant is responsible for maintaining a
clean Site during Installation and will ensure that the Site is cleaned up upon the completion of
Installation. Consultant will supervise street closure and traffic management if this proves
necessary for preparation of Site or Installation of Artwork. In the event that street closure is
necessary, Consultant will abide by all City rules and policies regarding scheduling and timing of
such closures so as to avoid any undue burden on traffic movement.
C. Delay. In the event that City wishes to delay Installation for any reason
beyond the Consultant's control, City will be responsible for the actual cost of storing the
Artwork and any associated cost of storing the Artwork until such time as the City is ready for
Installation. Artwork shall not be stored on site. In the event Consultant wishes to delay
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Installation for any reason, Consultant will be responsible for any necessary storage of the
Artwork and resulting costs.
d. Installation. As soon as reasonably possible after City has had an
opportunity to inspect and accept the delivered Artwork, Consultant or Consultant's agents will
install the Artwork in conformance with the specifications set forth in Exhibit C attached hereto
and incorporated into this Agreement. City will be responsible for any necessary street closure or
other measures to secure the site during installation at no cost to the Consultant.
11. FINAL APPROVAL AND ACCEPTANCE. Upon completion of Installation, unless
otherwise agreed by the parties, City will have a reasonable opportunity to inspect the Artwork
for defects prior to acceptance. Upon determining that (i) the Artwork is in conformance with the
specifications detailed in this Agreement and all pertinent Exhibits; and (ii) Consultant is in
substantial compliance with the other terms of this Agreement which City has not waived, City
will accept the Artwork ("Final Acceptance") and make the final payment pursuant to the terms
set forth Exhibit B. If, within ten (10) business days from the day installation is complete, City
has not raised any objections to the Artwork as installed, the Artwork will be deemed accepted.
In the event that City notifies Consultant within ten (10) business days that the Artwork or the
Installation is defective and/or does not conform in some way to the terms as set forth in this
Agreement, Consultant will have a reasonable opportunity to cure any defects.
12. MAINTENANCE MANUAL. Within ten (10) business days of Final Acceptance of the
Artwork, Consultant will provide City with written instructions for appropriate maintenance and
preservation of the Artwork (the "Maintenance Manual"). City will maintain the Artwork
pursuant to the maintenance, repair and restoration terms set out in this Agreement.
13. REPRESENTATIONS AND WARRANTIES.
a. Consultant's Warranties. Consultant warrants that:
i. Consultant is the sole author of the Artwork and that Consultant is the
sole owner of any and all copyrights pertaining to the Artwork or has obtained the appropriate
permissions and licenses to incorporate the works of others.
ii. The Artwork is an original creation and the result of the artistic efforts of
Consultant and that it will be installed free of any liens, claims or other encumbrances of any
type. Further, Consultant has not knowingly infringed upon any copyright or trademark.
iii. The Artwork is unique and an edition of one (1) and that Consultant will
not execute or authorize another party to execute another work of the same or substantially
similar design and dimension as the artwork commissioned pursuant to this Agreement.
Consultant may create works that use or incorporate various individual art elements that comprise
the Artwork, so long as the work using or incorporating such elements (1) does not consist
predominantly of such elements (2) is not the same or substantially similar in image, design,
dimensions and materials as the Artwork, and (3) is not displayed in an environment that is the
same or substantially similar to the environment in which the Artwork is to be displayed at the
Site.
iv. The Artwork is fabricated in materials for which the durability has been
communicated to City. Where possible, permanent, non -fugitive materials that will not tend to
degrade or fade over the life of the Artwork have been used;
V. The Artwork will be free of defects in workmanship and materials. In
the event that any defects become apparent in the workmanship or materials within the first (1)
year of Installation, Consultant will remedy any defects at Consultant's expense. Any inherent
defects in the materials or Artwork that are specifically identified in the Design and approved by
City are not warranted.
Vi. General routine cleaning and repair of the Artwork and any associated
working parts and/or equipment will maintain the Artwork within an acceptable standard of
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public display taking into consideration foreseeable exposure to the elements and general wear
and tear. Consultant shall not be responsible for deterioration of the Artwork materials due to
failure of City to properly maintain according to the Maintenance Manual.
vii. To the extent the Artwork incorporates products covered by a
manufacturer's warranty, Consultant shall provide copies of such warranties to City.
14. INTELLECTUAL PROPERTY OWNERSHIP.
a. General. Except as provided in this Agreement, Consultant retains all
copyrights and other intellectual property interests in the Artwork and in the Design, drawings,
sketches, prototypes and other materials for the Artwork. Consultant may place a copyright notice
on the Artwork and may, at Consultant's option, register the copyright with the Library of
Congress.
b. Reproductions. Consultant hereby grants to City the non-exclusive right
to make, and to authorize the making of, photographs and other two-dimensional reproductions of
the artwork for any City -related purposes, including, but not limited to educational, advertising,
marketing, public relations, promotion, any documentation of City's art collection or other
noncommercial purposes in print or electronic media. This license includes the ability to use
colors, fonts, and other graphic or design elements drawn from the Artwork or created in
collaboration with the Consultant to coordinate branding and way -finding efforts undertaken by
the City for projects throughout the City. This license does not include the right to create three-
dimensional works or to reproduce the Artwork for merchandising purposes. Any rights to
reproduce the work three -dimensionally or to merchandise the Artwork must be established
pursuant to a separate agreement with the Consultant.
15. CREDITS.
a. Label. A label, provided by Consultant at Consultant's expense,
identifying Consultant, the title of the Artwork and the year it was completed, will be publicly
displayed in the area adjacent to the Artwork on a plaque of reasonable dimensions.
b. Consultant's Credit. City agrees that unless Consultant requests to the
contrary in writing, all references to the Artwork and all reproductions of the Artwork will credit
the Artwork to Consultant.
C. City's Credit. Consultant agrees that all formal references to the Artwork
will include the following credit line: "From the collection of "Baldwin Park".
16. MAINTENANCE, REPAIR AND RESTORATION. City will be responsible for the
routine inspection and maintenance of the Artwork in accordance with the Maintenance Manual.
City shall have the right to determine, after consultation with a professional conservator, when
and if repairs and restorations to the Artwork will be made. It is the policy of City to consult with
Consultant regarding repairs and restorations undertaken during Consultant's lifetime when
practicable. In the event the City wishes to have Consultant personally undertake or supervise
repairs, City agrees to pay Consultant a reasonable fee for such supervision to be negotiated at the
time. In the event that City makes repairs or restoration not approved by Consultant, Consultant
shall have the right, at Consultant's sole option, to have Consultant's association with the
Artwork severed. All repairs and restorations, no matter who performs them, shall be made in
accordance with professionally recognized principles of conservation and in accordance with the
Maintenance Manual.
17. MODIFICATION. DESTRUCTION OR REMOVAL OF ARTWORK.
a. City shall notify Consultant in writing of any proposed significant
alteration of the Site that would affect the intended character and appearance of the Artwork
including removal or relocation of the Artwork that might result in the Artwork being destroyed,
distorted or modified. The City shall make a good faith effort to consult with the Consultant in
the planning and execution of any such alteration. The City shall make a reasonable effort to
maintain the integrity of the Artwork. If the Artwork cannot be successfully removed or
relocated as determined by the City, the Consultant may disavow the Artwork or have the
Artwork returned to the Consultant at the Consultant's expense.
b. The Artwork may be removed or relocated or destroyed by the City
should the Consultant and the City not reach mutual agreement on the removal or relocation of
the Artwork after a period not to exceed ninety (90) days after written notice to the Consultant.
During the ninety (90) day period, the Parties shall engage in good faith negotiations concerning
the Artwork's removal or relocation.
C. In the event of changes in building codes or zoning laws or regulations
that cause the Artwork to be in conflict with such codes, laws or regulations, the City may
authorize the removal or relocation of the Artwork without the Consultant's permission. In the
alternative, the City may commission the Consultant by a separate agreement to make any
necessary changes to the Artwork to render it in compliance with such codes, laws or regulations.
d. If the City reasonably determines that the Artwork presents imminent
harm or hazard to the public, other than as a result of the City's failure to maintain the Artwork as
required under this Agreement, the City may authorize the removal of the Artwork without the
prior approval of the Consultant.
e. City shall have the right to donate or sell the Artwork at any time.
Before exercising this right, City, by written notice to Consultant at Consultant's last known
address, agrees to give Consultant the opportunity to purchase the Artwork for the greater of the
Contract Amount or the amount of any offer which City has received for the purchase of the
Artwork, plus all costs associated with the removal of the Artwork from the Site, clean-up of the
Site and delivery to Consultant. Consultant shall have thirty (30) days from the date of City's
notice to exercise the option to purchase the Artwork.
f. This clause is intended to replace and substitute for the rights of the
Consultant under the Visual Consultants' Rights Act ("VARA") and, if applicable, the California
Art Preservation Act (CAPA), to the extent that any portion of this Agreement is in direct conflict
with VARA and/or CAPA rights. The parties acknowledge that this Agreement supersedes that
law to the extent that this Agreement is in direct conflict with VARA and/or CAPA.
18. TRANSFER OF TITLE Ownership of the Artwork, as defined by this Agreement,
will pass to City upon Final Acceptance of the Artwork, and receipt by Consultant of final
payment as set out in Exhibit B.
19. RISK OF LOSS. Consultant bears the risk of loss or damage to the Artwork for any
loss or damage to the Artwork that results from Consultant's or Consultant's agents' actions, until
Final Acceptance following Installation at which time the risk of damage to or loss of the
Artwork passes to City. City bears the risk of loss or damage to the Artwork for any loss or
damage to the Artwork once the Artwork is installed on the Site and/or under the control of City
and such damage to or loss of the Artwork results from the actions of anyone other than the
Consultant or Consultant's agents.
E
EXHIBIT B
PERFORMANCE AND PAYMENT SCHEDULE
EXHIBIT B
PERFORMANCE AND PAYMENT SCHEDULE
The Consultant shall provide services in accordance with the following schedule unless otherwise
notified by the City:
Completion of Schematic Design
approval of contract, whichever is later)
Completion of Design Development
approval of schematic design, whichever is later)
Presentation of Constructions Documents
approval of design development, whichever is later)
June 17`a, 2019 (or 2 months from
August 27th, 2019 (or 2 months from
November 7th, 2019 (or 2 months from
Fabrication and Installation Schedule TBD pending Design, estimated time line of
Fabrication and Installation: about 10 months after approval of Construction Documents (end of
September 2020)
Payment Schedule is as follows:
Total project budget: $616,360
Consultant Design Fee is 20% of overall project budget: $123,272
Budget available for all other aspects of the project ("Construction Budget"): $493,088
• Retainer at Contract Signing to begin site research, community
outreach and develop schematic design (15% of Consultant Design
Fee)
Approval of Schematic Design (15% of Consultant Design Fee)
Schematic Design per Scope of Services, including but not limited to:
summary of community outreach and research, site plans, perspective
sketches and/or renderings, general descriptive views and elevations
including proposed materials and fixtures, estimate of probable
construction cost, presentation to City officials and general community
in a format that can communicate ideas to a non-technical audience.
Approval of Design Development (10% of Consultant Design Fee)
Design Development per Scope of Services, including but not limited
to:
Site plan, design concepts, drawings and models or other appropriate
plans and renditions of Consultant's Design, pertinent material
guidelines, maintenance and safety criteria, preliminary engineering
data, estimate of construction costs, presentations to City officials and
general community in a format that can communicate ideas to a non-
technical audience.
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$ 18,490.80
$ 18,490.80
$ 12,327.20
Approval of Construction Documents (10% of Consultant Design Fee): $ 12,327.20
Construction Documents per Scope of Services, including but not
limited to:
site plan, construction plans and details, engineering
plans/calculations, traffic control design, specifications for fabrication
and installation, and final itemized cost estimate, presentations to City
officials as deemed necessary by City.
• Start of fabrication of artwork
(50% of Construction Budget + 10% of Consultant Design Fee) $ 258,871.20
Start of Fabrication as evidenced by sub -contracting agreement with
fabricators to be approved by City.
• Completion of 50% of fabrication of artwork
(25% of Construction Budget + 15% of Consultant Design Fee) $ 141,762.80
50% of Fabrication as evidenced by photo documentation and/or visit
to fabricator by City representative.
• Completion of Fabrication
(15% of Construction Budget + 15% of Consultant Design Fee) $ 92,454.00.
Completion of Fabrication as evidenced by photo documentation
and/or visit to fabricator by City representative.
• Completion of Installation of Artwork, Final Acceptance
(5% of Construction Budget + 10% of Consultant Design Fee) $ 36,981.60
Final Acceptance by City representative.
• Notice of Completion $ 24 654.40
(5% of Construction Budget)
30 days after Notice of Completion is recorded with LA County by
City.
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EXHIBIT C
FINAL APPROVED DESIGN
12
STAFF
ITEM NO. I I
TO: Honorable Mayor and City Councilmembers
FROM: Ben Martinez, Director of Community Development
PREPARED BY: Ron Garcia, City Plannerwszr
DATE: April 17, 2019
SUBJECT: Housing Element Progress Report 2018
SUMMARY
Consideration for City Council approval of the City's Housing Element Progress Report for 2018, as
required by the State of California Housing and Community Development Department (HCD).
RECOMMENDATION
It is recommended that the City Council receive and file the report.
FISCAL IMPACT
There is no fiscal impact resulting from this item.
BACKGROUND
The Housing Element is one of the seven mandatory elements required for the City's General Plan,
and it specifies ways in which housing needs of existing and future resident populations can be met.
State law requires that each city and county update their Housing Element on a pre -determined cycle.
The 2014-2021 Housing Element is comprised of five sections: (1) Needs Assessment; (2) Housing
Constraints; (3) Housing Resources; (4) Review of previous Accomplishments from the 2008-2013
Housing Element; and (5) the Housing Plan. The City's Regional Housing Needs Allocations are
summarized in Table #1 below by income level. The number of units assigned to Baldwin Park for
the 2014-2021 period was 557 housing units. It should be noted that the City is not required to
construct these units, but rather plan for them through the Zoning Code development standards and
the Housing Programs adopted as part of the 2014-2021 Housing Element.
TABLE #1
CITY'S REGIONAL HOUSING NEEDS ALLOCATION
S �e�
F
U IR41
/
Above -Moderate Income
120%+
242
43.1%
Moderate Income
81-120%
90
16.2%
Low Income
51-80%
83
15.3%
Very Low Income
0-50%
142
25.3%
TOTAL
557
100%
'Median Family Income
Housing Element Progress Report 2018
April 17, 2019
Page 2
The Housing Element Annual Progress Report (Attachment #1), is comprised of several tables, and
summarizes activity that took place during the 2018 calendar year. Activity includes Housing
Development Applications Submitted (summarized in Table #2 below), Annual Building Activity for
new construction including entitled, permits and completed units, Regional Housing Needs Allocation
Progress for permitted units issued by affordability, and Program Implementation Status. In 2018,
building permits were issued for 90 new housing units; 80 were comprised of Above -Moderate
Income Units, and 10 were comprised of Moderate Income Units.
TABLE #2
BUILDING ACTIVITY 2018—NEW CONSTRUCTION
Pursuant to California Government Code Section 65400, local governments shall prepare and provide
an annual report on the progress of the City's Housing Element for the previous calendar year to the
City Council, Office of Planning and Research (OPR), the Department of Housing and Community
Development (HCD).
LEGAL REVIEW
This report has been reviewed and approved by the City Attorney as to legal form and content.
ATTACHMENTS
1. Housing Element Progress Report for the 2018 Calendar Year (Available for review by the
public at the City Clerk's Office, and Planning Department)
r
Above -Moderate
ModerateIncome
Income
Very Low Income
Pursuant to California Government Code Section 65400, local governments shall prepare and provide
an annual report on the progress of the City's Housing Element for the previous calendar year to the
City Council, Office of Planning and Research (OPR), the Department of Housing and Community
Development (HCD).
LEGAL REVIEW
This report has been reviewed and approved by the City Attorney as to legal form and content.
ATTACHMENTS
1. Housing Element Progress Report for the 2018 Calendar Year (Available for review by the
public at the City Clerk's Office, and Planning Department)
Attachment 1
Housing Element Progress Report
Available at City Clerk's Office and
Planning Department
STAFF REPORT
ITEM NO. I a
TO: Honorable Mayor and Members of the City Council
FROM: Lourdes Morales, Chief Deputy City Clerk i,1
DATE: April 17, 2019 K
SUBJECT: Second Reading of Ordinance No. 1438 Entitled: "An Ordinance
of the City Council of the City of Baldwin Park, California,
Authorizing the City of Baldwin Park to Enter Into a
Development Agreement with Rukli, Inc. for the Distribution of
Cannabis at the Real Property Located at 4150 Puente Avenue
(APN: 8437-014-014 and 8437-022-008) within the City of
Baldwin Park"
SUMMARY
This report requests City Council's consideration to approve the Second Reading of Ordinance No.
1438, which authorizes the City of Baldwin Park to enter into a development agreement with Rukli, Inc.
to repackage product for cultivators and manufactures of cannabis in conjunction with a cannabis
distribution facility at the Real Property located at 4150 Puente Avenue within the city. Ordinance No.
1438 was introduced for first reading during a regular meeting of the City Council on March 20, 2019.
RECOMMENDATION
Staff recommends that the City Council waive reading and adopt Ordinance No. 1438, entitled: "AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BALDWIN PARK, CALIFORNIA,
AUTHORIZING THE CITY OF BALDWIN PARK TO ENTER INTO A DEVELOPMENT AGREEMENT
WITH RUKLI, INC. FOR THE DISTRIBUTION OF CANNABIS AT THE REAL PROPERTY LOCATED
AT 4150 PUENTE AVENUE (APN: 8437-014-014 and 8437-022-008) WITHIN THE CITY OF
BALDWIN PARK".
FISCAL IMPACT
Not Applicable
BACKGROUND
Ordinance No. 1438 was introduced for first reading during a regular meeting of the City Council held
on March 20, 2019 and presented at a regular meeting for approval on April 3, 2019. The City Council
requested this item be brought back for consideration at the next regularly scheduled meeting.
ALTERNATIVES
Not Applicable
LEGAL REVIEW
Not Applicable
ATTACHMENTS
1.) Attachment "A" - Ordinance No. 1438
Attachment 1
Ordinance No. 1438
ORDINANCE 1438
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BALDWIN
PARK, CALIFORNIA, AUTHORIZING THE CITY OF BALDWIN PARK
TO ENTER INTO A DEVELOPMENT AGREEMENT WITH RUKLI, INC.
FOR THE DISTRIBUTION OF CANNABIS AT THE REAL PROPERTY
LOCATED AT 4150 PUENTE AVENUE (APN: 8437-014-014 and 8437-
022-008) WITHIN THE CITY OF BALDWIN PARK
WHEREAS, a Development Agreement with the City of Baldwin Park will be
required; and
WHEREAS, RUKLI, Inc. also intends to and is, by virtue of this Development
Agreement, granted a manufacturing license in order to repackage product for cultivators
and manufacturers based on the Development Agreement; and
WHEREAS, a duly noticed public hearing was held by the Planning Commission
of the City of Baldwin Park on February 27, 2019, to receive comments and consider
recommendation to City Council of the proposed Development Agreement; and
WHEREAS, the Planning Commission at such hearing, did recommend that the
City Council approve the proposed Agreement; and
WHEREAS, the City Council held a duly noticed public hearing pursuant to law on
the Agreement on March 20, 2019; and
WHEREAS, the City Council has reviewed the Development Agreement (attached
as Exhibit "A" herewith and incorporated herein by reference) and finds and declares that
compliance with all notice, hearing, and procedural requirements as set forth by law have
been met, thus allowing the City Council to review and consider the approval of the
attached Development Agreement; and
WHEREAS, the City Council hereby specifically finds that the provisions of the
Development Agreement are consistent with the General Plan of the City; and
WHEREAS, the City Council hereby specifically finds that the Development
Agreement is in conformance with the public convenience and general welfare of persons
residing in the immediate area and will not be detrimental or injurious to property or
persons in the general neighborhood or to the general welfare of the residents of the city
as a whole; and
WHEREAS, the City Council hereby specifically finds that the Development
Agreement is consistent with the provisions of California Government Code §§ 65864 -
65869.5; and
WHEREAS, as required by law, the City Council gave first reading to the proposed
ordinance on March 20, 2019.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BALDWIN PARK
DOES HEREBY RESOLVE AND ORDER AS FOLLOWS:
SECTION 1. In accordance with the provisions of the California Environmental
Quality Act (CEQA), it has been determined that the proposed Development Agreement
Projects (DA 18-01 through DA 18-15) will not have a significant impact of the
environment and are Categorically Exempt pursuant to Article 19, Section 15301, Class
1, `Existing Facilities'. Furthermore each of the locations is proposed within an existing
building.
SECTION 2. The City Council hereby adopts the following findings of fact required
by Subchapter 153.210.860 of the City's Municipal Code relating to Development
Agreements:
1. The Development Agreement is consistent with the General Plan
objectives, policies, land uses and implementation programs and any other adopted plans
or policies applicable to the agreement.
Because both of the locations of the cannabis distribution business are
located within the I -C, Industrial Commercial Zone, it is anticipated that the
use of the property is consistent with the other light industrial uses within
the area. The adoption of cannabis cultivation and manufacturing activities
is also consistent with Goal 1.0 of the City's Economic development
Element in the General Plan in that the City encourages and facilitates
activities that expand the City's revenue base. Furthermore, Goal 6.0 of the
same element encourages the expansion of the City's diverse industrial
base. Policy 6.5 of Goal 6.0 encourages an on-going campaign with local
businesses to hire local residents. This Development Agreement requires
that a minimum of 20% of the businesses workforce shall consist of Baldwin
Park residents.
2. The Development Agreement is compatible with the uses authorized in, and
the regulations prescribed for, the land use district in which the real property is located.
Pursuant to Ordinance 1401, adopted by the City Council on August 16,
2017, effective on September 16, 2017 (and as subsequently amended by
Ordinance 1403 refining the measurement of distances) cannabis
cultivation, manufacturing and distribution activities are allowed within the
City provided all of the development standards in Chapter 127 of the City's
Municipal Code are met. Dispensaries remain prohibited throughout the
City.
3. The Development Agreement is in conformance with the public
convenience and general welfare of persons residing in the immediate area and will not
be detrimental or injurious to property or persons in the general neighborhood or to the
general welfare of the residents of the city as a whole.
The Development Agreement is in conformance with the general area and
City as a whole as it is located within the I -C, Industrial Commercial Zone
surrounded by lighter industrial uses. The use exceeds the distance
requirement of fifty (50) feet between cannabis uses and the closest
residential zone; furthermore, pursuant to Section 127.07.E.1 of the City's
Municipal Code, the cannabis use is not nearby any sensitive uses such as
schools, day care centers, parks or youth centers.
The distribution facility is the hub of all RUKLI Activity and as such security
is this highest priority. RUKLI, Inc. intends to utilize the best available
SOP's and technologies to minimize security risks, thereby minimizing any
potential for negative impacts upon the surrounding area and Citywide.
Both interior and exterior security will be provided, including video
surveillance, sensor cables, and motion detection.
4. The Development Agreement is consistent with the provisions of California
Government Code §§ 65864 - 65869.5.
Pursuant to the City Attorney's Office along with review by the Planning
Division Staff, the Development Agreement (Reference Attachments #2
through #5 to the Planning Commission and City Council staff reports dated
June 13 and June 20, 2018) is consistent with California Government Code
Sections 65864-65869.5.
SECTION 3. The City Council hereby approves and adopts the Development
Agreement, in the form as attached hereto as Exhibit "A", and authorizes and directs the
Mayor to sign it in the name of the City of Baldwin Park.
SECTION 4. This ordinance shall go into effect and be in full force and operation
from and after thirty (30) days after its final reading and adoption.
First read at a regular meeting of the City Council of the City of Baldwin Park held on the
20th day of March, 2019, and adopted and ordered published at a regular meeting of said
Council on the 17th day of April, 2019.
PASSED, APPROVED, AND ADOPTED this 17th day of April, 2019.
MANUELLOZANO
MAYOR
ATTEST:
STATE OF CALIFORNIA
COUNTY OF LOS ANGELESSS:
CITY OF BALDWIN PARK
I, JEAN M. AYALA, City Clerk of the City of Baldwin Park, do hereby certify that the
foregoing ordinance was introduced and placed upon its first reading at a regular meeting
of the City Council on March 20, 2019. Thereafter, said Ordinance No. 1438 was duly
approved and adopted at a regular meeting of the City Council on April 17, 2019 by the
following vote to wit:
JEAN M. AYALA
CITY CLERK
AMENDED DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF BALDWIN PARK AND RUKLI, INC.
ARTICLE 1. PARTIES AND DATE.
This is a Government Code Amended Statutory Development Agreement
("STATUTORY AGREEMENT") and is dated March 20, 2019 for references purposes
only and is Case No. 18-03 and is entered into between (i) the City of Baldwin Park
("City"), a California municipal corporation, and (ii) RUKLI, Inc., a California Corporation
("Owner"). This Agreement shall become effective on the Effective Date defined in
Section 3.1.9 below.
ARTICLE 2. RECITALS.
2.1 WHEREAS, the City and Rukli, Inc. previously entered into a statutory
municipal Development Agreement; and
2.2 WHEREAS, the previous municipal Development Agreement was
promulgated by or through the Government Code and did contain necessary elements
for a Statutory Government Code Development Agreement; and
2.3 WHEREAS, this amended Statutory Development Agreement is pursuant
to Government Code and is intended to be a Statutory Development Agreement under
and through Government Code Section 65864, et seq.; and
2.4 WHEREAS, the City is authorized pursuant to Government Code Section
65864 et seq. to enter into binding statutory development agreements with persons
having legal or equitable interests in real property. for the development of such property;
and
2.5 WHEREAS, Owner commenced its efforts to obtain approvals and
clearances to be the only distributor allowed to obtain a City of Baldwin Park permit to
distribute and transport medical and adult use cannabis in September 2017; and at that
time the City determined that the uses authorized in this STATUTORY AGREEMENT
were lawfully permitted and authorized to occur on Owner's Property, subject to Owner's
acquisition of various entitlements, as discussed herein; and
2.6 WHEREAS, Owner voluntarily enters into this STATUTORY AGREEMENT
and after extensive negotiations and proceedings have been taken in accordance with
the rules and regulations of the City, Owner has elected to execute this STATUTORY
AGREEMENT as it provides Owner with important economic and development benefits;
and
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2.7 �'VHEREAS, this STATUTORY AGREE��IEI`�!T anu the Project are
consistent with the City's General Plan and Zoning Code and applicable provisions of the
City's applicable Zoning Map as of the Agreement Date; and
2.8 WHEREAS, all actions taken and approvals given by the City have been
duly taken or approved in accordance with all applicable legal requirements for notice,
public hearings, findings, votes, and other procedural matters; and
. 2.9 WHEREAS, this STATUTORY AGREEMENT will eliminate uncertainty in
planning and provide for the orderly development of the Project and/or the Property,
ensure progressive installation of necessary improvements, and provide for public
services appropriate to the development of the Project; and
2.10 WHEREAS, in implementation of the promulgated state policy to promote
private participation in comprehensive planning and to strengthen the public planning
process and to reduce the economic risk of development, the City deems the
implementation of this STATUTORY AGREEMENT to be in the public interest and intends
that the adoption of this STATUTORY AGREEMENT be considered an exercise of the
City's police powers to regulate the development of the Property during the Term of this
STATUTORY AGREEMENT; and
2.11 WHEREAS, this STATUTORY AGREEMENT is consistent with the public
health, safety and welfare needs of the residents of the City and the surrounding region
and the City has specifically considered and approved the impact and benefits of the
development of the Property in accordance with this STATUTORY AGREEMENT upon
the welfare of the region; and
2.12 WHEREAS, Owner intends to develop a Cannabis Distribution and
Manufacturing Facility pursuant to the Baldwin Park Municipal Code ("BPMC") Chapter
127 and all applicable state laws, rules, and regulations; and
2.13 WHEREAS, concurrently with execution of this STATUTORY
AGREEMENT, City acknowledges that Owner has been authorized to be the only
business to obtain distribution and transportation permits issued by the City of Baldwin
Park.to distribute cannabis and cannabis related products. Owner also intends to and is,
by virtue of this agreement, granted a manufacturing license in order to repackage
product for cultivators and manufacturers based on this amended agreement. Nothing in
this STATUTORY AGREEMENT is intended to limit the manufacturing license granted
herein; and
2.14 WHEREAS, City is entering into development agreements with owners for
permits for cultivation and manufacturing of cannabis in the City of Baldwin Park. Multiple
cultivation/manufacturing permits have thus far been authorized and City prohibits the
sale of cannabis within the City of Baldwin Park so the cannabis must be transported to
and sold in cities where it is legal to do so. Owner shall be the exclusive distributor and
transporter for the cultivation/manufacturing permit holders within the City of Baldwin Park
IM
and City shall condition the cultivation/manufacturing permits on Owner being the
exclusive distributor.
ARTICLE 3. GENERAL TERMS.
3.1 Definitions and Exhibits. The following terms when used in this
STATUTORY AGREEMENT shall be defined as follows:
3.1.1 "Agreement" means this Development Agreement pursuant to
Government Code Section 65864 et seq.
corporation.
3.1.2 "City" means the City of Baldwin Park, a California municipal
3.1.3 "Days" mean calendar days unless otherwise specified.
3.1.4 INTENTIONALLY BLANK
3.1.5 "Development" In the event that the property does not have a
building and needs to be developed the building currently on site will be further
developed, then "Development" includes grading, construction or installation of public and
private facilities and the right to maintain, repair or reconstruct any private building,
structure, improvement or facility after the construction and completion thereof;
provided, however, that such maintenance, repair, or reconstruction take place within
the Term of this STATUTORY AGREEMENT on the Property.
3.1.6 "Development Approvals" means all permits, licenses, and/or other
entitlements for the Development of the Property, including any and all conditions of
approval, subject to approval or issuance by the City in connection with Development of
the Property.
3.1.7 "Development Approvals" specifically include this STATUTORY
AGREEMENT. "Development Approvals" also include both the Existing Development
Approvals, if any, and the Subsequent Development Approvals, if any, approved or issued
by the City that are consistent with this STATUTORY AGREEMENT.
3.1.8 "Development Plan" means the Existing Development Approvals, if
any, and the Existing Land Use Regulations applicable to development of the Property
for the Project, as modified and supplemented by Subsequent Development Approvals,
if any.
3.1.9 "BPMC" means the City of Baldwin Park Municipal Code.
3.1.10 "Effective Date" means the day this STATUTORY AGREEMENT is
approved and adopted signed by the Baldwin Park City Council and signed by the Mayor
of Baldwin Park or his designee.
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3.1.11 "Existing Development Approvals" If any, it means all Development
Approvals approved or issued prior to or on the Effective Date. Existing Development
Approvals, if any, include the approvals set forth in Section 3.1.6 and all other approvals
which are a matter of public record prior to or on the Effective Date.
3.1.12 "Existing Land Use Regulations" means all Land Use Regulations in
effect on the Effective Date. Existing Land Use Regulations include all regulations that
are a matter of public record on the Effective Date as they may be modified by the
Existing Development Approvals.
3.1.13 "Land Use Regulations" means all ordinances, resolutions and
codes adopted by the City governing the development and use of land, including the
permitted use of land, the density or intensity of use, subdivision requirements, the
maximum height and size of proposed buildings, the provisions for reservation or
Dedication of land for public purposes, and the design, improvement and construction
and initial occupancy standards and specifications applicable to the Development of the
Property.
3.1.14 "Mortgagee" If applicable, means a mortgagee of a mortgage, a
beneficiary under a deed of trust or any other security -device lender and its successors -
in interest.
3.1.15 "Owner" means RUKLI, Inc. a California S Corporation.
3.1.16 "Processing Fees" means the normal and customary application,
filing, plan check, permit fees for land use approvals, design review, tree removal
permits, building permits, demolition permits, grading permits, and other permits and
entitlements, pnd inspection fees, which fees are charged to reimburse the City's
expenses attributable to such applications, processing, permitting, review and
inspection and which are in force and effect on a general basis at such time as said
approvals, permits, review, inspection or entitlements are granted or conducted by the
City.
3.1.17 "Project" means the Development of the Property contemplated by
the Development Plan, as such Development Plan may be further defined, enhanced or
modified pursuant to the provisions of this STATUTORY AGREEMENT. The Project shall
consist of this STATUTORY AGREEMENT, the Development Plans if any, the
application, any and all entitlements, licenses, and permits related to the Project.
3.1.18 "Property" means the real property described in Owner's application
and incorporated herein by this reference. Owner may modify the location or locations or
add locations to the Property subject to City's written approval and all applicable zoning
and distance requirements.
3.1.20.1 "Reasonable" means using due diligence to accomplish a stated
objective that the subject party is capable of performing or providing under the
circumstances in a manner that is consistent with the intent and objectives of the
STATUTORY AGREEMENT.
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3. 1.1 S "Reser dations of Authority" means the rights and authority
excepted from the assurances and rights provided to Owner under this STATUTORY
AGREEMENT and reserved to the City as described in Section 4.4.
3.1.20 "Subsequent Development Approvals" If any, it means all future
discretionary approvals and all ministerial Development Approvals required subsequent
to the Effective Date in connection with development of the Property, including without
limitation, subdivision improvement agreements that require the provision of bonds or
other securities. Subsequent Development Approvals, if any occur, include, but are not
limited to, all excavation, grading, building, construction, demolition, encroachment or
street improvement permits, occupancy certificates, utility connection authorizations, or
other permits or approvals necessary, convenient or appropriate for the grading,
construction, marketing, use and occupancy of the Project within the Property at such
times and in such sequences as Owner may choose consistent with the Development
Plan and this STATUTORY AGREEMENT.
3.1.21 "Space" If applicable, shall mean any space or ground, floor or
other surface area (whether horizontal or vertical) which is used during the marijuana
germination, seedling, vegetative, pre -flowering, flowering, curing and harvesting phases,
including without limitation any space used for activities such as growing, planting,
seeding, germinating, lighting, warming, cooling, aerating, fertilizing, watering, irrigating,
topping, pinching, cropping, curing or drying marijuana or any such space used for storing
any cannabis, no matter where such storage may take place or such storage space may
be located.
3.1.22 "Subsequent Land Use Regulations" means, any Land Use
Regulations defined in Section 3.1.12 that are adopted and effective after the Effective
Date of this STATUTORY AGREEMENT.
3.2 Documents. The following documents are attached to and, by this
reference, are made part of this STATUTORY AGREEMENT:
No. 1 — Legal Description of the Property.
No. 2 — Map showing Property and its location.
No. 3 — Application.
3.3 Binding Effect of STATUTORY AGREEMENT. The Permit, and/or Project
and/or Property is hereby made subject expressly to this STATUTORY AGREEMENT.
Subject to Owner's receipt of all Development Approvals, if any, relative thereto, the
Development of the Property is hereby authorized and shall, except as otherwise provided
in this STATUTORY AGREEMENT, be carried out only in accordance with the terms of
this STATUTORY AGREEMENT and the Development Plan, if any. In the event of
conflict or uncertainty between this STATUTORY AGREEMENT and the Development
Plan, the provisions of this STATUTORY AGREEMENT shall control.
-5-
3.4 Ownership of Property. Owner represents and covenants that it has a
legal or equitable interest in the Property, which has an Assessor's Parcel Number 8437-
014-014 and 8437-022-008 and is more particularly described in the application and
document "No. 1" in Section 3.2 and incorporated herein.
3.5 Term. The initial term of this STATUTORY AGREEMENT shall be for
twenty (20) years commencing as of the Effective Date.
3.6 Automatic Termination. This STATUTORY AGREEMENT shall
automatically terminate upon the occurrence of any of the following events:
(i) The entry of a final judgment (or a decision on any appeal
therefrom) voiding the City's General Plan or any element thereof, which judgment or
decision would preclude a cannabis operation on the subject Property, but only if the
City is unable to cure such defect in the General Plan or element within one hundred
and eighty (180) days from the later of entry of final judgment or decision on appeal.
(ii) A change in State law prohibiting the business permitted such
as cultivation, manufacturing or distribution of cannabis products.
(iii) Failure to pay any fees due the City.
3.6.1 Effect of Termination. Termination of this STATUTORY
AGREEMENT shall constitute termination of all land use entitlements approved for the
Property. Upon the termination of this STATUTORY AGREEMENT, no party shall have
any further right or obligation hereunder except with respect to any obligation to have
been performed prior to such termination, or with respect to any default in .the
performance of the provisions of this STATUTORY AGREEMENT which has occurred
prior to such termination, or with respect to any obligations which are specifically and
expressly set forth as surviving this STATUTORY AGREEMENT.
3.7 Notices.
3.7.1 Notice Defined. As used in this STATUTORY AGREEMENT, notice
includes, without limitation, the communication of notice, request, demand, approval,
statement, report, acceptance, consent, waiver, appointment or other communication
required or permitted hereunder.
3.7.2 Written Notice and Delivery. All notices shall be in writing and shall
be considered given:
(i) when delivered in person to the recipient named below; or
(ii) three days after deposit in the United States mail, postage
prepaid, addressed to the recipient named below; or
(iii) on the date of personal delivery shown in. the records of the
delivery company after delivery to the recipient named below; or
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(iv) on tl ,e date of delivery by facsimile transmission to the
recipient named below if a hard copy of the notice is deposited in the United States mail,
postage prepaid, addressed to the recipient named below. All notices shall be addressed
as follows:
If to the City: Chief Executive Officer
14403 E. Pacific Avenue
Baldwin Park, CA 91706
If to Owner: Sharone "Shaun" Bershatski
569 S. Williams Road.
Palm Springs, CA 92264
3.7.3 Address Changes. Either party may, by notice given at any time,
require subsequent notices to be given to another person or entity, whether a party or
an officer or representative of a party or to a different address, or both. Notices given
before actual receipt of notice of change shall not be invalidated by the change.
3.8 Validity of this STATUTORY AGREEMENT. Owner and the City each
acknowledge that neither party has made any representations to the other concerning the
enforceability or validity of any one or more provisions of this STATUTORY
AGREEMENT. The parties acknowledge and agree that neither party shall allege in any
administrative or judicial proceeding that the entering into or the performance of any
obligations created in this STATUTORY AGREEMENT violates federal or state law, with
respect to all federal, state and local statutes, ordinances or regulations in effect as of the
Effective Date.
3.9 Fee. Fee means the amount(s) set by the City, negotiated with Owner, to
provide City commensurate benefit based on a private benefit conferred upon Owner.
Fee shall include City's costs to research cannabis and cannabis laws and regulations,
draft cannabis ordinance, conduct public meetings, negotiate development agreements,
process applications, and any other acts taken by the City in furtherance of medical and
adult commercial use of cannabis.
ARTICLE 4. DEVELOPMENT OF THE PROPERTY.
4.1 Right to Develop. Owner shall, subject to the terms of this STATUTORY
AGREEMENT, develop the Property with a commercial cannabis facility in accordance
with and to the extent of the Development Plan and/or application. The Property shall
remain subject to all Subsequent Development Approvals, if any, required to complete
the Project as contemplated by the Development Plan and/or application.
4.2 Effect of Agreement on Land Use Regulations. Except as otherwise
provided by this STATUTORY AGREEMENT, the rules, regulations and official policies
and conditions of approval governing permitted uses of the Property, the density and
intensity of use of the Property, the maximum height and size of proposed buildings, and
the design, improvement, occupancy and construction standards and specifications
ere
applicable to development of the Property shall be the Development Plan and/or
application. Provided, however, that in approving tentative subdivision maps, the City
may impose ordinary and necessary dedications for rights-of-way or easements for public
access, utilities, water, sewers and drainage, having a nexus with the particular
subdivision; provided, further, that the City may impose and will require normal and
customary subdivision improvement agreements and commensurate security to secure
performance of Owner's obligations thereunder.
4.3 Changes to Project. The parties acknowledge that changes to the
Project or Development Approvals may be appropriate and mutually desirable. The City
shall act on such applications, if any, in accordance with the Existing Land Use
Regulations, subject to the Reservations of Authority, or except as otherwise provided by
this STATUTORY AGREEMENT. If approved, any such change in the Existing
Development Approvals shall be considered an additional Existing Development
Approval.
4.4 Reservations of Authority. Any other provision of this STATUTORY
AGREEMENT to the contrary notwithstanding, the Development of the Property shall be
subject to subsequently adopted ordinances, resolutions ("Subsequent Land Use
Regulations" or sometimes referred to as "Reservation of Authority") on the following
topics:
(i) Processing Fees imposed by the City to cover the estimated or
actual costs to the City of processing applications for Development Approvals or for
monitoring compliance with any Development Approvals granted or issued, which fees
are charged to reimburse the City's lawful expenses attributable to such applications,
processing, permitting, review and inspection and which are in force and effect on a
general basis at such time as said approvals, permits, review, inspection or entitlement
are granted or conducted by the City.
(ii) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals
and any other matter of procedure.
(iii) Regulations governing engineering and construction standards and
specifications including, any and all uniform codes adopted by the State of California
and subsequently adopted by the City.
(iv) Regulations which may be in conflict with the Development Plan but
which are reasonably necessary to protect the public health and safety; provided,
however, the following shall apply:
(a) That to the extent possible, such regulations shall be applied
and construed so as to provide Owner with the rights and assurances provided in this
STATUTORY AGREEMENT;
(b) That such regulations apply uniformly to all new
development projects of the same uses within the City; and
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(v) Regulations that do not conflict with the Development Plan. The
term "do not conflict" means new rules, regulations, and policies which: (a) do not modify
the Development Plan, including, without limitation, the permitted land uses, the
density or intensity of use, the phasing or timing of Development of the Project, the
maximum height and size of proposed buildings on the Property, provisions for
Dedication of land for public purposes and Development Exactions, except as expressly
permitted elsewhere in this STATUTORY AGREEMENT, and standards for design,
development and construction of the Project; (b) do not prevent Owner from obtaining
any Subsequent Development Approvals, including, without limitation, all necessary
approvals, permits, certificates, and the like, at such dates and under such circumstances
as Owner would otherwise be entitled by the Development Plan; or (c) do not prevent
Owner from commencing, prosecuting, and finishing grading of the land, constructing
public and private improvements, and occupying the Property, or any portion thereof, all
at such dates and schedules as Owner would otherwise be entitled to do so by the
Development Plan.
(vi) The City shall not be prohibited from applying Project Subsequent
Land Use Regulations that do not affect permitted uses of the land, density, design, public
improvements (including construction standards and spec cations) or the rate of
development of the Development, nor shall the City be prohibited from denying
or conditionally approving any Subsequent Development applications on the basis of
such subsequent Land Use Regulations.
4.5 Other Public Agencies. It is acknowledged by the parties that other
public agencies not within the control of the City possess authority to regulate aspects of
the development of the Property separately from or jointly with the City, and this
STATUTORY AGREEMENT does not limit the authority of such other public agencies.
The City shall reasonably cooperate with other public agencies processing Development
Approvals for the Project.
4.6 Tentative Subdivision Map and Development Approvals Lifespan. The
term of any tentative subdivision map shall be in effect for a period of fifteen (15) years,
and may be extended pursuant to the provisions of the California Subdivision Map Act
(Government Code §§ 66410 et seq.) All Development Approvals shall not expire if
Owner commences substantial construction of the Project within one (1) year from
the Effective Date of this STATUTORY AGREEMENT. "Substantial Construction" means
the issuance of a building permit in furtherance of the Project.
4.7 Satisfaction of Conditions of Approval. Owner shall comply with any and
all conditions of approval for any entitlement, permit, or license it receives from the City.
4.8 Subsequent Entitlements. Prior to commencement of construction of the
Project, Owner shall be required to submit applications for any and all subsequent
entitlements, if any, consistent with the terms and conditions set forth in this STATUTORY
AGREEMENT.
In
4.9 City Records Inspection. Owner acknowledges and agrees that L,
le City is
empowered to examine Owner's books and records, including tax returns. The City has
the power and authority to examine such books and records at any reasonable time,
including but not limited to, during normal business hours. If the City wishes to inspect
the areas of the Property, City may do so at any time with no prior notice to Owner.
ARTICLE 5. PUBLIC BENEFITS.
5.1 Intent. The parties acknowledge and agree that development of the
Property will result in substantial public needs which will not be fully met by the
Development Plan and further acknowledge and agree that this STATUTORY
AGREEMENT confers substantial private benefits on Owner which should be balanced
by commensurate public benefits. Accordingly, the parties intend to provide
consideration to the public to balance the private benefits conferred on Owner by
providing more fully for the satisfaction of the public needs resulting from the Project.
5.2 The parties acknowledge and agree that the public's need for mitigation and
Owner's obligation only commences when the cultivation/manufacturing permit holders
commence their operations. Without the commencement of operations by the
cultivation/manufacturing permit holders, Owner has nothing to distribute and nothing on
which to assess fees.
5.3 For the first year, Owner will pay the City a maximum flat fee in the
amount of $220,000 as a Fee. The Fee shall be prorated based on the actual number
of the number of licensees that are actually operational and authorized
cultivation/manufacturing permit holders. For example, assuming Rukli is distributing for
the 19 permit holders, then if only half the permit holders have commenced
cultivation/manufacturing, the Fee will be one half or $110,000.
5.4 In year two and year three, Owner shall pay to the City a Fee of $275,000.
The proration as set forth in 5.3 shall apply.
5.5 At the beginning of year four and for year five, Owner will pay the City a Fee
of $330,000 for years four and five. The proration as set forth in 5.3 shall apply.
5.6 Starting in year four, the Fee shall be increased annually based on
increases in the Consumer Price Index.
5.7 The Fee schedule is as follows: the first payment for each year is due for
each year on or before July 1 of each year the permit is valid. The second payment for
each year the permit is valid is due on or before December 31, 2018. In all subsequent
years, the Fee payments are due on the same month and day of each respective year
while the permit is valid.
5.8 Further, Owner will pay a yearly payment of $50,000 to the City that can
be used to pay a part of a police officer's salary and/or benefits. This $50,000 amount
will be due at the time the permit is issued. Subsequent annual payments will be due
on the permit issuance anniversary date.
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5.9 .fobs and Wage Creation.
5.9.1 Local Hiring. Owner agrees to use its reasonable efforts to hire
qualified City residents for jobs at the Project. Owner shall also use reasonable efforts
to retain the services of qualified contractors and suppliers who are located in the City
or who employ a significant number of City residents. At least 30 percent of the
Proiect's workforce shall consist of residents of the City. In addition owner will
adhere to the labor standards agreed upon with the United Food and Commercial
Workers, (UFCW) Local 1428 related Labor Peace Agreement i.e.: industry prevailing
wages, along with recognized labor friendly health and welfare concessions. Job
announcements shall be posted at City Hall, along with proof that the job announcements
were advertised in at least two newspapers published, printed or distributed in the City
and on various social media sites accessible to the general public. In addition, Owner
shall make a good faith effort to advertise job announcements at local job fairs, on local
radio and through public agencies and organizations.
5.10 Development Agreement Administrative Fee Deposit. Owner shall be
responsible for all of the City's actual costs associated with processing Development
Approvals for the Project including, but not limited to, costs associated with the City's
review and processing of the Project, including but not limited to reviewing the Project's
entitlements, including all environmental clearance documents, permits, licenses and all
documents evidencing compliance with state and local law. As such, Owner must
deposit $15,000 with the City for the purpose of reimbursing the City for any associated
costs with processing the Project, as detailed above and reimbursing the City for its
actual costs incurred in drafting and processing this STATUTORY AGREEMENT. Owner
will be liable for the City's actual costs incurred in processing future Development
Approval applications. City acknowledges and agrees that this payment is not merely a
deposit, but is a cap on the amount of the City's actual costs incurred in processing this
STATUTORY AGREEMENT.
ARTICLE 6. [RESERVED]
ARTICLE 7. REVIEW FOR COMPLIANCE.
7.1 Periodic Review. The City Council shall review this STATUTORY
AGREEMENT annually, on or before each anniversary of the Effective Date, in order to
ascertain Owner's good faith compliance with this STATUTORY AGREEMENT. During
the periodic review, Owner shall be required to demonstrate good faith compliance with
all the terms of the STATUTORY AGREEMENT.
7.2 Special Review. The City Council may order a special review of
compliance with this STATUTORY AGREEMENT at any time.
7.3 Review Hearing. At the time and place set for the review hearing, Owner
shall be given an opportunity to be heard. If the City Council finds, based upon
substantial evidence, that Owner has not complied in good faith with the terms or
conditions of this STATUTORY AGREEMENT, the City Council may automatically
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terminate this STATUTORY AGREEMENT notwithstanding any other provision of this
STATUTORY AGREEMENT to the contrary, or modify this STATUTORY AGREEMENT
and impose such conditions as are reasonably necessary to protect the interests of the
City. The decision of the City Council shall be final, subject only to judicial review.
7.4 Certificate of Agreement Compliance. If, at the conclusion of a periodic or
special review, the City Council determines that Owner is in compliance with this
STATUTORY AGREEMENT, the City shall issue a Certificate of Agreement Compliance
("'Certificate") to Owner stating that after the most recent periodic or special review, and
based upon the information known or made known to the City Council, that (i) this
STATUTORY AGREEMENT remains in effect and (ii) Owner is not in default. The City
shall not be bound by a Certificate if a default existed at the time of the periodic or special
review, but was concealed from or otherwise not known to the City Council, regardless of
whether or not the Certificate is relied upon by assignees or other. transferees or Owner.
7.5 Failure to Conduct Review. The City's failure to conduct a periodic review
of this STATUTORY AGREEMENT shall not constitute a breach of this STATUTORY
AGREEMENT and does not waive any further reviews identified in Sections 7.1 — 7.3.
7.6 Cost of Review. The costs incurred by City in connection with the periodic
reviews shall be borne by the City. The Owner is not liable for any costs associated
with any City periodic review of this STATUTORY AGREEMENT. The Owner is not liable
for costs incurred for reviews.
ARTICLE 8. DEFAULTS AND REMEDIES.
8.1 Remedies in General. It is acknowledged by the parties that the City
would not have entered into this STATUTORY AGREEMENT if it were to be liable in
damages under this .STATUTORY AGREEMENT, or with respect to this STATUTORY
AGREEMENT or the application thereof, except as hereinafter expressly provided.
Subject to extensions of time by mutual consent in writing, failure or delay by either party
to perform any term or provision of this STATUTORY AGREEMENT shall constitute a
default. In the event of alleged default or breach of any terms or conditions of this
STATUTORY AGREEMENT, the party alleging such default or breach shall give the other
party not less than thirty (30) days' notice in writing specifying the nature of the alleged
default and the manner in which said default may be satisfactorily cured during any such
thirty (30) day period, the party charged shall not be considered in default for purposes of
termination or institution of legal proceedings. Notwithstanding the foregoing to the
contrary, if the alleged default is of such a nature that it cannot be cured within thirty
(30) days, the alleged defaulting party shall not be deemed in default as long as such
party commences to cure such default within such thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
In general, each of the parties hereto may pursue any remedy at law or equity
available for the breach of any provision of this STATUTORY AGREEMENT through any
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state court, except that the City shall not be liable in monetary damages, unless expressly
provided for in this STATUTORY AGREEMENT, to Owner, to any mortgagee or lender,
or to any successors in interest of Owner or mortgagee or lender, or to any other person,
and Owner covenants on behalf of itself and all successors in interest to the Property or
any portion thereof, not to sue for damages or claim any damages:
(i) For any breach of this STATUTORY AGREEMENT or for any cause
of action which arises out of this STATUTORY AGREEMENT; or
(ii) For the impairment or restriction of any right or interest conveyed or
provided under, with, or pursuant to this STATUTORY AGREEMENT, including, without
limitation, any impairment or restriction which Owner characterizes as a regulatory taking
or inverse condemnation; or
(iii) Arising out of or connected with any dispute, controversy or issue
regarding the application or interpretation or effect of the provisions of this STATUTORY
AGREEMENT.
Nothing contained herein shall modify or abridge Owner's rights or remedies (including
its rights for damages, if any) resulting from the exercise by the City of its power of
eminent domain. Nothing contained herein shall modify or abridge Owner's rights or
remedies (including its rights for damages, if any) resulting from the grossly negligent or
malicious acts of the City and its officials, officers, agents and employees. Nothing
herein shall modify or abridge any defenses or immunities available to the City and its
employees pursuant to the Government Tort Liability Act and all other applicable
statutes and decisional law.
Except as set forth in the preceding paragraph relating to eminent domain, Owner's
remedies shall be limited to those set forth in this Section 8.1, Section 8.2, and
Section 8.3.
8.2 Specific Performance. The parties acknowledge that money damages
and remedies at law are inadequate, and specific performance and other non -monetary
relief are particularly appropriate remedies for the enforcement of this STATUTORY
AGREEMENT and should be available to all parties for the following reasons:
(i) Except as provided in Section 8.1, money damages are unavailable
against the City as provided in Section 8.1 above.
(ii) Due to the size, nature and scope of the Project, it may not be
practical or possible to restore the Property to its natural condition once implementation
of this STATUTORY AGREEMENT has begun. After such implementation, Owner may
be foreclosed from other choices it may have had to use the Property or portions thereof.
Owner has invested significant time and resources and performed extensive planning and
processing of the Project in agreeing to the terms of this STATUTORY AGREEMENT and
will be investing even more significant time and resources in implementing the Project in
reliance upon the terms of this STATUTORY AGREEMENT, and it is not possible to
determine the sum of money which would adequately compensate Owner for such efforts;
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the parties acknowledge and agree that any injunctive relief may be ordered on an
expedited, priority basis.
8.3 Termination of STATUTORY AGREEMENT for Default of Owneror the City.
Either Party may terminate this STATUTORY AGREEMENT only in the event of a default
in the performance of a material term of this STATUTORY AGREEMENT and only after
providing written notice to the Party of default setting forth the nature of the default and
the actions, if any, required by the Party to cure such default and, where the default can
be cured, the Party has failed to take such actions and cure such default within sixty
(60) days after the effective date_ of such notice or, in the event that such default cannot
be cured within such sixty (60) day period but can be cured within a longer time, has failed
to commence the actions necessary to cure such default within such sixty (60) day period
and to diligently proceed to complete such actions and cure such default.
8.4 Attorneys' Fees and Costs. In any action or proceeding between the City
and Owner brought to interpret or enforce this STATUTORY AGREEMENT, or which in
any way arises out of the existence of this STATUTORY AGREEMENT or is based upon
any term or provision contained herein, the "prevailing party" in such action or proceeding
shall be entitled to recover from the non -prevailing party, in addition to all other relief to
which the prevailing party may be entitled pursuant to this STATUTORY AGREEMENT,
the prevailing party's reasonable attorneys' fees and litigation costs, in an amount to be
determined by the court. The prevailing party shall be determined by the court in
accordance with California Code of Civil Procedure Section 1032. Fees and costs
recoverable pursuant to this Section 9.4 include those incurred during any appeal from
an underlying judgment and in the enforcement of any judgment rendered in any such
action or proceeding.
8.5 Owner Default. No building permit shall be issued or building permit
application accepted for any structure on the Property after Owner is determined by the
City to be in default of the terms and conditions of this STATUTORY AGREEMENT until
such default thereafter is cured by Owner or is waived by the City. If the City terminates
this STATUTORY AGREEMENT because of Owner's default, then the City shall retain
any and all benefits, including but not limited to money or fees received by the City
hereunder. One example of a material default by Owner would be the failure to timely
pay the Mitigation fee or any other payment or fee required by the City under this
STATUTORY AGREEMENT or by virtue of any BPMC.
ARTICLE 9. THIRD PARTY LITIGATION.
9.1 General Plan Litigation. The City has determined that this STATUTORY
AGREEMENT is consistent with its General Plan. Owner has reviewed the General Plan
and concurs with the City's determination. The City shall have no liability under this
STATUTORY AGREEMENT or otherwise for any failure of the City to perform under this
STATUTORY AGREEMENT, or for the inability of Owner to develop the Property as
contemplated by the Development Plan, which failure to perform or inability to develop is
as the result of a judicial determination that the General Plan, or portions thereof, are
invalid or inadequate or not in compliance with law, or that this STATUTORY
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AGREEMENT or any of the City's actions in adopting it were invalid, inadequate, or not
in compliance with law. Notwithstanding the foregoing, neither party shall contend in any
administrative or judicial proceeding that any STATUTORY AGREEMENT or any
Development Approval is unenforceable based upon federal, state or local statutes,
ordinances or regulations in effect on the Effective Date.
9.2 Hold Harmless Agreement. Owner hereby agrees to, and shall hold City,
its elective and appointive boards, commissions, officers, agents, and employees
harmless from any liability for damage or claims for damage for personal injury,
including death, as well as from claims for property damage which may arise from
Owner or Owner's contractors, subcontractors, agents, or employees operations under
this STATUTORY AGREEMENT, whether such operations be by Owner, or by any of
Owner's contractors, subcontractors, agents, or employees operations under this
STATUTORY AGREEMENT, whether such operations be by Owner, or by any of Owner's
contractors, subcontractors, or by any one or more persons directly or indirectly employed
by, or acting as agent for Owner or any of Owner's contractors or subcontractors. Owner
agrees to and shall defend City and its elective and appointive boards, commissions,
officers, agents and employees from any suits or actions at law or in equity for damage
caused, or alleged to have been caused, by reason of any of the aforesaid operations.
9.3 Indemnification. Owner shall defend, indemnify and hold harmless City
and its agents, officers and employees against and from any and all liabilities, demands,
claims, actions, lawsuits, government claims or proceedings and costs and expenses
incidental thereto (including costs of defense, settlement and reasonable attorneys'
fees), which any or all of them may suffer, incur, be responsible for or pay out as a
result of or in connection with any challenge to the legality, validity or adequacy of any
of the following: (i) this STATUTORY AGREEMENT and the concurrent and subsequent
permits, licenses and entitlements approved for the Project or Property; (ii) the
environmental impact report, if any, mitigated negative declaration, if any, or negative
declaration, if any, as the case may be, prepared in connection with the development of
the Project or Property; and (iii) the proceedings undertaken in connection with the
adoption or approval of any of the above. In the event of any legal or equitable action or
other proceeding instituted by any party including but not limited to a third party (including
a governmental entity or official) challenging the validity of any provision of this
STATUTORY AGREEMENT or any portion thereof as set forth herein, the parties shall
mutually cooperate with each other in defense of said action or proceeding and Owner
shall pay all of City's legal fees for a lawyer of its choosing. Notwithstanding the above,
the City, at is sole option, may tender the complete defense of any third party challenge
as described herein. In the event the City elects to contract with special counsel to
provide for such a defense, the City shall at its sole discretion be permitted to select
special counsel to defend the City, and Owner shall pay all costs related to retention of
such counsel. However, the hourly fee of any special counsel selected by the City may
not be over $450.00 per hour.
9.4 Environmental Contamination. Owner shall indemnify and hold the City, its
officers, agents, and employees free and harmless from any liability, based or
asserted, upon any act or omission of the Owner, its officers,, agents, employees,
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subcontractors, predecessors in interest, successors, assigns and independent
contractors, excepting any acts or omissions of City as successor to any portions of the
Property dedicated or transferred to City by Owner, for any violation of any federal, state
or local law, ordinance or regulation relating to industrial hygiene or to environmental
conditions on, under or about the Property, including, but not limited to, soil and
groundwater conditions, and Owner shall defend, at its expense, including attorneys'
fees, the City, its officers, agents and employees in any action based or asserted upon
any such alleged act or omission. The City may in its discretion participate in the
defense of any such claim, action or proceeding. The provisions of this Section 9.4 do
not apply to environmental conditions that predate Owner's ownership or control of the
Property or applicable portion; provided, however, that the foregoing limitation shall not
operate to bar, limit or modify any of Owner's statutory or equitable obligations as an
owner or seller of the Property.
9.5 INTENTIONALLY BLANK
9.6 Accept Reasonable Good Faith Settlement. With respect to Article 9,
the City shall not reject any reasonable good faith settlement. Before accepting any
such settlement offer, City shall notify Owner of the offer and provide Owner with a copy
of the offer. If Owner disagrees with the City's intention to accept the offer, prior to the
City's response to any offer, the parties shall meet and confer in order to attempt to
resolve the parties' differences. If the City does reject a reasonable, good faith
settlement that is acceptable to Owner, Owner may enter into a settlement of the action,
as it relates to Owner, and the City shall thereafter defend such action (including
appeals) at its own cost and be solely responsible for any judgments rendered in
connection with such action. This Section 9.6 applies exclusively to settlements
pertaining to monetary damages or damages which are remedial by the payment of
monetary compensation. Owner and the City expressly agree that this Section 9.6 does
not apply to any settlement that requires an exercise of the City's police powers, limits
the City's exercise of its police powers, or affects the conduct of the City's municipal
operations.
9.7 Administrative Actions. The parties acknowledge that in the future there
could be claims, enforcement actions, requests for information, subpoenas, criminal or
civil actions initiated or served by either the Federal Government or the State
Government in connection with Owner's development, operation and use of the
Property (collectively, "Actions"). The City shall not disclose information and documents
to the Federal Government or State Government, its officers, or agents regarding any
party to this STATUTORY AGREEMENT absent a grand jury subpoena, civil or
administrative subpoena, warrant, discovery request, summons, court order or similar
process authorized under law hereinafter called "Governmental Notice". If any Action is
brought by either the Federal or State Government, City shall immediately notify Owner
of the nature of the Claim including all correspondence or documents submitted to the
City. Prior to responding to the Governmental Notice, City shall provide Owner ten
(10) days from the date of such notice subpoena or the like to serve and obtain on the
City a protective order, or the like, from a court of competent jurisdiction. The City will
respond to all Public Records Act requests as required by state law and nothing in this
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paragraph prevents the City from fulfilling its duties under state law regarding Public
Records Act requests.
9.8 Survival. The provisions of Sections 9.1 through 9.7 inclusive, shall survive
the termination or expiration of this STATUTORY AGREEMENT, until such time as the
uses of the Property established in the Development Plan are permanently terminated.
ARTICLE 10. THIRD PARTY LENDERS, ASSIGNMENT & SALE.
10.1 Encumbrances. The parties hereto agree that this STATUTORY
AGREEMENT shall not prevent or limit Owner, in any manner, at Owner's sole discretion,
from encumbering the Property or any portion thereof or any improvement thereon by any
mortgage, deed of trust or other security device securing financing with respect to the
Property.
10.2 Lender Requested Modification/Interpretation. The City acknowledges
that the lenders providing such financing may request certain interpretations and
modifications of this STATUTORY AGREEMENT and agrees upon request, from time to
time, to meet with Owner and representatives of such lenders to negotiate in good faith
any such request for interpretation or modification. The City will not unreasonably
withhold its consent to any such requested interpretation or modification provided such
interpretation or modification is consistent with the intent and purposes of this
STATUTORY AGREEMENT, provided, further, that any modifications of this
STATUTORY AGREEMENT are subject to the provisions of Section 10.5.
ARTICLE 11. MISCELLANEOUS PROVISIONS.
11.1 Entire Agreement. This STATUTORY AGREEMENT sets forth and
contains the entire understanding and agreement of the parties, and there are no oral or
written representations, understandings or ancillary covenants, undertakings or
agreements that are not contained or expressly contained herein. No testimony or
evidence of any such representations, understandings or covenants shall be admissible
in any proceeding of any kind or nature to interpret or determine the terms or conditions
of this STATUTORY AGREEMENT, provided, however, City at its option may rely on
statements by Owner's agents at the public hearings leading to the City's approval of the
project or on written documents by Owner's agents that are a part of the public record.
11.2 Severability. If any term, provision, covenant or condition of this
STATUTORY AGREEMENT shall be determined invalid, void or unenforceable, by a
court of competent jurisdiction, the remainder of this STATUTORY AGREEMENT shall
not be affected thereby to the extent such remaining provisions are not rendered
impractical to perform taking into consideration the purposes of this STATUTORY
AGREEMENT. The foregoing notwithstanding, the provision of the public benefits set
forth in Article 5, including the payment of the fees set forth therein, are essential
elements of this STATUTORY AGREEMENT and the City would not have entered into
this STATUTORY AGREEMENT but for such provisions, and therefore in the event that
any portion of such provisions are determined to be invalid, void or unenforceable, at the
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City's option this entire STATUTORY A GREEMENT shall terminate and from that point
on be null and void and of no force and effect whatsoever. The foregoing notwithstanding,
the development rights set forth in Article 4 of this STATUTORY AGREEMENT are
essential elements of this STATUTORY AGREEMENT and Owner would not have
entered into this STATUTORY AGREEMENT but for such provisions, and therefore in the
event that any portion of such provisions are determined to be invalid, void or
unenforceable, at Owner's option this entire STATUTORY AGREEMENT shall terminate
and from that point on be null and void and of no force and effect whatsoever.
11.3 Interpretation and Governing Law. This STATUTORY AGREEMENT and
any dispute arising hereunder shall be governed and interpreted in accordance with the
laws of the State of California. This STATUTORY AGREEMENT shall be construed as a
whole according to its fair language and common meaning to achieve the objectives and
purposes of the parties hereto, and the rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not be employed in interpreting this
STATUTORY AGREEMENT, since all parties were represented by counsel in the
negotiation and preparation hereof.
11.4 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this
STATUTORY AGREEMENT.
11.5 Singular and Plural; Gender, and Person. Except where the context
requires otherwise, the singular of any word shall include the plural and vice versa, and
pronouns inferring the masculine gender shall include the feminine gender and neuter,
and vice versa, and a reference to "person" shall include, in addition to a natural person,
any governmental entity and any partnership, corporation, joint venture or any other
form of business entity.
11.6 Time of Essence. Time is of the essence in the performance of the
provisions of this STATUTORY AGREEMENT as to which time is an element.
11.7 Waiver. Failure by a party to insist upon the strict performance of any of
the provisions of this STATUTORY AGREEMENT by the other party, or the failure by a
party to exercise its rights upon the default of the other party, shall not constitute a waiver
of such party's right to insist and demand strict compliance by the other party with the
terms of this STATUTORY AGREEMENT thereafter.
11.8 No Third Party Beneficiaries. The only parties to this STATUTORY
AGREEMENT are Owner and the City. This STATUTORY AGREEMENT is made and
entered into for the sole protection and benefit of the parties and their successors and
assigns. There are no third party beneficiaries and this STATUTORY AGREEMENT is
not intended, and shall not be construed, to benefit, or be enforceable by any other person
whatsoever.
11.9 Force Majeure. If delays are caused by unforeseen events beyond the
control of Owner, such delays will entitle Owner to an extension of time as provided in
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this Section and Article 7. Such unforeseen events ("Force Majeure") shall mean war,
insurrection, acts of God, local, state or national emergencies, third party litigation,
strikes and other labor difficulties beyond the party's control, any litigation filed by a third
party, any Action initiated by the Federal Government or State Government, or any
default by the City hereunder, which Force Majeure event substantially interferes with
the development or construction of the Project.
11.10 In the case of a Force Majeure event, any and all time periods referred to
in this STATUTORY AGREEMENT shall be extended for a period equal to any delay to
the Project caused by any such Force Majeure event; provided, however, that no such
time period shall be extended beyond a cumulative total of five (5) years.
Extensions of time, when granted, will be based upon the effect of delays on the
Project. They will not be granted for: (1) delays of three days or less or (2) for delays
due to Owner's inability to obtain financing with respect to the Development of the Project.
Owner shall in writing promptly notify Chief Executive Officer upon learning of
any such Force Majeure event. The Chief Executive Officer or his or her designee shall
ascertain the facts and the extent of the delay and his findings thereon shall be included
in Owner's annual monitoring report unless Owner disputes the findings and requests
that the period of delay be heard and determined as a part of the annual review process.
11.11 Mutual Covenants. The covenants contained herein are mutual covenants
and also constitute conditions to the concurrent or subsequent performance by the party
benefited thereby of the covenants to be performed hereunder by such benefited party.
11.12 Successors in Interest. The permit may not be transferred or sold without
City Council approval. The permit may only be transferred to a family member if the
current owner(s) are unable to operate the business because of mental incompetence or
physical incapacity. The burdens of this STATUTORY AGREEMENT shall be binding
upon, and the benefits of this STATUTORY AGREEMENT shall inure to, all successors
in interest to the parties to this STATUTORY AGREEMENT.
.The burdens of the STATUTORY AGREEMENT shall be binding upon, and
the benefits of the STATUTORY AGREEMENT shall inure to all successors in interest to
the parties to this STATUTORY AGREEMENT.
11.13 Counterparts. This STATUTORY AGREEMENT may be executed by the
parties in counterparts, which counterparts shall be construed together and have the
same effect as if all of the parties had executed the same instrument.
11.14 Jurisdiction and Venue. Any action at law or in equity arising under this
STATUTORY AGREEMENT or brought by a party hereto for the purpose of enforcing,
construing or determining the validity of any provision of this STATUTORY AGREEMENT
shall be filed and prosecuted in the Superior Court of the County of Los Angeles, State of
California, and the parties hereto waive all provisions of federal or state law or judicial
decision providing for the filing, removal or change of venue to any other state or federal
court, including, without limitation, Code of Civil Procedure Section 394.
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11.15 Project as a Private Undertaking. It Is specifically understood and agreed
by and between the parties hereto that the development of the Project is a private
development, that neither party is acting as the agent of the other in any respect
hereunder, and that each party is an independent contracting entity with respect to the
terms, covenants and conditions contained in this STATUTORY AGREEMENT. No
partnership, joint venture or other association of any kind is formed by this STATUTORY
AGREEMENT. The only relationship between the City and Owner is that of a government
entity regulating the development of private property and the owner of such property.
11.16 Further Actions and Instruments. Each of the parties shall cooperate with
and provide reasonable assistance to the other to the extent contemplated hereunder in
the performance of all obligations under this STATUTORY AGREEMENT and the
satisfaction of the conditions of this STATUTORY AGREEMENT. Upon the request of
either party at any time, the other party shall promptly execute, with acknowledgment or
affidavit if reasonably required, and file or record such required instruments and writings
and take any actions as may be reasonably necessary under the terms of this
STATUTORY AGREEMENT to carry out the intent and to fulfill the provisions of this
STATUTORY AGREEMENT or to evidence or consummate the transactions
contemplated by this STATUTORY AGREEMENT.
11.17 Eminent Domain. No provision of this STATUTORY AGREEMENT shall be
construed to limit or restrict the exercise by the City of its power of eminent domain.
11.18 Agent for Service of Process. In the event Owner is not a resident of the
State of California or it is an association, partnership or joint venture without a member,
partner or joint venturer, resident of the State of California, or if it is a foreign corporation,
then Owner shall file, upon its execution of this STATUTORY AGREEMENT, with the
Chief Executive Officer or his or her designee, upon its execution of this STATUTORY
AGREEMENT, a designation of a natural person residing in the State of California, giving
his or her name, residence and business addresses, as its agent for the purpose of
service of process in any court action arising out of or based upon this STATUTORY
AGREEMENT, and the delivery to such agent of a copy of any process in any such action
shall constitute valid service upon Owner. If for any reason service of such process upon
such agent is not feasible, then in such event Owner may be personally served with such
process out of the County of Los Angeles and such service shall constitute valid service
upon Owner. Owner is amenable to the process so described, submits to the jurisdiction
of the Court so obtained, and waives any and all objections and protests thereto.
11.19 Authority to Execute. The person or persons executing this STATUTORY
AGREEMENT on behalf of Owner warrants and represents that he/she/they have the
authority to execute this STATUTORY AGREEMENT on behalf of his/her/their
corporation, partnership or business entity and warrants and represents that he/she/they
has/have the authority to bind Owner to the performance of its obligations hereunder.
Owner shall each deliver to City on execution of this STATUTORY AGREEMENT a
certified copy of a resolution and or minute order of their respective board of directors or
appropriate governing body authorizing the execution of this STATUTORY AGREEMENT
and naming the officers that are authorized to execute this STATUTORY AGREEMENT
-20-
on its behalf. Each individual executing this STATUTORY AGREEMENT on behalf of his
or her respective company or entity shall represent and warrant that:
(i) The individual is authorized to execute and deliver this STATUTORY
AGREEMENT on behalf of that company or entity in accordance with a duly adopted
resolution of the company's board of directors or appropriate governing body and in
accordance with that company's or entity's articles of incorporation or charter and bylaws
or applicable formation documents; and
(ii) This STATUTORY AGREEMENT is binding on that company or
entity in accordance with its terms; and
(iii) The company or entity is a duly organized and legally existing
company or entity in good standing; and
(iv) The execution and delivery of this STATUTORY AGREEMENT by
that company or entity shall not result in any breach of or constitute a default under any
mortgage, deed of trust, loan agreement, credit agreement, partnership agreement, or
other contract or instrument to which that company or entity is party or by which that
company or entity may be bound.
11.20 Nexus/Reasonable Relationship Challenges. Owner consents to, and
waives any rights it may have now or in the future to challenge the legal validity of, the
conditions, requirements, policies or programs set forth in this STATUTORY
AGREEMENT including, without limitation, any claim that they constitute an abuse of the
police power, violate substantive due process, deny equal protection of the laws, effect a
taking of property without payment of just compensation, or impose an unlawful tax.
11.21 This STATUTORY AGREEMENT when signed and executed by Owner and
the Mayor of Baldwin Park supercedes and renders null and void that certain non -
statutory municipal Development Agreement executed on or about December 29, 2017.
11.22 No Damages Relief Against City. The parties acknowledge that the City
would not have entered into this STATUTORY AGREEMENT had it been exposed to
damage claims from Owner, or Owners successors in interest, assigns, partners, or
anyone acting on behalf of Owner for any breach thereof. As such, the parties agree that
in no event shall Owner, or Owners successors in interest, assigns, partners, or anyone
acting on behalf of Owner be entitled to recover damages against City for breach of this
STATUTORY AGREEMENT.
11.23 Laws. Owner agrees to comply with all applicable state, regional, and
local laws, regulations, polices and rules. In addition, Owner further agrees to comply
with all issued entitlements, permits, licenses, including any and all applicable
development standards. Specifically, Owner agrees to comply with all applicable
provisions of BPMC.
11.24 Compliance with Conditions of Approval. Owner agrees to comply with and
fulfill all conditions of approval for any and all entitlement, permits, and/or licenses it
-21-
receives from the City. All conditions of approval for all entitlements, permits and/or
licenses are attached hereto and incorporated herein by this reference.
11.25 The City acknowledges that this STATUTORY AGREEMENT shall be read
consistent with any statewide or national regulation of commercial cannabis that is
promulgated in the future, either by legislative action or voter approval. In the event
national or statewide regulations are promulgated which decriminalize or legalize the
adult -use of marijuana for recreational use, this STATUTORY AGREEMENT shall govem
the conduct of the property under such future regulations.
IN WITNESS WHEREOF, the parties hereto have caused this STATUTORY
AGREEMENT to be executed as of the dates written above.
CITY OF BALDWIN PARK
By:
Manuel Lozano, Mayor
ATTEST:
By:
Jean M. Ayala,
City Clerk
APPROVED AS TO FORM:
By:
Robert N. Tafoya,
City Attorney
-22-
RUKLI, INC.
By:
President
APPROVED AS TO FORM:
By:
Legal Counsel for
RUKLI, INC.
STAFF REPORT
ITEM NO. its
TO: Honorable Mayor and Members of the City Council
FROM: Benjamin Martinez, Community Development Director
Shannon Yauchzee, Chief Executive Officer
DATE: April 17, 2019
SUBJECT: Adoption of Resolution No. 2019-016, Joining California Choice
Energy Authority and Other Related Actions
SUMMARY
This report seeks City Council consideration and direction regarding joining California Choice Energy
Authority.
RECOMMENDATION
Staff recommends that the City Council:
1.) Adopt Resolution No. 2019-016 Entitled: " RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF BALDWIN PARK CALIFORNIA AUTHORIZING THE CITY'S ENTRY INTO A JOINT
EXERCISE OF POWERS AGREEMENT REGARDING THE CALIFORNIA CHOICE ENERGY
AUTHORITY AND DIRECTING THE TAKING OF FURTHER ACTIONS RELATED THERETO";
and
2.) Authorize and direct staff to enter into an Administrative Services Agreement with California
Choice Energy Authority; and
3.) Authorize and direct staff to enter into a Security Agreement with River City Bank; and
4.) Authorize and direct staff to enter into an Intercreditor and Collateral Agency Agreement with
River City Bank and Secured Creditors; and
5.) Authorize and direct staff to enter into a Deposit Account Control Agreement with River City
Bank; and
6.) Approve Baldwin Park CCA program name "Baldwin Park Resident Owned Utility District (B -
PROUD)"
FISCAL IMPACT
There is no immediate fiscal impact related to these actions. The agreements establish the protections
for the general fund from the future energy supply contracts and establish the terms and conditions of
the relationship between the City of Baldwin Park ("City") and California Choice Energy Authority
("CalChoice"). No fees related to the Administrative Services Agreement will be accrued or charged
until the Baldwin Park CCA has launched, scheduled for September 2020 for Phase 1.
BACKGROUND
The City Council has taken several steps over the past year as part of its research into establishing a
community choice aggregation ("CCA") program in the City of Baldwin Park. These steps have
included:
• Engaging CalChoice to perform a technical study to determine the feasibility of operating a
CCA in the City of Baldwin Park.
• Adopting a resolution approving the Baldwin Park CCA Implementation Plan and Statement
of Intent.
64.-
• Authorizing submittal of the Baldwin Park CCA Implementation Plan and Statement of Intent
to be filed with the California Public Utilities Commission ("CPUC") for certification.
• Receiving certification of the Baldwin Park CCA Implementation Plan and Statement of Intent
from the CPUC.
• Approval of an agreement with CalChoice to provide CCA implementation services.
• Approval of $100k bond posting with CPUC and SCE Service Agreement.
• Adopted Ordinance establishing a CCA program.
The updated technical study completed in February 2019, utilizing current customer electricity usage
information from Southern California Edison ("SCE") current power market conditions concluded that
Baldwin Park can establish a CCA program that meets the goals of:
• Local control of energy procurement and rate setting.
• Revenue streams that can support climate action plan goals and energy efficiency programs
that meet the priorities as established by City Council.
• Sufficient revenues to cover costs and establish reserves.
• Rate savings to its residents and businesses.
The actions proposed in this report are:
• Adopting Resolution to Join California Choice Energy Authority;
• Authorizing Administrative Services Agreement with California Choice Energy Authority;
• Authorizing Security Agreement with River City Bank;
• Authorizing Intercreditor and Collateral Agency Agreement with River City Bank and Secured
Creditors;
• Authorizing Deposit Account Control Agreement with River City Bank.
Resolution to Join California Choice Energy Authority
CalChoice is a Joint Powers Authority that accepts associate members for the purpose of CCA power
procurement, regulatory compliance and advocacy and administrative functions. Doing so results in a
more cost effective CCA program for all members. The member agencies maintain all control of
decision making for the CCA program, including revenue control, rate setting, policy decisions and
program development. Current associate members include Apple Valley, Lancaster, Pico Rivera,
Rancho Mirage and San Jacinto. Cities considering joining include Commerce, Hanford, Palmdale,
Pomona and Santa Paula. As members increase, the shared costs go down, improving the net results
of the individual Member CCAs. The CalChoice board will be considering approval of Baldwin Park's
entry into CalChoice as an associate member on April 23, 2019.
California Choice Energy Authority Administrative Services Agreement; Security Agreement;
Intercreditor and Collateral Agency Agreement; and Deposit Account and Control Agreement
The California Choice Energy Authority Administrative Service Agreement ("ASA") is the guiding
document that establishes the working relationship between City of Baldwin Park and CalChoice. Fees
for the ASA services should be considered estimates and do not begin to be accrued until the Baldwin
Park CCA is serving customers. The fees were estimated based on Baldwin Park being the 6t" agency
to join CalChoice, however, there are five other agencies considering joining as Associate Members.
Since a portion of the fees are shared, as additional agencies join the shared fees are reduced for all
Associate Members. An updated Exhibit C Fee Schedule will be provided to Baldwin Park prior to the
2020 launch.
The Security and Intercreditor and Collateral Agency Agreements are the documents that establish the
protections for the Baldwin Park General Fund. These documents provide that the revenues generated
by the CCA are deposited into a separate bank account, the "Lockbox", and is the security pledge for
energy purchases. There are several energy suppliers that are comfortable with this arrangement and
have these same arrangements with most of the CalChoice Associate Members. These documents
establish the priority waterfall for distributing funds from the lockbox.
The Deposit Account and Control Agreement ("DACA") establishes the relationship with the City of
Baldwin Park's 3rd party financial institution that administers the Lockbox account, the City of Baldwin
Park and the Energy Suppliers. To date, only River City Bank is offering those services, and provides
these services to nearly all operating CCAs in the state.
These documents are before the City Council for consideration now to enable CalChoice to move
forward in meeting the Resource Adequacy procurement requirements. The approval of these
documents do not bind Baldwin Park to launching and operating a CCA, they enable progress to
continue to move forward towards launch.
Baldwin Park CCA Program Name
While the Baldwin Park CCA is a service of the City of Baldwin Park, it is typical that CCAs are given a
program name around which a brand and identity can be developed. Staff has considered various
naming options and recommends Baldwin Park Resident Owned Utility District "B -PROUD". The name
is recommend due to its emphasis on the local nature of the CCA program.
Next Steps
During the month of April, CalChoice is developing load data information for a required Year -Ahead
Resource Adequacy regulatory filing with the California Energy Commission ("CEC"). The CEC will
determine Baldwin Park's Resource Adequacy requirements upon which CalChoice will begin soliciting
proposals from energy suppliers. These results of the solicitation will be returned to the City, along with
the recommendation for selection, in late summer.
ALTERNATIVES
The alternative is not approve the staff recommendations resulting in the City not being able to consider
launching a CCA in 2020.
LEGAL REVIEW
This report has been reviewed and approved by the City Attorney as to legal form and content.
ATTACHMENTS
1. Resolution No. 2019-016 Approving Entry into California Choice Energy Authority
2. California Choice Energy Authority JPA and Bylaws
3. Administrative Services Agreement with California Choice Energy Authority
4. Security Agreement
5. Intercreditor and Collateral Agency Agreement
6. Deposit Account Control Agreement
Attachment 1
Resolution No. 2019-016
RESOLUTION NO. 2019-016
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BALDWIN
PARK, CALIFORNIA, AUTHORIZING THE CITY'S ENTRY INTO A JOINT
EXERCISE OF POWERS AGREEMENT REGARDING THE CALIFORNIA
CHOICE ENERGY AUTHORITY AND DIRECTING THE TAKING OF
FURTHER ACTIONS RELATED THERETO
WHEREAS, the City of Baldwin Park ("City") is a municipal corporation organized
and operating under the laws of the State of California, with the City Council of the City of
Baldwin Park ("City Council") serving as the governing body of the City; and
WHEREAS, the California Choice Energy Authority ("Authority") is a joint exercise
of powers authority created under the Joint Exercise of Powers Act (California Government
Code Section 6500, et seq.) by that certain agreement dated August 14, 2012, and
originally entitled "Joint Exercise of Powers Agreement Relating to the California Clean
Energy Authority" ("JPA Agreement"); and
WHEREAS, the Authority changed its name to the "California Choice Energy
Authority" via its adoption of the First Amendment to the JPA Agreement on March 28,
2017; and
WHEREAS, Section 12 of the JPA Agreement provides that public agencies may be
added as parties to the JPA Agreement, and thereby become members of the Authority,
upon the following: (i) the filing with the Authority of an executed counterpart of the JPA
Agreement, together with a copy of the resolution of the governing body of the joining
public agency approving the JPA Agreement and the execution and delivery thereof; and
(ii) adoption of a resolution of the Authority's governing body approving the addition of
such public agency as a member; and
WHEREAS, the City Council desires for the City to become a party to the
Agreement and a member of the Authority, and finds that doing so will further the public
health, safety, and general welfare of the community.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BALDWIN PARK
HEREBY RESOLVES AS FOLLOWS:
Section 1. Based on the staff report, presentation, public comment, and other
matters presented to the City Council during its consideration of this matter, the City
Council finds and declares that the foregoing recitals are true and correct, and hereby
incorporated as substantive findings of this Resolution.
Section 2. The City Council hereby approves and authorizes the City to enter into
the JPA Agreement, and thereby approves and authorizes the City to become a member
of the Authority. The City Manager is authorized and directed to execute a counterpart to
the JPA Agreement on behalf of the City and file the same, along with a copy of this
Resolution, with the Authority pursuant to Section 12 of the JPA Agreement.
Section 3. The City Council hereby authorizes the City to enter into, and the City
Manager is authorized and directed to execute on the City's behalf, an administrative
services agreement with the Authority in a form substantially similar to that attached hereto
as Exhibit "A" ("Services Agreement"). The City Council further authorizes the Authority to
enter into any ancillary agreements required in connection with the Services Agreement on
behalf of the City.
Section 4. The City Council hereby authorizes the City to enter into, and the City
Manager is authorized and directed to execute on the City's behalf, a security agreement,
inter -creditor agreement, and one or more account control agreements in a form
substantially similar to those respective agreements as are attached hereto as Exhibit "B"
("Security Agreements"). The City Council further authorizes the Authority to enter into any
ancillary agreements on behalf of the City required in connection with the Security
Agreements.
Section 5. The City Council further authorizes the Authority to negotiate, from time
to time, the Authority's entry into purchase contracts on behalf of the City for the purchase
of energy and renewable energy, and related products, and for which contracts the City
shall be solely responsible for payment of through the Security Agreements (each, an
"Energy Contract"), which Energy Contract shall be substantially similar to the form to
attached to the Services Agreement as Exhibit "A"; provided that the term of any such
Energy Contract shall not exceed five (5) years. The Authority shall provide the proposed
Energy Contract to the City Manager, or his/her authorized designee, who is hereby
authorized and directed to review the proposed Energy Contract and, in the exercise of
his/her reasonable discretion, provide the Authority with his/her written approval thereof.
The Authority shall have, and the City Manager may not withhold, the authority to grant a
seller under the Energy Contract a first priority security interest in the collateral (Le. the
lock box account) secured by the Security Agreements.
Section 6. Upon receipt of the written approval from the City Manager of an Energy
Contract as set forth in Section 5 above, which may be provided via email
correspondence, the City Council authorizes the Authority to enter into an Energy Contract
on behalf of and for the sole benefit of the City. The City Council further authorizes the
Authority to enter into any ancillary agreements required in connection with an Energy
Contract, subject to receipt of written approval from the City Manager of any such ancillary
agreements as set forth in Section 5 above.
Section 7. This Resolution shall take effect immediately upon its adoption. The
City Clerk shall enter this Resolution into the official book of resolutions.
PASSED, APPROVED, AND ADOPTED this 17th day of April, 2019.
MANUELLOZANO
MAYOR
ATTEST:
STATE OF CALIFORNIA
COUNTY OF LOS ANGELESSS:
CITY OF BALDWIN PARK
I, JEAN M. AYALA, City Clerk of the City of Baldwin Park do hereby certify that the foregoing
Resolution No. 2019-016 was duly adopted by the City Council of the City of Baldwin Park
at a regular meeting thereof held on April 17, 2019 and that the same was adopted by the
following vote to wit:
JEAN M. AYALA
CITY CLERK
Attachment 2
CA Choice Energy Authority JPA & Bylaws
First Amended and Restated Bylaws of
The California Choice Energy Authority
ARTICLE 1 THE AUTHORITY
Section 1.1 Name
The official name of the Authority shall be the "California Choice Energy
Authority." The Authority was created pursuant to the Joint Exercise of Powers
Agreement, dated August 14, 2012 (Agreement), between the City of Lancaster
("Lancaster") and the City of San Jacinto ("San Jacinto'). The Authority has and
may add additional members per the terms of the Joint Exercise of Power
Agreement.
Section 1.2 Authority Board Members
The Authority shall be administered by a governing Board of Directors (the
"Board") as set forth in the Agreement.
Section 1.3 Principal C?ffice
The principal office for the transaction of the business of the Authority shall be
the Lancaster City Hall, located at 44933 Fern Avenue, Lancaster, California, or
at such other place as may be designated by the Board by resolution.
Section 1.4 Com2gnsat on
Members of the Board shall receive no compensation for attendance at an
Authority meeting. Authority Members may be reimbursed for any expenses
actually incurred in connection with serving as a member of the Board.
Section 1.5 Conflicts of Interest
The Authority shall adopt a conflict of interest code pursuant to, and in
accordance with, the Fair Political Practices Act.
ARTICLE 2 OFFICERS
Section 2.1 Officers
The Officers of the Authority shall be the Chair, Vice Chair, Executive Director,
Secretary and Treasurer/Auditor-Controller.
Section 2.2 Chair
The Chair shall be the Mayor of Lancaster and shall preside at all meetings of the
Authority, but shall have no authority greater than any other board member except
as set forth in the Agreement and/or these By-laws.
Section 2.3 Vice Chair
The Vice Chair shall be appointed by the Chair with consent of the remainder of
the Board, and shall perform the duties of the Chair in the absence or incapacity
of the Chair, until such time as a new Chair is selected or appointed.
Section 2.4 Executive Director
The Board shall appoint an Executive Director who shall be the City Manager of
Lancaster, or his or her designee, and shall be responsible for execution and
supervision of the affairs of the Authority. Except as otherwise authorized by vote
of the Board, the Executive Director or his or her designee shall sign all contracts,
deeds and other instruments executed by the Authority. The Executive Director
shall also perform other such functions and duties as may be delegated to him or
her by vote of the Board.
Section 2.5 Secretary
The Board shall appoint a Clerk of the Board who shall be the City Clerk of
Lancaster.
Section 2.6 Treasurer/Auditor-Controller
The Executive Director shall appoint a Treasurer/Auditor-Controller. Subject to
the applicable provisions of any trust agreement, indenture or resolution providing
for a trustee or other fiscal agent, the Treasurer/Auditor-Controller is designated
as the public officer or person who has charge of, handles, or has access to any
property of the authority, and shall file an official bond if so required by the
Board in accordance with these By-laws and, as such, shall have the powers,
duties and responsibilities specified in Section 6505.1 of the Joint Exercise of
Powers Act (the "Act"), set forth at California Government Code Sections 6500 et
seq., as amended. The Treasurer/Auditor-Controller shall perform all duties of a
treasurer, as outlined in Section 6505.5 of the Act; however, the Board shall have
the discretion to transfer this function to a certified public accountant, consistent
with Section 6505.5.
Section 2.7 Confirmation of Officers
Confirmation of officers shall be the first order of business at the first meeting of
the Authority, regular or special, held in each fiscal year.
Section 2.8 Authority to Bind AuthoriW
No member, officer, agent or employee of the Authority shall have any power or
authority to bind the Authority by any contract, to pledge its credit, or to render it
liable for any purpose in any amount, except to the extent that such person has
been granted or delegated prior specific or general authority by vote of the Board.
ARTICLE 3 EMPLOYEES AND AGENTS
Section 3.1 Appointment of Employees and Agents
The Authority, through the Executive Director, may from time to time request
from the respective authority Members the services of such personnel, counsel or
agents, permanent or temporary, as may be necessary to carry out the business
and affairs of the Authority. The Board, or the Executive Director if so delegated
by vote of the Board, may in addition employ or contract with temporary
professional and technical personnel for the performance of Authority business
and affairs, on such terms and at such rates of compensation as the Board, or
Executive Director if so delegated by the Board, may determine; provided,
however, that adequate sources of funds are identified for the payment of such
temporary professional and technical services. Staff from Authority Members
supporting the Authority shall be paid/reimbursed from the Authority for all
applicable time billed at their fully -burdened hourly rate, as approved by the
Executive Director of the Authority or as pursuant to a reimbursement agreement.
ARTICLE 4 MEETINGS
Section 4.1 RalRh M. Brown Act
The Ralph M. Brown Act (Cal. Gov't Code §54950 et seq.) (the `Brown Act")
applies to all meetings of the Board.
Section 4.2 Regular.Meetings
The Board shall hold regular meetings as specified by Board resolution, and the
date, hour and place of the regular meetings shall be fixed by such Board
resolution. To the extent permitted by the Brown Act, such meetings may be held
by telephone conference.
Section 4.3 Special Meetings.
A special meeting may be called at any time by the Chair or the Executive
Director in accordance with the Brown Act.
Section 4.4 Closed Sessions
Nothing contained in these By-laws shall be construed to prevent the Board from
holding closed sessions during a regular or special meeting concerning any matter
permitted by law to be considered in a closed session. All closed sessions shall be
held pursuant to and in accordance with the Brown Act.
Section 4.5 Public_Hearings
All public hearings held by the Board shall be held during regular or special
meetings of the Board.
Section 4.6 Ouorurn
A majority of the authorized number of Board members shall constitute a quorum
for the purpose of conducting its business and exercising its powers and for all
other official purposes, except that less than a quorum may adjourn from time to
time until a quorum is obtained. Any action or decision of the Authority shall be
on motion duly approved by a majority of a quorum of the Board at a lawfully
held meeting.
Section 4.7 Adjourning Meetings and Continuina Public Hearings to Other Times or Places.
The Board may adjourn any meeting to a time and place specific in the order of
adjournment. If all Board members are absent from any regular meeting or
adjourned regular meeting, the Secretary or acting Secretary of the Authority may
declare the meeting adjourned to a stated time and place and shall cause a written
notice of the adjournment to be given in the same manner as provided for special
meetings unless such notice is waived as provided for special meetings. A copy of
the order or notice of adjournment shall be noticed and conducted in accordance
with the Brown Act. When an order of adjournment of any meeting fails to state
the hour at which the adjourned meeting is to be held, it shall be held at the hour
specific for regular meetings.
Any public hearing being held, or any hearing noticed or ordered to be held at any
meeting may by order or notice of continuance be continued or re -continued to
any subsequent meeting and to the same extent set forth herein for the
adjournment of the meetings; provided, that if the hearing is continued to a time
less than twenty-four (24) hours after the time specific in the order or notice of
hearing a copy of the order or notice of continuance shall be posted immediately
following the meeting at which the order or declaration of continuance was
adopted or made.
Section 4.8 Order of Business.
The Executive Director shall prepare the agenda for all meetings of the Authority.
Business shall be conducted according to the agenda, except when determined by
the Board as permitted by law.
Section 4.9 Parliamentary Procedure,
The presiding officer at the meeting shall determine the rules of conduct. The
presiding officer may be guided by the rules of parliamentary procedure set forth
in Robert's Rules of Order, but failure to follow Robert's Rules of Order shall not
affect the validity of any action or motion duly taken or adopted by the board at
any lawfully held meeting.
ARTICLE 5 ADDITION OF MEMBER AGENCY
Section 5.1 Adding Associate Member
The Board may decide to add an associate member by a majority vote and
execution of the Associate Membership Agreement, attached hereto as Exhibit
"A" and incorporated into these By-laws by reference.
4
Section 5.2 Associate Membership
Any local agency in the state of California may, with the approval of the Board,
become an Associate Member of the Authority by delivering to the Authority an
Associate Membership Agreement, substantially in the form attached as Exhibit
"A," duly executed by the local agency's governing body. An Associate Member
shall be entitled to participate in all programs and other undertakings of the
Authority, including, without limitation, the construction and financing of any
local public improvement, the establishment, implementation and operation of a
Community Choice Aggregation (as defined in the Cal. Public Utilities Code),
and/or any other Authority programs and undertakings.
An Associate Member shall not be entitled to representation on the Board of
Directors or to vote on any matter coming before the Board. Upon the Board's
approval of a local agency as a new Associate Member, the Chair, Vice Chair,
Executive Director or other officer or staff member duly authorized by the Board
for such purpose shall execute and deliver the applicable Associate Member
Agreement to the new Associate Member.
ARTICLE 6 AMENDMENTS
Section 6.1 Amendment by the Board of Directors
The Board may, by resolution, adopt, amend or repeal the Authority's By-laws.
EXHIBIT "A"
ASSOCIATE MEMBERSHIP AGREEMENT
By and Between the California Choice Energy Authority and the
CALIFORNIA
This ASSOCIATE MEMBERSHIP AGREEMENT, dated , 20___, by
and between the California Choice Energy Authority (the "Authority") and the
,a
duly organized and existing under the laws of the State of California (the " ")
(collectively, the "Parties");
WITNESSETH:
WHEREAS, certain cities of the State of California (collectively, the "Members") have
entered into a Joint Powers Agreement creating the California Choice Energy Authority (the
Agreement), establishing the Authority and prescribing its purposes and powers and providing,
among other things, for associate members of the Authority (an "Associate Member"); and
WHEREAS, the Authority has been formed for the purpose, among others, of assisting its
Members and Associate Members in the raising of capital to finance the capital improvement
needs of its Members and Associate Members by providing for financing in connection with the
improvement, construction, acquisition, leasing, creation, rehabilitation and preservation of solar
energy facilities within the boundaries of the Members and Associate Members; by utilizing the
professional, technical and other knowledge and expertise of Authority Members, their
employees, contractors and/or consultants, in connection with the establishment, implementation
and operation of a Community Choice Aggregation; and/or by providing financing in accordance
with the provisions of applicable law in connection with other projects and programs that are in
the public interest and which benefit Members or Associate Members; and
WHEREAS, desires to become an Associate
Member of the Authority; and
WHEREAS, the Board of Directors of the Authority has determined that
should become an Associate Member of the Authority;
NOW, THEREFORE, in consideration of the above and of the mutual promises
contained herein, the Authority and do hereby agree as follows:
Section 1. Associate Member Status. is hereby made an
Associate Member of the Authority for all purposes of the Agreement and the By-laws of the
Authority, the provisions of which are hereby incorporated herein by reference. From and after
the date of execution and delivery of this Associate Membership Agreement by
and the Board of Directors of the Authority, shall be
and remain an Associate member of the Authority.
Section 2. Restrictions and Rests. shall not have the
right, as an Associate Member of the Authority, to vote on any action taken by the Board of
6
Directors or by the Authority. In addition, no officer, employee or representative of
shall have any right to become an officer or director of the Authority.
Section 3. Effect of Prior Authority Actions. hereby
agrees to be subject to and bound by all actions previously taken by the Board of Directors of the
Authority to the same extent as the Members of the Authority are subject to and bound by such
actions.
Section 4. No Obligations. The debts, liabilities and obligations of the Authority
shall not be the debts, liabilities and obligations of
Section 5. Execution of the_Agreement. Execution of this Associate Membership
Agreement shall satisfy the requirements of Section 12 of the Joint Powers Agreement and
Section 5.2 of the By-laws of the Authority for participation by in all
programs and other undertakings of the Authority, including, without limitation, any undertaking
to finance the acquisition, construction, installation and/or equipping of public capital
improvements; utilizing the professional, technical and other knowledge and expertise of
Authority Members, their employees, contractors and/or consultants, in connection with the
establishment, implementation and/or operation of a Community Choice Aggregation, and/or
providing or obtaining financing in connection with other projects and programs which are in the
public interest and of benefit to the Authority, Members and/or Associate Members.
Section 6. Protect Agreement. Any benefits and/or responsibilities of the Associate
Member shall be determined in a project -specific development agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership
Agreement to be executed and attested by their proper officers thereunto duly authorized, on the
day and year first set forth above.
Attest:
Attest:
Clerk
Secretary
9
CALIFORNIA,
a
By:
Title:
CALIFORNIA CHOICE ENERGY AUTHORITY
By:
Title:
CERTIFICATE OF SECRETARY
I certify that I am the duly appointed and acting Secretary of the California Choice
Energy Authority, created in accordance with the provisions of the Joint Exercise of Powers Act
(Cal. Gov't. Code §§6500 et seq.); that these By-laws and the Associate Membership Agreement
form, attached hereto as Exhibit "A" and incorporated into these By-laws by reference,
consisting of a total of eight (8) pages, constitute the By-laws of this Authority as adopted by the
Board of Directors on c2 /2 and that these By-laws have not been
amended or modified since that date.
Executed on at California.
Attachment 3
Administrative Services Agreement
CONFIDENTIAL DRAFT
FOR DISCUSSION ONLY
ADMINISTRATIVE SERVICES AGREEMENT
(CITY OF BALDWIN PARD,
Dated as of , 2019
between
CALIFORNIA CHOICE ENERGY AUTHORITY,
as Provider,
and
CITY OF BALDWIN PARK,
as Customer
33073648v1
CONFIDENTIAL DRAFT
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ADMINISTRATIVE SERVICES AGREEMENT
(CITY OF BALDWIN PARK)
This ADMINISTRATIVE SERVICES AGREEMENT (CITY OF BALDWIN PARK) (this
"Agreement"), dated as of , 2019 (the "Effective Date"), is between California
Choice Energy Authority, a California joint powers authority ("Provider"), and City of Baldwin Park,
a municipal corporation and general law city organized and operating under the laws of the State of
California ("Customer"). Provider and Customer are sometimes referred to in this Agreement
individually as a "far " and collectively as the "Parties."
RECITALS
WHEREAS, pursuant to California Public Utilities Code (the "Code") Sections 366. 1, et. seq.,
Customer has been registered as a "community choice aggregator" ("CCA") (as defined in the Code),
which has been established for the purpose of delivering community choice aggregation services to
certain customers located within its boundaries;
WHEREAS, pursuant to Code Section 366.2, Customer submitted its implementation plan
detailing the process and consequences of community choice aggregation, and its statement of intent
to establish electrical load aggregation, to the California Public Utilities Commission (the "CPUC");
WHEREAS, pursuant to Code Section 366.2, a community choice aggregator may enter into
agreements for services to facilitate the sale and purchase of electricity and other related services;
WHEREAS, Provider has also been registered as a CCA and has expertise and knowledge in
the management and administration of community choice aggregation programs and maintains
business relationships with multiple energy suppliers;
WHEREAS, due to Provider's expertise and knowledge, Customer wishes to engage Provider
as an independent contractor, during the Term of this Agreement, for the purpose of facilitating the
purchase and sale of electricity and other related services on behalf of Customer and for performing
certain other duties and services on the terms and conditions set forth herein;
WHEREAS, Provider is willing to perform such duties and services for Customer on the terms
and conditions set forth herein for a fee;
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement
and such other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
As used in this Agreement, all capitalized terms shall have the respective meanings given to
them in this Agreement and in Exhibit A (Schedule of Definitions).
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1.2 Construction.
All references herein to an agreement shall be to this Agreement as amended, supplemented or
modified from time to time. All references to a particular entity shall include a reference to such
entity's successors and permitted assigns. The words "herein," "hereof' and "hereunder" and other
words of similar import shall refer to this Agreement as a whole, including all appendices, annexes,
exhibits and schedules, and not to any particular section or subsection of this Agreement. Wherever
from the context it appears appropriate, each term stated in either the singular or plural shall include
the singular and the plural and pronouns stated in the masculine, feminine or neuter gender shall include
the masculine, feminine and neuter genders. The words "includes" or "including" shall be deemed to
be followed by the words "without limitation." All references to statutes and related regulations shall
include any amendments of the same and any successor statutes and regulations. All exhibits and
schedules to this Agreement are hereby incorporated herein by reference, including the following:
(i) Exhibit A — Schedule of Definitions
(ii) Exhibit B — Scope of Work
(iii) Exhibit C — Fixed Fee Rate, Reimbursable Expenses and Notice
Address
(iv) Exhibit D — Authorization Documents
(v) Exhibit E — Customer Approval Procedures
(vi) Exhibit F — Form of Authorized Officer Approval
(vii) Exhibit G — Joint Exercise of Powers Agreement and Amendments
Thereto
ARTICLE 2
ENGAGEMENT OF PROVIDER
2.1 Engagement of Provider.
Customer hereby engages Provider as an independent contractor to perform certain
administration, energy procurement, contract negotiation, contract administration, and resource
planning services (as such Services are described herein) on behalf of Customer in connection with
Customer's CCA program, and to perform certain other duties, all as set forth in this Agreement. In
consideration of the fees and cost reimbursements payable to Provider hereunder, Provider accepts
such engagement and agrees to perform the Services in accordance with the terms and conditions
hereof.
2.2 Relationship.
(a) Provider shall act as an independent contractor of Customer with respect to the
performance of its obligations hereunder. Neither Provider nor its Affiliates, employees or
Subcontractors (including Provider's legal counsel) or the employees of any such parties engaged in
connection with the Services shall be deemed to be an agent, representative, employee, or servant of
Customer. This Agreement is not intended to create, and shall not be construed to create, a relationship
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of partnership or an association of profit between Customer and Provider. Provider is not admitted to
practice law in any jurisdiction, and will not provide legal advice to Customer in connection with the
performance of the Services. Provider is not licensed as a provider of accounting services, does not
hold any certifications required to be held by those providing accounting services, and will not provide
any services that require such licensing and certification. Provider is not licensed as a financial advisor,
financial manager, insurance advisor, or insurance broker.
(b) In the unanticipated event that Provider or any employee, agent, or
subcontractor of Provider providing Services hereunder claims, or is determined by a court of
competent jurisdiction or the California Public Employees Retirement System ("PERS"), to be eligible
for enrollment in PERS as an employee of the Customer, Provider shall indemnify, defend, and hold
harmless Customer for the payment of any employee and/or employer contributions for PERS
benefits on behalf of Provider or its employees, agents, or subcontractors, as well as for the payment
of any penalties and interest on such contributions, which would otherwise be the responsibility of
Customer.
(c) Notwithstanding any other agency, state or federal policy, rule, regulation, law
or ordinance to the contrary, Provider and any of its employees, agents, and subcontractors providing
Services hereunder shall not qualify for or become entitled to, and hereby agree to waive any claims
to, any compensation, benefit, or any incident of employment by Customer, including but not
limited to eligibility to enroll in PERS as an employee of Customer and entitlement to any contribution
to be paid by Customer for employer contribution and/or employee contributions for PERS benefits.
2.3 Engagement of Third Parties.
Provider may, subject to the other provisions of this Agreement, engage such Persons as it
deems reasonably necessary and appropriate for the purpose of performing or carrying out any of the
Services or its obligations under this Agreement;rop vided, however, that no such engagement shall
relieve Provider of any of its obligations or liabilities under this Agreement, including those set forth
in Article 7; androp vided further, that, except as provided herein, Provider's use of such Persons shall
not modify or increase the compensation payable to Provider pursuant to Article 5. Except as expressly
set forth herein, nothing in this Agreement shall be construed to create any contractual relationship
between any such Person (including Provider's legal counsel) and Customer.
ARTICLE 3
TERM AND RENEWAL
3.1 Term.
(a) Unless earlier terminated in accordance with Article 8, the term of this
Agreement shall commence on the Effective Date and shall continue for a period equal to the longer
of (i) three (3) years from the Effective Date (as defined under the Original Agreement), or (ii) the longest term
of any Energy Contract that Provider has entered into on behalf of Customer (the "Base Term"), and the
performance of all obligations under such Energy Contract, (as such period may be extended pursuant
to Section 3.1(b), the "Term").
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(b) Unless sooner terminated as set forth in Article 8, at the expiration of the Base
Term, the term of this Agreement shall be automatically extended until such time as a Party provides
written notice to the other Party that it elects to terminate this Agreement pursuant to Article 8 (such
written notice, a "Termination Notice"). Following receipt by such other Party of a Termination
Notice, this Agreement shall terminate as set forth in Section 8.4.
(c) For purposes of greater clarity, the definition of "Term" shall include the Base
Term and the renewal term of this Agreement as set forth in Section 3.1(b).
ARTICLE 4
DUTIES OF PROVIDER
4.1 Services.
During the Term, Provider shall perform the administration, energy procurement, contract
negotiation, contract administration, resource planning services and other services identified in the
Scope of Work set forth in Exhibit B hereto or as otherwise agreed to by the Parties pursuant to the
terms hereof (the "Services"). The Services shall be comprised of those services identified in the
Scope of Work Exhibit as "Fixed Fee Services" (collectively, the "Fixed Fee Services") and those
services to be performed on behalf of Customer and identified in the Scope of Work Exhibit as
"Reimbursable Services" (collectively, the "Reimbursable Services").
4.2 General Operating Standards.
Provider shall perform the Services in a good, workmanlike, and commercially reasonable
manner in accordance with the requirements of this Agreement and Applicable Laws. Provider shall
use commercially reasonable efforts to cause the Services to be planned and performed in a timely and
cost-effective manner. Provider shall fully cooperate with Customer with respect to the requirements
relating to applicable provisions of the Authorization Documents that relate to the tasks to be completed
by Customer on or before the date requested by Customer.
4.3 Personnel.
Provider's administration personnel as a group, including any Persons engaged by Provider
pursuant to Section 2.3, shall be qualified in administering services related to community choice
aggregation programs, possess any certification(s) or license(s) necessary or required by law to perform
the service, and experienced in the duties to which they are assigned.
ARTICLE 5
FEES AND COST REIMBURSEMENT
5.1 Fixed Fees.
(a) As compensation for performing the Fixed Fee Services, Customer shall pay
Provider a monthly fee during the Term (the "Fixed Fee"). The "Fixed Fee Rate" identified on Exhibit
C is the estimated initial amount of the Fixed Fee, which shall be adjusted based upon the actual number
of enrollments and then adjusted thereafter pursuant to Section 5.1(b). The Fixed Fee shall reflect
Customer's share of the costs of the Fixed Fee Services, which shall be determined based on the pro -
rata share of Customer's Bundled Load compared to the aggregate Bundled Load for all Provider's
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members, determined each fiscal year by Provider. The Fixed Fee is payable in accordance with
Section 5.3 and does not include amounts payable under Energy Contracts or the Security Documents.
(b) The Fixed Fee shall be adjusted automatically as follows:
(i) No later than July 1, 2021 Provider may, on a one time basis, update
the Fixed Fee Services amount to reflect actual costs incurred or expected to be
incurred in providing the Fixed Fee Services, subject to providing prior written notice
and supporting written documentation to Customer and a cap of five percent (5%) on
any increase to Customer's then current Fixed Fee;
(ii) Commencing on July 1, 2022, and every July 1 thereafter during the
Term of this Agreement, Provider may increase the Fixed Fee to reflect reasonable cost
increases incurred by Provider in providing the Fixed Fee Services up to, but not in
excess of, three percent (3%) of the Fixed Fee amount applicable to the immediately
preceding fiscal year, subject to providing prior written notice and supporting written
documentation to Customer; and
(iii) Within ninety (90) days after a change in membership of Provider,
Provider shall recalculate the Fixed Fee based on the then current amount of Fixed Fee
Services and the recalculated Fixed Fee shall be applied and payable on a prospective
basis.
Any requests to increase the Fixed Fee above the three percent (3%) amount allowed in 5.1(b)(ii) will
be subject to the prior written approval of Customer, which the Customer may refuse to grant in its
reasonable discretion. If Customer does not approve such a request, however, Provider reserves the
right to review and adjust the scope of Services in a reasonable manner to compensate for any
unapproved Fixed Fee increases.
5.2 Reimbursable Expenses. During the Term, Customer shall reimburse Provider for
the expenses actually incurred by Provider in connection with the performance of the Reimbursable
Services described in Paragraph B in the Scope of Work (the "Reimbursable Expenses").
(a) The Reimbursable Expenses shall be allocated to Customer as follows:
(i) Data management fees will be allocated to Customer on the basis of the
Customer's total number of electric service accounts multiplied by the per account
maintenance fee invoiced by the Data Management service provider.
(ii) Fees and costs for Professional Services and Legal Services incurred in
performance of the Reimbursable Services for the benefit of Provider's members
generally will be allocated among all Provider members (including Customer) on an
equal basis.
(iii) Fees and costs for Professional Services, Legal Services, and
Supplemental Procurement Services incurred solely on behalf of Customer will be directly
assigned to and payable by Customer.
(b) The Reimbursable Expenses incurred by Provider shall be invoiced and
payable as set forth in Section 5.3.
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5.3 Invoicing and Payment Procedures.
(a) Except as required by Section 5.3(c) below, the Fixed Fee and the Reimbursable
Expenses shall be payable for each month not later than thirty (30) days following receipt of a Payment
Invoice (each such date, a "Payment Date") and shall be prorated for any partial monthly period at the beginning
and end of the Term, with such prorations based on a thirty (30) day calendar month. Invoiced amounts will be
paid by wire transfer of immediately available funds to Provider at an account designated in writing by Provider.
Notwithstanding the foregoing, the Parties may agree to a different payment due date for the Supplemental
Procurement Services portion of the Reimbursable Expenses.
(b) Provider shall submit invoices to Customer at least ten (10) Business Days prior
to the relevant Payment Date for the Fixed Fee and Reimbursable Expenses that are due and payable
on such Payment Date. Invoices ("Payment Invoice") by Provider shall be sent to Customer at the
address(es) set out in Exhibit C.
(c) Once Customer has maintained a positive cash flow for three (3) consecutive
months, Provider may submit invoices to Customer and to the collateral agent for payment from the
lockbox account established pursuant to the Security Documents not less than ten (10) Business Days
prior to the relevant Payment Date for the Fixed Fee and Reimbursable Expenses that are due and
payable on such Payment Date. The terms and conditions for payment of any Payment Invoice to be
paid from the lockbox account shall be governed by the Security Documents.
(d) Either Party may, in good faith, dispute the correctness of any invoice, bill, charge, or
any adjustment to an invoice, rendered under this Agreement, or adjust any invoice for any arithmetic or
computational error within twelve (12) months of the date the invoice, bill, charge, or adjustment to an invoice,
was rendered. If a Payment Invoice or portion thereof, or any other claim or adjustment arising thereunder, is
disputed, payment of the undisputed portion of the Payment Invoice shall be required to be made when due, with
written notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in
writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount (the "Disputed
Payment") shall not be required until the dispute is resolved. The Parties shall use commercially reasonable
efforts to resolve the Disputed Payment within ten (10) Business Days of receipt of the notice of the Disputed
Payment. Once the Parties agree on a resolved payment amount (the "Resolved Payment Amount"),
Provider shall cause the next monthly Payment Invoice to reflect a credit or charge, as appropriate, based
on the resolution of the payment dispute, in the amount of the Resolved Payment Amount. In the event
the Parties are unable to resolve a payment dispute within ten (10) Business Days, the lesser amount shall be
deemed due payable unless and until a different amount is identified following conclusion of the dispute
resolution provisions in Article 12, or a court of competent jurisdiction orders otherwise.
5.4 Records and Audits.
(a) Except as otherwise required by Applicable Laws, Provider shall keep books
and records in accordance with generally accepted accounting principles with respect to Services
performed for a period of three (3) years after the applicable creation date of such book or record; or
any such longer period as may be required by law.
(b) Upon no less than seventy-two (72) hours' notice to Provider, Provider shall
make such books and records related to the Services available for inspection and audit by Customer or
its designated agents at Customer's expense during Regular Work Hours and at the office where such
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books and records are kept;rop vided that Provider's company software, books and records not directly
related to this Agreement shall not be subject to inspection or audit.
(c) If any such inspection or audit discloses that any error has occurred and that,
as a result thereof, any overpayment or any underpayment has occurred, the amount thereof shall
promptly be paid with interest at the rate set forth in Section 5.5 to the Party to whom it is owed by the
other Party;rop vided that Provider or Customer, as applicable, shall only be liable for any amounts
hereunder that relate to a period within twelve (12) months of the date of the inspection or audit
conducted by Customer.
5.5 Past Due Amounts.
Any amounts due under this Agreement, if not timely paid by the Party from whom they are due,
shall bear interest at the per annum rate equal to the Prime Rate (as published in The Wall Street Journal)
plus one and one-half percent (1.50/o), prorated on the basis of a 365 -day year (or such lower rate as is the
maximum rate permitted by Applicable Law) from the date that such amount was due and payable (taking
into account any grace period herein provided) until the time that such amount is paid.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES; COVENANTS
6.1 General Representations and Warranties.
Each Party, for itself only, hereby represents and warrants to the other Party hereto, as of the
date hereof, that:
(a) It is an entity duly organized, validly existing and in good standing under the
applicable laws of the jurisdiction in which it was formed.
(b) It has the requisite power and authority to enter into this Agreement and to
perform its obligations hereunder (including with respect to any indemnity obligations hereunder), and
the execution, delivery and performance hereof do not and will not contravene any Applicable Law, or
any order of any court or Governmental Authority or agency applicable to or binding on it or any of
its properties, or contravene the provisions of, or constitute a default under, its organizational
documents or any indenture, mortgage, contract or other agreement or instrument to which it is a party
or by which it or any of its property is bound or affected.
(c) This Agreement has been duly authorized by all necessary actions on the part
of such Party and the execution, delivery and performance by such Party of this Agreement do not
require any approval not already obtained by it or any approval or consent not already obtained of any
trustee or holders of indebtedness or obligations of such Party.
(d) No authorization or approval or other action by, and no notice to or fling with,
any Governmental Authority or regulatory body is required for the due execution, delivery or
performance by such Party of this Agreement.
(e) The execution, delivery and performance of this Agreement have been duly
authorized by all requisite entity actions.
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(f) The person signing this Agreement is authorized to execute this Agreement on
behalf of, and to bind, the applicable Party.
(g) Assuming the due authorization, execution and delivery of this Agreement by
the other Parties hereto, this Agreement constitutes its valid and binding obligation, enforceable against
it in accordance with its terms, except to the extent such enforceability is limited by bankruptcy,
insolvency, moratorium or similar laws affecting or relating to the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
(h) There are no pending or, to such Party's knowledge, threatened actions or
proceedings against such Party before any court or administrative agency which would materially
adversely affect such Party's ability to perform its obligations hereunder.
6.2 Additional Customer Representations and Warranties.
(a) Delegation of Authority and Authorization Documents. Customer has taken
and performed all acts necessary, and has received all necessary authorizations, approvals or other
actions required by, and has made all necessary filings with, any Governmental Authority that is
required for the (i) delegation of authority to Provider as contemplated hereby (ii) filing with Provider
an executed counterpart of the JPA and (iii) adoption of a resolution of its governing body approving
the JPA and the execution and delivery thereof. The Authorization Documents represent a true,
complete and accurate list of all such necessary authorizations, approvals, actions and filings and
Customer has provided true, complete and accurate copies of the Authorization Documents to Provider
as of the Effective Date. Other than the Authorization Documents, there are no other authorizations,
approvals, filings or other actions required for Customer to enter into this Agreement, perform its
obligations hereunder and delegate authority to Provider to perform the Services.
(b) Security Documents and Ancillary Documents. Subject to Provider's
compliance with the Customer Approval Procedures and, in connection with any Energy Contract
entered into on behalf of Customer, Provider is authorized to (i) enter into Energy Contracts on behalf
of Customer, (ii) grant to the counterparties to any such Energy Contracts a first priority security
interest in any amounts received from the Utility, Customer or the end-users in Customer's territory
pursuant to such Energy Contracts (as contemplated in the Security Documents), (iii) arrange for any
funds received from the Utility, Customer or such end-users in connection with such Energy Contracts
to be deposited into a lockbox account pledged to the counterparties to any such Energy Contract and
be paid to any such counterparties in accordance with the terms and conditions of such Energy
Contracts and the Security Documents, and (iv) enter into any needed ancillary documentation required
in connection with the execution, performance or administration of the Energy Contracts, the Security
Documents or in connection with the provision of the Services.
(c) Authorized Officer. Customer has designated the Authorized Officer to
approve Provider's execution of Energy Contracts as set forth in and subject to the Customer Approval
Procedures, on behalf of Customer, for the purchase of energy and renewable energy and Customer
has authorized the Authorized Officer to provide any such approval in the form attached hereto as
Exhibit F. Upon receipt of the Authorized Officer's approval of any Energy Contract or other action,
Provider is authorized to enter into such Energy Contract or perform such action on behalf of Customer.
6.3 Customer Covenants. Customer covenants and agrees as follows:
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(a) Authorizing_ Documents. Customer shall maintain the Authorization
Documents in full force and effect throughout the Term and shall immediately inform Provider of any
change to the identity of the Authorized Officer hereunder or to the Authorization Documents that may
affect the ability of Provider to perform its obligations hereunder.
(b) Collateral Agent's Determinations. In performing the Services hereunder,
Provider may rely upon the authorizations and instructions received from the Authorized Officer (if
such authorization is required pursuant to the Customer Authorization Procedures) and may rely on
the accuracy of the Customer Approval Procedures. Provider shall have no liability to Customer for
actions taken in reliance on authorizations or instructions received by the Authorized Officer or in
compliance with the Customer Approval Procedures. Until such time as Customer instructs Provider
in writing that an individual is no longer an "Authorized Officer" hereunder, Provider shall have no
duty to inquire as to the authority of such Authorized Officer to provide the authorizations or
instructions in connection with the Services. In the event that Provider is at any time unsure as to the
identity of the Authorized Officer hereunder, Provider may request written instructions from Customer
as to the course of action to be adopted by Provider and Provider shall be entitled to conclusively rely
upon such written instructions without liability to Customer or any other Person.
(c) Data Access. If requested by Provider, Customer shall assist Provider in
obtaining information regarding Customer's end-users from the Utility, including the number of end-
user customers that form part of Customer's community choice aggregation program, the energy
consumption, load shapes and usage data of such end-users and the proportional share of such end-
users in Customer's territory.
(d) Customer Rates. Customer shall establish and maintain end-user customer
rates designed to generate revenues sufficient to satisfy the overall revenue requirement for Customer,
including timely payment of all Customer's obligations under this Agreement, all Energy Contracts
and the Security Documents.
6.4 Response Time.
(a) Customer Response Time.
(i) In all circumstances where Provider requests the approval, consent or
cooperation of Customer to any action (or inaction) hereunder, Customer shall consider
and respond to such request with reasonable promptness as is feasible under the
circumstances.
(ii) Provider will exercise commercially reasonable efforts to provide as
much advance notice of such request as is reasonable given the prevailing
circumstances and the nature of the matters for which a response is requested.
(iii) If Provider is prevented from performing its obligations under this
Agreement as the result of an unreasonable delay on the part of Customer to provide a
required response required pursuant hereto, then Provider's obligations hereunder shall
be excused until such time as Customer provides its required response.
(b) Provider Response Time.
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(i) With respect to the provision of the Services, Provider shall promptly
respond to any request or direction from or on behalf of Customer and to any event that
requires action by Provider pursuant to this Agreement within the time frame by which
such response is required hereunder.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnification by Provider.
(a) Subject to Section 7.1(b), Provider shall defend, indemnify and hold harmless
each Customer Indemnified Party from and against any and all Claims incurred or asserted against
such Customer Indemnified Party arising out of or otherwise in connection with Provider's gross
negligence, bad faith, recklessness or willful misconduct in connection with the performance of the
Services hereunder, including any Claims relating to any liability resulting from any violation of or
noncompliance with any Applicable Law to be complied with by Provider hereunder. Provider's
obligations under this paragraph shall include all costs (including but not limited to attorneys fees)
incurred in performing the same. Customer may employ counsel at its own expense with respect to
any claims or demands asserted or sought to be collected against it;rop vided, if counsel is employed
because Provider does not assume control of the defense, Provider will bear the reasonable expenses
of Customer's counsel.
(b) Notwithstanding anything to the contrary in the foregoing, Provider shall not
be required to defend, indemnify or hold harmless any Customer Indemnified Party from and against,
and no Customer Indemnified Party shall be exculpated from, any Claims to the extent such Claims (i)
are caused by or arise from the breach of this Agreement by Customer or the gross negligence, bad
faith, recklessness or willful misconduct of such Customer Indemnified Party; (ii) relate to changes to
the market rate for electricity, including the fact that, from time to time, negotiated rates under Energy
Contracts entered into by Provider on behalf of Customer may be higher than rates charged by the
Utility, (iii) relate to defaults under the Energy Contracts that are not caused by Provider's gross
negligence, bad faith, recklessness or willful misconduct, or (iv) are the result of a change in
governmental regulation or a change in Applicable Law.
7.2 Indemnification by Customer.
(a) Subject to Section 7.2(b), Customer shall defend, indemnify and hold harmless
each Provider Indemnified Party from and against any and all Claims incurred or asserted against such
Provider Indemnified Party arising out of or otherwise in connection with this Agreement and/or
Provider's entry into any Energy Contract on behalf of Customer or the end-users in Customer's
territory, including any Claims resulting from (i) the failure of Customer (or the end-users in its
territory) to make payments with respect to an Energy Contract, or (ii) a default by Provider under any
Energy Contract entered into pursuant hereto that is the result of an act or omission of Customer.
Customer's obligations under this paragraph shall include all costs (including but not limited to
attorneys fees) incurred in performing the same. Provider may employ counsel at its own expense with
respect to any claims or demands asserted or sought to be collected against it;rop vided, if counsel is
employed because Customer does not assume control of the defense, Customer will bear the reasonable
expenses of Provider's counsel.
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(b) Notwithstanding anything to the contrary in the foregoing, Customer shall not
be required to defend, indemnify or hold harmless any Provider Indemnified Party from and against,
and no Provider Indemnified Party shall be exculpated from, any Claims to the extent caused by or
arising from the breach of this Agreement by Provider or the gross negligence, bad faith, recklessness
or willful misconduct of such Provider Indemnified Party.
7.3 Indemnification Procedure.
(a) After receipt by an Indemnified Party of notice of the commencement of any
Claim that is indemnifiable by Provider under Section 7.1 or Customer under Section 7.2 (as
applicable, in such capacity, the "Indemnifying Party"), such Indemnified Party shall give prompt
written notice to the relevant Indemnifying Party of the commencement thereof. The failure to
promptly notify such Indemnifying Party shall not relieve the Indemnifying Party of any liability that
it may have to any Indemnified Party with respect to such action;rop vided that, to the extent that any
such failure to provide prompt notice is responsible for an increase in the indemnity obligations of the
Indemnifying Party, the Indemnifying Party shall not be responsible for any such increase.
(b) When required to indemnify an Indemnified Party in accordance with this
Article 7, the relevant Indemnifying Party shall assume on behalf of such Indemnified Party and
conduct with due diligence and in good faith the defense of any Claim against such Indemnified Party,
whether or not the Indemnifying Party shall be joined therein, and the Indemnified Party shall
cooperate with the Indemnifying Party in such defense.
(c) The Indemnifying Party shall have charge and direction of the defense and
settlement of such Claim; provided, however, that without relieving the Indemnifying Party of its
obligations hereunder or impairing the Indemnifying Party's right to control the defense or settlement
thereof, the Indemnified Party may elect to participate through separate counsel in the defense of any
such Claim, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Party unless (i) the employment of counsel by such Indemnified Party has been authorized in writing
by the Indemnifying Party, (ii) the Indemnified Party shall have reasonably concluded that there exists
a material conflict of interest between the Indemnifying Party and such Indemnified Party in the
conduct of the defense of such Claim (in which case the Indemnifying Party shall not have the right to
control the defense or settlement of such Claim on behalf of such Indemnified Party) or (iii) the
Indemnifying Party shall not have employed counsel to assume the defense of such Claim within a
reasonable time after notice of the commencement thereof. In each of such cases the reasonable fees
and expenses of counsel shall be at the expense of the Indemnifying Party.
(d) The Indemnifying Party shall obtain the prior written consent of the
Indemnified Party (which consent shall not be unreasonably withheld or delayed) before entering into
a settlement of or ceasing to defend such claim or action if, pursuant to or as a result of such settlement
or cessation, injunctive or equitable relief or other non -monetary relief, remedy or arrangement will be
imposed against the Indemnified Party or if the Indemnifying Party will not fully pay or satisfy all
amounts payable with respect to such proceeding or settlement. In no event shall the Indemnifying
Party be required to indemnify an Indemnified Party with respect to amounts paid in settlement of a
claim unless such claim was settled with the consent of the Indemnifying Party.
7.4 Limitations of Liability.
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(a) Total Limitation of Liability. Except for amounts payable as provided in
Section 7.1 (Indemnification by Provider) and Section 2.2(b), and except for amounts payable as a
result of any reckless, willful or criminal conduct by Provider or its Affiliates or any of their employees,
agents, officials, Subcontractors or independent contractors, Provider's total liability under this
Agreement to Customer Indemnified Parties on all Claims of any kind, whether based on contract,
indemnity, warranty, tort (including negligence), strict liability or otherwise, for all losses or damages
arising out of, connected with, or resulting from this Agreement or from the performance or breach
thereof, or from any services covered by or furnished during the Term of this Agreement shall with
respect to any fiscal year in no case exceed one hundred percent (100%) of the value of the Fixed Fee
payable in such fiscal year. Similarly, except for amounts payable as provided in Section 7.2
(Indemnification by Customer), Customer's total liability under this Agreement to Provider
Indemnified Parties on all Claims of any kind, whether based on contract, indemnity, warranty, tort
(including negligence), strict liability or otherwise, for all losses or damages arising out of, connected
with, or resulting from this Agreement or from the performance or breach thereof, or from any services
covered by or furnished during the Term of this Agreement shall with respect to any fiscal year in no
case exceed one hundred percent (100%) of the value of the Fixed Fee payable in such fiscal year.
(b) No Liability for Energy Contracts. Customer acknowledges that Provider will
be entering into Energy Contracts on behalf of Customer and the end-users in Customer's territory.
Customer acknowledges and agrees that neither Provider nor any member of Provider shall be liable
for the amount of any shortfall between the payments due to the counterparty under such Energy
Contracts and the amount received from such end-users unless such shortfall is the result of the gross
negligence, willful misconduct, conversion, misappropriation or theft on the part of Provider.
(c) Waiver of Consequential Damages. Except in connection with indemnification
for third -party Claims or Claims resulting from gross negligence or willful misconduct, in no event,
whether based on contract, indemnity, warranty, tort (including negligence), strict liability or
otherwise, shall a Party or its respective Affiliates be liable for special, incidental, exemplary, indirect
or consequential damages.
7.5 Survival.
Notwithstanding any other provision of this Agreement, the provisions of this Article 7 are
intended to and shall survive termination of this Agreement.
ARTICLE 8
TERMINATION
8.1 Termination by Customer.
(a) Termination for Cause.
(i) Without limiting any other rights or remedies it may have, Customer
shall be entitled to terminate this Agreement for cause by delivery of a Termination
Notice to Provider in connection with the occurrence of any of the following events:
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(1) Provider fails to make any payment required to be made by
Provider to Customer hereunder when such payment is due and owing under
this Agreement, and such failure shall continue for ten (10) calendar days after
written notice thereof has been given to Provider.
(2) Provider has filed against it petitions under any insolvency or
bankruptcy Law of any jurisdiction which are not dismissed within ninety (90)
calendar days of the date filed, proposes any dissolution, liquidation,
composition, financial reorganization or recapitalization with creditors, makes
a general assignment for the benefit of creditors, files a voluntary petition in
bankruptcy under any provision of Applicable Law or consents to the filing of
any bankruptcy or reorganization petition against it under any similar law, or
if receivers, trustees, custodians or similar agents are appointed or take
possession with respect to any property or business of Provider.
(3) Provider fails to comply (other than for Force Majeure reasons)
in any material respect with any term, provision or covenant of this Agreement,
other than the payment of sums to be paid hereunder, and such failure shall
continue for thirty (30) calendar days after written notice thereof has been given
to Provider; provided, however, that if such failure cannot reasonably be cured
within said thirty (30) day period and Provider has diligently commenced the
cure of such failure within said period, then Provider shall have a commercially
reasonable additional period of time to cure such default not to exceed an
additional one hundred eighty (180) days.
(4) Provider assigns this Agreement in violation of the provisions
of Section 13.6.
(ii) Notwithstanding the foregoing, Customer shall not have the right to
terminate this Agreement pursuant to this Section 8.1(a) if the occurrence of any of the
events or conditions described in this Section 8.1(a) is the result of Customer's bad
faith, willful misconduct or gross negligence.
(b) Termination for Convenience. Notwithstanding anything to the contrary in this
Agreement, Customer shall be entitled to terminate this Agreement or any part of the Services for
convenience, at Customer's sole discretion with or without cause, by delivery of a Termination Notice
to Provider at any time after the expiration of the Base Term.
(c) Timing of Termination. If Customer delivers a Termination Notice to Provider
pursuant to Section 8.1(a) or 8.].Lb), this Agreement shall terminate as set forth in Section 8.4.
8.2 Termination by Provider.
(a) Termination for Cause.
(i) Without limiting any other rights or remedies it may have, Provider
shall be entitled to terminate this Agreement for cause by delivery of a Termination
Notice to Customer in connection with the occurrence of any of the following events:
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(1) Customer has failed to make any undisputed payment required
to be made to Provider under this Agreement and such failure is not remedied
within ten (10) calendar days after the date on which Customer has received
notice of such failure to make such payment.
(2) Customer has fled against it petitions under any insolvency or
bankruptcy law of any jurisdiction which are not dismissed within ninety (90)
calendar days of the date fled, proposes any dissolution, liquidation,
composition, financial reorganization or recapitalization with creditors, makes
a general assignment for the benefit of creditors, files a voluntary petition in
bankruptcy under any provision of Applicable Law or consents to the filing of
any bankruptcy or reorganization petition against it under any similar law, or
if receivers, trustees, custodians or similar agents are appointed or take
possession with respect to any property or business of Customer.
(3) Customer fails to establish or maintain end-user customer rates
in compliance with Section 6.3(d), as reasonably determined by Provider, and
fails to establish such rates within sixty (60) calendar days after written notice
thereof has been given to Customer; provided, however, that if Customer has
sent notice of a rate increase and is awaiting council action, then Customer shall
have a commercially reasonable additional period of time to cure such default
not to exceed an additional one hundred eighty (180) calendar days.
(4) Customer assigns this Agreement in violation of the provisions
of Section 13.6.
(5) Customer fails to comply (other than for Force Majeure
reasons) in any other material respect with any term, provision or covenant of
this Agreement, other than the payment of sums to be paid hereunder, or as
otherwise provided above, and such failure continues for sixty (60) calendar
days after written notice thereof has been given to Customer; provided,
however, that if such failure cannot reasonably be cured within said sixty (60)
day period and Customer has diligently commenced the cure of such failure
within said period, then Customer shall have a commercially reasonable
additional period of time to cure such default not to exceed an additional ninety
(90) calendar days.
(ii) Provider shall not have the right to terminate this Agreement pursuant
to this Section 8.2(a) if the occurrence of any of the events or conditions described in
this Section 8.2(a) is the result of Provider's bad faith, willful misconduct or gross
negligence.
(b) Termination for Convenience. Notwithstanding anything to the contrary in this
Agreement, Provider shall be entitled to terminate this Agreement or any part of the Services for
convenience, at Provider's sole discretion with or without cause, by delivery of a Termination Notice
to Customer at any time after the expiration of the Base Term; provided that no Termination Notice
shall be effective for at least thirty (30) calendar days following Customer's receipt of the same, or any
such longer period as my be indicated in the Termination Notice.
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(c) Timing of Termination. If Provider delivers a Termination Notice to Customer
pursuant to Section 8.2(a) or 8.2 b , this Agreement shall terminate as set forth in Section 8.4.
8.3 Cooperation Upon Termination.
In connection with any termination of this Agreement in accordance herewith, at the reasonable
request of Customer, Provider shall cooperate with Customer to provide for the orderly transition of
the performance of the Services to a replacement administrator, including the transfer of documentation
and data access, in a manner that shall not prejudice Customer or hamper Customer's ability to receive
the Services and the benefits thereof from a replacement administrator after a smooth and timely
transition.
8.4 Effect of Termination; No Prejudice.
(a) Effect of Termination. Subject to Section 8.4(b) below, if Customer or
Provider delivers a Termination Notice in accordance with, and as permitted by, this Agreement, then
this Agreement shall terminate on the later to occur of (i) ninety (90) calendar days from the date of
such Termination Notice and (ii) the date on which all of the Energy Contracts to which Provider is a
party on behalf of Customer on the date of such Termination Notice have terminated in accordance.
with their respective terms.
(b) No Prejudice. Termination of this Agreement shall not affect any rights or
obligations as between the Parties that may have accrued prior to such termination or that expressly or
by implication are intended to survive termination whether resulting from the event giving rise to
termination or otherwise. In addition, except as expressly provided for herein, termination of this
Agreement for any reason shall be without prejudice to Provider's right to receive a proportional
amount of the Fixed Fees or payment of any outstanding Reimbursable Expenses as of the date of
termination. Except as otherwise set forth in this Agreement, remedies are cumulative and the exercise
of, or failure to exercise, one or more remedies by a Party shall not limit or preclude the exercise of, or
constitute a waiver of, other remedies provided for under this Agreement by such Party. For breach of
any provision of this Agreement for which an express remedy or measure of damages is herein
provided, (i) such express remedy or measure of damages shall be the sole and exclusive remedy
hereunder, (ii) the liability of the Party that has committed such breach shall be limited as set forth in
such provision and (iii) the Parties hereby waive all other remedies or damages at law or in equity with
respect to such breach. If no remedy or measure of damages is expressly provided herein with respect
to a breach of any provision of this Agreement, the liability of the Party that has committed such breach
shall be limited to direct actual damages only; provided that this limitation shall not apply to (A)
Provider's obligation with respect to indemnifying and holding harmless each Customer Indemnified
Party to the extent of any amount owed to a third party other than a Customer Indemnified Party, if
any, or (B) Customer's obligation with respect to indemnifying and holding harmless each Provider
Indemnified Party to the extent of any amount owed to a third party other than an Provider Indemnified
Party.
ARTICLE 9
FORCE MAJEURE
9.1 Force Majeure.
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(a) Notwithstanding any other provision of this Agreement, each Party's
obligations under this Agreement shall be suspended by any Force Majeure if and to the extent that
such Party is prevented or delayed from performing by reason of the Force Majeure; provided,
however, that:
(i) the suspension of performance shall be of no greater scope and of no
longer duration than is necessarily caused by the Force Majeure and required by any
remedial measures;
(ii) no obligations of any Party that arose before the occurrence of Force
Majeure shall be excused as the result of the occurrence; and
(iii) each Party shall use commercially reasonable efforts to remedy its
inability to perform;rop vided, further, that no Force Majeure shall excuse any payment
obligations of either Provider or Customer otherwise due hereunder.
(b) If the performance by a Party of its obligations under this Agreement is affected
by any Force Majeure, such Party shall as soon as practicable notify the other Parties of the nature and
extent thereof.
ARTICLE 10
NOTICES
10.1 Notices.
(a) All notices and other communications required or permitted by this Agreement
or by Applicable Law to be served upon or given to a Party by any other Party shall be deemed duly
served, given and received (i) on the date of service if served personally or if sent by facsimile
transmission or electronic mail during Regular Work Hours (each with appropriate confirmation of
receipt) to the Party to whom notice is to be given, or (ii) on the fourth (4th) day after mailing, if mailed
by first class registered or certified mail, postage prepaid or (iii) on the next day if sent by a nationally
recognized courier for next day service and so addressed and if there is evidence of acceptance by
receipt addressed to the address(es) set forth in Exhibit C.
(b) The Parties, by like notice in writing, may designate, from time to time, another
address or office to which notices shall be given pursuant to this Agreement.
ARTICLE 11
CONFIDENTIALITY
11.1 General Confidential Information.
(a) Except as otherwise provided in this Agreement, without the prior written
consent of the other Parties hereto, no Party shall disclose Confidential Information (as defined below)
received in connection with the performance of the Services.
(b) Each Party that receives any Confidential Information from the disclosing
Party shall use the same degree of care that it uses to protect its own confidential information of like
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nature, but no less than a reasonable degree of care, to maintain in confidence the Confidential
Information of the disclosing Party.
(c) No Party shall have any obligation under this Section 11.1 with respect to any
information that:
(i) at the time of disclosure is in the public domain, or thereafter becomes
part of the public domain, in each case through a source other than the receiving Party
in violation of this Agreement;
(ii) is subsequently learned by receiving Party from a third party that, to
the knowledge of the receiving Party, is not under an obligation to keep such
information confidential;
(iii) was known to the receiving Party at the time of disclosure to be without
confidentiality restrictions, as can be demonstrated by contemporaneous written
evidence;
(iv) is generated independently by the receiving Party without reference to
the Confidential Information of the disclosing Party, as can be demonstrated by
contemporaneous written evidence, or
(v) is required to be disclosed pursuant to Applicable Law, regulation,
subpoena, court order or other legal process or professional requirements, or in
connection with the enforcement of the receiving Party's rights under this Agreement.
Prior to any such disclosure, the disclosing Party shall, to the maximum extent possible,
provide reasonable notice to the other Party, with adequate time (to be judged based
upon the facts and circumstances surrounding the disclosure) for the non -disclosing
party to seek court intervention if it should so elect in its sole and absolute discretion.
(d) For purposes of this Agreement, "Confidential Information" shall mean all
end-user customer specific information, including energy consumption, and market sensitive data,
including non-public wholesale energy pricing disclosed in connection with negotiation or
procurement of energy or related products under Energy Contracts in connection with the Services
whether or not such information was owned or developed by the disclosing Party, which the receiving
Party may obtain knowledge of, through or as a result of the relationship established hereunder with
the disclosing Party.
(e) Provider shall obtain written approval from Customer in connection with any
press release or promotional materials that reference the relationship established through this
Agreement and such Parties shall agree on the form and content of such press release.
11.2 Limited Disclosure of Confidential Information.
Notwithstanding the provisions of Section 11. 1, Provider shall be entitled to the extent
necessary for the performance of its duties hereunder to allow access to the Confidential Information
to such of its employees and consultants who are directly concerned with the carrying out of Provider's
duties under this Agreement, provided that Provider shall inform each of such Persons of the
confidential nature of, and Provider's obligation of confidentiality with respect to, such Confidential
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Information and such employees and consultants shall agree to keep the Confidential Information
confidential in accordance with the terms of this Agreement.
ARTICLE 12
DISPUTE RESOLUTION
12.1 Negotiations.
The Parties shall attempt in good faith to resolve all disputes promptly by negotiation, as set
forth below.
(a) A Party may give another Party written notice of any dispute between such
Parties that has not been resolved in the normal course of business. Representatives of such Parties at
levels one level above the personnel who have previously been involved in the dispute shall meet at a
mutually acceptable time and place within ten (10) Business Days after delivery of such notice, and
thereafter as often as they reasonably deem necessary, to exchange relevant information and to attempt
to resolve the dispute.
(b) If such representatives are unable to resolve, or do not anticipate being able to
resolve, the dispute within twenty (20) calendar days after receiving notice of such dispute, either Party
may initiate legal proceedings in a court of competent jurisdiction as provided in Section 13.2.
(c) If a Party intends to be accompanied at a meeting by an attorney, the other Party
shall be given at least three (3) Business Days' notice of such intention so that the other Party may also
be accompanied by an attorney. All negotiations pursuant to this Section 12.1 are confidential and
shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of
Evidence and applicable state rules of evidence. Each Party shall bear its own costs for this dispute
resolution phase.
12.2 Continued Prosecution of the Work.
In case of any dispute, Provider shall continue to diligently perform its obligations under this
Agreement, and, without limiting the generality of the foregoing and subject to Section 5.3(c),
Customer shall continue to make payments to Provider for those portions of the Services performed
hereunder that are not the subject of dispute in accordance with this Agreement.
ARTICLE 13
MISCELLANEOUS
13.1 Execution.
This Agreement may be executed in any number of counterparts and by the different Parties
on separate counterparts, each of which, when so executed and delivered (including by electronic mail),
shall be an original, but all such counterparts shall together constitute but one and the same instrument.
13.2 Governing Law; Venue and Jurisdiction.
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THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICT
OF LAWS RULES.
ANY LITIGATION ARISING HEREUNDER SHALL BE SUBJECT TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF
CALIFORNIA AND VENUE SHALL BE IN THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA OR THE SUPERIOR COURT FOR THE STATE OF
CALIFORNIA LOCATED IN RIVERSIDE COUNTY. ANY OF THE FOREGOING COURTS
SHALL HAVE PERSONAL JURISDICTION OVER THE PARTIES HERETO. EACH PARTY
WAIVES ANY AND ALL RIGHTS TO CONTEST SAID JURISDICTION AND VENUE AND
WAIVES ANY RIGHT TO COMMENCE ANY ACTION AGAINST THE OTHER PARTY IN ANY
OTHER JURISDICTION.
13.3 Intentionally Omitted.
13.4 Amendments, Supplements, Etc.
Neither this Agreement nor any of the terms hereof may be amended, supplemented, or
modified orally, but only by an instrument in writing signed by Provider and by Customer.
13.5 Headings.
The headings of the Articles and Sections of this Agreement have been inserted for
convenience of reference only and shall not modify, define or limit any of the terms or provisions
hereof.
13.6 Assignment.
(a) Neither Party may assign, pledge or otherwise transfer this Agreement without
the prior written consent of the other Party.
(b) Any attempted assignment, pledge or other transfer in violation of this Section
13.6 shall be null and void.
13.7 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the Parties, and their
respective successors and assigns, to the extent that assignment is permitted hereunder.
13.8 Other Customers.
Nothing in this Agreement shall be construed to prevent or prohibit Provider from providing
the same or similar services to any Person not a Party to this Agreement and from entering into a form
of agreement substantially similar to this Agreement with any such Persons;rop vided that the provision
of such services does not adversely affect Provider's ability to perform its obligations hereunder.
13.9 Waiver.
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No provision of this Agreement may be waived except in writing by the waiving Party. The
waiver of any breach of any term or condition hereof shall not be deemed a waiver of any other or
subsequent breach, whether of like or different nature.
13.10 Severability.
If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, that provision shall be modified so as to be enforceable and as nearly as possible
reflect the original intention of the Parties, it being agreed and understood by the Parties that (i) this
Agreement and all the provisions hereof shall be enforceable in accordance with their respective terms
to the fullest extent permitted by Applicable Law, and (ii) the remainder of this Agreement shall remain
in full force and effect.
13.11 Construction.
Every term and provision of this Agreement shall be construed simply according to its fair
meaning and not strictly for or against any Party.
13.12 Entire Agreement.
This Agreement, including the exhibits and schedules attached hereto, which are hereby
incorporated by this reference as though fully set forth herein, constitutes the entire agreement between
the Parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is
intended to confer upon any Person other than the Parties any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
13.13 Third -Party Beneficiaries.
This Agreement is made and entered into for the sole benefit of the Parties and each of their
permitted successors and assigns and no other person or entity shall be a direct or indirect legal
beneficiary of, have any rights under, or have any direct or indirect cause of action or claim in
connection with this Agreement.
13.14 Survival.
Section 5.4, Article 7, Article 8, Article 9, and Article 13 shall survive the termination or
expiration of this Agreement and any provision which by its terms or by implication is intended to
survive the termination or expiration of this Agreement shall so survive.
13.15 No Rules of Construction Against Drafter.
Each Party acknowledges that it and its attorneys have been given an equal opportunity to
negotiate the terms and conditions of this Agreement and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting Party or any similar rule operating against the drafter
of an agreement shall not be applicable to the construction or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the duly authorized officers of the Parties have executed this
Agreement as of the Effective Date.
CALIFORNIA CHOICE ENERGY AUTHORITY
Name: Jason Caudle
Title: Executive Director
CITY OF BALDWIN PARK
Shannon Yauchzee, Chief Executive Officer
APPROVED AS TO CONTENT:
[Name], [Title]
ATTEST:
[Name], City Clerk
APPROVED AS TO FORM:
[Name], City Attorney
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EXHIBIT A
SCHEDULE OF DEFINITIONS
The terms defined in this Schedule of Definitions shall include the plural as well as the singular
and the singular as well as the plural. Except as otherwise indicated, all the agreements or instruments
herein defined shall mean such agreements or instruments as the same may from time to time be
supplemented or amended or the terms thereof waived or modified to the extent permitted by, and in
accordance with, the terms thereof. When used in the Agreement (as defined below), unless otherwise
defined therein, the following terms shall have the respective meanings set forth below:
"Affiliate" of a Person (the "First Person") shall mean a Person which directly or indirectly
Controls, or is Controlled by, or is under common control with, the First Person, and shall also include
any limited partnership or limited liability company of which the First Person or Affiliate thereof is
the general partner, managing member or manager, as the case may be, and any Subcontractor, agent,
representative, employee or authorized personnel of the First Person. "Control" of a Person shall mean
the customership, directly or indirectly, of more than fifty percent (50%) of the voting securities of that
Person.
"Agreement" means this Administrative Services Agreement between Customer and Provider.
"Applicable Law" shall mean all laws, statutes, orders, decrees, injunctions, licenses, permits,
approvals, agreements and regulations of any Governmental Authority having jurisdiction over the
matter in question which are applicable to or which affect Provider's provision of the Services and/or
the subject matters encompassed by this Agreement.
"Authorization Documents" shall mean the documents identified and summarized in Exhibit
D, and the requirements of any documents in replacement of the foregoing or in addition thereto
provided by Customer and added to and summarized in Exhibit D from time to time.
"Authorized Officer" means the officer(s) of Customer designated as an "Authorized Officer"
in the Customer Approval Procedures.
"Base Term" shall have the meaning set forth in Section 3.1(a).
"Bundled Load" means the proposed electric energy consumption of a member of Provider, as
set forth in the implementation plan filed for such member pursuant to Code Section 366.2.
"Business Day" shall mean any day except a Saturday, Sunday or other day on which
commercial banks in the State of California are authorized by law to close.
"Claims" shall mean claims, actions, damages, expenses (including reasonable attorneys' fees),
fines, penalties, losses or liabilities.
"Code" shall have the meaning given thereto in the recitals.
"Confidential Information" shall have the meaning given in Section 11.1(d).
"CPUC" shall have the meaning given thereto in the recitals.
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"Customer" shall have the meaning given thereto in the introductory paragraph of the
Agreement, and its permitted successors and assigns, if any, under the Agreement.
"Customer Approval Procedures" means the approval procedures set forth in Exhibit E hereto.
"Customer Indemnified Party" shall mean Customer (including successors and permitted
assigns) and its shareholders, partners, directors, officers, agents and employees.
"Disputed Payme " shall have the meaning given thereto in Section 5.3(d).
"Effective Date" shall have the meaning given in the introductory paragraph of this Agreement.
"Energy Contract" means an agreement for the purchase of energy, renewable energy or related
products, including long-term power purchase agreements and master power purchase and sale
agreements and/or confirmation letter thereto, entered into by Provider for the benefit of Customer.
"Fixed Fee" shall have the meaning given thereto in Section 5.1(a).
"Fixed Fee Services" shall have the meaning given thereto in Section 4.1.
"Force Majeure" shall mean any event that wholly or partly prevents or delays the performance
by the Party affected of any obligation arising under this Agreement, but only if and to the extent such
event is not within the reasonable control, directly or indirectly, of and not the fault of the Party affected
including (provided that the foregoing requirements are satisfied): condemnation; expropriation;
invasion; plague; drought; landslide; storms or wind of sufficient intensity to prevent safe performance
of work; tornado; hurricane; tsunami; flood; lightning; earthquake; fire; explosion; epidemic;
quarantine; war (declared or undeclared), terrorism or other armed conflict; material physical damage
to an energy facility to the extent caused by third parties; strikes and other labor disputes (including
collective bargaining disputes and lockouts) involving Subcontractors; riot or similar civil disturbance
or commotion; other acts of God; acts of the public enemy; blockade; insurrection, riot or revolution;
sabotage or vandalism; embargoes; and actions of a Governmental Authority (excluding the actions of
the claiming party). "Force Majeure" shall not include (1) an event that prevents or delays (i)
Provider's or Customer's compliance with (a) Applicable Laws; and (b) Permits required under
Applicable Law in connection with such Party's performance under this Agreement and (ii)
Customer's indemnity obligations hereunder, (2) labor shortages; (3) labor strikes and other labor
disputes (including collective bargaining disputes and lockouts) with regard to work by Provider or a
Subcontractor (except if such action is part of a regional or national action); or (4) economic hardship
(including lack of money).
"Governmental Authority" shall mean any federal, provincial, state or local government
authority, agency, court or other body, officer or public entity, including any zoning authority, building
inspector, or health or safety inspector, including the CPUC.
"Indemnified Party' shall mean a Provider Indemnified Party or Customer Indemnified Party.
"Indemnifying Party" shall have the meaning given thereto in Section 7.3.
"JPA" shall mean that certain Joint Exercise of Powers Agreement Relating to the California
Clean Energy Authority dated August 14, 2012, as the same has been or may be amended from time
to time.
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"Payment Date" shall have the meaning given thereto in Section 5.3.
"Payment Invoice" shall have the meaning given thereto in Section 5.3.
"Permit" shall mean any waiver, exemption, variance, franchise, certification, approval,
permit, authorization, license, consent, or similar order of or from any Governmental Authority having
jurisdiction over the matter in question.
"Person" shall mean any individual, partnership, joint stock company, corporation, trust,
unincorporated association or joint venture, a government or any department or agency thereof, or any
other entity.
"Provider" shall have the meaning given thereto in the introductory paragraph of this
Agreement, and its successors and permitted assigns, if any.
"Provider Indemnified Party" shall mean Provider and its Affiliates and their respective
shareholders, partners, directors, officers, agents, employees and representatives.
"Regular Work Hours" means 8:00 am (PT) to 5:00 pm (PT) on a Business Day.
"Reimbursable Expenses" shall have the meaning set forth in Section 5.2.
"Reimbursable Services" shall have the meaning given thereto in Section 4.1.
"Scope of Work Exhibit" means Exhibit B hereto.
"Security Documents" means, with respect to each Energy Contract, the security documents
entered into by Customer in connection therewith pursuant to which Customer grants to the energy
suppliers under each Energy Contract (or its collateral agent) a security interest in any and all monies
received from the Utility or the end-users in Customer's territory in connection with such Energy
Contract, which security documents shall include (i) an account control agreement for an account
(sometimes referred to as a "lockbox account") among Customer, an account bank and the energy
supplier to such Energy Contract (or its collateral agent), (ii) an intercreditor and collateral agency
agreement, among Customer, the counterparties to such Energy Contracts and, if applicable, the
collateral agent, and (iii) a security agreement between Customer and the counterparty to such Energy
Contract (or its collateral agent).
"Services" shall have the meaning set forth in Section 4.1 and shall be comprised of the Fixed
Fee Services and the Reimbursable Services.
"Subcontractors" means any subcontractor, of any tier, vendor or supplier of materials,
equipment or services to Provider or any subcontractor, of any tier, of any Person engaged or employed
by Provider or any subcontractor of any tier that provides any part of the Services.
"Supplemental Procurement Services" has the meaning set forth in Exhibit B.
"Term" shall have the meaning set forth in Section 3.1(a).
"Termination Notice" shall have the meaning given thereto in Section 3.1 M.
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"Utility" means Southern California Edison.
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EXHIBIT B
SCOPE OF WORK
A. Fixed Fee Services
I. Portfolio Operations
(a) Energy Procurement.
(i) Provider to consider load patterns of the CCA and advise Customer on
assembling a supply portfolio that will match resources to the aggregate
load shape of the CCA's customer base.
(ii) Provider to conduct procurement of energy, renewable energy, carbon
free energy and resource adequacy procurement with third party
suppliers as required from time to time to meet the load requirements
of the CCA.
(b) Risk and Credit Management.
(i) Provider to monitor the credit rating and financial condition of
Customer's energy suppliers.
(ii) Provider to periodically calculate the financial exposure to a specific
supplier.
(c) Load Forecasting and Data Collection.
(i) Provider to collect, process and forecast load information.
(d) Scheduling Coordination.
(i) Provider to coordinate scheduling with the grid operator's schedule
coordinator; exchange customer usage and billing information with the
Utility.
2. Account Services
(a) If necessary, Provider to calculate individual end-user customer bills.
(b) Provider to confirm receipt of funds in lockbox account.
(c) Provider to review and validate invoices from Schedule Coordinator.
(d) Provider to direct distribution of funds from lockbox account.
3. Administration and Management of CCA Program
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4. Regulatory Representation and Compliance Filings
B. Reimbursable Services
(a) Data Management Services (e.g., electronic data interchange (EDI) services;
customer information system development and maintenance; customer call center management and
staffing; billing administration; settlement quality meter data services; customer care, billing and
related reports; and qualified reporting entity (QRE) services).
(b) Professional Services (e.g., drafting, review and negotiation of Energy
Contracts and Security Documents on behalf of Customer; electric load evaluation; community choice
aggregation operational analysis; projected customer rate analysis and comparison; and support and
maintenance of financial model).
(c) Legal Services (e.g., review and negotiation of template Energy Contracts and
Security Documents on behalf of Customer; legal services to customize existing templates for Energy
Contracts and Security Documents to accommodate Customer requested changes).
(d) "Supplemental Procurement Services" means reimbursement for any
payments (including deposits) that Provider makes directly to energy suppliers on behalf of, and
at the request of, Customer for the purchase of electricity and other related services to be delivered
or provided to Customer. The process for Supplemental Procurement Services will be subject to
the approval process set forth in Exhibit E.
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1.
2.
3
EXHIBIT C
FIXED FEE RATE, REIMBURSABLE EXPENSES
AND NOTICE ADDRESS
Fixed Fee Rate:
Reimbursable Expenses:
Fiscal Year
$ 241,400.00 fiscal year total
$ 20,116.67 monthly
(a) Data Management Services: Fiscal Year
$ 297,030.00 fiscal year total (estimated)
$ 24,752.50 monthly (estimated)
(b) Professional Services: Fiscal Year
$ 267,000.00 annually (not to exceed)
$ 22,250.00 monthly (not to exceed)
(c)
(d) Legal Services (as incurred): $ 20,000 annually (estimated)
(e) Supplemental Procurement
Services (as incurred):
Address for Notices:
$ Amounts approved by Customer and Provider in
accordance with Exhibit E.
Provider:
California Choice Energy Authority
44933 Fern Avenue
Lancaster, California 93534
Attn: Cathy DeFalco
Tel: 888.639.2411
Email: Cathy@CalChoice.org
With a copy to Provider's legal counsel:
Hall Energy Law PC
Attn: Stephen Hall
Tel: 503.477.9354
Email: StevegHallEnergyLaw.com
Customer:
City of Baldwin Park
Attn: Shannon Yauchzee
Tel: 626.813.5204
Email: SYauchzee@baldwinpark.com
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EXHIBIT D
AUTHORIZATION DOCUMENTS
[City's Resolution to Join CalChoice]
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EXHIBIT E
CUSTOMER APPROVAL PROCEDURES
1. Authorized Officer
[Table to be completed with name, title of Customer's officer that is authorized to provide
Provider with necessary approvals.]
Name I Title
Shannon Yauchzee Chief Executive Officer
Additional Authorized Title
2. Approval Procedures
[To be completed — Procedures to contain thresholds for which receipt of Authorized
Officer's approval is required.]
Authorized Officer Approval IS Required if Term
of Energy Contract is GREATER than:
Five (5) Years
Authorized Officer Approval IS NOT Required if
Notional Amount of Energy Contract is EQUAL
Five (5) Years
TO OR LESS than:
Authorized Officer Approval IS Required if the
proposed Transaction is entered into through
Provider's Supplemental Procurement Services
process.
Required Contract Provisions in Energy Contracts (or substantially similar language):
Section 3.6 of the EEI Master Agreement:
"With respect to each Transaction, as security for Party B's obligations, Member shall
have created and set aside a Special Fund and shall have entered into the Security
Documents for such Special Fund in form and substance reasonably satisfactory to
Party A and Party B. The Parties agree that Party B's obligations to make payments
with respect to this Master Agreement and each Transaction, and the obligations of a
Member to make payments pursuant to a Transaction, are to be made solely from the
Special Fund applicable to such Transaction."
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Section 6.9 of the EEI Master Agreement:
"Seller agrees that the obligations of Party B to make payments hereunder are (i) to be
made solely from the Secured Account of the Member for whose account a
Confirmation is allocated to, and (ii) do not constitute any kind of indebtedness of Party
B or (iii) create any kind of lien on, or security interest in, any property or revenues of
Party B."
Section 8.5 of the EEI Master Agreement:
"Section 8.5: Section 8 and Schedule M of the Agreement and the Security
Documents set forth the entirety of the agreement of the Parties regarding credit,
collateral and adequate assurances. Except as expressly set forth in the options elected
by the Parties in respect of Sections 8.1 and 8.2, and in Schedule M and in the Security
Documents, neither Party:
(a) has or will have any obligation to post margin, provide letters of credit, pay
deposits, make any other prepayments or provide any other financial assurances, in any
form whatsoever, or
(b) will have reasonable grounds for insecurity with respect to the
creditworthiness of a Party or Member that is complying with the relevant provisions
of Section 8 of this Agreement;
(c) and all implied rights relating to financial assurances arising from Section
2-609 of the Uniform Commercial Code or case law applying similar doctrines, are
hereby waived."
Section 10.19 of the EEI Master Agreement:
"10.19 No Recourse Against Constituent Members of Party B. Party B is organized as
a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the
State of California (Government Code Section 6500, et seq.) and is a public entity
separate from its constituent members. Party B will solely be responsible for all debts,
obligations and liabilities accruing and arising out of this Agreement in accordance
with, and subject to, the terms and conditions of each Transaction and the applicable
Security Agreements. Party A will have no rights and will not make any claims, take
any actions or assert any remedies against any Member or of Party B's constituent
members, or the officers, directors, advisors, contractors, consultants or employees of
Party B or Party B's constituent members, in connection with this Agreement. The
Parties agree that Party B's obligations to make payments with respect to this Master
Agreement and each Transaction, and the obligations of a Member to make payments
pursuant to a Transaction, are to be made solely from the Special Fund applicable to
such Transaction, as set forth in the applicable Security Agreements."
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EXHIBIT F
FORM OF AUTHORIZED OFFICER APPROVAL
Prior to any procurement, CalChoice, or CalChoice representative will communicate the details of the
proposed procurement via email. An Authorized Office, as identified in Exhibit E, will give written
approval of the procurement via email.
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EXHIBIT G
JOINT EXERCISE OF POWERS AGREEMENT
AND AMENDMENTS THERETO
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Attachment 4
Security Agreement
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SECURITY AGREEMENT
This SECURITY AGREEMENT (this "Agreement") dated as of ,
2019 is entered into between City of Baldwin Park, a California municipal corporation and general
law city, d/b/a [Name of CCA Program], as pledgor ("C"), and River City Bank, a California
corporation, not in its individual capacity, but solely as collateral agent (in such capacity, together
with its successors and permitted assigns in such capacity, the "Collateral Agent"), for the benefit
of the PPA Providers (as defined below) and California Choice Energy Authority ("CCEA"), as
Secured Creditors (as defined below).
RECITALS:
A. CCEA has (i) entered into the Master Agreements (as defined below) with
the PPA Providers for the purchase of Product (as defined below), and (ii) may in the future enter
into a Power Purchase Agreement (as defined below) with a PPA Provider, pursuant to which
CCEA has agreed, or will agree, to purchase the Product from such PPA Provider for City's
account and shall cause such PPA Provider to become a party to the Intercreditor Agreement (as
defined below).
B. City shall sell the Product purchased by CCEA from PPA Providers to
City's customers at rates established by City from time to time.
C. City generates accounts receivable owing to City by City's customers for
such Product.
D. City's customers are billed by Southern California Edison ("SCE")
amounts they owe for the Product provided by City.
E. As of the date hereof, City has directed SCE to remit all present and future
collections on accounts receivable now or hereafter billed by SCE on behalf of City to Collateral
Agent, for remittance to the Lockbox Account (as defined below) maintained by Collateral Agent,
which direction is irrevocable unless both Collateral Agent, at the direction of the Required
Secured Creditors (as defined below), and City direct SCE otherwise;
F. City desires herein to pledge to Collateral Agent, for the benefit of Secured
Creditors, a first priority continuing security interest in and to the Collateral (defined below);
G. The PPA Providers, City and Collateral Agent have entered into the
Intercreditor Agreement (as defined below) wherein the PPA Providers appointed River City Bank,
as Collateral Agent to act on their behalf regarding the administration, collection and allocation of
the proceeds of the Collateral; and
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H. City and Collateral Agent desire to enter into this Agreement to evidence
the pledge of the Collateral and to set forth their agreements regarding the Collateral and the
application of the Collateral to the Obligations (as defined below).
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Definitions, Etc.
1.01 Defined Terms. The following terms shall have the meanings assigned to
them in this Section 1.01 or in the provisions of this Agreement referred to below:
"Applicable Law" means any applicable law, including without limitation any: (a)
federal, state, territorial, county, municipal or other governmental or quasi -
governmental law, statute, ordinance, rule, regulation, requirement or use or disposal classification
or restriction, whether domestic or foreign; (b) judicial, administrative or other governmental or
quasigovernmental order, injunction, writ, judgment, decree, ruling, interpretation, finding or other
directive, whether domestic or foreign; (c) common law or other legal or quasi -legal precedent;
(d) any binding arbitrator's, mediator's or referee's decision, finding, award or recommendation;
or (e) charter, rule, regulation or other organizational or governance document of any national
securities exchange or market or other self-regulatory organization.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as codified under
Title 11 of the United States Code, and the rules promulgated thereunder, as the same may be in
effect from time to time.
"Business Day" means any day other than a Saturday, a Sunday or a day on which
commercial banks in the State of California or Delaware are required or authorized
to close.
"CCEA" means the California Choice Energy Authority, a California joint powers
authority.
"Collateral" means the following, whether now existing or hereafter arising: (a)
the Receivables; (b) the Deposit Accounts; (c) all cash, cash equivalents, Securities, Investment
Property (as such term is defined in the UCC), Security Entitlements (as such term is defined in
the UCC), checks, money orders and other items of value now or hereafter that are required to be,
or that are, paid, deposited, credited or held (whether for collection, provisionally or otherwise) in
or with respect to any Deposit Account or otherwise in the possession or under the control of, or
in transit to, the Collateral Agent or the Depositary Bank for credit or with respect to any Deposit
Account and all interest accumulated thereon; and (d) all Proceeds (as such term is defined in the
UCC) of any or all of the foregoing. The term "Collateral" shall not include any amounts
distributed to City pursuant to Section 6.02(y).
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"Collateral Agent" has the meaning given to such term in the Preamble hereof.
"Control" has the meaning given to such term in Section 9-104 of the UCC.
"Control Agreements" means the Account Control Agreement, dated as of the
date hereof, among the Depositary Bank, City and Collateral Agent and any other agreements
entered into among City and Depositary Bank which shall designate the Deposit Accounts as
blocked accounts under the Control of Collateral Agent, for the benefit of Secured Creditors, as
provided in the UCC, as each such agreement may be amended, supplemented, restated or replaced
from time to time.
"Credit Rating" means for a Qualified Institution the respective ratings then
assigned to such entity's unsecured, senior long-term debt or deposit obligations (not supported by
third party credit enhancement) by S&P, Moody's or other specified rating agency or agencies or,
if such entity does not have a rating for its unsecured, senior long-term debt or deposit obligations,
then the rating assigned to such entity as its "corporate credit rating" by S&P.
"Customer" means any customer of City who purchases Product from City but is
invoiced by SCE, and any other obligor(s) responsible for payment of a Receivable.
"Deposit Accounts" means the Lockbox Account, together with any other Deposit
Account or Securities Account (as such terms are defined in the UCC) from time to time pledged
by City to Collateral Agent, for the benefit of Secured Creditors, to secure the Obligations.
"Depositary Bank" means River City Bank, a California corporation, in its
capacity as depositary bank, and its successors and assigns.
"Direction Letter" means that certain letter in the form attached at Exhibit B, a
copy of which will be delivered to the Collateral Agent, from City to SCE pursuant to which City
has directed SCE to remit all of the Proceeds on the Receivables collected by SCE from Customers
to the Lockbox Account specified therein for application to the Obligations, unless and until both
Collateral Agent, at the direction of the Required Secured Creditors, and City jointly instruct SCE
to terminate or change such direction and any written amendments, modifications, restatements,
extensions or supplements thereto or replacements thereof and any similar letter or written
direction provided to SCE.
"Discharge Date" means that date on which: (a) any and all outstanding
Obligations under the Transaction Agreements have been fully satisfied, and (b) there are no
continuing obligations by City under any Transaction Agreements (other than for any provisions
which are intended to survive the termination of the Transaction Agreements).
"Distribution Date" means the twenty-third (23`d) day of each month.
"Distribution Date Certificate" means a certificate substantially in the form of
Exhibit A hereto itemizing each of the payments to be remitted under Section 6.02, prepared by
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CCEA and submitted to City, and submitted by City to Collateral Agent in accordance with Section
6.03.
"Event of Default" has the meaning set forth in the applicable Master Agreement
or Power Purchase Agreement.
"Implementation Plan" means that certain Implementation Plan filed with the
California Public Utilities Commission (CPUC) and certified by the CPUC.
"Intercreditor Agreement" means the Intercreditor and Collateral Agency
Agreement, dated as of even date herewith, among Collateral Agent, the Secured Creditors from
time to time party thereto and City, as amended, supplemented, restated or replaced from time to
time.
"Letter of Credit" means one or more irrevocable, transferable standby letters of
credit, in a form acceptable to the PPA Providers and issued by a Qualified Institution.
"Lien" means any mortgage, pledge, hypothecation, deposit arrangement,
encumbrance, lien (statutory or other), assignment, charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever (including any sale governed by Article 9 of the UCC, any conditional sale or title
retention agreement, or any capital lease having substantially the same economic effect as any of
the foregoing).
"Lockbox Account" means the deposit account no. * * * * * * which is
maintained in the name of City and is under the Control of Collateral Agent, for the benefit of the
Secured Creditors, at Depositary Bank, and any replacement account, in each case, pursuant to the
Lockbox Account Control Agreement.
"Lockbox Account Control Agreement" means the Account Control Agreement,
dated as of the date hereof, among Depositary Bank, City and Collateral Agent and any other
agreements entered into among Depositary Bank, City and Collateral Agent which shall designate
the Lockbox Account as a blocked account under the Control of Collateral Agent, for the benefit
of Secured Creditors, as provided in the UCC, as each such agreement may be amended,
supplemented, restated or replaced from time to time.
"Master Agreements" means the following:
(i) the Master Power Purchase and Sale Agreement, dated as of
, 201_, between and CCEA, together with the
exhibits, schedules, transactions, confirmations, and any written amendments, modifications,
restatements, extensions or supplements thereto or replacements thereof;
(ii) the Master Power Purchase and Sale Agreement, dated as of
, 201_, between and CCEA, together with the
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exhibits, schedules, transactions, confirmations, and any written amendments, modifications,
restatements, extensions or supplements thereto or replacements thereof;
(iii) the Master Power Purchase and Sale Agreement, dated as of
, 201_, between and CCEA, together with the
exhibits, schedules, transactions, confirmations, and any written amendments, modifications,
restatements, extensions or supplements thereto or replacements thereof; and
(iv) the Master Power Purchase and Sale Agreement, dated as of
, 201_, between and CCEA, together with the
exhibits, schedules, transactions, confirmations, and any written amendments, modifications,
restatements, extensions or supplements thereto or replacements thereof.
"Moody's" means Moody's Investor Services, Inc.
"Obligations" means all of the obligations and liabilities under the Transaction
Agreements to each PPA Provider, which are for the City's account, whether direct or indirect,
joint or several, absolute or contingent, due or to become due, now existing or hereinafter arising
under or in respect of one or more of the Transaction Agreements, including all payments, fees,
purchases, mark -to -market exposure, commitments for reimbursement, indemnifications, interest,
damages and Termination Payments, if any. The term "Obligations" also includes all of City's
other present and future obligations to CCEA under that certain Administrative Services
Agreement, and to each PPA Provider under the Transaction Agreements entered into by CCEA
for City's account, including the repayment of (a) any amounts that Collateral Agent (or a PPA
Provider) may advance or spend for the maintenance or preservation of the Collateral and (b) any
other expenditure that Collateral Agent (or PPA Provider) may make under the provisions of the
Transaction Agreements for the benefit of City. For the avoidance of doubt, the term "Obligations"
includes any of the foregoing that arises after the filing of a petition by or against City under any
bankruptcy or insolvency statute, even if the Obligations do not accrue because of any statutory
automatic stay or otherwise.
"Person" means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, or a government or agency or political subdivision
thereof.
"Power Purchase Agreement" means each agreement, including the Master
Agreements, together with the exhibits, schedules, transactions, confirmations (including
confirmations entered into after the date hereof), and any written amendments, modifications,
restatements, extensions or supplements thereto or replacements thereof, pursuant to which a PPA
Provider sells the Product to CCEA for the account of City, as amended, modified, supplemented,
restated, extended or replaced from time to time.
"PPA Provider" means each seller of Product under a Power Purchase Agreement
that is made a party to the Intercreditor Agreement, and its respective successors and assigns.
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"Product" means one or more of the following: energy, renewable energy
attributes, capacity attributes, resource adequacy benefits, or any other similar or related products
contemplated in the Power Purchase Agreements.
"Oualified Institution" means a commercial bank organized under the laws of the
United States or a political subdivision thereof having at the applicable time (a) a Credit Rating of
(i) A- or better from Standard & Poor's, or (ii) A3 or better from Moody's, or (iii) if such bank has
a Credit Rating at such time from both Standard & Poor's and Moody's, A- or better from Standard
& Poor's and A3 or better from Moody's and (b) assets of at least Ten Billion Dollars
($10,000,000,000).
"Receivable" means an Account evidencing City's rights to payment for Product,
billed in an invoice sent to a Customer by SCE, together with all late fees and other fees which
SCE and City agree are to be charged in such invoice to the Customer by SCE on behalf of City.
"Regular Charges" means, as of any date of determination, amounts then due and
owing to such PPA Provider for the Product delivered by such PPA Provider, without giving effect
to any Supplemental Payment owing to such PPA Provider.
"Regular Sharing Percentage" means, as of any date of determination, with
respect to each PPA Provider as calculated by CCEA in a commercially reasonable manner, the
percentage equivalent of a fraction, (i) the numerator of which is the amount of the Regular
Charges due and owing to such PPA Provider, as of such date, and (ii) the denominator of which
is the amount of the Regular Charges due and owing to all PPA Providers, as of such date.
"Required Secured Creditors" has the meaning given to such term in the
Intercreditor Agreement.
If City is not
reduced by _
"Reserve Amount" means an amount of ($ )•
subject to an Event of Default, the total Reserve Amount shall automatically be
percent (_%) annually, starting
"Secured Creditors" means each PPA Provider party to the Intercreditor
Agreement, CCEA, and their respective successors and assigns.
"Standard & Poor's" means Standard & Poor's Rating Group (a division of
McGraw-Hill, Inc.).
"Supplemental Payment" means, as of any date of determination, all Obligations
owing by City to each PPA Provider, excluding, however, the Regular Charges owed to such PPA
Provider. Supplemental Payments include, but are not limited to, all out-of-pocket losses such as
indemnity claims arising under the Transaction Agreements to the extent such losses were incurred
by such PPA Provider, all late payment charges due under a Power Purchase Agreement, and all
Obligations arising upon a default or Termination Event, such as Termination Payments.
"Supplemental Sharing Percentage" means, as of any date of determination, with
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respect to each PPA Provider, the percentage equivalent of a fraction, (y) the numerator of which
is the outstanding amount of the Supplemental Payments due and owing to such PPA Provider, as
of such date, and (z) the denominator of which is the sum of the outstanding amount of the
Supplemental Payments due and owing to all PPA Providers, as of such date.
"Termination Event" means, with respect to any Power Purchase Agreement, the
termination of Transactions and/or acceleration of all amounts owing thereunder in accordance
with the terms of such Power Purchase Agreement.
"Termination Payment" has the meaning given to such term in the Intercreditor
Agreement.
"Transaction Agreements" means the Master Agreements, any other Power
Purchase Agreements, the Control Agreements, the Intercreditor Agreement, this Agreement and
all other agreements, instruments or documents to which City is a party and which are executed
and delivered from time to time in connection with or as security for City's obligations under the
Master Agreements, any other Power Purchase Agreements and any other Transaction
Agreements, as the same may be amended, restated, modified, replaced, extended or supplemented
from time to time.
"UCC" means the Uniform Commercial Code in effect in the State of California
from time to time.
1.02 Certain Uniform Commercial Code Terms. As used herein, the terms
"Account", "Investment Property", and "Proceeds" have the respective meanings set forth in
Article 9 of the UCC. The terms "Security" and "Security Entitlements" have the respective
meanings set forth in Article 8 of the UCC.
1.03 Other Interpretive Provisions. References to "Sections" shall be to Sections
of this Agreement unless otherwise specifically provided. For purposes hereof, "including" is not
limiting and "or" is not exclusive. All capitalized terms defined in the UCC and not otherwise
defined herein or in the Security Agreement shall have the respective meanings provided for by
the UCC. Any of the terms defined in this Agreement may, unless the context otherwise requires,
be used in the singular or the plural depending on the reference. References to any instrument,
agreement or document shall include such instrument, agreement or document as supplemented,
modified, amended or restated from time to time to the extent permitted by this Agreement.
References to any Person include the successors and permitted assigns of such Person. References
to any statute, act or regulation shall include its related current version and all amendments and
any successor statutes, acts and regulations. References to any statute or act, without additional
reference, shall be deemed to refer to federal statutes and acts of the United States. References to
any agreement, instrument or document shall include all schedules, exhibits, annexes and other
attachments thereto.
Section 2. Grant of Security Interest.
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As collateral security for the payment and performance in full of the Obligations
when due, whether at stated maturity, by acceleration or otherwise, City hereby assigns, pledges
and grants to Collateral Agent, for the benefit of the Secured Creditors, a first priority continuing
security interest in and continuing lien on all of City's right, title and interest in and to the
Collateral, including the following:
(a) the prompt and complete payment, when due and payable, of all Obligations; and
(b) the timely performance and observance by City of all covenants, obligations and
conditions contained in the Transaction Agreements; and
(c) without limiting the generality of the foregoing and to the fullest extent permitted
under Applicable Law, the payment of all amounts, including interest which constitute part
of the Obligations and would be owed by City to the Secured Creditors under the
Transaction Agreements but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving City.
The collateral assignment evidenced by this Agreement is a continuing one and is
irrevocable by City so long as any of the Obligations are outstanding.
Section 3. Representations and Warranties.
City represents and warrants to Collateral Agent that:
3.01 Title. It is the sole beneficial owner of the Collateral and such Collateral is
free and clear of all liens, except liens in favor of Collateral Agent created hereunder.
3.02 Names, Etc. As of the date hereof, the full and correct legal name, type of
organization, jurisdiction of organization, mailing address, and principal place of business is as
follows: City of Baldwin Park, a California municipal corporation and general law city, d/b/a
[Name of CCA Program], 14403 E. Pacific Avenue, Baldwin Park, CA 91706.
3.03 Changes in Circumstances. City has not: (a) within the period of four (4)
months prior to the date hereof, changed its location (as defined in Article 9 of the UCC); (b) within
the period of five (5) years prior to the date hereof, changed its name; or (c) within the period of
four (4) months prior to the date hereof, become a "new debtor" (as defined in Article 9 of the
UCC) with respect to a currently effective security agreement previously entered into with any
other Person.
3.04 Security Interests. The Liens granted by this Agreement have attached and
constitute a perfected first priority continuing security interest in the Collateral. City owns good
and marketable title to the Collateral free and clear of all Liens other than such Liens established
under this Agreement, and neither the Collateral nor any interest in the Collateral has been
transferred to any other Person. City has full right, power and authority to grant a first -priority
security interest in the Collateral to Collateral Agent in the manner provided in this Agreement,
free and clear of any other Liens, adverse claims and options and without the consent of any other
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person or entity or if consent is required, such consent has been obtained. No other Lien, adverse
claim or option has been created by City or is known by City to exist with respect to the Collateral.
At the time the security interest in favor of Collateral Agent attaches, good and indefeasible title
to all after-acquired property included within the Collateral, free and clear of any other Liens,
adverse claims or options shall be vested in City. All consents for the assignment of Collateral to
Collateral Agent, if any, required to be obtained by City have been obtained. This Agreement, the
Intercreditor Agreement, and the Lockbox Account Control Agreement constitute legal, valid and
binding obligations of City enforceable against it in accordance with their terms except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating to enforceability. City
will not contest the validity or legality of any Transaction Agreements entered into between CCEA
and any PPA Provider for the account of City and represents and warrants that it has provided
CCEA with full power and authority to enter in the Transaction Agreements for City's account.
Section 4. Covenants.
City hereby stipulates and agrees with the Collateral Agent as follows:
4.01 Perfection by Control. City shall not be permitted to withdraw funds from
the Deposit Accounts until the Discharge Date and this Agreement has been terminated. Collateral
Agent shall have the exclusive authority to withdraw, or (other than as set forth herein) direct the
withdrawal of, funds from the Deposit Accounts. The Control Agreement for each Deposit
Account shall give the Collateral Agent the sole power to direct Depositary Bank regarding the
Deposit Account, and thus Collateral Agent shall Control the Deposit Accounts within the meaning
of the UCC. Collateral Agent shall make distributions from the Deposit Accounts only in
accordance with Section 6 of this Agreement.
4.02 Further Assurances. Upon the request of Collateral Agent, City shall
promptly from time to time give, execute, deliver, file, record, authorize or obtain all such
financing statements, continuation statements, notices, documents, agreements or other papers as
may be necessary in the judgment of Collateral Agent to create, preserve, perfect, maintain the
perfection of or validate the security interest granted pursuant hereto or to enable Collateral Agent
to exercise and enforce its rights hereunder with respect to such security interest, and without
limiting the foregoing, shall:
(a) take such other action as Collateral Agent may reasonably deem necessary
or appropriate to duly record or otherwise perfect the security interest created hereunder in
the Collateral;
(b) promptly from time to time enter into such Control Agreements, each in
form and substance reasonably acceptable to Collateral Agent, as may be required to
perfect the security interest created hereby;
(c) keep full and accurate books and records relating to the Collateral, and
stamp or otherwise mark such books and records in such manner as Collateral Agent may
reasonably require in order to reflect the security interests granted by this Agreement; and
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(d) permit representatives of Collateral Agent, upon reasonable notice, at any
time during normal business hours to inspect and make abstracts from its books and records
pertaining to the Collateral, and to be present at City's places of business to receive copies
of communications and remittances relating to the Collateral, and forward copies of any
notices or communications received by City with respect to the Collateral, all in such
manner as Collateral Agent may reasonably require.
4.03 No Other Liens. City is and shall be the owner of or have other transferable
rights in the Collateral free from any right or claim of any other Person or any other Lien and City
shall defend the same against all claims and demands of all Persons at any time claiming the same
or any interest therein adverse to Collateral Agent. City shall not (a) grant, or permit to be granted,
any Lien with respect to any of the Collateral in which Collateral Agent is not named as the sole
secured party, (b) file or suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with respect to any of the Collateral in
which Collateral Agent is not named as the sole secured party, or (c) cause or permit any Person
other than Collateral Agent to have Control of any Deposit Account constituting part of the
Collateral.
4.04 Locations; Names, Etc. Without at least thirty (30) days' prior written
notice to the Collateral Agent, City shall not: (a) change its location (as defined in Article 9 of the
UCC), (b) change its name from the name shown as its current legal name in Section 3 of this
Agreement, or (c) agree to or authorize any modification of the terms of any item of the Collateral
if the effect thereof would be to result in a loss of perfection of, or diminution of priority for, the
security interests created hereunder in such item of Collateral, or the loss of control (within the
meaning of Article 9 of the UCC) by Collateral Agent over such item of Collateral.
4.05 Perfection and Recordation. City authorizes Collateral Agent to file
Uniform Commercial Code financing statements describing the Collateral (provided that no such
description shall be deemed to modify the description of Collateral set forth in Section 2). The
Collateral Agent, in accordance with Section 4.02 hereof, hereby requests and instructs City to,
and City hereby agrees, at its sole cost and expense to, prepare and file such Uniform Commercial
Code financing and continuation statements describing the Collateral as may be necessary to
perfect and continue the security interest granted herein. City shall deliver to the Collateral Agent
a file stamped copy of all such filings, which the Collateral Agent shall make available to any PPA
Provider upon request.
Section 5. Remittance of Collections to Collateral Agent.
5.01 Irrevocable Direction. City has, pursuant to the Direction Letter,
irrevocably instructed SCE to remit to Collateral Agent all payments due or to become due in
respect of the Receivables unless and until both Collateral Agent, at the direction of the Required
Secured Creditors, and City direct otherwise in writing. The Collateral shall be collected by
Collateral Agent from SCE pursuant to the Direction Letter. City shall periodically take such
additional measures as may be commercially reasonable to cause SCE or Customers to make all
payments due to City into the Lockbox Account designated in the Direction Letter. All invoices
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issued by or on behalf of City shall direct payment into the Lockbox Account designated in the
Direction Letter. City shall provide Collateral Agent with such proof of compliance with this
Section 5.01 as Collateral Agent may reasonably request from time to time. Without the prior
written consent of Collateral Agent (acting at the written direction of the Required Secured
Creditors), City shall not (a) terminate, amend, revoke or modify such payment instructions to
SCE or Customers or (b) direct or cause, directly or indirectly, SCE or any Customer to make any
payments except in accordance with such payment instructions. The parties agree that if any such
payments, or any other Proceeds of Collateral, are received by City, (i) they shall be held in trust
by City for the benefit of the Collateral Agent, (ii) City shall as promptly as possible remit or
deliver same to Collateral Agent for application as provided herein, (iii) City shall take such
commercially reasonable steps as necessary to require such Customer or SCE to make any future
remittances into the Lockbox Account designated in the Direction Letter and (iv) such activity
shall be reported promptly to Collateral Agent following City's receipt of such funds. Collateral
Agent thus has the right to all collections on the Collateral remitted to it by SCE until the Discharge
Date.
5.02 Application of Proceeds. The Proceeds of any collection or realization of
all or any part of the Collateral shall be applied by Collateral Agent as provided for in Section 6
below.
5.03 Deficiency. If the Proceeds of the collection of the Collateral are
insufficient to pay in full the Obligations, City remains liable to Collateral Agent and Secured
Creditors for any deficiency.
5.04 Attorney -in -Fact. Collateral Agent is hereby appointed the attorney-in-fact
of City to receive, endorse and collect all checks made payable to the order of City representing
any payment or other distribution in respect of the Collateral.
Section 6. Establishment of and Distributions from Deposit Accounts.
6.01 Establishment of Deposit Accounts. City shall establish the Deposit
Accounts in City's name at Depositary Bank and shall fund the Reserve Amount into the Lockbox
Account. The deposits into the Deposit Accounts and all interest accumulated thereon shall be
held and disbursed by the Depositary Bank in accordance with the terms and conditions of the
Control Agreements and this Agreement. The Deposit Accounts are subject to the sole dominion,
control and discretion of Collateral Agent until the Discharge Date. Until the Discharge Date,
neither City nor any person or entity claiming on behalf of or through City shall have any right or
authority, whether express or implied, to make use of, withdraw or transfer any funds or to give
instructions with respect to disbursement of the Accounts other than Collateral Agent. Until the
Discharge Date, subject to Section 6.02, Collateral Agent shall be entitled to exercise any and all
rights in respect of or in connection with the Deposit Accounts including (i) the right to specify
the amount of payments to be made from the Deposit Accounts, (ii) when such payments are to be
made out of the Deposit Accounts and (iii) the right to withdraw funds for the payment of
Obligations which are due and payable from the Deposit Accounts. Collateral Agent shall accept
all funds remitted to the Deposit Accounts under this Agreement, and credit such funds as provided
for in Section 6.02 below.
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6.02 Priority of Distributions of Collateral. Proceeds of Collateral shall be
allocated in accordance with this Section 6.02. On each Distribution Date, Collateral Agent shall
distribute all funds in the Lockbox Account or otherwise received on the Collateral in accordance
with the following priority:
(i) first, to each PPA Provider in payment of any Regular Charges, according
to its Regular Sharing Percentage;
(ii) second, to each PPA Provider in payment of any Supplemental Payment
owing to it according to its Supplemental Sharing Percentage;
(iii) third, to CCEA in payment of any amounts owing to CCEA under that
certain Administrative Services Agreement between CCEA and City;
(iv) fourth, to the Collateral Agent (as such and in its individual capacity) in
respect of its reasonable out-of-pocket fees and expenses incurred under this Agreement,
the Intercreditor Agreement or the Control Agreements that have been invoiced to City,
including, without limitation, payment of expenses incurred by the Collateral Agent which
indemnity shall include the reasonable out of pocket attorneys' fees of outside counsel to
the Collateral Agent; and
(v) fifth, unless an Event of Default shall exist as to City, the balance, if any,
after retention in the Lockbox Account of the Reserve Amount, shall be returned to City
free and clear of the lien of this Agreement, provided, however, that if the Collateral Agent
has been notified of a dispute in accordance with Section 6.06, the portion of the balance,
if any, up to such disputed amount shall be retained in the Lockbox Account and City shall
only receive the amount of the balance, if any, that is in excess of such disputed amount
until such time as the Collateral Agent receives written notice from the relevant PPA
Provider and City that the dispute pursuant to Section 6.06 has been resolved.
Collateral Agent shall rely, and shall be fully protected in relying on a Distribution Date Certificate
in making the above calculations, without any requirement that Collateral Agent verify the
accuracy of such Distribution Date Certificate, subject to revision in the event of disputes resolved
under Section 6.06.
6.03 Distribution Date Certificate. On or before three (3) Business Days before
each Distribution Date, City shall remit, or cause to be remitted, to Collateral Agent and each PPA
Provider a certificate in substantially the form of Exhibit A hereto (the "Distribution Date
Certificate") prepared by CCEA itemizing each of the payments to be remitted under Section 6.02
above. The PPA Providers may share such Distribution Date Certificates with their respective
accountants, legal counsel and other advisors.
6.04 Replenishing_ the Reserve Amount, No Waiver. Subject to Section 6.05, if
at any time the balance in the Deposit Accounts is less than the Reserve Amount, then (a) the
Collateral Agent shall within two (2) Business Days thereafter provide City with written notice
thereof, with a copy to the Secured Creditors and (b) City shall deposit such shortfall amount into
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the Deposit Accounts not later than ten (10) Business Days after its receipt of such notice from
Collateral Agent. The Collateral Agent shall have no duty or obligation to monitor or oversee
City's replenishment of the Reserve Amount, and shall have no duty or obligation under this
Section 6.04 other than to deliver the written notice required pursuant to 6.04(a). Nothing
contained herein shall impair or otherwise limit City's obligations to timely make the payments
required pursuant to any of the Transaction Agreements. It is expressly understood and agreed
that the Collateral Agent shall have no liability for its failure to deliver any amounts required to be
delivered by it pursuant to this Agreement or any other Transaction Agreement to the extent that
such amounts are not then available in the Deposit Accounts.
6.05 Release of Reserve Amount. Except following and during the continuance
of an Event of Default, if City provides the Collateral Agent with a Letter of Credit for the benefit
of the PPA Providers in an amount equal to the Reserve Amount, and all Secured Creditors confirm
in writing to the Collateral Agent that no such Event of Default exists or is continuing. City may
request in writing and, upon receipt of such request, Collateral Agent shall instruct the Depositary
Bank to release and distribute the Reserve Amount to City. All of the fees, costs and expenses
associated with the Letter of Credit shall be borne by City. City shall thereafter cause the Letter
of Credit to be maintained in full force and effect through the Discharge Date. If at any time the
issuer of the Letter of Credit is no longer a Qualified Institution, then City shall, within five (5)
Business Days of such occurrence, either (a) provide Collateral Agent with a replacement Letter
of Credit for the benefit of the PPA Providers issued by a Qualified Institution in an amount equal
to the Reserve Amount or (b) fund the applicable Reserve Amount into the Lockbox Account.
6.06 Disputes. If a PPA Provider advises CCEA, City and Collateral Agent in
writing that the calculations in any Distribution Date Certificate are in its opinion materially
incorrect, then CCEA, City and such PPA Provider shall attempt to resolve the discrepancy in
good faith. If the parties are able to reach an agreement with respect to such discrepancy in advance
of the relevant Distribution Date, City shall remit to Collateral Agent and each PPA Provider a
revised Distribution Date Certificate reflecting the agreed upon amounts, and the Collateral Agent
shall disburse funds in accordance with such revised Distribution Date Certificate on the applicable
Distribution Date, provided, however, that the Collateral Agent shall have no liability whatsoever
for any failure to disburse funds in accordance with a revised Distribution Date Certificate to the
extent that it has not received such revised Distribution Date Certificate sufficiently in advance of
the scheduled distribution. If the parties are unable to agree, they shall resolve such dispute in
accordance with the dispute resolution provision of the Power Purchase Agreement between such
PPA Provider and CCEA. In the interim, the Distribution Date Certificate originally submitted by
City shall be relied upon by Collateral Agent for purposes of making distributions from the
Lockbox Account or any other Deposit Account of all undisputed amounts in accordance with
Section 6.02, and the Collateral Agent shall make no distribution in respect of any disputed amount
until such time as it has received a revised Distribution Date Certificate. Notwithstanding the
above, no dispute shall prevent any other PPA Provider from receiving its distributions from the
Lockbox Account, even if such distributions would result in a shortfall of the disputed amount.
However, City shall not be entitled to receive any funds if such distribution to City would result
in a shortfall of the disputed amount.
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6.07 Earnings on Deposit Accounts. City shall establish the Deposit Accounts
as non-interest bearing accounts.
6.08 Rights and Remedies. If an Event of Default shall have occurred and is
continuing, Collateral Agent, without any other notice to or demand upon City, shall have in any
jurisdiction in which enforcement hereof is sought, in addition to all other rights and remedies, the
rights and remedies of a secured party under the UCC and any additional rights and remedies as
may be provided to a secured party in any jurisdiction in which Collateral is located; it being
understood and agreed that the Collateral Agent would be exercising any such rights and remedies
in its capacity as collateral agent for the benefit of the PPA Providers, as Secured Creditors. In
addition, CITY HEREBY WAIVES ANY AND ALL RIGHTS THAT IT MAY HAVE TO A
JUDICIAL HEARING IN ADVANCE OF THE ENFORCEMENT OF COLLATERAL
AGENT'S RIGHTS AND REMEDIES HEREUNDER, INCLUDING ITS RIGHT
FOLLOWING AN EVENT OF DEFAULT TO TAKE IMMEDIATE POSSESSION OF
THE COLLATERAL AND TO EXERCISE ITS RIGHTS AND REMEDIES WITH
RESPECT THERETO. Collateral Agent shall only act at the written instruction of the Required
Secured Creditors in (a) taking any action under this Agreement, the Intercreditor Agreement or
any Control Agreements with respect to the Collateral following an Event of Default and (b)
asserting any claim under this Agreement, the Intercreditor Agreement or any Control Agreements.
Notwithstanding the foregoing, if Collateral Agent deems it prudent to take reasonable actions,
without the instruction of a Secured Creditor, to protect the Collateral, it may (but shall be under
no obligation to) do so and thereafter provide written notice to all the Secured Creditors of such
actions, and no provision of this Agreement shall restrict Collateral Agent from exercising such
rights and no liability shall be imposed on Collateral Agent for omitting to exercise such rights.
6.09 No Waiver by Collateral Agent. Collateral Agent shall not be deemed to
have waived any of its rights and remedies in respect of the Obligations or the Collateral unless
such waiver shall be made in writing and signed by Collateral Agent (acting at the written direction
of the Required Secured Creditors). No delay or omission on the part of Collateral Agent in
exercising any right or remedy shall operate as a waiver of such right or remedy or any other right
or remedy. A waiver on any occasion shall not be construed as a bar to or a waiver of any right or
remedy on any future occasion. All rights and remedies of Collateral Agent with respect to the
Obligations or the Collateral, whether evidenced hereby or by any other instrument or papers, may
be exercised by Collateral Agent (acting at the written direction of the Required Secured
Creditors), shall be cumulative and may be exercised singularly, alternatively, successively or
concurrently at such time or at such times as Collateral Agent (acting at the written direction of
the Required Secured Creditors) deems expedient.
6.10 Waivers by City. To the extent permitted by applicable law, City hereby
waives demand, notice, protest, notice of acceptance of this Agreement, notice of loans made,
credit extended, collateral received or delivered or other action taken in reliance hereon and all
other demands and notices of any description.
6.11 Marshalliniz. TO THE EXTENT THAT IT LAWFULLY MAY, CITY
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HEREBY AGREES THAT IT WILL NOT INVOKE ANY LAW RELATING TO THE
MARSHALLING OF COLLATERAL WHICH MIGHT CAUSE DELAY IN OR IMPEDE
THE ENFORCEMENT OF COLLATERAL AGENT'S RIGHTS AND REMEDIES
UNDER THIS AGREEMENT OR UNDER ANY OTHER INSTRUMENT CREATING OR
EVIDENCING ANY OF THE OBLIGATIONS OR UNDER WHICH ANY OF THE
OBLIGATIONS IS OUTSTANDING OR BY WHICH ANY OF THE OBLIGATIONS IS
SECURED OR PAYMENT THEREOF IS OTHERWISE ASSURED, AND, TO THE
EXTENT THAT IT LAWFULLY MAY, CITY HEREBY IRREVOCABLY WAIVES THE
BENEFITS OF ALL SUCH LAWS.
Section 7. Miscellaneous.
7.01 Notices. Except as otherwise expressly provided herein, all notices,
consents and waivers and other communications made or required to be given pursuant to this
Agreement shall be in writing and shall be delivered by hand, mailed by registered or certified
mail or prepaid overnight air courier, or by facsimile communications, addressed to the relevant
party as provided below their signatures to this Agreement or at such other address for notice as
City or Collateral Agent shall last have furnished in writing to the Person giving the notice. A
notice addressed as provided herein that (i) is delivered by hand or overnight courier is effective
upon delivery, (ii) that is sent by facsimile communication is effective if made by confirmed
transmission at a telephone number designated as provided herein for such purpose, and (iii) that
is sent by registered or certified mail is effective on the earlier of acknowledgement of receipt as
shown on the return receipt or three (3) Business Days after mailing.
7.02 No Waiver. No failure on the part of the Collateral Agent to exercise, and
no course of dealing with respect to, and no delay in exercising, any right or power hereunder shall
operate as a waiver thereof.
7.03 Amendments. The terms of this Agreement may be waived, altered or
amended only by an instrument in writing duly executed by City and Collateral Agent.
7.04 Expenses. If City fails to do so, Collateral Agent may, upon receipt from
the Required Secured Creditors of written direction and such sums as may be necessary in
connection therewith, discharge taxes and any other Liens or encumbrance at any time levied or
placed on any of the Collateral. City agrees to reimburse Collateral Agent on demand for any such
expenditures made by Collateral Agent, and the Collateral Agent promptly upon receipt thereof
shall remit such reimbursed sums to the Required Secured Creditors. For the avoidance of doubt,
it is expressly understood and agreed that the Collateral Agent shall not use or expend its own
funds in connection with such taxes, Liens or encumbrances. Collateral Agent shall have no
obligation to make any such expenditure nor shall the making thereof be construed as a waiver or
cure of any Event of Default. City agrees to reimburse Collateral Agent (as such and in its
individual capacity) for all reasonable costs and expenses incurred by it (including the reasonable
fees and expenses of legal counsel) in connection with (i) the performance by Collateral Agent of
its duties under this Agreement, the Intercreditor Agreement or the Control Agreements, (x)
protecting, defending or asserting rights and claims of the Collateral Agent in respect of the
Collateral, (y) litigation relating to the Collateral, and (z) workout, restructuring or other
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negotiations or proceedings, and (ii) the enforcement of this Section 7.04, and all such reasonable
costs and expenses shall be Obligations entitled to the benefits of the collateral security provided
pursuant to Section 2.
7.05 Duty of Care, Earnings. Collateral Agent shall have no duty or obligation
with respect to the Collateral except for its contractual obligations under this Agreement, the
Intercreditor Agreement or the Control Agreements. The Collateral Agent shall have no duty or
obligation as to the collection or protection of the Collateral or any income thereon, nor as to the
preservation of rights against any Person, beyond the safe custody of any Collateral in the
Collateral Agent's possession or control. Without limiting the generality of the foregoing,
Collateral Agent shall have no duty (a) other than to instruct City as set forth in Section 4.05 hereof,
to see to any recording or filing of any financing statement evidencing a security interest in the
Collateral, or to see to the maintenance of any such recording or filing, (b) to see to the payment
or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against any part of the Collateral, (c) to confirm
or verify the contents of any reports or certificates delivered to Collateral Agent believed by it to
be genuine and to have been signed or presented by the proper party or parties, or (d) to ascertain
or inquire as to the performance of observance by any other Person of any representations,
warranties or covenants. Collateral Agent may require an officer's certificate or an opinion of
counsel before acting or refraining from acting, and Collateral Agent shall not be liable for any
action it takes or omits to take in good faith in reliance on an officer's certificate or an opinion of
counsel.
7.06 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the respective successors and permitted assigns of City, the Secured Creditors,
and the Collateral Agent (provided that City shall not assign, transfer or delegate its rights or
obligations hereunder without the prior written consent of Collateral Agent) and Collateral Agent
shall only transfer or assign its rights hereunder in connection with a resignation or removal from
its capacity as Collateral Agent in accordance with the terms of the Intercreditor Agreement). This
Agreement shall create a continuing security interest in the Collateral and shall remain in full force
and effect in accordance with Section 7.12, and be binding upon City, its successors and assigns,
and inure, together with the rights of Collateral Agent hereunder, to the benefit of the Collateral
Agent and its successors, transferees and assigns.
7.07 Counterparts. This Agreement and any related amendment or waiver may
be executed in several counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, but all of which together shall constitute one
instrument. In proving this Agreement it shall not be necessary to produce or account for more
than one such counterpart signed by the party against whom enforcement is sought. A facsimile
of a signature page hereto shall be as effective as an original signature.
7.08 GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE
LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW OF SUCH STATE. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT
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OF OR RELATING TO THIS AGREEMENT, OR ANY OTHER TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT IN THE COURTS OF THE
UNITED STATES OF AMERICA FOR THE CENTRAL DISTRICT OF CALIFORNIA IN
LOS ANGELES COUNTY OR, IF SUCH COURT DOES NOT HAVE SUBJECT MATTER
JURISDICTION, THE COURTS OF THE STATE OF CALIFORNIA IN LOS ANGELES
COUNTY AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION
AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY
WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT ANY SUCH
COURT IS AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE
ADDRESS APPLICABLE TO THIS AGREEMENT, SUCH SERVICE TO BECOME
EFFECTIVE 10 DAYS AFTER SUCH MAILING.
7.09 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT
HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS.
7.10 CONSENT TO INJUNCTIVE RELIEF. WITHOUT LIMITING ANY
OTHER RIGHTS OR REMEDIES THAT COLLATERAL AGENT MAY HAVE, CITY
ACKNOWLEDGES THAT ITS VIOLATION OF SECTION 5.01 WOULD RESULT IN
IRREPARABLE INJURY TO COLLATERAL AGENT FOR WHICH NO ADEQUATE
REMEDY AT LAW WOULD BE AVAILABLE. ACCORDINGLY, CITY HEREBY (I)
CONSENTS TO THE ENTRY OF AN IMMEDIATE EX -PARTE INJUNCTION,
TEMPORARY RESTRAINING ORDER, AND/OR PERMANENT INJUNCTION TO
ENFORCE THE PROVISIONS OF SECTION 5.01, IN ADDITION TO ANY OTHER
REMEDIES AVAILABLE AT LAW OR IN EQUITY AND (II) WAIVES ANY DEFENSE
THAT ADEQUATE REMEDIES ARE AVAILABLE AT LAW AND ANY
REQUIREMENT THAT A BOND OR ANY OTHER SECURITY BE POSTED IN
CONNECTION WITH THE ENTRY OF ANY RESTRAINING ORDER OR
INJUNCTION.
7.11 Captions. The captions and section headings appearing herein are included
solely for convenience of reference and are not intended to affect the interpretation of any
provision of this Agreement.
7.12 Termination. Unless earlier terminated in writing by the parties hereto, this
is a continuing security agreement and the grant of a security interest under this Agreement shall
remain in full force and effect and all the rights, powers and remedies of Collateral Agent
hereunder shall continue to exist until: (a) the Obligations are paid in full as the same becomes due
and payable; (b) the PPA Providers have no further obligation to deliver products or render services
(including credit support services) to, or on behalf of, City; (c) City has no further obligations to
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the PPA Providers under any of the Transaction Agreements; and (d) the PPA Providers, upon
request of City, have executed and delivered to each of City and the Collateral Agent a written
termination statement, and Collateral Agent has reassigned to City, without recourse, the Collateral
and all rights conveyed hereby and returned possession of the Collateral to City. Furthermore, it
is contemplated by the parties that there may be times when no Obligations are owing; but
notwithstanding such occurrences, unless the PPA Providers have executed a written termination
under clause (d) above, this Agreement shall remain valid and shall be in full force and effect as
to subsequent Obligations, provided Collateral Agent has not executed a written agreement
terminating this Agreement. This Agreement shall continue irrespective of the fact that the liability
of any other obligor may have ceased, or irrespective of the validity or enforceability of the
Transaction Agreements, to which any other obligor may be a party, and notwithstanding the
reorganization or bankruptcy of City, or any other event or proceeding affecting City or any other
obligor. At City's request, Collateral Agent shall, at City's reasonable expense, instruct Depositary
Bank to release all assets credited to the Deposit Accounts to City, and Collateral Agent shall also
execute such other documentation as shall be reasonably requested by City to effect the termination
and release of the liens on the Collateral, including notice to SCE that the Direction Letter is
terminated.
7.13 Severability. The provisions of this Agreement are intended to be severable.
If for any reason any of the provisions of this Agreement shall be held invalid or unenforceable in
whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to
the extent of such invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions thereof in any
jurisdiction.
7.14 Disclosure of Information. City hereby consents to the disclosure by any
PPA Provider or Collateral Agent of any information provided by or relating to City as may be
required or reasonably necessary for the administration of this Agreement, the Intercreditor
Agreement or the Control Agreements, or the enforcement or protection of any of the rights of the
Collateral Agent or the PPA Providers hereunder.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as an instrument under seal by their authorized representative as of the date first written
above.
CITY OF BALDWIN PARK,
as Pledgor
By:
Name:
Title:
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Notice Address:
City of Baldwin Park
Attention: Contract Administration
14403 E. Pacific Avenue
Baldwin Park, CA 91706
Fax: 626-337-2965
RIVER CITY BANK
not in its individual capacity, but
solely as Collateral Agent
By:
Name:
Title:
River City Bank
2485 Natomas Park Dr.
Sacramento, CA 95833
Attention: Cash Management
Fax: 916-567-2799
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Exhibit A
Form of Distribution Date Certificate
The undersigned, [INSERT NAME], the [INSERT NAME OF OFFICE HELD] of Baldwin Park
("LLq"), hereby certifies, on behalf of City in such capacity and not in its individual capacity, with
reference to that certain Security Agreement dated as of , 2019 (capitalized terms used
herein shall have the same meaning as set forth in the Security Agreement) between City and
, as collateral agent ("Collateral Agent"), to Collateral Agent as follows:
This certificate is being delivered to Collateral Agent on or before the date that is three (3) Business
Days before the Distribution Date of [ _, 20_].
No Event of Default exists as of the date of this certificate and City does not anticipate that an
Event of Default will exist as of the Distribution Date set forth in paragraph 1 above.
The funds that are on deposit in the Lockbox Account shall be disbursed on the Distribution Date
as follows:
[To [INSERT NAME OF APPLICABLE PPA PROVIDER], for payment of its Regular
Charges, an aggregate amount equal to [ Dollars ($_�];
[Include this paragraph for each PPA Provider]
2. [To [INSERT NAME OF APPLICABLE PPA PROVIDER], for payment of any
Supplemental Payment owing in an aggregate amount equal to [
Dollars ($ )]; [Include this paragraph for each PPA Provider]
3. To CCEA in payment of any amounts owning to CCEA under that certain Administrative
Services Agreement between CCEA and City;
4. To Collateral Agent, in respect of Collateral Agent's reasonable out-of-pocket fees and
expenses incurred under the Security Agreement or the Intercreditor Agreement that have
been invoiced to City, an aggregate amount equal to [ Dollars
($ )]; and
5. The remaining funds, if any, that are on deposit, after retention of the Reserve Amount are
to be disbursed to City into the account designated by City.
[Signatures on following page]
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I hereby certify, on behalf of and not in my individual capacity, that this Distribution
Date Certificate is true and complete in all material respects.
By: _
Name:
Title:
Date:
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F.xhihit R
Form of Direction Letter
City of Baldwin Park, a California municipal corporation and general law city,
d/b/a [Name of CCA Program],
14403 E. Pacific Avenue, Baldwin Park, CA 91706
DIRECTION LETTER
VIA EMAIL AND U.S. MAIL
Southern California Edison Company
2244 Walnut Grove Avenue
Rosemead, CA 91770
Email: ccasvcs(Qsce.com
, 2019
RE: [NAME OF CCA] Direction Letter
Attached please find the Accounts Payable Electronic Funds Transfer Enrollment Form, dated as
of , 2019 (the "Payment Instruction"), executed by the City of Baldwin Park
("City") as respecting its [Name of CCA Program] program and instructing SCE to initiate credit
entries to account number , which account is held at River City Bank, a
California corporation.
By the Payment Instruction and this Direction Letter, we are hereby providing SCE with written
notice that we wish SCE to initiate credit entries to the above -referenced account. The payment
instructions set forth in this letter may only be amended upon the joint instruction of the City and
River City Bank, not in its individual capacity, but solely as collateral agent.
If you have any questions regarding the Payment Instruction or this Direction Letter, please contact
me, , at (_) _-
Very truly yours,
CITY OF BALDWIN PARK
By:
Name:
Title:
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cc: Stephen Hall, Hall Energy Law PC
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INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, dated as of
I
by and among
RIVER CITY BANK, A CALIFORNIA CORPORATION as Collateral Agent,
THE SECURED CREDITORS,
and
CITY OF BALDWIN PARK, A CALIFORNIA MUNICIPAL CORPORATION AND GENERAL LAW CITY,
d/b/a [NAME OF CCA PROGRAM ]
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TABLE OF CONTENTS
Page
SECTION1. Definitions................................................................................................................
2
Section 1.1. Definitions.............................................................................
Section 1.2. Other Interpretive Provisions............................................................... 5
SECTION 2. Relationships Among Secured Creditors.................................................................
6
Section 2.1. Liens in the Collateral.......................................................................... 6
Section 2.2. No Debt Subordination........................................................................ 6
Section 2.3. Restrictions on Enforcement Action .................................................... 6
Section 2.4. No Restriction on Terms of Power Purchase Agreements ................... 6
Section 2.5. Representations and Warranties........................................................... 7
Section 2.6. Cooperation; Accountings................................................................... 7
SECTION3. Agency Provisions...................................................................................................
7
Section 3.1.
Appointment and Authorization of Collateral Agent ........................... 7
Section3.2.
Collateral.............................................................................................. 8
Section 3.3.
Delegation of Duties............................................................................ 8
Section 3.4.
Exculpatory Provisions........................................................................ 9
Section 3.5.
Reliance by Collateral Agent...............................................................
9
Section3.6.
Knowledge........................................................................................... 9
Section 3.7.
Non -Reliance on Collateral Agent and Secured Creditors .................. 9
Section3.8.
Reporting............................................................................................
10
Section 3.9.
Indemnification..................................................................................
10
Section 3.10.
Collateral Agent May Act in its Individual Capacity ........................
10
Section 3.11.
Successor Collateral Agent................................................................
10
SECTION 4. Actions
by Collateral Agent...................................................................................
12
Section 4.1. Duties and Obligations....................................................................... 12
Section 4.2. Voting; Amendments to Transaction Agreements ............................. 12
Section 4.3. Actions Pertaining to the Collateral ................................................... 12
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Section4.4.
Duty of Care....................................................................................... 13
Section 4.5.
Further Assurances.............................................................................
13
Section 4.6.
Distribution of Proceeds of Collateral ...............................................
13
Section 4.7.
Deposit Accounts...............................................................................
13
Section 4.8.
Restoration of Obligations.................................................................
14
Section 4.9.
Privileged Materials...........................................................................
14
Section 4.10.
Action Upon Instruction....................................................................
14
SECTION 5. Bankruptcy Proceedings........................................................................................
14
SECTION6. Miscellaneous.........................................................................................................
15
Section 6.1.
Amendments to this Agreement and Assignments ............................
15
Section 6.2.
Marshalling........................................................................................
15
Section 6.3.
Governing Law; Jurisdiction..............................................................
15
Section 6.4.
Waiver of Jury Trial...........................................................................
16
Section6.5.
Joinder................................................................................................
16
Section 6.6.
Counterparts.......................................................................................
16
Section 6.7.
Termination........................................................................................
16
Section 6.8.
Controlling Terms..............................................................................
17
Section6.9.
Notices...............................................................................................
17
Exhibit A — Form of Joinder
Attachment 5
Agency Agreement
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INTERCREDITOR AND
COLLATERAL AGENCY AGREEMENT
This INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT (this
"Agreement"), dated as of (the "Effective Date"), is entered into by and
among (i) River City Bank, a California corporation, not in its individual capacity, but solely in
its capacity as Collateral Agent ("Collateral Agent"), (ii) each of the creditors from time to time
signatory hereto that are party to a Power Purchase Agreement (each such creditor defined
below as a "PPA Provider"), (iii) California Choice Energy Authority ("CCEA"), and (iv) The
City of Baldwin Park, a California municipal corporation and general law city, d/b/a [Name of
CCA Program] ("City").
RECITALS:
A. On behalf of City, CCEA has (i) entered into the Master Agreements (as defined
in the Security Agreement) and (ii) may in the future enter into a Power Purchase Agreement (as
defined in the Security Agreement) with a PPA Provider, pursuant to which CCEA has agreed,
or will agree, to purchase the Product (as defined in the Security Agreement) from such PPA
Provider for the account of City;
B. City shall sell the Product purchased by CCEA to City's customers at rates
established by City from time to time;
C. Pursuant to the Security Agreement City has pledged to Collateral Agent, for the
benefit of the PPA Providers and CCEA, as Secured Creditors, a first priority continuing
security interest in and to the Collateral (as such terms are defined in the Security Agreement);
D. City's customers are billed by Southern California Edison ("SCE") amounts they
owe for the Product provided by City;
E. As of the date hereof, City has directed SCE to remit all present and future
collections on accounts receivable now or hereafter billed by SCE on behalf of City to Collateral
Agent, for remittance to the Lockbox Account (as defined in the Security Agreement)
maintained by Collateral Agent, which direction is irrevocable unless both Collateral Agent, at
the direction of the Required Secured Creditors (as defined below), and City direct SCE
otherwise;
F. Collateral Agent shall have, for the benefit of the Secured Creditors, a first
priority continuing security interest in and lien on such receivables, deposit accounts and related
Collateral pledged to Collateral Agent for the benefit of the Secured Creditors, as provided in
the Security Agreement;
G. Distributions from such Collateral shall be made by Collateral Agent as provided
in this Agreement and the Security Agreement, with PPA Providers having a senior right to
distributions from the Collateral;
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H. Secured Creditors desire in this Agreement to appoint River City Bank as
Collateral Agent to act on their behalf regarding the administration, collection and enforcement
of the Collateral, all as more fully provided herein; and
I. Secured Creditors also desire to enter into this Agreement to define the rights,
duties, authority and responsibilities of Collateral Agent.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
Section 1.1. Definitions
Each capitalized term used herein and not defined herein shall have the meaning
given to such term in the Security Agreement. The following terms shall have the meanings
assigned to them in this Section 1.1 or in the provisions of this Agreement referred to below:
"Affiliate" means, at any time, and as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power, directly or indirectly, either to
(a) vote 51 % or more of the securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct or cause the direction of
the management and policies of such Person, whether by contract or otherwise.
"Agreement" shall have the meaning assigned thereto in the Preamble hereof.
"Applicable Law" means any applicable law, including without limitation any: (a)
federal, state, territorial, county, municipal or other governmental or quasi -governmental law,
statute, ordinance, rule, regulation, requirement or use or disposal classification or restriction,
whether domestic or foreign; (b) judicial, administrative or other governmental or quasi -
governmental order, injunction, writ, judgment, decree, ruling, interpretation, finding or other
directive, whether domestic or foreign; (c) common law or other legal or quasi -legal precedent;
(d) any binding arbitrator's, mediator's or referee's decision, finding, award or recommendation;
or (e) charter, rule, regulation or other organizational or governance document of any national
securities exchange or market or other self-regulatory organization.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as codified under Title
11 of the United States Code, and the rules promulgated thereunder, as the same may be in effect
from time to time.
`Bankruptcy Proceeding" means, with respect to any Person, the institution by or
against such Person of any proceeding seeking relief as a debtor, or seeking to adjudicate such
Person as bankrupt or insolvent, or seeking the reorganization, arrangement, adjustment or
composition of such Person or its debts, under any law relating to bankruptcy, insolvency,
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reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or
other similar official for such Person or for any substantial part of its property, or a general
assignment by such Person for the benefit of its creditors.
"Business Day" means any day other than a Saturday, a Sunday or a day on which
commercial banks in the States of California or Delaware are required or authorized to be closed.
"Citv" means the party identified as such in the Preamble hereof, and its successors and
permitted assigns, and includes City in its capacity as a debtor in possession under the
Bankruptcy Code.
"Collateral" has the meaning given to such term in the Security Agreement.
"Collateral Agent" means the party identified as such in the Preamble hereof, and its
successors and permitted assigns in such capacity.
"Control Agreements" means the Account Control Agreement, dated as of the date
hereof, among the Depositary Bank, City and Collateral Agent and any other agreements entered
into among City and Depositary Bank which shall designate the Deposit Accounts as blocked
accounts under the "control" of Collateral Agent, for the benefit of Secured Creditors, as
provided in the UCC, as each such agreement may be amended, supplemented, restated or
replaced from time to time.
"Customer" means any customer of City who purchases Product from City but is
invoiced by SCE, and any other obligor(s) responsible for payment of a Receivable.
"Deposit Accounts" has the meaning given to such term in the Security Agreement.
"Depositary Bank" has the meaning given to such term in the Security Agreement.
"Distribution Date" has the meaning given to such term in the Security Agreement.
"Distribution Date Certificate" has the meaning given to such term in the Security
Agreement.
"Event of Default" has the meaning set forth in the applicable Master Agreement or
Power Purchase Agreement.
"Joinder" has the meaning given to such term in Section 6.5.
"Lien" means any mortgage, pledge, hypothecation, deposit arrangement, encumbrance,
lien (statutory or other), assignment, charge or other security interest or any preference, priority
or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any sale governed by Article 9 of the UCC, any conditional sale or title retention
agreement, or any capital lease having substantially the same economic effect as any of the
foregoing).
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"Lockbox Account" has the meaning given to such term in the Security Agreement.
"Master Agreements" means the following:
(i) the Master Power Purchase and Sale Agreement, dated as of ,
201_, between and CCEA, together with the exhibits, schedules,
transactions, confirmations, and any written amendments, modifications, restatements,
extensions or supplements thereto or replacements thereof;
(ii) the Master Power Purchase and Sale Agreement, dated as of ,
201_, between and CCEA, together with the exhibits, schedules,
transactions, confirmations, and any written amendments, modifications, restatements,
extensions or supplements thereto or replacements thereof;
(iii) the Master Power Purchase and Sale Agreement, dated as of ,
201_, between and CCEA, together with the exhibits, schedules,
transactions, confirmations, and any written amendments, modifications, restatements,
extensions or supplements thereto or replacements thereof; and
(iv) the Master Power Purchase and Sale Agreement, dated as of ,
201_, between and CCEA, together with the exhibits, schedules,
transactions, confirmations, and any written amendments, modifications, restatements,
extensions or supplements thereto or replacements thereof.
"Obligations" has the meaning given to such term in the Security Agreement.
"Person" means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, or a government or agency or political
subdivision thereof.
"Power Purchase Agreement" means each agreement, including the Master
Agreements, together with the exhibits, schedules, transactions, confirmations (including
confirmations entered into after the date hereof), and any written amendments, modifications,
restatements, extensions or supplements thereto or replacements thereof, pursuant to which a
PPA Provider sells the Product to CCEA for the account of City, as amended, modified,
supplemented, restated, extended or replaced from time to time.
"PPA Provider" means each seller of Product under a Power Purchase Agreement that is
a party to this Agreement, and its respective successors and assigns.
"Product" means one or more of the following: energy, renewable energy attributes,
capacity attributes or resource adequacy benefits, or any other similar or related products
contemplated in the Power Purchase Agreements.
"Receivable" means an Account evidencing City's rights to payment for Product, billed
in an invoice sent to a Customer by SCE, together with all late fees and other fees which SCE
and City agree are to be charged in such invoice to the Customer by SCE on behalf of City.
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"Required Secured Creditors" means, as of any date, the PPA Provider, or PPA
Providers that, as of such date, have at least seventy five percent (75%) of the total aggregate
Sharing Percentage, as calculated on such date.
"Secured Creditors" means each PPA Provider party to this Agreement, CCEA, and
their respective successors and assigns
"Security Agreement" means the Security Agreement, dated as of even date herewith,
between City and Collateral Agent for the benefit of Secured Creditors, granting a security
interest in the Collateral to secure the Obligations, as amended, supplemented, restated or
replaced from time to time.
"Sharing Percentage" means, as of any date, with respect to each PPA Provider as
calculated by City in a commercially reasonable manner, the percentage equivalent of a fraction,
(a) the numerator of which is the sum of (i) the outstanding amount of the Obligations of such
PPA Provider, as of such date, and (ii) the calculated amount of the Termination Payment, if any,
that would be owed to such PPA Provider if a Termination Event occurred on such date, and (b)
the denominator of which is the sum of (i) the outstanding aggregate amount of the Obligations
of all PPA Providers as of such date, and (ii) the calculated aggregate amount of the Termination
Payments, if any, that would be owed to all PPA Providers if a Termination Event occurred on
such date.
"Termination Event" means, with respect to any Power Purchase Agreement, the
termination and/or acceleration thereof in accordance with the terms of such Power Purchase
Agreement.
"Termination Payment" means, with respect to any Power Purchase Agreement, any
and all Obligations arising upon or in connection with a Termination Event under such Power
Purchase Agreement, including any termination fees and payments or other amounts owed by
City thereunder, as of the date of such Termination Event, as calculated in a commercially
reasonable manner by the PPA Provider to such Power Purchase Agreement.
"Transaction Agreements" means the Master Agreements, any other Power Purchase
Agreements, the Control Agreements, the Security Agreement, this Agreement and all other
agreements, instruments or documents to which City is a parry and which are executed and
delivered from time to time in connection with or as security for City's obligations under the
Master Agreements, any other Power Purchase Agreements and any other Transaction
Agreements, as the same may be amended, restated, modified, replaced, extended or
supplemented from time to time.
"UCC" means the Uniform Commercial Code in effect in the State of California from
time to time.
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Section 1.2. Other Interpretive Provisions
References to "Sections" shall be to Sections of this Agreement unless otherwise
specifically provided. For purposes hereof, "including" is not limiting and "or" is not exclusive.
All capitalized terms defined in the UCC and not otherwise defined herein or in the Security
Agreement shall have the respective meanings provided for by the UCC. Any of the terms
defined in this Agreement may, unless the context otherwise requires, be used in the singular or
the plural depending on the reference. All references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations. References to any
instrument, agreement or document shall include such instrument, agreement or document as
supplemented, modified, amended or restated from time to time to the extent permitted by this
Agreement or the Security Agreement, as applicable. References to any Person include the
successors and permitted assigns of such Person. References to any statute or act shall include
all related current regulations and all amendments and any successor statutes, acts and
regulations. References to any statute or act, without additional reference, shall be deemed to
refer to federal statutes and acts of the United States. References to any agreement, instrument
or document shall include all schedules, exhibits, annexes and other attachments thereto.
SECTION 2. RELATIONSHIPS AMONG SECURED CREDITORS
Section 2.1. Liens in the Collateral
At all times, whether before, after or during the pendency of any Bankruptcy
Proceeding and notwithstanding the priorities which would ordinarily result from the order of
granting of any Liens, the order of attachment or perfection thereof, or the order of filing or
recording of any financing statements or other instrument, or the priorities that would otherwise
apply under Applicable Law, Collateral Agent, for the benefit of the Secured Creditors, shall
have a first priority lien in the Collateral to secure the Obligations. No Secured Creditor will
acquire in its own name a Lien in the assets of City to secure any Obligations arising under a
Power Purchase Agreement other than Liens arising by operation of law such as setoff rights.
Secured Creditors shall share in the Proceeds of the Collateral as provided for in Section 4.6.
Section 2.2. No Debt Subordination
Nothing in this Agreement shall be construed to be or operate as a subordination
of
any of the Obligations owed to a Secured Creditor in right of payment to the Obligations owed to
any other Secured Creditor.
Section 2.3. Restrictions on Enforcement Action
So long as any Obligation is outstanding and the Security Agreement remains in
effect, the provisions of this Agreement and the Security Agreement shall provide the exclusive
method by which Collateral Agent or any Secured Creditor may exercise rights in or assert
claims against the Collateral or City pertaining to the Obligations. Notwithstanding the
foregoing, nothing in this Agreement shall prohibit or otherwise restrict a Secured Creditor from
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exercising any right of termination, acceleration or similar right in accordance with its Power
Purchase Agreement, or prohibit or otherwise restrict a Secured Creditor from exercising any set-
off rights it may have with respect to the Obligations owing to it.
Section 2.4. No Restriction on Terms of Power Purchase Agreements
This Agreement does not impose any restriction on the terms of a Power Purchase
Agreement. City (acting through CCEA) and any PPA Provider are free to agree on any and all
of the terms for charges that may be provided for under its Power Purchase Agreement, such as
the price for the Product, late fees, and early termination fees. Without limiting the foregoing, no
PPA Provider shall be restricted as to the amount or output of the Product it sells to CCEA, on
behalf of City, or the length of such Power Purchase Agreement, or any amendment thereof.
Upon request by the Collateral Agent, each PPA Provider will disclose to Collateral Agent the
Obligations then due and owing to such PPA Provider in an itemized manner, and City, on its
own behalf and on behalf of the CCEA, consents to such disclosure to such Person or any party
hereto.
Section 2.5. Representations and Warranties
Each Secured Creditor represents and warrants to the other parties hereto that:
(a) the execution, delivery and performance by such Secured Creditor of this
Agreement has been duly authorized by all necessary corporate or similar proceedings
and does not and will not contravene any provision of law, its charter or by-laws or any
amendment thereof, or of any indenture, agreement, instrument or undertaking binding
upon such Secured Creditor;
(b) the execution, delivery and performance by such Secured Creditor of this
Agreement will result in a valid and legally binding obligation of such Secured Creditor
enforceable against such Secured Creditor in accordance with its terms; and
(c) any Termination Payment calculated by it and provided to the Collateral
Agent or the other Secured Creditors shall be calculated in good faith, in accordance with
its Power Purchase Agreement, and consistent with such Secured Creditor's historical
practices.
Section 2.6. Cooperation; Accountings
Each Secured Creditor will, upon the reasonable request of the Collateral Agent,
from time to time execute and deliver or cause to be executed and delivered such further
instruments, and do and cause to be done such further acts as may be reasonably necessary or
proper to carry out more effectively the provisions of this Agreement. Each Secured Creditor
agrees to provide to the Collateral Agent upon reasonable request a statement of all payments
received by it in respect of the Obligations pertaining to its Power Purchase Agreement.
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SECTION 3. AGENCY PROVISIONS
Section 3.1. Appointment and Authorization of Collateral Agent
(a) Each Secured Creditor hereby designates and appoints River City Bank, as
Collateral Agent of such Secured Creditor under this Agreement and River City Bank
hereby accepts such designation and appointment. The Collateral Agent is a non -
fiduciary agent of the Secured Creditors and does not act in a fiduciary capacity or as
trustee for the Secured Creditors or Collateral.
(b) Notwithstanding any provision to the contrary elsewhere in this
Agreement, Collateral Agent shall not have any duties or responsibilities except those
expressly set forth herein and in the Security Agreement, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against Collateral Agent. The right or power of Collateral
Agent to perform any discretionary act hereunder shall not be construed as a duty.
Collateral Agent is hereby authorized, empowered and instructed to execute, deliver and
perform its obligations under this Agreement, the Security Agreement, the Control
Agreements and each other document as may be necessary or convenient in connection
with the foregoing; provided, however, that the Collateral Agent shall not amend, modify
or terminate the Control Agreements without the prior written consent of the Secured
Creditors.
(c) Collateral Agent shall not (i) be subject to any fiduciary or other implied
duties, (ii) have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the
Security Agreement, the Control Agreements, or other agreement to which the Collateral
Agent is a party, and (iii) be required to take action that, in its opinion or the opinion of
its counsel, may expose Collateral Agent to liability.
(d) The Collateral Agent, hereby represents and warrants that (i) it has all
requisite power and authority to execute, deliver and perform under this Agreement; (ii)
the execution, delivery and performance by it of this Agreement has been duly authorized
by all requisite corporate or other action; (iii) no consent or approval of any other Person
and no consent, license, approval or authorization of any governmental authority is
required in connection with the execution, delivery, and performance by it of this
Agreement; and (iv) this Agreement constitutes its legal, valid and binding obligation
enforceable in accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws in effect from time to time affecting the
rights of creditors generally and general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law.
Section 3.2. Collateral
(a) Deposit Accounts Subject to Collateral Agent's Control.
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Collateral Agent agrees that its security interest and right of setoff in and to the
Deposit Accounts is held for the benefit of all the Secured Creditors and itself as
Collateral Agent, and that Collateral Agent will comply with this Agreement and the
Security Agreement in distributing monies received from such Deposit Accounts.
(b) Collateral Held by Secured Creditors.
Each Secured Creditor hereby acknowledges that if any Secured Creditor
(individually or through its own custodian) shall hold or control, at any time, any assets
comprising Collateral, such possession or control is also held for the benefit of Collateral
Agent for the benefit of the Secured Creditors. The foregoing sentence shall not be
construed to impose any duty on a Secured Creditor (or any third party acting on its
behalf) with respect to such Collateral if it is not perfected by possession or control.
Section 3.3. Delegation of Duties
Collateral Agent may exercise its powers and execute any of its duties under this
Agreement by or through employees, agents, and attorneys -in -fact, and shall be entitled to take
and to rely on advice of counsel concerning all matters pertaining to such powers and duties.
Subject to Section 3.4, Collateral Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys -in -fact unless Collateral Agent acted in bad faith or gross negligence
in the selection of such agents or attorneys -in -fact. Collateral Agent may utilize the services of
such Persons as Collateral Agent in its reasonable discretion may determine, and shall be entitled
to indemnity hereunder for all reasonable fees and expenses of such Persons.
Section 3.4. Exculpatory Provisions
Neither Collateral Agent (as such or in its individual capacity) nor any of
Collateral Agent's officers, directors, employees, agents, attorneys -in -fact, or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own bad faith, gross negligence
(or ordinary negligence in the handling or disbursement of funds actually received by it pursuant
to the terms hereof) or willful misconduct, respectively) or (b) responsible in any manner to City
or any of the Secured Creditors for any recitals, statements, representations, warranties or
covenants made by City or any Secured Creditor or any officer thereof contained in any
certificate, report, statement or other document referred to or provided for in, or received by,
Collateral Agent under or in connection with this Agreement or any other document in any way
connected therewith, or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any Lien or the perfection or priority of any such Lien (including any Lien in the
Collateral), or for any failure of City to perform its obligations thereunder.
Section 3.5. Reliance by Collateral Agent
Collateral Agent shall be entitled to rely, and shall be fully protected in relying,
upon any writing (in electronic or physical form), resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or
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other document or conversation reasonably believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to City), independent accountants and other
experts selected by Collateral Agent. Collateral Agent shall be fully justified in failing or
refusing to take action not provided for under this Agreement unless it shall first be indemnified
to its reasonable satisfaction by City against any and all liability and expense which may be
incurred by it by reason of taking, continuing to take or refraining from taking any such action.
Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with the provisions of Section 4 hereof, and any action taken or
failure to act pursuant thereto shall be binding upon all the Secured Creditors.
Section 3.6. Knowledge
Collateral Agent shall not be deemed to have knowledge or notice of any facts
regarding the Collateral or the Obligations unless Collateral Agent has received written notice
from the Secured Creditor or City referring to this Agreement, describing such facts in
reasonable detail.
Section 3.7. Non -Reliance on Collateral Agent and Secured Creditors
Each Secured Creditor expressly acknowledges that except as expressly set forth
in
this Agreement, neither Collateral Agent (as such or in its individual capacity) nor any of
Collateral Agent's officers, directors, employees, agents, attorneys -in -fact, or Affiliates has made
any representations or warranties to it, except as expressly provided herein at Section 3.1(d) and
that no act by Collateral Agent hereinafter taken shall be deemed to constitute any representation
or warranty by Collateral Agent (as such or in its individual capacity) to any Secured Creditor.
Section 3.8. Reporting
City shall provide online access for the Lockbox Account that enables the
Collateral Agent and the Secured Creditors to view the balance of the Lockbox Account at any
time. Upon written request by a Secured Creditor, Collateral Agent will provide such Secured
Creditor with a copy of the bank statement for the Lockbox Account no later than five (5)
Business Days following receipt thereof by the Collateral Agent. Collateral Agent shall have no
duty or responsibility to provide the Secured Creditors with, or otherwise monitor or review in
any respect, any credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of City which may come into the possession of
Collateral Agent or any of its officers, directors, employees, agents, attorneys -in -fact, or
Affiliates. Collateral Agent shall provide to Secured Creditors copies of all notices received by it
regarding the Collateral, the Security Agreement or this Agreement; provided that the failure to
provide such copies shall not cause Collateral Agent (as such or in its individual capacity) to
incur liability to any Person. Collateral Agent shall promptly (but in no event more than 3
Business Days) after Collateral Agent's receipt of a written request from a Secured Creditor
provide a report to all Secured Creditors regarding the status of any payments or distributions of
Collateral received by Collateral Agent.
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Section 3.9. Indemnification
City shall indemnify Collateral Agent (as such and in its individual capacity) from
and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against Collateral Agent (as such or in its individual
capacity) arising out of actions or omissions of Collateral Agent arising out of this Agreement;
provide d that neither City nor the Secured Creditors shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from Collateral Agent's fraud, willful misconduct,
gross negligence or bad faith. The agreements in this Section 3.9 shall survive the repayment of
the Obligations and the termination of this Agreement.
Section 3.10. Collateral Agent May Act in its Individual Capacity
River City Bank, a California corporation, and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with City and its Affiliates as
though it was not Collateral Agent hereunder.
Section 3.11. Successor Collateral Agent
(a) Collateral Agent may resign at any time upon at least 60 days' prior
written notice to the Secured Creditors and City, or may be removed by the demand of
the Required
Secured Creditors for cause at any time if Collateral Agent has failed to take any action
that Collateral Agent is required to take hereunder after request by a Secured Creditor, or
Collateral Agent has taken any action hereunder that Collateral Agent is not authorized to
take hereunder or that violates the terms hereof and, in either case, has not remedied such
failure or violation with reasonable promptness after a written request for corrective
action is delivered to Collateral Agent. After any resignation or removal hereunder of
Collateral Agent, the provisions of this Section 3 shall continue to be binding upon and
inure to its benefit as to any actions taken or omitted to be taken by it in its capacity as
Collateral Agent hereunder while it was Collateral Agent under this Agreement.
(b) Upon receiving written notice of any such resignation or removal, a
successor Collateral Agent, reasonably acceptable to City, shall be appointed by the
Secured Creditors provided, if an Event of Default as to City has occurred no such
acceptance of the successor Collateral Agent by City shall be required. If a successor
Collateral Agent shall not have been appointed pursuant to this Section 3.1 1(b) within 60
days after Collateral Agent's notice of resignation or upon removal of Collateral Agent,
then any Secured Creditor or Collateral Agent (unless Collateral Agent is being removed)
may petition a court of competent jurisdiction for the appointment of a successor
Collateral Agent (it being expressly understood and agreed that any such petition by the
Collateral Agent shall be at the expense of the Secured Creditors, jointly and severally)
and the Collateral Agent shall continue its functions in accordance with subsection (c)
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below. The appointment of a successor Collateral Agent pursuant to this Section 3.11(b)
shall become effective upon the acceptance of the appointment as Collateral Agent
hereunder by a successor Collateral Agent. Upon such effective appointment, the
successor Collateral Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent.
(c) The resignation or removal of a Collateral Agent shall take effect on the
day specified in the notice described in Section 3.11(a), unless previously a successor
Collateral Agent shall have been appointed and shall have accepted such appointment, in
which event such resignation or removal shall take effect immediately upon the
acceptance of such appointment by such successor Collateral Agent, androp vided,
further, that no resignation or removal shall be effective hereunder unless and until a
successor Collateral Agent shall have been appointed and shall have accepted such
appointment.
(d) Upon the effective appointment of and acceptance by a successor
Collateral Agent, the successor Collateral Agent shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Collateral Agent and the
predecessor Collateral Agent hereby appoints the successor Collateral Agent the attorney-
in-fact of such predecessor Collateral Agent to accomplish the purposes hereof, which
appointment is coupled with an interest. Such appointment and designation shall be full
evidence of the right and authority to act as Collateral Agent hereunder and all power,
duties, documents, rights and authority of the previous Collateral Agent shall rest in the
successor, without any further deed or conveyance. The predecessor Collateral Agent
shall, nevertheless, on the written request of the Secured Creditors or successor Collateral
Agent, execute and deliver any other such instrument transferring to such successor
Collateral Agent all the Collateral, properties, rights, power, duties, authority and title of
such predecessor. In connection with the resignation or removal of Collateral Agent,
City, to the extent requested by the Secured Creditors or Collateral Agent, shall procure
and execute any and all documents, conveyances or instruments requested, including any
documentation appropriate to reflect the transfer of the Lien or other rights granted herein
to such successor Collateral Agent.
SECTION 4. ACTIONS BY COLLATERAL AGENT
Section 4.1. Duties and Obligations
The duties and obligations of Collateral Agent are only those set forth in this
Agreement and the Security Agreement. The Collateral Agent shall not have any duty or
obligation to manage, control, use, sell, dispose of or otherwise deal with the Collateral, or to
otherwise take or refrain from taking any action hereunder, except as expressly provided by the
terms hereof or in written instructions received pursuant hereto, and no implied duties or
obligations shall be read into this Agreement against the Collateral Agent. Upon the written
instruction at any time and from time to time of the Required Secured Creditors, the Collateral
Agent shall take such action or refrain from taking such action, not inconsistent with the
provisions of this Agreement, as may be specified in such instruction. Notwithstanding the
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foregoing, Collateral Agent shall not be required to take, or refrain from taking, any action that,
in its opinion or in the opinion of its counsel, may expose Collateral Agent (as such or in its
individual capacity) to liability. Collateral Agent (as such or in its individual capacity) shall not
be liable for any action it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that such action or omission by Collateral Agent
does not constitute willful misconduct, gross negligence or bad faith. The Collateral Agent shall
not be obligated to expend its own funds or to incur any obligation in its individual capacity in
the performance of any of its obligations under or in connection with this Agreement, the
Security Agreement, the Control Agreements or any related document.
Section 4.2. Voting; Amendments to Transaction Agreements
Collateral Agent shall act at the written instruction of the Required Secured
Creditors in connection with all material actions, matters or decisions, or any actions, matters or
decisions requiring a vote or instruction under this Agreement, under any Control Agreement or
the Security Agreement, including with respect to Section 5.01 of the Security Agreement.
Notwithstanding the foregoing or anything in any Transaction Agreement to the contrary,
without the prior written consent of all of the Secured Creditors, Collateral Agent shall not enter
into any amendments, modifications, restatements, extensions or supplements of this Agreement,
the Control Agreement or the Security Agreement.
Section 4.3. Actions Pertaining to the Collateral
Collateral Agent has the sole and exclusive standing and right to assert claims
relating to the Collateral, and no Secured Creditor may enforce or assert against City, the Deposit
Accounts, the Depositary Bank, or any other Person, any claims relating to the Collateral.
Collateral Agent shall only act at the written instruction of the Required Secured Creditors in (a)
taking any action under this Agreement, the Security Agreement or any Control Agreement with
respect to the Collateral following an Event of Default and (b) asserting any claim under this
Agreement, the Security Agreement or any Control Agreement. Notwithstanding the foregoing,
if Collateral Agent deems it prudent to take reasonable actions, without the instruction of a
Secured Creditor, to protect the Collateral, it may (but shall be under no obligation to) do so and
thereafter provide written notice to all the Secured Creditors of such actions, and no provision of
this Agreement shall restrict Collateral Agent from exercising such rights and no liability shall be
imposed on Collateral Agent for omitting to exercise such rights.
Section 4.4. Duty of Care
Collateral Agent shall have no duty or obligation as to the collection or protection
of the Collateral or any income thereon, nor as to the preservation of rights against prior parties,
nor as to the preservation of rights pertaining to the Collateral beyond the safe custody of any
Collateral in Collateral Agent's actual possession. Without limiting the generality of the
foregoing, Collateral Agent shall have no duty or obligation (a) other than to instruct City as set
forth in Section 4.05 of the Security Agreement, to see to any recording or filing of any financing
statement evidencing a security interest in the Collateral, or to see to the maintenance of any such
recording or filing, (b) to see to the payment or discharge of any tax, assessment or other
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governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or
levied against any part of the Collateral, (c) to confirm or verify the contents of any reports or
certificates delivered to Collateral Agent reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties, or (d) to ascertain or inquire as to the
performance of observance by any other Person of any representations, warranties or covenants.
Collateral Agent may require an officer's certificate or an opinion of counsel before acting or
refraining from acting, and Collateral Agent shall not be liable for any action it takes or omits to
take in good faith in reliance on an officer's certificate or an opinion of counsel.
Section 4.5. Further Assurances
City and each Secured Creditor shall take such actions and cooperate with
Collateral Agent as may be reasonably requested, and execute such documents as may be
reasonably necessary, to carry out or effect the intent of the parties hereto.
Section 4.6. Distribution of Proceeds of Collateral
Collateral Agent shall distribute the Proceeds of the Collateral as provided in
Section 6.02 of the Security Agreement. Collateral Agent shall rely on the provisions in Section
6 of the Security Agreement for calculating the Obligations payable from such Proceeds.
Collateral Agent has no duty or obligation to make an independent inquiry regarding the
foregoing calculations or the facts on which such calculations are based.
Section 4.7. Deposit Accounts
Subject to distributions permitted under the Security Agreement or this
Agreement,
the Proceeds of Collateral shall be maintained in the Deposit Accounts, and no such account shall
be required to be interest bearing.
Section 4.8. Restoration of Obligations
In the event any payment of, or any application of any amount, asset or property
to,
any of the Obligations owed to any Secured Creditor or any obligations owed to Collateral Agent
under the Security Agreement or this Agreement, or any part thereof, made at any time
(including, without limitation, made prior to any applicable Bankruptcy Proceeding) is rescinded
or are otherwise to be restored or returned by such Secured Creditor or Collateral Agent at any
time after such payment or application, whether by order of any court, by settlement, or
otherwise, then the respective obligations and the security interests of such Person shall be
reinstated, all as though such payment or application had never been made.
Section 4.9. Privileged Materials
With respect to all materials and communications relating to the Collateral with or
in the possession of Collateral Agent or its counsel that are subject to any claim of privilege in
favor of Collateral Agent, each Secured Creditor agrees that Collateral Agent shall not be
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required to take any action under this Agreement that compromises the privileged nature of such
conversations or materials, and all such privileges shall be preserved.
Section 4.10. Action Upon Instruction
Whenever the Collateral Agent is unable to decide between alternative courses of
action permitted or required by the terms of this Agreement or any document, or is unsure as to
the application, intent, interpretation or meaning of any provision of this Agreement or any other
document, or any such provision may be ambiguous as to its application or in conflict with any
other applicable provision, permits any determination by the Collateral Agent, or is silent or
incomplete as to the course of action that the Collateral Agent is required to take with respect to a
particular set of facts, then the Collateral Agent may give notice (in such form as shall be
appropriate under the circumstances) to the Secured Creditors requesting instruction as to the
course of action to be adopted, and, to the extent the Collateral Agent acts or refrains from acting
in good faith in accordance with any such written instruction of the Required Secured Creditors
received, the Collateral Agent shall not be personally liable on account of such action or inaction
to any Person. If the Collateral Agent shall not have received appropriate instruction from the
Required Secured Creditors within ten (10) days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under the circumstances)
it may, but shall be under no duty to, take or refrain from taking such action which is consistent,
in its view, with this Agreement, the Security Agreement, and Control Agreements or other
documents, and as it shall deem to be in the best interests of the Secured Creditors, and the
Collateral Agent shall have no personal liability to any Person for any such action or inaction.
SECTION 5. BANKRUPTCY PROCEEDINGS
The following provisions shall apply during any Bankruptcy Proceeding of City:
(a) Collateral Agent shall represent all Secured Creditors in connection with
all matters directly relating solely to the Collateral, use of cash collateral, relief from the
automatic stay and adequate protection. In such Bankruptcy Proceeding, Collateral
Agent shall act on the instruction of the Required Secured Creditors.
(b) Each Secured Creditor shall be free to act independently on any issue not
directly relating solely to the Collateral.
(c) Each Secured Creditor shall file its own proof of claim in respect of the
Obligations owing to it. Collateral Agent shall have the right to file (but has no
obligation to file) a proof of claim in its capacity as Collateral Agent in respect of any or
all of the Obligations.
(d) Each Secured Creditor shall have the sole right to vote the claims
pertaining to the Obligations owing to it by City.
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(e) Any property received by any Secured Creditor with respect to the
Obligations owing to it as a result of, or during, any Bankruptcy Proceeding will be
delivered promptly to Collateral Agent for distribution in accordance with Section 4.6.
SECTION 6. MISCELLANEOUS
Section 6.1. Amendments to this Agreement and Assignments
This Agreement may not be modified, altered or amended, except by an agreement
in writing signed by Collateral Agent, City and all the Secured Creditors. This Agreement is
assignable by a Secured Creditor. Collateral Agent shall only transfer or assign its rights
hereunder by operation of law or in connection with a resignation or removal from its capacity as
Collateral Agent in accordance with the terms of this Agreement and, if required by the successor
Collateral Agent, the parties agree to execute and deliver a restated Agreement in the event there
is a replacement of Collateral Agent. City shall not assign, transfer or delegate its rights or
obligations hereunder without the prior written consent of all the Secured Creditors and
Collateral Agent. Any assignee of a PPA Provider under a Power Purchase Agreement shall
comply with Section 6.5.
Section 6.2. Marshalling
Collateral Agent shall not be required to marshal any present or future security for
(including, without limitation, the Collateral), or guaranties of the Obligations or to resort to such
security or guaranties in any particular order; and all of each of such Person's rights in respect of
such security and guaranties shall be cumulative and in addition to all other rights, however
existing or arising.
Section 6.3. Governing Law; Jurisdiction
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN
ACCORDANCE WITH, AND ENFORCED UNDER, THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF
SUCH STATE. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR ANY OTHER TRANSACTIONS
CONTEMPLATED HEREBY OR
THEREBY MAY BE BROUGHT IN THE COURTS OF THE UNITED STATES OF
AMERICA
FOR THE DISTRICT OF CALIFORNIA IN COUNTY OR, IF
SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE COURTS OF
THE STATE OF CALIFORNIA IN COUNTY AND HEREBY EXPRESSLY
SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR
THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER
VENUE AND ANY CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM.
EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR
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PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE ADDRESS APPLICABLE TO
THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH
MAILING.
Section 6.4. Waiver of Jury Trial
EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS
HEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
Section 6.5. Joinder
Each time CCEA, on behalf of City, enters into a new Power Purchase Agreement
as to which the counterparty thereto is to share in the Collateral, such counterparty shall execute
and deliver to Collateral Agent a Joinder to Intercreditor and Collateral Agency Agreement in the
form of Exhibit A hereto (a "Joinder") at the same time as such counterparty executes the Power
Purchase Agreement. Further, no PPA Provider may assign or transfer its rights hereunder or
under a Power Purchase Agreement without such assignees or transferees delivering an executed
Joinder to Collateral Agent. By executing a Joinder, such counterparty agrees to be bound by the
terms of this Agreement as though named herein and shall share in the Collateral in accordance
with the provisions of this Agreement. Each such counterparty that is an assignee shall upon
execution and delivery of a Joinder be the PPA Provider and Secured Creditor under this
Agreement representing the holder of the assigned Obligations and shall be obligated for all
obligations to Collateral Agent of its transferor, and such transferor shall cease forthwith to be a
Secured Creditor hereunder.
Section 6.6. Counterparts
This Agreement and any related amendment or waiver may be executed in several
counterparts and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one instrument. In
proving this Agreement it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought. A facsimile of a signature
page hereto or to any Joinder shall be as effective as an original signature.
Section 6.7. Termination
Unless earlier terminated by the parties hereto, upon termination of the Security
Agreement in accordance with its terms and upon payment of all Obligations owed to Collateral
Agent, this Agreement shall terminate, except for those provisions hereof that by their express
terms shall survive the termination of this Agreement; provided, however, if all or any part of the
Obligations are reinstated pursuant to Section 4.8, then this Agreement shall be renewed as of
such date and shall thereafter continue in full force and effect to the extent of the Obligations so
invalidated, set aside or repaid, or that remain outstanding.
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Section 6.8. Controlling Terms
In the event of any inconsistency between this Agreement and the Security
Agreement, the Security Agreement shall control.
Section 6.9. Notices
Except as otherwise expressly provided herein, all notices, consents and waivers
and other communications made or required to be given pursuant to this Agreement shall be in
writing and shall be delivered by hand, mailed by registered or certified mail or prepaid
overnight air courier, or by facsimile communications, addressed as provided below their
signatures to this Agreement or at such other address for notice as City, Collateral Agent or such
Secured Creditor shall last have furnished in writing to the Person giving the notice. A notice
addressed as provided herein that (i) is delivered by hand or overnight courier is effective upon
delivery, (ii) is sent by facsimile communication is effective if made by confirmed transmission
at a telephone number designated as provided herein for such purpose, and (iii) is sent by
registered or certified mail is effective on the earlier of acknowledgement of receipt as shown on
the return receipt or three (3) Business Days after mailing.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as an instrument under seal by their authorized representative as of the Effective Date.
RIVER CITY BANK, not in its individual
capacity, but solely as Collateral Agent
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IM0
By:
Name:
Title:
Notice Address:
River City Bank
2485 Natomas Park Dr.
Sacramento, CA 95833
Attention: Cash Management
Fax: 916-567-2799
Email: cashmamtgrivercitybank.com
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as Secured Creditor
By:
Name:
Title:
Notice Address:
Attention:
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CITY OF BALDWIN PARK
By:
Name:
Title:
Notice Address:
City of Baldwin Park
Attention: Contract Administration
14403 E. Pacific Avenue
Baldwin Park, CA 91706
Fax: 626-337-2965
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CALIFORNIA CHOICE
ENERGY AUTHORITY
By:
Name:
Title:
Notice Address:
California Choice Energy Authority
Attention: Contract Administration
44933 Fern Avenue
Lancaster, CA 93534
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EXHIBIT A
JOINDER TO INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
River City Bank, in its capacity as Collateral Agent
2485 Natomas Park Dr.
Sacramento, CA 95833
Attention: Cash Management
Reference:
Reference is made to the Intercreditor and Collateral Agency Agreement, dated as of
2019 (as amended or restated from time to time, the "Intercreditor Agreement";
capitalized terms used but not otherwise defined herein shall have the meaning ascribed thereto
in the Intercreditor Agreement), among River City Bank, as Collateral Agent, and the PPA
Providers party thereto, relating to the City of Baldwin Park, a California municipal corporation
and general law city, d/b/a [Name of CCA Program] ("[CCA]").
By executing and delivering this Joinder to Intercreditor and Collateral Agency Agreement (this
"Joinder"), the undersigned holder of the Obligations arising under that certain Power Purchase
Agreement between CCEA and the undersigned, a copy of which is enclosed with this Joinder,
(1) agrees to the appointment of River City Bank, as its Collateral Agent in accordance with
Section 3.1 of the Intercreditor Agreement, and (2) agrees to be bound by all of the terms and
provisions of the Intercreditor Agreement. The address set forth under the signature of the
undersigned constitutes its address for the purposes of Section 6.9 of the Intercreditor
Agreement.
Dated as of: _, 20_
Title:
[Insert address for notices]
M►"Im
Attachment 6
Deposit Account Control
DRAFT
29 JANUARY 2019
DATED as of , 2019
(1) River City Bank, a California corporation,
as Account Bank,
(2) City of Baldwin Park, a California municipal corporation and
general law city,
and
(3) River City Bank, a California corporation, not in its individual
capacity, but solely as collateral agent, as Secured Party.
ACCOUNT CONTROL AGREEMENT
1
ACCOUNT CONTROL AGREEMENT (this "Agreement") dated as of
(the "Effective Date")
BETWEEN:
(1) RIVER CITY BANK, a California corporation (the "Account Bank");
(2) CITY OF BALDWIN PARK, a California municipal corporation and charter city, d/b/a
[CCA Program Name] (" ly");
(3) RIVER CITY BANK, a California corporation, not in its individual capacity, but solely
as collateral agent (the "Secured Party").
WHEREAS:
(A) City has pledged to the Secured Party (for the benefit of the PPA Providers
and California Choice Energy Authority (as defined in the Security Agreement), as secured
creditors) all of the Collateral (as defined in the Security Agreement), pursuant to that
certain Security Agreement between City and Secured Party dated (the
"Security Agreement");
(B) City shall direct Southern California Edison ("SCE") to remit all present
and future collections on accounts receivable now or hereafter billed by SCE and owed by
City's customers to Secured Party, for remittance to a Lockbox Account (as defined in the
Security Agreement) maintained by Secured Party;
(C) Secured Party shall have, for the benefit of the Secured Creditors (as defined
in the Security Agreement), a first priority continuing security interest in and lien on such
Collateral pledged to Secured Party for the benefit of the Secured Creditors, as provided in
the Security Agreement;
(D) City intends that Secured Party shall distribute the Collateral deposited into
the Lockbox Account in accordance with the provisions of the Security Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
Unless otherwise defined herein, all capitalized terms used herein and defined in the Security
Agreement shall be used herein as therein defined. Reference to singular terms shall include the
plural and vice versa.
THE ACCOUNTS.
2
City hereby requests that Account Bank open, and Account Bank hereby confirms that it
has opened, account number * * * * * * (a non-interest-bearing deposit account held in the name
of City) which will be subject to, and administered in accordance with, the terms of this Agreement
(together, the "Lockbox Account").
The parties hereto agree that the Lockbox Account shall be funded solely by electronic
transfers of immediately available funds and that Account Bank shall not be required to accept any
other items for deposit into the Lockbox Account. All amounts payable for deposit into the
Lockbox Account shall be paid to Account Bank at the following accounts:
Bank: River City Bank
ABA#:
Account No.: * * * * * *
2. CONTROL OF THE ACCOUNTS / PAYMENT MECHANICS.
(a) The Lockbox Account shall be maintained by Account Bank in the name of City
and shall be under the sole dominion and control of Secured Party. Account Bank
agrees that it will comply with written instructions originated by Secured Party
directing disposition of the funds in the Lockbox Account without further consent
by City or otherwise.
(b) Account Bank (i) shall disburse funds held in the Lockbox Account as instructed
by Secured Parry and (ii) agrees that, except as otherwise expressly provided herein,
City will not have access to the funds in the Lockbox Account and that the Account
Bank will not agree with City or any other party (other than the Secured Parry) to
comply with any instructions for the disposition of the funds in the Lockbox
Account originated by City or such other party.
3. STATEMENTS AND OTHER INFORMATION.
(a) Account Bank shall provide Secured Party with copies of the regular monthly bank
statements of the Lockbox Account at such times such statements are provided to
City and such other information relating to the Lockbox Account as shall
reasonably be requested by Secured Party or City. Account Bank shall also deliver
a copy of all notices and statements required to be sent by it to City pursuant to any
agreement governing or related to the Lockbox Account, to which Account Bank
is a party, to Secured Party at such times such notices and statements are provided
to City. Except as otherwise required by law, Account Bank will use reasonable
efforts promptly to notify Secured Party and City if Account Bank receives a notice
that any other person claims that it has an interest in the Lockbox Account. As of
the date of this Agreement, Account Bank confirms that it has not received notice
that any other person has any interest in the Lockbox Account.
(b) Account Bank hereby confirms that (i) the Lockbox Account has been established
and is maintained with Account Bank on its books and records, (ii) Account Bank
3
is a bank within the meaning of Section 9-102(a)(8) of the Uniform Commercial
Code of California, (iii) the Lockbox Account is a deposit account within the
meaning of Section 9-102(a)(29) of the Uniform Commercial Code of California,
and (iv) the jurisdiction of Account Bank for the purposes of Article 9 of the
Uniform Commercial Code of California is California.
4. FEES.
City agrees to pay on demand all usual and customary service charges, transfer fees and
account maintenance fees of Account Bank in connection with the Lockbox Account in accordance
with the terms of the separate fee agreement entered into by City and Account Bank.
5. SET-OFF.
Account Bank hereby agrees that Account Bank will not exercise or claim any right of set-
off or banker's lien against the Lockbox Account. As of the date of this Agreement, Account Bank
does not know of any claim to or interest in the Lockbox Account, except for claims and interests
of the parties hereto. All of Account Bank's present and future rights against the Lockbox Account
are subordinate to Secured Party's security interest therein.
6. ACCOUNT BANK.
The acceptance by Account Bank of its duties under this Agreement is subject to the
following terms and conditions, which the parties to this Agreement hereby agree shall govern and
control with respect to all of Account Bank's rights, duties, liabilities and immunities:
(a) Account Bank shall be protected in acting upon any written notice, certificate,
resolution, instruction, request, authorization or other paper or document as to the
due execution thereof and the validity and effectiveness of the provisions thereof
and as to the truth of any information therein contained, which it in good faith
believes to be genuine and to have been signed or presented by the proper party or
parties in accordance with the terms of this Agreement.
(b) Account Bank may act relative hereto upon advice of counsel in reference to any
matter connected herewith, and shall not be liable for any mistake of fact or error
of judgment, or any acts or omissions of any kind unless caused by its willful
misconduct or gross negligence. If at any time Account Bank determines that it
requires or desires guidance regarding the application of any provision of this
Agreement or any other document, regarding compliance with any direction it
receives hereunder, Account Bank may deliver a notice to Secured Party (or City
after Secured Party has informed Account Bank that City has satisfied all of its
obligations under the Power Purchase Agreements) requesting written instructions
as to such application or compliance, and such instructions by or on behalf of
Secured Party (or City after Secured Party has informed Account Bank that City
has satisfied all of its obligations under the Power Purchase Agreements), as
applicable, shall constitute full and complete authorization and protection for
4
actions taken and other performance by Account Bank in reliance thereon. Until
Account Bank has received such instructions after delivering such notice, it may,
but shall be under no duty to, take or refrain from taking any action with respect to
the matters described in such notice.
(c) This Agreement sets forth exclusively the duties of Account Bank with respect to
any and all matters pertinent hereto, and no implied duties or obligations shall be
read into this Agreement against Account Bank.
(d) Any funds held by Account Bank, as such, need not be segregated from other funds
except to the extent required by mandatory provisions of law.
7. REPRESENTATIONS OF ACCOUNT BANK.
Account Bank represents and warrants as to itself (as set forth below) to Secured Parry as
follows, such representations are being made on the date of the execution and delivery of this
Agreement, except to the extent that such representations and warranties relate solely to an earlier
date (in which case such representations and warranties are correct on and as of such earlier date):
(a) Organization, Corporate Authority. Account Bank represents and warrants that it
is a national banking association duly organized and validly existing in good
standing under the laws of the United States of America and has the corporate
power and authority to enter into and perform its obligations under this
Agreement, and has full right, power and authority to enter into and perform its
obligations under this Agreement.
(b) Authorization. Account Bank represents and warrants that this Agreement has
been duly executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its own behalf.
(c) Legal, Valid and Binding. Account Bank represents and warrants that this
Agreement -has been duly executed and delivered by it and, assuming that this
Agreement is the legal, valid and binding obligation of each other party thereto, is
the legal, valid and binding obligation of Account Bank, enforceable against
Account Bank in accordance with its terms.
(d) No Violation. Account Bank represents and warrants that this Agreement has been
duly authorized by all necessary corporate action on its part, and neither the
execution and delivery thereof nor its performance of any of the terms and
provisions thereof will violate any federal law or regulation relating to its banking
or trust powers or contravene or result in any breach of, or constitute any default
under its charter or by-laws or the provisions of any indenture, mortgage, contract
or other agreement to which it is a party or by which it or its properties may be
bound or affected.
8. EXCULPATION OF ACCOUNT BANK; INDEMNIFICATION BY CITY.
5
Each of City and Secured Party agrees that Account Bank shall have no liability to any of
them for any loss or damage that any or all may claim to have suffered or incurred, either directly
or indirectly, by reason of this Agreement or any transaction or service contemplated by the
provisions hereof, unless occasioned by the gross negligence, breach of an express term of this
Agreement or willful misconduct of Account Bank. In no event shall Account Bank be liable for
losses or delays resulting from computer malfunction, interruption of communication facilities,
labor difficulties or other causes beyond Account Bank's reasonable control or for.the indirect,
special or consequential damages. City agrees to indemnify Account Bank and hold it harmless
from and against all claims, other than those ultimately determined to be founded on the gross
negligence or willful misconduct of Account Bank, and from and against any damages, penalties,
judgments, liabilities, losses or expenses (including reasonable attorney's fees and disbursements)
incurred as a result of the assertion of any claim, by any person or entity, arising out of, or otherwise
related to, any transaction conducted or service provided by Account Bank through the use of the
Lockbox Account at Account Bank or pursuant to this Agreement.
9. TERMINATION.
This Agreement may be terminated upon delivery to Account Bank of a written notification
thereof jointly executed by Secured Party and (provided Secured Party has not notified Account
Bank that an Event of Default is then continuing) City. Notwithstanding the foregoing, this
Agreement may be terminated by Secured Party in accordance with and subject to the requirements
of that certain Intercreditor and Collateral Agency Agreement, dated as of the Effective Date
("Intercreditor Agreement"), between and among Secured Party, Secured Creditors, and City, at
any time, with or without cause, upon its delivery of written notice thereof to each of City and
Account Bank. For the avoidance of doubt, it is expressly understood and agreed that the Account
Bank shall have no duty to monitor or oversee, and shall have no liability whatsoever in connection
with, Secured Parry's compliance with the Intercreditor Agreement. This Agreement may be
terminated by Account Bank at any time on not less than sixty (60) days' prior written notice
delivered to each of City and Secured Party provided that such termination shall not take effect
until Secured Party confirms that a replacement account and replacement security thereover have
been obtained in form and substance satisfactory to Secured Party. Upon any such termination of
this Agreement, Account Bank will immediately transmit to such account as Secured Parry may
direct all funds, if any, then on deposit in, or otherwise standing to the credit of the Lockbox
Account. The provisions of paragraphs 2 and 5 shall survive termination of this Agreement unless
and until specifically released by Secured Party in writing. All rights of Account Bank under
paragraphs 4, 5, 6 and 8 shall survive any termination of this Agreement.
ffli� m..19 11Z A : WITIIOMAu M -IM -1
City acknowledges that the agreements made by it and the authorizations granted by it in
paragraph 2 hereof are irrevocable and that the authorizations granted in paragraph 2 hereof are
powers coupled with an interest.
11. NOTICES.
G
All notices, requests or other communications given to Account Bank, City or Secured
Party shall be given in writing (including by facsimile) at the address specified below:
Account Bank: River City Bank
Attention: Cash Management
2485 Natomas Park Dr.
Sacramento, CA 95833
Fax: 916-567-2779
Email: cashmgmtnrivercitybank.com
City: Baldwin Park
Attention: Contract Administration
14403 E. Pacific Avenue
Baldwin Park, CA 91706
Fax: 626-337-2965
Email:
Secured Party: River City Bank, as Collateral Agent
Attention: Cash Management
2485 Natomas Park Dr.
Sacramento, CA 95833
Fax: 916-567-2779
Email: cashmgmt@rivercitybank.com
Any party may change its address for notices hereunder by notice to each other party
hereunder given in accordance with this paragraph 11. Each notice, request or other
communication shall be effective (a) if given by facsimile, when such facsimile is transmitted to
the facsimile number specified in this paragraph 11 and confirmation of receipt is made by the
appropriate parry, (b) if given by overnight courier, five (5) days after such communication is
deposited with the overnight courier for delivery, addressed as aforesaid, or (c) if given by any
other means, when delivered at the address specified in this paragraph 11.
12. MISCELLANEOUS.
(a) This Agreement may be amended only by a written instrument executed by each of
the parties hereto acting by their respective duly authorized representatives.
(b) This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns, but neither City nor Account
Bank shall be entitled to assign or delegate any of its rights or duties hereunder
without first obtaining the express prior written consent of Secured Party.
(c) This Agreement may be executed in any number of several counterparts, each of
which shall be deemed an original but all of which together shall constitute one and
the same instrument.
7
(d) This Agreement and any document contemplated hereby may be delivered by a
party hereto by way of facsimile or e-mail transmission and such delivery shall be
deemed completed for all purposes upon the completion of such facsimile or e-mail
transmission. A parry that so delivers this Agreement or any such document by
way of facsimile or e-mail transmission agrees to promptly thereafter deliver to the
other party hereto an original signed counterpart. The signature of any party
transmitted by facsimile or e-mail shall be considered for these purposes as an
original document, and any such document shall be considered to have the same
binding legal effect as an originally executed document. In consideration of the
mutual covenants herein contained, the parties agree that none of them shall raise
the use of a facsimile machine or e-mail as a defense in any suit or controversy
related to this Agreement or any of the other documents and forever waive any such
defense.
(e) THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. THIS AGREEMENT IS BEING DELIVERED IN THE
STATE OF CALIFORNIA. The parties agree that the State of California (i) is and
shall remain the "bank's jurisdiction" of the Account Bank for the purposes of the
Uniform Commercial Code; and (ii) shall be deemed to be the location of the
Lockbox Accounts and of City's rights and interests in and to the Lockbox
Accounts. This Agreement may be executed by the parties hereto in separate
counterparts (or upon separate signature pages bound together into one or more
counterparts), each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one and the same instrument.
(f) JURY WAIVER AND JUDICIAL REFERENCE. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
IN THE EVENT ANY LEGAL PROCEEDING IS FILED IN A COURT OF THE
STATE OF CALIFORNIA (THE "COURT") BY OR AGAINST ANY PARTY
HERETO IN CONNECTION WITH ANY CONTROVERSY, DISPUTE OR
CLAIM DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY)
(EACH, A "CLAIM") AND THE WAIVER SET FORTH IN THE PRECEDING
PARAGRAPH IS NOT ENFORCEABLE IN SUCH ACTION OR
PROCEEDING, THE PARTIES HERETO AGREE AS FOLLOWS:
(i) WITH THE EXCEPTION OF THE MATTERS SPECIFIED IN
PARAGRAPH (ii) BELOW, ANY CLAIM WILL BE DETERMINED BY A
GENERAL REFERENCE PROCEEDING IN ACCORDANCE WITH THE
PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS
638 THROUGH 645.1. THE PARTIES INTEND THIS GENERAL REFERENCE
AGREEMENT TO BE SPECIFICALLY ENFORCEABLE IN ACCORDANCE
WITH CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638.
(ii) THE FOLLOWING MATTERS SHALL NOT BE SUBJECT TO
A GENERAL REFERENCE PROCEEDING: (1) NON -JUDICIAL
FORECLOSURE OF ANY SECURITY INTERESTS IN REAL OR PERSONAL
PROPERTY, (2) EXERCISE OF SELF-HELP REMEDIES (INCLUDING,
WITHOUT LIMITATION, SET-OFF), (3) APPOINTMENT OF A RECEIVER
AND (4) TEMPORARY, PROVISIONAL OR ANCILLARY REMEDIES
(INCLUDING, WITHOUT LIMITATION, WRITS OF ATTACHMENT, WRITS
OF POSSESSION, TEMPORARY RESTRAINING ORDERS OR
PRELIMINARY INJUNCTIONS). THIS AGREEMENT DOES NOT LIMIT
THE RIGHT OF ANY PARTY TO EXERCISE OR OPPOSE ANY OF THE
RIGHTS AND REMEDIES DESCRIBED IN THE FOREGOING CLAUSES (1)
- (4) AND ANY SUCH EXERCISE OR OPPOSITION DOES NOT WAIVE THE
RIGHT OF ANY PARTY TO A REFERENCE PROCEEDING PURSUANT TO
THIS AGREEMENT.
(iii) UPON THE WRITTEN REQUEST OF ANY PARTY, THE
PARTIES SHALL SELECT A SINGLE REFEREE, WHO SHALL BE A
RETIRED JUDGE OR JUSTICE. IF THE PARTIES DO NOT AGREE UPON A
REFEREE WITHIN TEN (10) DAYS OF SUCH WRITTEN REQUEST, THEN,
ANY PARTY MAY REQUEST THE COURT TO APPOINT A REFEREE
PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION
640(B).
(iv) ALL PROCEEDINGS AND HEARINGS CONDUCTED BEFORE
THE REFEREE, EXCEPT FOR TRIAL, SHALL BE CONDUCTED WITHOUT
A COURT REPORTER, EXCEPT WHEN ANY PARTY SO REQUESTS, A
COURT REPORTER WILL BE USED AND THE REFEREE WILL BE
PROVIDED A COURTESY COPY OF THE TRANSCRIPT. THE PARTY
MAKING SUCH REQUEST SHALL HAVE THE OBLIGATION TO
ARRANGE FOR AND PAY COSTS OF THE COURT REPORTER, PROVIDED
0
THAT SUCH COSTS, ALONG WITH THE REFEREE'S FEES, SHALL
ULTIMATELY BE BORNE BY THE PARTY WHO DOES NOT PREVAIL, AS
DETERMINED BY THE REFEREE.
(v) THE REFEREE MAY REQUIRE ONE OR MORE PREHEARING
CONFERENCES. THE PARTIES HERETO SHALL BE ENTITLED TO
DISCOVERY, AND THE REFEREE SHALL OVERSEE DISCOVERY IN
ACCORDANCE WITH THE RULES OF DISCOVERY, AND MAY ENFORCE
ALL DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL
COURT JUDGE IN PROCEEDINGS AT LAW IN THE STATE OF
CALIFORNIA. THE REFEREE SHALL APPLY THE RULES OF EVIDENCE
APPLICABLE TO PROCEEDINGS AT LAW IN THE STATE OF
CALIFORNIA AND SHALL DETERMINE ALL ISSUES IN ACCORDANCE
WITH APPLICABLE STATE AND FEDERAL LAW. THE REFEREE SHALL
BE EMPOWERED TO ENTER EQUITABLE AS WELL AS LEGAL RELIEF
AND RULE ON ANY MOTION WHICH WOULD BE AUTHORIZED IN A
TRIAL, INCLUDING, WITHOUT LIMITATION, MOTIONS FOR DEFAULT
JUDGMENT OR SUMMARY JUDGMENT. THE REFEREE SHALL REPORT
HIS DECISION, WHICH REPORT SHALL ALSO INCLUDE FINDINGS OF
FACT AND CONCLUSIONS OF LAW.
(vi) THE PARTIES RECOGNIZE AND AGREE THAT ALL CLAIMS
RESOLVED IN A GENERAL REFERENCE PROCEEDING PURSUANT
HERETO WILL BE DECIDED BY A REFEREE AND NOT BY A JURY.
(g) Each party hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Central District of California and of any California state court
sitting in Los Angeles County for the purpose of all legal proceedings arising out
of or relating to this Agreement or the transactions contemplated hereby and
thereby. Each party irrevocably waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to the laying of
the venue of any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient forum.
(h) City hereby irrevocably appoints the City Clerk at City of Lancaster 44933 Fern
Avenue, Lancaster, CA 93534, from time to time to receive on its behalf service of
process issued out of the federal courts of California in any legal action or
proceeding arising out of or in connection with this Agreement or any other
document to which it is a party. City undertakes not to revoke the authority of the
agent specified above and if, for any reason, any such agent no longer serves or is
capable of serving as agent of the relevant party hereto to receive service of process
in City, such party shall promptly appoint another such agent and advise Secured
Party thereof and, failing such appointment within fourteen (14) days, Secured
Parry shall be entitled (and is hereby authorized) to appoint an agent on behalf of
10
City. Nothing herein contained shall restrict the right to serve process in any other
manner allowed by law.
[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as an instrument under seal by their authorized representative as of the date first written
above.
Account Bank
RIVER CITY BANK
By:
Name:
Title:
City CITY OF BALDWIN PARK, a
California municipal corporation and
general law city
By:
Name:
Title:
11
Secured Party
RIVER CITY BANK, not in its
individual capacity, but solely as
Collateral Agent
By:
Name:
Title:
12
ITEM NO. SA .
TO: Honorable Chair and Board Members of the Successor Agency
to the Dissolved Community Development Commission of the
City of Baldwin Park
FROM: Rose Tam, Director of Finance lir
DATE: April 17, 2019 �v ot
SUBJECT: Treasurer's Report — February 2019
SUMMARY
Attached is the Treasurer's Report for the month of February 2019. The Treasurer's Report lists all
cash for the City which includes the Baldwin Park Financing Authority, the Housing Authority, and the
Successor Agency to the Community Development Commission (CDC). All investments are in
compliance with the City's Investment Policy and the California Government Code.
RECOMMENDATION
Staff recommends that Council receive and file the Treasurer's Report for February 2019.
FISCAL IMPACT
None
BACKGROUND
City of Baldwin Park Investment Policy requires the Treasurer's Report be submitted to the Mayor
and City Council on a monthly basis.
LEGAL REVIEW
Not Applicable
ATTACHMENT
1. Exhibit "A", Treasurer's Report
mm
Exhibit "A"
Treasurer's Report
CITY OF BALDWIN PARK
TREASURER'S REPORT
2/28/2019
INVESTMENT
INTEREST
PURCHASE
MATURITY
PAR
CURRENT
BOOK
MARKET '
DESCRIPTION
RATE
DATE
DATE
VALUE
PRINCIPAL
VALUE
VALUE
State of Caltiorrda Local Agency knvesdnerd FurdjLAIFF
_.------
City4ncluding General Furl. S a8 other Special Revenue Funds
2.39%
Varies
Varies
$ 29,753,454.64
$ 29,763,454.64
i 29.753,464.64
S 29,753y664.64
Housing Authority
2.39%
Varies
Varies
13,670.21
13,570.22
13,570.22
13,670.22
Cartlncata Daoasa
29,767,024.96
29,787,024.86
29,767,024.86
29,767,024.85
of
CMm* National Association (Mutual Securities)
2.66%
1/2512019
1126/2021
250,000.00
250.000.00
260,000.00
249,816.00
Anarican Express Centurlon (Mutual Securities)
1.60%
4/12/2017
411212019
250,000.00
250,000.00
250,000.00
248,812.50
Evwbw*—%cksonvWe (IAutual Securities)
1.65%
4116!2017
411612019
250,000.00
250,000.00
260,000.00
249,777.50
Gokkran Sachs Bk USA NY (Mutual Securities)
2.25%
1/24/2018
112412020
260,000.00
250,000.00
250.000.00
248,497.50
Salle Mae Bk SLT Lake City UT (Mudd Securities)
2.25%
1124/2018
1/24/2020
Z50,000.00
250,000.00
250,000.00
249,487.60
Saha National Bank New York (Canteita)
2.00%
4116/2018
4/1612019
250,000.00
250.000.00
250.000.00
249,917.50
Morgan Stanley Bards N A Utah (Caruella)
2.64%
4M912018
4/20/2020
250,000.00
250,000.00
260,000.00
250,297.60
Barclays Bank Del (Canteda)
3.05%
12M912018
1=112020
250,000.00
250.000.00
260,000.00
281,686.00
2,000,000.00
2,000.000.00
2,000,000.00
2,000,330.00
US Treasury BM (UBS)
2.07%
3/29!2018
3/28/12019
1,000,000.00
1,000,000.00
1,000,000.00
988.046.00
Fiscal Agent Funds (Trust/Debt Service Fund)
Varies
Varies
Varies
7,590,972.65
7,590,972.66
7,690,972.56
7,590,972.66
Fiscal Agent Funds, - Successor Agency (TnuWDedt Service Funs
Varies
Varies
Varies
153,323A7
153,323.47
153,323.47
163,323.47
7,744,286.02
7,714,296.02
7,744,296.02
7,744,29402
S 40.511.320.88 i 40,511.320.88 i 40.611,320.88 $ 10608.69480
Total knreshnents $ 40,611,320.88
Cash with Bank of the Wast
City Checking
2,466,624.35
Money Market Plus
132,746.01
City Miscellaneous Cash
259,828.38
Successor Agency
236,618.62
Housing Authority
265,235.27
Financing Authority
0.00
Investment Brokerage
86.03
Total Cash with Bank of the West 3,360,139.26
Total Cash and kresbnents i
Schedule of Cash and Investments includes city-wide assets as included in the Comprehensive Annual Financial Report.
• There was no Investment maturity/purchase transactions made for the month of February 2019 and several depositshvithdrawals were
made through the Local Agency Investment Fund.
• Fiscal Agent Funds amounting to $7,590,972 are from the Manure M Bond offering.
In compliance with the California Government Code Section 53646 at seq., l hereby certify that sufficient investment
liquidity and anticipated revenues are available to meet the City's expenditure requirements for the next six months
that all investments are in compliance to the City's Statement of Investment Policy.
Approved by:
i
R6se Ta
Director of Finance
STAFF REPORT
ITEM NO. Iq
TO: Honorable Mayor and Members of the City Council
FROM: Lourdes Morales, Chief Deputy City Clerk b�
DATE: April 17, 2019
SUBJECT: Approve and Adopt Resolution No. 2019-015 Entitled, "A
Resolution of the City Council of the City of Baldwin Park,
California, Appointing Representatives and Alternates as
Official Representatives of the City"; and Review and Appoint
Members to the Established Committees, as Appropriate
SUMMARY
This report requests City Council selection of designated representatives and alternates as official
representatives of the City.
RECOMMENDATION
Staff recommends City Council rescind Resolution 2019-001 and complete the review and appointment
of members to the positions of delegates and alternates of the established committees and
organizations presented in Resolution No. 2019-015, entitled: "A Resolution of the City Council of the
City of Baldwin Park, California, Appointing Representatives and Alternates as Official Representatives
of the City".
FISCAL IMPACT
Not Applicable
BACKGROUND
Each year, following the reorganization of the City Council, the Council is requested to designate
members as representatives and alternates on certain committees and organizations. During the
regularly scheduled City Council meeting of February 20, 2019, the City Council made appointments
to certain agencies approved by Resolution 2019-001 and directed staff pending appointments be
brought back for selection.
ALTERNATIVES
Not Applicable
LEGAL REVIEW
Not Applicable
ATTACHMENTS
1. Resolution No. 2019-015
2. Roster of City Council Appointed Delegates
Attachment 1
Resolution No. 2019-015
RESOLUTION NO. 2019-015
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BALDWIN
PARK, CALIFORNIA, APPOINTING REPRESENTATIVES AND
ALTERNATES AS OFFICIAL REPRESENTATIVES OF THE CITY
WHEREAS, it is the Council's desire to review and/or amend the existing
appointments; and
WHEREAS, Resolution No. 2019-001 adopted February 6, 2019 and all other
Resolutions inconsistent herewith are hereby repealed and rescinded.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BALDWIN PARK
HEREBY RESOLVES AS FOLLOWS:
Section 1. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the San Gabriel Valley
Water Association — Quarterly luncheon held in various locations
(MEMBERS RECEIVE A STIPEND — NO)
Existing Appointees New Appointees
Re resentative: Councilmember Susan Rubio
Alternate: Mavor Manuel Lozano
Section 2. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the Los Angeles County
Sanitation District Nos. 15 & 22 - 4t" Wednesday at 1:30 p.m.; Joint Administration
Office
(MEMBERS RECEIVE A STIPEND - $125 per meeting)
Existing Appointees New Appointees
Representative: *Mayor Manuel Lozano Mayor Manuel Lozano
Alternate: Council Member Ricardo Pacheco Mayor Pro Tem Garcia
*Appointment of Mayor required by Sanitation District
Section 3. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the League of California
Cities — Los Angeles County Division — 1St Thursday at 6:00 p.m.; various locations
(MEMBERS RECEIVE A STIPEND — NO)
Existing Appointees New Appointees
[Representative: Mayor Pro Tem Cruz Baca Council Member Alejandra Avila
Alternate: Councilmember Susan Rubio Council Member Paul C. Hernandez
Section 4. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the Civil Defense Area "D"
General Membership Meeting — 3'd Thursday at 8:30 a.m.; Area D Office
(MEMBERS RECEIVE A STIPEND — NO)
Existing Appointees New Appointees
Representative: Chief of Police Chief of Police
Alternate: Mavor Manuel Lozano Mayor Manuel Lozano
Section 6. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the Independent Cities
Association — 2"d Tuesday at 7.00 p.m.; rotating Council Chambers
(MEMBERS RECEIVE A STIPEND — NO)
intees I New
Representative: I Mayor Pro Tem Monica Garcia I Council Member Paul C. Hernandez
I Alternate: I Councilmember Ricardo Pacheco I Council Member Aleiandra Avila I
Section 7. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the Independent Cities
Association Lease Finance Authority - As Needed Basis in various times/locations
(MEMBERS RECEIVE A STIPEND - $150 per meeting)
Existinq Appointees I New Appointees
Representative: Councilmember Ricardo Pacheco Council Member Ricardo Pacheco
Alternate: Chief of Police Chief of Police
Section 8. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the Los Angeles County —
City Selection Committee — As Needed Basis in various times/locations
(MEMBERS RECEIVE A STIPEND — NO)
Appointees
New
Representative: *Mayor Manuel Lozano Mayor Manuel Lozano
Alternate: I Mayor Pro Tem Monica Garcia Mayor Pro Tem Monica Garcia
*Appointment of Mayor required by State Law
Section 9. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the Southern California
Association of Governments — Annual Conference in the month of May
(MEMBERS RECEIVE A STIPEND — NO)
Existing Appointees New Appointees
Re resentative: Councilmember Tem Cruz Baca
Alternate: I Councilmember Susan Rubio
Section 10. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the Foothill Transit Zone —
Last Friday of the Month at 7:45 a.m.; Foothill Transit Administrative Offices
(MEMBERS RECEIVE A STIPEND — $161 per meeting)
Existing Appointees New Appointees
Representative: Councilmember Ricardo Pacheco
Alternate: Councilmember Cruz Baca
Section 11. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the California Contract
Cities Association (CCCA) — 3rd Wednesday at 6:00 p.m. in various locations
(MEMBERS RECEIVE A STIPEND — No)
Existing Appointees New Appointees
Re resentative: Mayor Pro Tem Monica Garcia Mayor Pro Tem Monica Garcia
Alternate: Councilmember Susan Rubio Mavor Manuel Lozano
Section 12. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the Governing Board of
the San Gabriel Valley Mosquito and Vector Control District -2"d Friday at 10:00 a.m.
in the District Office
(MEMBERS RECEIVE A STIPEND - $100 per meeting)
Section 13. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the San Gabriel Valley
Council of Governments — 3'd Thursdays at 6:00 p.m. at the Municipal Water District
(MEMBERS RECEIVE A STIPEND — $75 per meeting)
Existing Appointees New Appointees
Re resentative: Councilmember Cruz Baca Mayor Pro Tem Monica Garcia
Alternate: Mayor Pro Tem Monica Garcia Council Member Alejandra Avila
Section 14. The City Council of the City of Baldwin Park does hereby appoint the
following persons as its representative, alternate and substitute alternate representative to
the Governing Board of the Independent Cities Risk Management Authority (ICRMA) —
2"d Thursday at 10:00 a.m.; Rio Hondo Event Center
(MEMBERS RECEIVE A STIPEND — NO)
Existing Appointees
New Appointees
Representative:
Councilmember Cruz Baca
Councilmember Cruz Baca
(Must be Elected Official)
Pacheco
Expires: 12/31/2019 per Health and
Alternate:
Chief Executive Officer
Safety Code § 2024 a
Alternate:
Councilmember Ricardo Pacheco
Councilmember Ricardo Pacheco
*Not required
Human Resources/Risk
Expires: 12/31/2019 per Health and
(May be staff member
Manager Laura Thomas
Safety Code § 2024 a
Section 13. The City Council of the City of Baldwin Park does hereby appoint the
following persons as representative and alternate members of the San Gabriel Valley
Council of Governments — 3'd Thursdays at 6:00 p.m. at the Municipal Water District
(MEMBERS RECEIVE A STIPEND — $75 per meeting)
Existing Appointees New Appointees
Re resentative: Councilmember Cruz Baca Mayor Pro Tem Monica Garcia
Alternate: Mayor Pro Tem Monica Garcia Council Member Alejandra Avila
Section 14. The City Council of the City of Baldwin Park does hereby appoint the
following persons as its representative, alternate and substitute alternate representative to
the Governing Board of the Independent Cities Risk Management Authority (ICRMA) —
2"d Thursday at 10:00 a.m.; Rio Hondo Event Center
(MEMBERS RECEIVE A STIPEND — NO)
Section 15. That the City Clerk shall certify to the adoption of this Resolution and
shall forward copies hereof to said committees and organizations.
Existing Appointees
New Appointees
Representative:
Councilmember Ricardo
Mayor Manuel Lozano
(Must be Elected Official)
Pacheco
Alternate:
Chief Executive Officer
Chief Executive Officer Shannon
(May be staff member
Shannon Yauchzee
Yauchzee
Substitute Alternate:
Human Resources/Risk
Human Resources/Risk Manager
(May be staff member
Manager Laura Thomas
Laura Thomas
Section 15. That the City Clerk shall certify to the adoption of this Resolution and
shall forward copies hereof to said committees and organizations.
PASSED, APPROVED, AND ADOPTED this 17th day of April, 2019.
MANUEL LOZANO
MAYOR
ATTEST:
STATE OF CALIFORNIA
COUNTY OF LOS ANGELESSS:
CITY OF BALDWIN PARK
I, JEAN M. AYALA, City Clerk of the City of Baldwin Park do hereby certify that the foregoing
Resolution No. 2019-015 was duly adopted by the City Council of the City of Baldwin Park
at a regular meeting thereof held on April 17, 2019 and that the same was adopted by the
following vote to wit:
JEAN M. AYALA
CITY CLERK
Attachment 2
Roster of City Council
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-
ARPIL 17, 2019
7:00 PM
REGULAR MEETING
COUNCIL CHAMBER
14403 E. PACIFIC AVENUE
BALDWIN PARK, CA 91706
(626) 960-4011
Manuel Lozano
Monica Garcia
Alejandra Avila
Paul C. Hernandez
Ricardo Pacheco
Chair
Vice Chair
Board Member
Board Member
Board Member
PLEASE TURN OFF CELL PHONES AND PAGERS WHILE MEETING IS IN PROCESS
POR FAVOR DEAPAGAR SUS TELEFONOS CELULARES YBEEPERS DURANTE LA JUNTA
PUBLIC COMMENTS
The public is encouraged to address the Housing Authority
on any matter posted on the agenda or on any other
matter within its jurisdiction. If you wish to address the
Board, you may do so during the PUBLIC
COMMUNICATIONS period noted on the agenda. Each
person is allowed three (3) minutes speaking time. A
Spanish speaking interpreter is available for your
convenience.
COMENTARIOS DEL PUBLICO
Se invita al publico a dirigirse a la Agencia nombrada en esta
agenda, para hablar sobre cualquier asunto publicado en
la agenda o cualquier tema que este bajo su jurisdiccion.
Si usted desea la oportunidad de dirigirse a la Agencia, podra
hacerlo durante el periodo de Comentarios del Publico (Public
Communications) anunciado en la agenda. A cada persona se
le permite hablar por tres (3) minutos. Hay un interprete para su
conveniencia.
Any written public record relating to an agenda item for an open session of a regular meeting of the Finance Authority
that is distributed to the Finance Authority less than 72 hours prior to that meeting will be available for public inspection
at City Hall in the City Clerk's office at 14403 E. Pacific Avenue, 3rd Floor during normal business hours (Monday -
Thursday, 7:30 a.m. - 6:00 p.m.)
FINANCE AUTHORITY
REGULAR MEETING — 7:00 PM
CALL TO ORDER
ROLL CALL
Board Members: Alejandra Avila, Paul C. Hernandez, Ricardo Pacheco
Vice Chair Monica Garcia and Chair Manuel Lozano
PUBLIC COMMUNICATIONS
Three (3) minute speaking time limit
Tres (3) minutos sera el limite para hablar
THIS IS THE TIME SET ASIDE TO ADDRESS THE COMMISSION
No action may be taken on a matter unless it is listed on the agenda, or unless certain emergency or special circumstances
exist. The legislative body or its staff may: 1) Briefly respond to statements made or questions asked by persons; or 2) Direct
staff to investigate and/or schedule matters for consideration at a future meeting. [Government Code §54954.2]
ESTE ES EL PERIODO DESIGNADO PARA DIRIGIRSE AL COMIS16N
No se podra tomar acci6n en algun asunto a menos que sea incluido en la agenda, o a menos que exista algana emergencia o
circunstancia especial. El cuerpo legislativo y su personal podran: 1) Responder brevemente a declaraci6nes o preguntas hechas
por personas; o 2) Dirigir personal a investigar y/o fijar asuntos para tomar en consideraci6n en juntas proximal. (Codigo de Gobierno
§54954.2]
CONSENT CALENDAR
1. Treasurer's Report — February 2019
Staff recommends that the Board receive and file the Treasurer's Report for February 2019.
ADJOURNMENT
CERTIFICATION
I, Lourdes Morales, Chief Deputy Secretary of the Finance Authority hereby certify under penalty of
perjury under the laws of the State of California that the foregoing agenda was posted on the City
Hall bulletin board not less than 72 hours prior to the meeting. Dated this 11th day of April, 2019.
Lourdes Morales,
Chief Deputy City Clerk
PLEASE NOTE: Copies of staff reports and supporting documentation pertaining to each item on this agenda are available for public
viewing and inspection at City Hall, 2nd Floor Lobby Area or at the Los Angeles County Public Library in the City of Baldwin Park. For
further information regarding agenda items, please contact the office of the City Clerk at (626) 960-4011 ext. 466 or via e-mail at
Imorales apbaldwinpark.com.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact
the Public Works Department or Risk Management at (626) 960-4011. Notification 48 hours prior to the meeting will enable staff to
make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 34.102.104 ADA TITLE ll)
ITEM NO. I
TO: Honorable Chair and Board Members of the Financing
Authority
FROM: Rose Tam, Director of Finance .�r✓ /� �,,/
DATE: April 17, 2019
SUBJECT: Treasurer's Report — February 2019
SUMMARY
Attached is the Treasurer's Report for the month of February 2019. The Treasurer's Report lists all
cash for the City which includes the Baldwin Park Financing Authority, the Housing Authority, and the
Successor Agency to the Community Development Commission (CDC). All investments are in
compliance with the City's Investment Policy and the California Government Code.
RECOMMENDATION
Staff recommends that Council receive and file the Treasurer's Report for February 2019.
FISCAL IMPACT
None
BACKGROUND
City of Baldwin Park Investment Policy requires the Treasurer's Report be submitted to the Mayor
and City Council on a monthly basis.
LEGAL REVIEW
Not Applicable
ATTACHMENT
1. Exhibit "A°, Treasurer's Report
Exhibit "A"
Treasurer's Report
CITY OF BALDWIN PARK
TREASURER'S REPORT
2/28/2019
INVESTMENT INTEREST PURCHASE MATURITY
DESCRIPTION RATE DATE DATE
State of California Local Agency Investment Fund (LAIF)
Cilyanckx ft General fund i all other Special Revenue Funds 2.39% Varies Varies
Housing Authority 2.39% Varies Varies
Citibank National Association (Mutual Securities)
2.65%
1/26/2019
1/26/2021
American Express Cakrxion (Mutual Securities)
1.60%
411212017
4112/2019
EverbanWacksomi8e (Mutual Securities)
1.55%
4118/2017
4/16/2019
Goldman Sachs ek USA NY (Mutual Sanrrldes)
225%
1/24/2018
1/24/2020
Sallie Mae Sk SILT Lake City UT (Mutual Swuritles)
2.25%
i/2412018
12412020
Sarre National Bate New Yak (Cantella)
2.00%
4/16/2018
411602019
Morgan Stanley Banc N A Utah (CarteNS)
264%
4119/2018
4120/2/120
Barclays Bank Uel (CanteBa)
3.06%
12M9/2018
12/21/2020
US Treasury Bill (UBS) 2.07% 3128!2018 3/28/2018
Fiscal Agent Funds (TrusliDebt Service Fund) Varies Varies Varies
Fiscal Agent Funds - Successor Agency (TruWDebt Service FWK Varies Varies Varies
PAR
CURRENT
BOOK
MARKET
VALUE
PRINCIPAL
VALUE
VALUE
$ 29,763,464.64
$ 29,753,464.194
$ 29,763,464.64
:29,763,464.64
13,670.22
13,670.22
13,670.22
. 15,670.22
29,767,024.66
29,767,024.66
29,767,024.66
29,767,024.86
260,000.00
250,000.00
260,000.00
249,846.00
25%000.00
260,000.00
260,000.00
249.812.50
260,000.00
260,000.00
260,000.00
249,777.50
260,000.00
260,000.00
260,000.00
249,497.60
260,000.00
260,000.00
250,000.00
249,497.50
260,000.00
260,000.00
260,000.00
249,917.50
250,000.00
260.000.00
260,000.00
260,297.60
260,000.00
260,000.00
260,000.00
261,686.00
2,000,000.00
2,000.000.00
2,000,000.80
2,000,330.00
1,000,000.00
1,000.000.00
1,000,000.00
996,046.00
7,590,97256
7,590,97266
7,580,972 66
7,680,972.66 `
163,323A7
163,323.47
153,323.47
153,323.7
7,744,286.02
7,744,286.02
7,744,286.02
7,744,286.02
$ 40,611320.88 >< 406®1.320�i40,511,3201111 $� 5.88
Total hwentmats $ 40,611,320.011
Cash with Bate of the Nkat
Cay ChB
2,465,624.36
Money Market Phis
IA74SA1
Cay Miscellaneous Cash
269,828.36
Successor Agency
236,5111.64
Housing Authority
216,235.27
Financing Authority
GAO
Invest Brokerage
86.83
Total Cash With Banc or the Nkat 3,360.139.26
Total Cash and Mvesbnens $ 43,671,46014
Schedule of Cash and Investments includes city-wide assets as included in the Comprehensive Annual Financial Report
• There was no investment maturity/purchase transactions made for the month of February 2019 and several deposifshvithdrawals were
made through the Local Agency Investment Fund.
• Fiscal Agent Funds amounting to $7,590,972 are from the Measure M Bond offering.
In compliance with the California Government Code Section 63646 at seq., I hereby certify that sufficient investment
liquidity and anticipated revenues are available to meet the City's expenditure requirements for the next six months
that all investments are in compliance to the City's Statement of Investment Policy.
Approved by:
R6sc Ta it
Director of Finance
AGENDA
BALDWIN PARK
HOUSING AUTHORITY
APRIL 17, 2019
7:00 PM
REGULAR MEETING
COUNCIL CHAMBER
14403 E. PACIFIC AVENUE
BALDWIN PARK, CA 91706
(626) 960-4011
HUB OF%
H
E
V
SAN G,hBIRIEL
�•
0
O�A��
JA1SVp`�
Manuel Lozano - Chair
Monica Garcia - Vice Chair
Alejandra Avila - Board Member
Paul C. Hernandez - Board Member
Ricardo Pacheco - Board Member
PLEASE TURN OFF CELL PHONES AND PAGERS WH/LE MEET/NG /S /N PROCESS
POR FA VOR DE APAGAR SUS TEL EFONOS CEL VLA RES Y BEEPERS DUP. ANTE LA JUNTA
PUBLIC COMMENTS COMENTARIOS DEL PUBLICO
The public is encouraged to address the Housing Authority Se invita al publico a dirigirse a la Agencia nombrada en esta
on any matter posted on the agenda or on any other agenda, para hablar sobre cualquier asunto publicado en
matter within its jurisdiction. If you wish to address the la agenda o cualquier tema que est6 bajo su jurisdiccion.
Board, you may do so during the PUBLIC Si usted desea la oportunidad de dirigirse a la Agencia, podra
COMMUNICATIONS period noted on the agenda. Each hacerlo durante el periodo de Comentarios del Publico (Public
person is allowed three (3) minutes speaking time. A Communications) anunciado en la agenda. A cada persona se
Spanish speaking interpreter is available for your le permite hablar por tres (3) minutos. Hay un int6rprete para su
convenience. conveniencia.
Any written public record relating to an agenda item for an open session of a regular meeting of the Housing Authority
tributed to the Housing Authority less than 72 hours prior to that meeting will be available for public inspection
all in the City Clerk's office at 14403 E. Pacific Avenue, 3rd Floor during normal business hours (Monday -
, 7:30 a.m. - 6:00 p.m.)
L
HOUSING AUTHORITY
REGULAR MEETING — 7:00 PM
CALL TO ORDER
ROLL CALL
Board Members: Alejandra Avila, Paul C. Hernandez, Ricardo Pacheco
Vice Chair Monica Garcia and Chair Manuel Lozano
PUBLIC COMMUNICATIONS
Three (3) minute speaking time limit
Tres (3) minutos sera el limite para hablar
THIS IS THE TIME SET ASIDE TO ADDRESS THE COMMISSION
No action may be taken on a matter unless it is listed on the agenda, or unless certain emergency or special circumstances
exist. The legislative body or its staff may: 1) Briefly respond to statements made or questions asked by persons; or 2) Direct
staff to investigate and/or schedule matters for consideration at a future meeting. [Government Code §54954.2]
ESTE ES EL PERIODO DESIGNADO PARA DIRIGIRSE AL COMIS16N
No se podra tomar acci6n en algCln asunto a menos que sea incluido en la agenda, o a menos que exista a1gC1na emergencia o
circunstancia especial. El cuerpo legislativo y su personal podran: 1) Responder brevemente a declaraci6nes o preguntas hechas
por personas; o 2) Dirigir personal a investigar y1d fijar asuntos para tomar en consideraci6n en juntas proximas. [CodigodeGobiemo
§54954.2]
CONSENT CALENDAR
1. Warrants and Demands
Staff recommends that the Board ratify the attached Warrants and Demands Register.
2. Treasurer's Report — February 2019
Staff recommends that the Board receive and file the Treasurer's Report for February 2019.
ADJOURNMENT
CERTIFICATION
1, Lourdes Morales, Chief Deputy Secretary of the Housing Authority hereby certify under penalty of
perjury under the laws of the State of California that the foregoing agenda was posted on the City
Hall buWtin board not less than 72 hours prior to the meeting. Dated this 11th day of April, 2019.
V/
ma"A
Lourdes Morales,
Chief Deputy City Clerk
PLEASE NOTE: Copies of staff reports and supporting documentation pertaining to each item on this agenda are available for public
viewing and inspection at City Hall, 2n' Floor Lobby Area or at the Los Angeles County Public Library in the City of Baldwin Park. For
further information regarding agenda items, please contact the office of the City Clerk at (626) 960-4011 ext. 466 or via e-mail at
lmoralesabaldwinpark.com.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact
the Public Works Department or Risk Management at (626) 960-4011. Notification 48 hours prior to the meeting will enable staff to
make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 34.102.104 ADA TITLE 11)
NMI
ITEM NO.
TO: Honorable Chair and Board Members of the Housing
Authority
FROM: Rose Tam, Director of Finance
DATE: April 17, 2019
SUBJECT: Baldwin Park Housing Authority's Warrants and Demands
SUMMARY
Attached are the Warrants and Demands Register for the City of Baldwin Park Housing Authority to
be ratified by the Board.
RECOMMENDATION
Staff recommends that the Board ratify the attached Warrants and Demands Register.
FISCAL IMPACT
The total of the Warrants and Demands for Housing Authority is $372,218.20.
BACKGROUND
The attached Claims and Demands report format meets the required information as set out in the
California Government Code. Staff has reviewed the requests for expenditures for the appropriate
budgetary approval and for the authorization from the department head or its designee. Pursuant to
Section 37208 of the California Government Code, the Chief Executive Officer or his/her designee
does hereby certify to the accuracy of the demands hereinafter referred. Payments released since
the previous meeting and the following is a summary of the payment released:
1. The March 12 to April 8, 2019 Warrant check numbers from 72203 through 72207 in the amount
of $911.50 and Automated Clearing House (ACH) in the amount of $371,306.70 were made on
behalf of City of Baldwin Park Housing Authority constituting of claims and demands, are herewith
presented to the Board as required by law, and hereby ratified.
LEGAL REVIEW
Not Applicable
ATTACHMENT
1. Happy Check Register
2. Happy Check Register ACH
Attachment 1
Happy Check Register
CHECK REGISTER
April 8, 2019
Date Range:
3/12/2019...04/08/2019
VMS Date Range:
All
Program:
All
Payment Type:
All
Check Numbers:
All
Direct Deposit:
Exclude
Check Cleared.
All
Port Status:
Include Port Ins
Zero HAPs:
Include Zero HAPs
Voided Payments.
Include Voided Payments
Held Checks.
Include Held Checks
Grouped by.-
Sorted
y.Sorted by.
Check Number
Check Number
Check Number
Check Date
Payee Name
DD
Amount
❑ 72203
04/01/2019
Annie L Henderson
❑
15.00
❑ 72204
04/01/2019
City of Carlsbad
❑
787.50
❑ 72205
04/01/2019
Joseph A Bannister
❑
29.00
❑ 72206
04/01/2019
Sylvia Inez Moreno
❑
59.00
❑ 72207
04/01/2019
Vanessa G Ross
❑
21.00
Total $911.50
Average $151.92
Unit Count 1
Average Weighted by Unit Count $726.00
Hard to House Count
0 HAPPY software Page 1 04/08/2019 9:55:51 AM
Attachment 2
Happy Register ACH
Check Register ACH
April 8, 2019
Date Range:
03/1212019...04/0812019
Grouped by.
VMS Date Range:
All Sorted by.
Check Number
Program:
All
Check Number
Payment Type:
All
Check Numbers:
All
Direct Deposit:
Only
Check Cleared:
All
Port Status.,
Include Port Ins
Zero HAPs:
Include
Zero HAPs
Voided Payments.,
Include Voided Payments
Held Checks:
Include Held Checks
v/ Check Number
Check Date
Payee Name
DD
Amount
❑ 19788
04101/2019
0
1103.00
❑ 19789
04/01/2019
1015 West Garvey West Covina, LP
®
510.00
❑ 19790
04/012019
1024 Royal Oaks LP dba Whispering Fountains
13173.00
❑ 19791
04/012019
Aaron Abdus Shakoor
®
1056.00
❑ 19792
04/012019
Alamitas LLC
®
1796.00
❑ 19793
04/012019
Alan Wu
®
836.00
❑ 19794
04/012019
Alejandra Gutierrez
®
932.00
❑ 19795
04/012019
Alfonso Contreras
55.00
❑ 19796
04/012019
Alfred Tai -Kong Ho and Lisa Chen
®
664.00
❑ 19797
04/012019
Allan M. & Virginia J Chipp and Ralph Seline
3133.00
❑ 19798
04/012019
Alta Vista Villas, LP
®
744.00
❑ 19799
04/012019
AMFP IV Atrium LLC cto Abacus Capital Group LLC
®
1129.00
❑ 19800
04/012019
Amparo M Limon
®
570.00
0 19801
04/012019
Amy Si On
®
778.00
❑ 19802
04/012019
Ana Thai
®
929.00
❑ 19803
04/012019
Andrew & Eva Fogg
®
1551.00
❑ 19804
04/01/2019
Anna & Simon Choi
®
950.00
❑ 19805
04/012019
Annette C Scott
1513-00
❑ 19806
04/012019
Antonio & Aida Rinos
®
1620.00
❑ 19807
04/012019
ASCENSION HOLDINGS LLC
®
1019.00
❑ 19808
04/012019
Badillo Street Senior Apartments, LLC
®
11371.00
❑ 19809
04/012019
Baldwin Park Family Housing Limited
®
12653.00
❑ 19810
04/012019
Becky Binh Nguyet Luu
®
1876.00
❑ 19811
04/012019
Billy Theodorakopoulos
®
869.00
❑ 19812
04/012019
Blessed Rock of EI Monte
®
3862.00
❑ 19813
04/012019
Brookhollow Apartments
®
3613.00
❑ 19814
04/012019
Central Apartments #2
®
1661.00
❑ 19815
04/012019
Chen Jackson
®
293.00
❑ 19816
04/012019
Chung Thi Pham
®
3334.00
❑ 19817
04/012019
Cienega Garden Apartments
®
4143.00
❑ 19818
04/012019
Cipriano Salazar Jr.
®
882.00
0 HAPPY software Page 1 04/08/2019 3:08:19 PM
❑ 19819
04/01/2019
Clinett Glazis
®
991.00
❑ 19820
04/01/2019
Covina 023 Woods 206 LP - Pama Management 206
®
1335.00
❑ 19821
04/01/2019
Cynthia Pham
®
765.00
❑ 19822
04/01/2019
Dajojo, LLC
®
264.00
❑ 19823
04/01/2019
Denise Van Pham
®
1632.00
❑ 19824
04/01/2019
Derek Sim
®
826.00
❑ 19825
04/01/2019
Dieu Van Huynh
®
969.00
❑ 19826
04/01/2019
Dieu-Thuy Nu Ton
®
1409.00
❑ 19827
04/01/2019
Dimitris Papadopoulous
®
1055.00
❑ 19828
04/01/2019
Dinghwa Eddy Liu
®
1527.00
❑ 19829
04/01/2019
Doan & Lily Thi
1652.00
❑ 19830
04/01/2019
Don Norwood
®
1409.00
❑ 19831
04/01/2019
Donna J Falls
®
765.00
❑ 19832
04/01/2019
Doreen Han
®
1242.00
❑ 19833
04/01/2019
Dung Tran
623.00
❑ 19834
04/01/2019
Dung Trung Pham and Tammy Tram Dang
196.00
❑ 19835
04/01/2019
EI Monte Housing Partners LP
®
2576.00
❑ 19836
04/01/2019
Emilio De Jesus Cruz
®
537.00
❑ 19837
04/01/2019
Eric C. Otte
®
435.00
❑ 19838
04/01/2019
Estate of Rosetta Mix
®
843.00
❑ 19839
04/01/2019
Eunice Property, LLC
®
885.00
❑ 19840
04/01 /2019
EZ APT LLC
®
1301.00
❑ 19841
04/01/2019
Fanny Chan
®
680.00
❑ 19842
04/01/2019
Fat Law
®
1050.00
❑ 19843
04/01/2019
Francisco J. Sanchez and Gloria Emma Sanchez
®
778.00
❑ 19844
04/01/2019
Fred Lau
®
825.00
❑ 19845
04/01/2019
Garvey Senior Affordable Partners, LP
382.00
❑ 19846
04/01/2019
German Ghibaudo
®
1050.00
❑ 19847
04/01/2019
Gilbert Dominguez
®
2076.00
❑ 19848
04/01/2019
Grace Chiou
®
1286.00
❑ 19849
04/01/2019
Greater San Gabriel Valley Property Management, Inc.
®
1374.00
❑ 19850
04/01/2019
Group IX BP Properties, LP
®
397.00
❑ 19851
04/01/2019
Guillermo Vasquez
®
1170.00
❑ 19852
04/01/2019
Ha X Van
®
2373.00
❑ 19853
04/01/2019
Henry Ho
®
838.00
❑ 19854
04/01/2019
Henry Wong
®
1650.00
❑ 19855
04/01/2019
Heritage Park Villas LP
®
14924.00
❑ 19856
04/01/2019
Hilbert Properties II
®
755.00
❑ 19857
04/01/2019
Hui Chuan Wang
®
3524.00
❑ 19858
04/01/2019
Isabel R Sanchez
®
1034.00
❑ 19859
04/01/2019
Jaime Barcena
®
918.00
❑ 19860
04/01/2019
James or Barbara Fox
®
742.00
❑ 19861
04/01/2019
JBMW Investment, LLC
®
764.00
0 19862
04/01/2019
Jeff Ma
®
343.00
❑ 19863
04/01/2019
Jesse S. Gonzalez
®
822.00
❑ 19864
04/01/2019
Jim & Nancy Bailey
®
596.00
0 HAPPY Software Page 2 04/08/2019 3:08:19 PM
❑ 19865
04/01/2019
Jocelyn Jae Jhong
®
2105.00
❑ 19866
04/01/2019
Joe Clark
®
1257.00
❑ 19867
04/01/2019
John Nguyen
®
533.00
❑ 19868
04/01/2019
John W. Ruwitch and Anh Lam Truong
®
786.00
❑ 19869
04/01/2019
John Young
®
520.00
❑ 19870
04/01/2019
Jose Baudelio Delgado
®
791.00
❑ 19871
04/01/2019
Joseph H. Garcia
®
2913.00
❑ 19872
04/01/2019
Joseph M. Kwok
®
1836.00
❑ 19873
04/01/2019
Joseph Pham
®
814.00
❑ 19874
04/01/2019
Joseph T. Tung
®
886.00
❑ 19875
04/01/2019
Juan Alvarado
®
431.00
❑ 19876
041012019
Jun Ye and Ming Feng
®
1599.00
❑ 19877
041012019
Kan Investments LTD, LLC
554.00
❑ 19878
04/012019
Karen Lin
®
129.00
❑ 19879
04/012019
Kim Chau
®
837.00
❑ 19880
04/012019
Kimberly Nguyen
729.00
❑ 19881
04/012019
Kimberly U Dao
®
557.00
❑ 19882
04/012019
Kwan Chiang
®
959.00
19883
04/012019
LAI MING LEUNG
549.00
❑ 19884
04/012019
Lan Hua Mi Ku
®
898.00
❑ 19885
04/012019
Lark Ellen Village
®
6565.00
❑ 19886
041012019
Larry Chow
®
3318.00
❑ 19887
04/012019
Larry Mimms
1067.00
❑ 19888
04/012019
Larry Pratt or Doreen E. Ewing
®
1654.00
❑ 19889
04/012019
LAT Investments, LLC
®
3704.00
❑ 19890
04/012019
Lawrence and/or Lorraine Scimeca
®
1402.00
❑ 19891
041012019
LEFA Trust
®
895.00
❑ 19892
041012019
Leslie K Ng
®
1192.00
❑ 19893
04/012019
Lien Diep
®
1223.00
❑ 19894
04/012019
Linda Man
®
779.00
❑ 19895
04/012019
Lois J Gaston
®
1029.00
❑ 19896
04/012019
Louis Tong
®
1087.00
❑ 19897
04/012019
Lourdes Vela
®
2904.00
❑ 19898
04/012019
Luan Trong Hoang
744.00
❑ 19899
04/012019
Lucena A Ewing
®
2605.00
❑ 19900
041012019
Mack E Titus
®
537.00
0 19901
041012019
Malcolm Oso
®
543.00
❑ 19902
04/012019
Mallorca Apartments, LTD
®
881.00
0 19903
04/012019
Man Sze Ma
®
1219.00
❑ 19904
04/012019
Maria Luz Rodriguez
®
475.00
❑ 19905
04/012019
Marina Alvarez
®
2399.00
❑ 19906
04/012019
Mark T. Fernandez
®
581.00
❑ 19907
04/012019
Mary L Haynes
®
996.00
❑ 19908
04/012019
Mayra Ortega
®
818.00
❑ 19909
04/012019
Melody (Muoi) Dao
®
1270.00
❑ 19910
04/012019
Michael Alfred Alarcon
1380.00
0 HAPPY Software Page 3 04/08/2019 3:08:19 PM
❑ 19911
04/01/2019
Michael H Phuong
®
1498.00
❑ 19912
04/01/2019
Michael 1. or Ling Brooks
®
1113.00
❑ 19913
04/01/2019
Minh A Nguyen
®
634.00
❑ 19914
04/01/2019
Mohamad Tavakkoli
®
4098.00
❑ 19915
04/01/2019
Moller Property Management
®
835.00
❑ 19916
04/01/2019
Monica Alber
®
906.00
❑ 19917
04/01/2019
Monrovia 612, LP
®
7504.00
❑ 19918
04/01/2019
Monrovia Heritage Park LP
®
17086.00
❑ 19919
04/01/2019
Monrovia Heritage Park LP
®
1870.00
❑ 19920
04/01/2019
Mousa Boushaaya
®
1050.00
❑ 19921
04/01/2019
Nancy H Shen
®
890.00
❑ 19922
04/01/2019
Ngoc T. Lieu
®
1848.00
❑ 19923
04/01/2019
Nomer Lacson
19M•00
❑ 19924
04/01/2019
Olie S Johnson
®
881.00
❑ 19925
04/01/2019
Olive RE Holdings, LLC
3285.00
❑ 19926
04/01/2019
Orange County Housing Authority
®
1410.70
❑ 19927
04/01/2019
Pacific Towers Senior Apartments - TDF LP
3948.00
❑ 19928
04/01/2019
Palo Verde Apartments, LP
928.00
❑ 19929
04/01/2019
PAMA IV Properties, LP
®
2112.00
❑ 19930
04101/2019
Paramjit S Nijjar
®
2185.00
❑ 19931
04/01/2019
Paul & Annie W Chau
®
957.00
❑ 19932
04/01/2019
Paul P Simon
987.00
❑ 19933
04101/2019
Paul Yan
®
676.00
❑ 19934
04/01/2019
Paul Yen
594.00
❑ 19935
04/01/2019
Peter R Nasmyth
®
680.00
❑ 19936
04/01/2019
Philip'Tsui
®
869.00
❑ 19937
04/01/2019
Primrose Villa
®
5256.00
❑ 19938
04/01/2019
Quoc T. Vo
®
1188.00
❑ 19939
04/01/2019
Quy Duc Tran
®
205.00
❑ 19940
04/01/2019
Ralph V. Parra
1130.00
❑ 19941
04/01t2019
Ramiro S. Viramontes Separate Property Trust dated
®
435.00
❑ 19942
04/01/2019
RAMONA BLVD FAMILY APARTMENTS, L.P.
®
2778.00
❑ 19943
04/01/2019
Raul Varela Ayala
®
681.00
❑ 19944
04/01/2019
Richard A DaSylveira
778.00
❑ 19945
04/01/2019
Robert Lawe
®
871.00
❑ 19946
04/01/2019
Roger Hin Nam Mak
8910.00
❑ 19947
04/01/2019
Roland Wiekamp
®
1269.00
❑ 19948
04/01/2019
Roman Basin
®
376.00
❑ 19949
04/01/2019
Ronald & Pamela Layne
®
526.00
❑ 19950
04/01/2019
Rosa Beltran
®
1730.00
❑ 19951
04/01/2019
Rosa Lamas-Serratos
®
1704.00
❑ 19951
04/01=19
Rosie Leon
®
114.UU
❑ 19953
04/01/2019
Roy Lam
®
891.00
❑ 19954
04/01/2019
SAE GROUP, LLC
®
1312.00
0 19955
04/01/2019
Sara Romo
®
1176.00
❑ 19956
04/01/2019
Set Homes LLC
®
7333.00
0 KAPPY software Page 4 04/08/2019 3:08:19 PM
❑ 19957
04/01/2019
Sergio Molina
®
258.00
❑ 19958
04/01/2019
Shiu-Ein Huang
❑
435.00
❑ 19959
04/01/2019
Singing Wood Senior Housing LP
®
1131.00
❑ 19960
04/01/2019
Sitara B. Mamdani
®
1227.00
❑ 19961
04/01/2019
Siu Fung Mak
®
919.00
❑ 19962
04/01/2019
Sophia Wong
®
1686.00
❑ 19963
04/01/2019
Steadfast Cameron Park LP
®
1055.00
❑ 19964
04/01/2019
Sui Man Mak
®
943.00
❑ 19965
04/01/2019
Sylvester Carter
®
2178.00
❑ 19966
04/01/2019
T & P Property LLC
®
789.00
❑ 19967
04/01/2019
T & T Asset Holding, LLC
®
2661.00
❑ 19968
04/01/2019
Takis Bogris
®
667.00
❑ 19969
04/01/2019
Tanya H Chen
®
-916.00
❑ 19970
04/01/2019
Thanh M Tang
®
608.00
❑ 19971
04/01/2019
The Piedrahita Trust "B"
®
1763.00
❑ 19972
04/01/2019
The Promenade Housing Partners, LP
®
2976.00
❑ 19973
04/01/2019
The Sam Gurfinkel and Renee Gurfinkel Revocable 1996 ®
1352.00
❑ 19974
04/01/2019
Therisa L Tyck
®
891..00
❑ 19975
04/01/2019
Thomas Pang
®
1424.00
❑ 19976
04/012019
Tinh Van Le
®
440.00
❑ 19977
04/01/2019
Tom Cinquegrani
®
1084.00
0 19978
04101/2019
Tom Lee
®
647.00
❑ 19979
04/01/2019
Tuan Viet Ho
®
1681.00
❑ 19980
04/01/2019
Up Hill Investment Inc.
®
1227.00
❑ 19981
04/01/2019
Van T Tran
827.00
❑ 19982
04/0U2019
Velma Alarcon Gandara
®
1262.00
❑ 19983
04/01/2019
Vijay Gulati
2564.00
❑ 19984
04/01/2019
Vinh H. Lai
®
955•00
❑ 19985
04/012019
Vintage West Covina
®
10202.00
❑ 19986
04/012019
Virginia Carlson
®
1061.00
❑ 19987
04/012019
Wai Keng Tam
®
965.00
❑ 19988
04/012019
West Covina Senior Villas II, LP
578.00
❑ 19989
04/012019
West Covina Seniors Villas 1
®
1415.00
❑ 19990
04/012019
William J Rogers
®
995.00
❑ 19991
04/012019
Wilson Apartment Associates L.P.
®
3488.00
❑ 19992
04/012019
Woodside Village Apartments LP
®
8386.00
❑ 19993
04/012019
Xitlalai Sanchez
®
704.00
❑ 19994
.04/012019
Xue Fen Xu
®
1198.00
❑ 19995
04/012019
Xuyen Thach Han
®
1669.00
❑ 19996
04/012019
Y & H Investment, Inc.
®
1579.00
❑ 19997
04/012019
Zi Jian Li
®
1277.00
0 HAPPY software Page 5 04/08/2019 3:08:19 PM
Total $371,306.70
Average $888.29
Unit Count 415
Average Weighted by Unit Count $889.15
Hard to House Count 1
0 HAPPY software Page 6 04/08/2019 3:08:19 PM
ITEM NO. 62
TO: Honorable Chair and Board Members of the Housing Authority
FROM: Rose Tam, Director of Finance �/
DATE: April 17, 2019 / Q
SUBJECT: Treasurer's Report — February 2019
SUMMARY
Attached is the Treasurer's Report for the month of February 2019. The Treasurer's Report lists all
cash for the City which includes the Baldwin Park Financing Authority, the Housing Authority, and the
Successor Agency to the Community Development Commission (CDC). All investments are in
compliance with the City's Investment Policy and the California Government Code.
RECOMMENDATION
Staff recommends that Council receive and file the Treasurer's Report for February 2019.
FISCAL IMPACT
None
BACKGROUND
City of Baldwin Park Investment Policy requires the Treasurer's Report be submitted to the Mayor
and City Council on a monthly basis.
LEGAL REVIEW
Not Applicable
ATTACHMENT
1. Exhibit "A", Treasurer's Report
Exhibit "A"
Treasurer's Report
CITY OF BALDWIN PARK
TREASURER'S REPORT
2!26!2019
INVESTMENT INTEREST PURCHASE MATURITY
DESCRIPTION RATE DATE DATE
State of California Local Agency Inveshnant Fund (L.AIF)
City-Mcluding General Fund i all other Special Revenue Funds 2.39% Varies Varies
Housing Authority 2.39% varies varies
Cklbank National Association (Mutual Securities)
2.65%
1/25/2019
1/2612021
American Express Centurion (Mutual Seeurffks)
1.60%
4/12/2017
4112/2019
EverbankJaNaomMe (Mutual Securities)
1.55%
4/16/2017
4116/2019
Goldman Sachs Bk USA NY (Mutual Secures)
2.25%
112412018
1/2412020
Settle Mae Sk SLT lake City UT (Mahal Securities)
2.25%
1/2412018
1/2412020
Sarre National Bank New York (Canteft)
2.00%
411612018
4116/2019
Morgan Stanley Banc N A Utah (Camelia)
2.64%
4119/2018
4120/2020
Barclays Banc Del (Cama$a)
3.05%
12!1912018
12121/2020
US Treasury BM (UBS) 2.07% 312WMS 3/28/2019
Fiscal Agent Funds (TrmatlDebt Service Fund) varies varies Varies
Fiscal Agent Funds - Successor Agency (TnatlDebt Service Func Varies Varies Varies
PAR CURRENT BOOK MARKET
VALUE PRINCIPAL VALUE VALUE
$ 29,763,464.64
$ 29,763,464.64
$ 29,763,454,64
$ 29,763,454.64
13,670.22
13,570.22
13,570.22
. 13,670.22
29,767,024.66
29,767,024.86
29.767,624.96
29,767 024.96
260.000.00
260.000.00
250,000.00
249,845.00
250,000.00
260,000.00
260,00000
249,312.60
260,000.00
260,000.00
260,000.00
249,777.50
260,000.00
260,000.00
250,000.00
249,497.60
260,00000
260,800.00
260,000.00
249,497.60
260,000.00
260,000.00
250,000.00
249,917.50
260,000.00
260,000.00
260,000.00
260,297.50
260,000.00
260,000.00
260000.00
261,686.00
2,000,000.00
2,000,000.00
2,000.000.00
2,000,330.00
1,000,000.00
1,000,000.00
1,000,000.00
998,048Ap
7,590.972.55
7,690,97265
7,690,972.56
7,680,972.66
163,323.47
163,323.47
163,323,47
153,323A7
7,744,296.02
7,714,296.02
7,744,296.02
7.744,296.02
i 40,311,320.41 $__40 .611,320.88 ; 40 611,320,38 $ 40.608.696.$6
Total Investments
$ 40,611,320.41
Cash with Banc of the West
City CheckkV
2,466,624.36
Many Market Pala
132,746.01
City Miscellaneous Cash
259,$26.36
Sueeess"Agenry
23GAII&62
Housing Authority
266,235.27
Financing Authority
0.00
investment gramrage
41,33
Total Cash with Bank of the west
3,360,139.26
Total Cash and Invealnnate S1,360.14
Schedule of Cash and Investments Includes city-wide assets as included in the Comprehensive Annual financial Report.
• There was no investment makwity/purchase transactions made for the month of February 2019 and several deposits/wlthdrawals were
made through the Local Agency Investment Fund.
• Fiscal Agent Funds amounting to $7,590,972 are from the Measure M Bond offering.
In compliance with the California Government Code Section 63646 at seq., I hereby certify that sufficient investment
liquidity and anticipated revenues are available to meet the City's expenditure requirements for the next six months
that all investments are In compliance to the City's Statement of Investment Policy.
Approved by:
R6se Taut
Director of Finance