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Home My WebLink AboutAgenda - Agenda Packets - Regular Meeting 12/3/2019 AGENDA CITY COUNCIL - REGULAR MEETING TUESDAY, DECEMBER 3, 2019 5:30 PM CLOSED SESSION 6:30 PM OPEN SESSION COMMUNITY CENTER 625 S. PICO AVENUE SAN JACINTO, CA 92583 951-487-7339 City of San Jacinto Page 1 Updated 11/27/2019 11:09 AM RUSS UTZ, MAYOR ANDREW KOTYUK, MAYOR PRO TEM ALONSO LEDEZMA, COUNCILMEMBER JOEL LOPEZ, COUNCILMEMBER CRYSTAL RUIZ, COUNCILMEMBER 1. ORGANIZATION 1.1. Public Comments on Closed Session Items 1.2. Closed Session 1.2.1. CONFERENCE WITH LEGAL COUNSEL: Existing litigation pursuant to Government Code Section 54956.9(d)(1); 1 case: City of San Jacinto v. Jason R. Oropeza; Riverside Superior Court Case Number RIC1722463 1.3. Closed Session Report 1.4. Roll Call 1.5. Invocation - Joel Ortiz, San Jacinto American Legion Post 848 1.6. Pledge of Allegiance - Mayor Russ Utz 1.7. City Council Reorganization - Angela Walton, City Clerk: Election of Mayor and Mayor Pro Tem / Intermission 1.8. Mayor / Council Member Reports / Discussions 1.9. Late Items 2. PUBLIC COMMENTS 3. JOINT CONSENT CALENDARS 3.A. Consent Calendar - City Council 3.A.1. Waiver of Full Reading of Ordinance(s), and Reading by Title Only 3.A.2. Minutes of the November 19, 2019 Regular City Council Meeting City of San Jacinto Page 2 Updated 11/27/2019 11:09 AM RECOMMENDATION: Staff recommends that the City Council approve the minutes of the November 19, 2019 regular City Council meeting. Department: City Clerk 3.A.3. Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement RECOMMENDATION: That the City Council Approve the Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement, and Authorize the City Manager to Execute the Agreement. Department: Engineering 3.A.4. Adoption of Resolution No. 3784, Compliance with the Annual Inspection of Certain Occupancies Pursuant to Section 13146.2 and 13146.3 of the California Health and Safety Code RECOMMENDATION: That the City Council waive further reading and adopt Resolution No. 3784, compliance with the annual inspection of certain occupancies pursuant to Section 13146.2 and 13146.3 of the California Health and Safety Code. Department: Fire 3.A.5. Approve California Choice Energy Authority Entering into a Long-Term Renewable Energy Contract with Tehachapi Plains Wind, LLC on behalf of San Jacinto Power RECOMMENDATION: That the City Council Approve California Choice Energy Authority entering into a long-term renewable energy contract with Tehachapi Plains Wind, LLC on behalf of San Jacinto Power. Department: Finance 3.B. Consent Calendar - Successor Agency to the Redevelopment Agency of the City of San Jacinto 4. PUBLIC HEARING 4.1. Approval of the 2019 California Building Standards Code and 2019 California Fire Code RECOMMENDATION: 1. That the City Council approve the second reading and adoption of Ordinance 19- 19 approving the 2019 California Building Standards and 2019 Fire Code updates. AN ORDINANCE OF THE CITY OF SAN JACINTO AMENDING AND ADDING CERTAIN SECTIONS AND SUBSECTIONS IN CHAPTERS 8.16 AND 15.04 OF THE MUNICIPAL CODE OF THE CITY OF SAN JACINTO, City of San Jacinto Page 3 Updated 11/27/2019 11:09 AM CALIFORNIA PERTAINING TO THE CONSTRUCTION AND MAINTENANCE OF BUILDINGS AND ADOPTING BY REFERENCE THE 2019 EDITION OF THE CALIFORNIA BUILDING STANDARDS CODE, KNOWN AS THE CALIFORNIA CODE OF REGULATIONS, TITLE 24, INCLUDING THE 2019 CALIFORNIA BUILDING CODE (INCORPORATING AND AMENDING THE 2018 INTERNATIONAL BUILDING CODE), THE 2019 CALIFORNIA FIRE CODE (INCORPORATING AND AMENDING THE 2018 INTERNATIONAL FIRE CODE), THE 2019 CALIFORNIA ELECTRICAL CODE (INCORPORATING AND AMENDING THE 2017 NATIONAL ELECTRICAL CODE), THE 2019 CALIFORNIA MECHANICAL CODE (INCORPORATING AND AMENDING THE 2018 UNIFORM MECHANICAL CODE), THE 2019 CALIFORNIA PLUMBING CODE (INCORPORATING AND AMENDING THE 2018 UNIFORM PLUMBING CODE), THE 2019 CALIFORNIA ADMINISTRATIVE CODE, THE 2019 ENERGY CODE, THE 2019 REFERENCED STANDARDS CODE, THE 2019 CALIFORNIA GREEN BUILDING STANDARDS CODE, THE 1997 UNIFORM ADMINISTRATIVE CODE, AND THE 2018 UNIFORM SWIMMING POOL, SPA AND HOT TUB CODE, TOGETHER WITH CERTAIN ADDITIONS, INSERTIONS, DELETIONS AND CHANGES THERETO. Department: Community Development 4.2. CONDUCT TAX EQUITY AND FISCAL RESPONSIBILITY ACT (TEFRA) HEARING, ADOPT A RESOLUTION APPROVING THE FORM OF ASSOCIATE MEMBERSHIP AGREEMENT BETWEEN THE CITY OF SAN JACINTO AND THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY AND ADOPT A RESOLUTION APPROVING THE ISSUANCE OF NOT TO EXCEED $15,000,000 OF CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY REVENUE OBLIGATIONS FOR THE BENEFIT OF SAN JACINTO VALLEY ACADEMY, INC. RECOMMENDATION: Staff recommends that the City Council: 1. Conduct a public hearing as required by Section 147(f) of the Internal Revenue Code of 1986 to receive comments relating to the issuance by the California Enterprise Development Authority (the “Authority”) of not to exceed $15,000,000 of the Authority’s Revenue Obligations (the “Obligations”) for the benefit of San Jacinto Valley Academy, Inc., a California nonprofit public benefit corporation (the “Borrower”); 2. Adopt a resolution approving an Associate Membership Agreement between the City of San Jacinto and the Authority; and 3. Adopt a resolution approving the issuance of the Obligations by the Authority to finance and refinance the Facilities (defined below) for the benefit of City of San Jacinto Page 4 Updated 11/27/2019 11:09 AM the Borrower. Department: Finance 5. DISCUSSION ITEMS 5.1. Request City Council Authorization to Submit a Two-Year Community Development Block Grant Application to the Riverside County Economic Development Agency for Program Years 2020-21 and 2021-22. RECOMMENDATION: That the City Council authorize the City Manager to submit an application to the Riverside County Economic Development Agency (EDA) for a two (2) year Community Development Block Grant (CDBG) allocation for a Street Pavement and Sidewalk Improvement Project. Department: Community Development 5.2. SB 998 Policy on Discontinuation of Residential Water Service RECOMMENDATION: 1. Staff recommends that the City Council approve the introduction and first reading of Ordinance 19-20, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA, AMENDING CHAPTERS 13.04 AND 13.08 OF TITLE 13 OF THE SAN JACINTO MUNICIPAL CODE, REGARDING TERMINATION OF WATER SERVICE, PAYMENT OF WATER RATES AND CHARGES, AND ADOPTION OF POLICIES THEREFOR, 2. Adopt Resolution 3783, adopting a policy on the discontinuation of water service. Department: Finance 6. CITY MANAGER UPDATE 7. FUTURE REQUESTS FROM CITY COUNCIL TO STAFF 8. ADJOURNMENT DOCUMENTS RELATED TO OPEN SESSION AGENDAS (SB343) - Any public record, relating to an open session agenda item, that is distributed within 72 hours prior to the meeting is available for public inspection at the public counter located in the Administration Building of City Hall, 595 S . San Jacinto Avenue, San Jacinto, CA 92583. I, Lori Matley, Deputy City Clerk of the City of San Jacinto, do hereby certify that I caused to be posted the foregoing agenda this 27th day of November 2019 as requested by law. Lori Matley, Deputy City Clerk December 3, 2019 TO: City Council REQUESTED BY: Angela Walton, City Clerk APPROVED BY: Robert A. Johnson, City Manager SUBJECT: Minutes RECOMMENDATION: Staff recommends that the City Council approve the minutes of the November 19, 2019 regular City Council meeting. ATTACHMENTS: 11-19-19 Regular Meeting Minutes Draft 3.A.2 Packet Pg. 5 ACTION MINUTES CITY COUNCIL – REGULAR MEETING TUESDAY, NOVEMBER 19, 2019 6:30 PM OPEN SESSION SAN JACINTO COMMUNITY CENTER 625 S. PICO AVE SAN JACINTO, CA 92583 951-487-7339 1. ORGANIZATION Mayor Russ Utz called the Regular City Council meeting to order at 6:32 pm. 1.1. Roll Call City Clerk Angela Walton conducted the roll call: Present: Mayor Pro Tem Andrew Kotyuk, Councilmember Alonso Ledezma, Councilmember Crystal Ruiz, Mayor Russ Utz Absent: Councilmember Joel Lopez M/S/C (Ledezma/Kotyuk) moved to excuse the absence of Councilmember Lopez. Motion carried 4/0. Ayes: Kotyuk, Ledezma, Ruiz, Utz Nays: None Absent: Lopez Abstain: None 1.2. Invocation Pastor Roy Ryder of 412 Church gave the invocation. 1.3. Pledge of Allegiance The Pledge of Allegiance was led by Scouts BSA Pack 46. 1.4 Special Presentations Councilmember Ruiz and Mayor Utz presented David Navarro of Boxing for Christ with a certificate and donations that were raised for David’s trip to the Olympic trials. RUSS UTZ, MAYOR ANDREW KOTYUK, MAYOR PRO TEM ALONSO LEDEZMA, COUNCILMEMBER JOEL LOPEZ, COUNCILMEMBER CRYSTAL RUIZ, COUNCILMEMBER 3.A.2.a Packet Pg. 6 Attachment: 11-19-19 Regular Meeting Minutes Draft (Minutes) 1.5. Mayor/Council Member Reports / Discussions Councilmembers provided their reports. 1.6. Late Items City Attorney Michael J. Maurer presented a draft amicus brief from the Immigration Reform Law Institute that was received after the posting of the agenda. Mr. Maurer reported that the brief is in support of the United States petition for Supreme Court review of the SB 54 sanctuary state case, and a response is needed by Thursday, November 21 by City Council on whether San Jacinto will join the petition. M/S/C (Ruiz/Kotyuk) moved to approve the addition of the late item to the agenda. Motion carried 3/1. Ayes: Kotyuk, Ruiz, Utz Nays: Ledezma Absent: Lopez Abstain: None M/S/C (Ruiz/Kotyuk) moved to approve the City of San Jacinto joining the amicus brief. Motion carried 3/1. Ayes: Kotyuk, Ruiz, Utz Nays: Ledezma Absent: Lopez Abstain: None 2. PUBLIC COMMENTS Public Speakers:  Matt Stoeppelwerth  James Dean Sprague  John Gagnepain Councilmember Ruiz excused herself from the meeting at 7:12 pm. 3. JOINT CONSENT CALENDARS City Council Consent Calendar Item 3.A. and Successor Agency Item 3.B. Consent Calendars were heard concurrently. 3.A. Consent Calendar – City Council 3.A.1. Waiver of Full Reading of Ordinance(s), and Reading b y Title Onl y 3.A.2. Minutes of the Regular City Council Meeting of November 5, 2019 / City Clerk / Approve 3.A.3. Warrants and Disbursements / Finance / Approve 3.A.2.a Packet Pg. 7 Attachment: 11-19-19 Regular Meeting Minutes Draft (Minutes) 3.B. Consent Calendar – Successor Agency to the Redevelopment Agency of the City of San Jacinto Mayor Pro Tem Kotyuk recused himself from Agenda Item 3.A.3., Warrants and Disbursements, line items 126823 and 127017. M/S/C (Ledezma/Utz) moved to approve the Consent Calendar. Motion carried 3/0. Ayes: Kotyuk, Ledezma, Utz Nays: None Absent: Lopez, Ruiz Abstain: None 4. PUBLIC HEARING 4.1. Building and Fire Code Updates: An Ordinance of the City of San Jacinto amending and adding certain sections and subsections in chapters 8.16 and 15.04 of the municipal code of the City of San Jacinto, California pertaining to the construction and maintenance of buildings and adopting by reference the 2019 edition of the California Building Standards Code, known as the California Code of Regulations, Title 24, including the 2019 California Building Code, (incorporating and amending the 2018 International Building Code), the 2019 California Fire Code (incorporating and amending the 2018 International Fire Code), the 2019 California Electrical Code (incorporating and amending the 2 017 National Electrical Code), the 2019 California Mechanical Code (incorporating and amending the 2018 Uniform Mechanical Code), the 2019 California Plumbing Code (incorporating and amending the 2018 Uniform Plumbing Code), the 2019 California Residential Code (incorporating and amending the 2018 International Residential Code), the 2019 California Administrative Code, the 2019 California Energy Code, the 2019 California Referenced Standards Code and the 2016 California Green Building Standards Code, the 1 997 Uniform Administrative Code, and the 2018 Uniform Swimming Pool, Spa and Hot Tub Code together with certain additions, insertions, deletions and changes thereto. Community Development Director Travis Randel provided the staff report. Mayor Utz opened the public hearing at 7:17 pm. There were no speakers, and the public hearing was closed at 7:18 pm. M/S/C (Ledezma/Kotyuk) moved to approve the first reading of Ordinance 19-19 - Building and Fire Code Updates. Motion carried 3/0. Ayes: Kotyuk, Ledezma, Utz Nays: None Absent: Lopez, Ruiz 3.A.2.a Packet Pg. 8 Attachment: 11-19-19 Regular Meeting Minutes Draft (Minutes) Abstain: None 5. DISCUSSION ITEMS 5.1. AD-2003-1 Award of Bid Contract – Street Rehabilitation Project City Engineer Stuart McKibbin provided the staff report. M/S/C (Ledezma/Utz) moved to approve the AD-2003-1 Award of Bid Contract. Motion carried 3/0. Ayes: Kotyuk, Ledezma, Utz Nays: None Absent: Lopez, Ruiz Abstain: None 5.2. Complete Streets Safety Assessment – Receive and File City Engineer Stuart McKibbin provided the staff report, and stated that staff will schedule a Complete Streets Safety Assessment (CSSA) workshop for City Council in 120 days. 6. FUTURE REQUESTS TO STAFF There were none. 7. ADJOURNMENT With no further business before the City Council, Mayor Russ Utz adjourned the Regular Meeting of the City Council at 7:43 pm. CITY OF SAN JACINTO: _________________________ Russ Utz, Mayor ATTEST: ________________________ Angela Walton, City Clerk Approved as read: Approved as amended: 3.A.2.a Packet Pg. 9 Attachment: 11-19-19 Regular Meeting Minutes Draft (Minutes) December 3, 2019 TO: City Council REQUESTED BY: Stuart McKibbin, City Engineer APPROVED BY: Robert A. Johnson, City Manager SUBJECT: Mountain Avenue Pavement Interagency Agreement RECOMMENDATION: That the City Council Approve the Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement, and Authorize the City Manager to Execute the Agreement. DISCUSSION: The Mountain Avenue Financial Participation Interagency agreement sets forth the terms and conditions whereby Eastern Municipal Water District (EMWD) will contribute a total of $111,714 toward the City’s Mountain Avenue Pavement Restoration Project (“Pavement Project”), as financial consideration for estimated increased costs to the City associated with EMWD’s hauling and soil export operations at the Mountain Avenue West Replenishment Basin (“Basin Project”). On September 16, 2019, EMWD awarded the construction contract for the Basin Project, which is on a 39-acre site at the west corner of Mountain Avenue and Esplanade Avenue. Excavation of the Basin Project requires the export of some 368,000 cubic yards. It is anticipated that 29,000 truck trips will be needed to export the material. EMWD’s contractor has proposed to haul the material to a nearby stockpile site using Mountain Avenue, Lake Park Drive, and Soboba Road, all within the City’s boundaries. On October 15, 2019, EMWD made a presentation to Council regarding the Basin Project. Council had concerns about various aspects of the basin project, especially noise, dust, and the impact of the haul trucks to the deteriorated pavement along Mountain Avenue. The City’s Capital Improvements Program already includes the Pavement Project, which was planned as a grind-and-overlay rehabilitation. However, it is anticipated that the additional loading from the haul trucks could cause damage that would require a complete removal and replacement of certain segments of the road’s pavement and base, and thus increase construction costs. During the presentation, EMWD’s Assistant General Manager Joe Moauwad indicated that EMWD would mitigate the haul’s impact to Mountain Avenue by contributing to the Pavement Project. The City Engineer’s office and EMWD staff worked together to arrive at the $111,714 payment. City Engineering staff performed a new pavement assessment, and EMWD adjusted the proposed haul route to avoid as much of the distressed pavement as possible. The anticipated increased construction cost was calculated using up-to-date unit prices. 3.A.3 Packet Pg. 10 As a reminder of the Council’s concern regarding noise and dust from the site, the Basin project’s EIR includes proposed mitigation for noise and dust. The mitigation measures will be incorporated into the contractor’s haul permit conditions, which provides the City with the ability to suspend or revoke the haul permit if the contractor does not comply with the mitigation measures. FISCAL IMPACT: There is no fiscal impact currently. The contribution will be added to the CIP project’s funding source. ATTACHMENTS: Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement 3.A.3 Packet Pg. 11 3.A.3.a Packet Pg. 12 Attachment: Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement (Mountain Avenue Pavement Interagency 3.A.3.a Packet Pg. 13 Attachment: Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement (Mountain Avenue Pavement Interagency 3.A.3.a Packet Pg. 14 Attachment: Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement (Mountain Avenue Pavement Interagency 3.A.3.a Packet Pg. 15 Attachment: Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement (Mountain Avenue Pavement Interagency 3.A.3.a Packet Pg. 16 Attachment: Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement (Mountain Avenue Pavement Interagency 3.A.3.a Packet Pg. 17 Attachment: Mountain Avenue Pavement Restoration Financial Participation Interagency Agreement (Mountain Avenue Pavement Interagency December 3, 2019 TO: City Council REQUESTED BY: Bill Weiser, Fire Chief APPROVED BY: Robert A. Johnson, City Manager SUBJECT: Compliance with Annual Inspection of Certain Occupancies RECOMMENDATION: That the City Council waive further reading and adopt Resolution No. 3784, compliance with the annual inspection of certain occupancies pursuant to Section 13146.2 and 13146.3 of the California Health and Safety Code. DISCUSSION: This request represents routine administrative business of the City. In 2018, California Health and Safety Code Section 13146.4 was added and became effective January 1, 2019. Section 13146.4 requires all fire departments, that provide fire protection services, to report annually to their administering authority on their compliance with Health and Safety Code Sections 13146.2 and 13146.3. Sections 13146.2 and 13146.3 require annual inspections of every building used as a public or private school, hotel, motel, lodging house, apartment house and certain residential care facilities for compliance with building standards. FISCAL IMPACT: There is no fiscal impact associated with adoption of this resolution and schedule. ATTACHMENTS: Resolution No. 3784 Fire Code Annual Inspections SB1205 Text 3.A.4 Packet Pg. 18 STATE OF CALIFORNIA ) RESOLUTION NO. 3784 COUNTY OF RIVERSIDE ) ss. CITY OF SAN JACINTO ) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA, ACKNOWLEDGING RECEIPT OF A REPORT MADE BY THE FIRE CHIEF OF THE RIVERSIDE COUNTY FIRE DEPARTMENT REGARDING COMPLIANCE WITH THE ANNUAL INSPECTION OF CERTAIN OCCUPANCIES PURSUANT TO SECTIONS 13146.2 and 13146.3 OF THE CALIFORNIA HEALTH AND SAFETY CODE WHEREAS, California Health & Safety Code Section 13146.4 was added in 2018, and became effective on January 1, 2019; and WHEREAS, California Health & Safety Code Section 13146.4 requires all fire departments, including the Riverside County Fire Department, that provide fire protection services to report annually to its administering authority on its compliance with Health & Safety Code sections 13146.2 and 13146.3; and WHEREAS, California Health & Safety Code Section 13146.2 and 13146.3 requires all fire departments, including the Riverside County Fire Department, that provide fire protection services to perform annual inspections in every building used as a public or private school, hotel, motel, lodging house, apartment house, and certain residential care facilities for compliance with building standards, as provided; and WHEREAS, the City Council of the City of San Jacinto intends this Resolution to fulfill the requirements of the California Health & Safety Code 13146.4 regarding acknowledgment of the Riverside County Fire Department’s compliance with California Health and Safety Code Sections 13146.2 and 13146.3. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Jacinto, California: expressly acknowledges the measure of compliance of the Riverside County Fire Department with Health and Safety Code sections 13146.2 an d 13146.3 in the City of San Jacinto for the time period July 1, 2018 to June 30, 2019, as follows: Section 1. Educational Group E occupancies, for the purposes of this Resolution, are generally those public and private schools, used by more than six persons at any one time for educational purposes through the 12th grade. The Riverside County Fire Department completed 100% of the annual inspections of the identified Group E occupancies, buildings, structures and/or facilities in the City of San Jacinto. Section 2. Residential Group R occupancies, for the purposes of this Resolution, are generally those occupancies containing sleeping units, and include hotels, motels, apartments (three units or more), etc. as well as other residential occupancies (including a number of residential care facilities). These residential care facilities have a number of different sub-classifications, and they may contain residents 3.A.4.a Packet Pg. 19 Attachment: Resolution No. 3784 Fire Code Annual Inspections (Compliance with Annual Inspection of Certain Occupancies) 2 or clients that have a range of needs, including those related to custodial care, mobility impairments, cognitive disabilities, etc. The residents may also be non -ambulatory or bedridden. The Riverside County Fire Department completed 100% of the annual inspections of the identified Group R occupancies, buildings, structures and/or facilities in the City of San Jacinto. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the 3rd day of December 2019, by the following vote: AYES: NAYS: ABSTAIN: ABSENT: CITY OF SAN JACINTO: ________________________________ Russell Utz, Mayor ATTEST: ______________________________ Angela Walton, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER, LLP ______________________________ Michael J. Maurer, City Attorney 3.A.4.a Packet Pg. 20 Attachment: Resolution No. 3784 Fire Code Annual Inspections (Compliance with Annual Inspection of Certain Occupancies) 3 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss CITY OF SAN JACINTO) CERTIFICATION I, Angela Walton, duly appointed City Clerk of the City of San Jaci nto, do hereby certify that the foregoing Resolution No. 3784 was duly passed, approved and adopted at a regular meeting of the City Council of the City of San Jacinto held on the 3rd day of December, 2019 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: WITNESS MY HAND AND OFFICIAL SEAL of the City of San Jacinto the 3rd day of December, 2019. _________________________ Angela Walton, City Clerk City of San Jacinto 3.A.4.a Packet Pg. 21 Attachment: Resolution No. 3784 Fire Code Annual Inspections (Compliance with Annual Inspection of Certain Occupancies) Senate Bill No. 1205 CHAPTER 854 An act to add Section 13146.4 to the Health and Safety Code, relating to fire protection. [Approved by Governor September 27, 2018. Filed with Secretary of State September 27, 2018.] legislative counsel’s digest SB 1205, Hill. Fire protection services: inspections: compliance reporting. Existing law requires the chief of any city or county fire department or district providing fire protection services and his or her authorized representatives to inspect every building used as a public or private school within his or her jurisdiction, for the purpose of enforcing specified building standards, not less than once each year, as provided. Existing law requires every city or county fire department or district providing fire protection services that is required to enforce specified building standards to annually inspect certain structures, including hotels, motels, lodging houses, and apartment houses, for compliance with building standards, as provided. This bill would require every city or county fire department, city and county fire department, or district required to perform the above-described inspections to report annually to its administering authority, as defined, on the department’s or district’s compliance with the above-described inspection requirements, as provided. The bill would require the administering authority to acknowledge receipt of the report in a resolution or a similar formal document. To the extent this bill would expand the responsibility of a local agency, the bill would create a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. The people of the State of California do enact as follows: SECTION 1. Section 13146.4 is added to the Health and Safety Code, to read: 13146.4. (a) Every city or county fire department, city and county fire department, or district required to perform an annual inspection pursuant 93 3.A.4.b Packet Pg. 22 Attachment: SB1205 Text (Compliance with Annual Inspection of Certain Occupancies) to Sections 13146.2 and 13146.3 shall report annually to its administering authority on its compliance with Sections 13146.2 and 13146.3. (b) The report made pursuant to subdivision (a) shall occur when the administering authority discusses its annual budget, or at another time determined by the administering authority. (c) The administering authority shall acknowledge receipt of the report made pursuant to subdivision (a) in a resolution or a similar formal document. (d) For purposes of this section, “administering authority” means a city council, county board of supervisors, or district board, as the case may be. SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. O 93 — 2 —Ch. 854 3.A.4.b Packet Pg. 23 Attachment: SB1205 Text (Compliance with Annual Inspection of Certain Occupancies) December 3, 2019 TO: City Council REQUESTED BY: Tom Prill, Deputy City Manager APPROVED BY: Robert A. Johnson, City Manager SUBJECT: Long-Term Renewable Energy Contract with Tehachapi Plains Wind, LLC RECOMMENDATION: That the City Council Approve California Choice Energy Authority entering into a long-term renewable energy contract with Tehachapi Plains Wind, LLC on behalf of San Jacinto Power. DISCUSSION: In October 2015, the State of California enacted SB 350, also known as The Clean Energy and Pollution Reduction Act of 2015 (the Act). The Act established new clean energy, clean air, and greenhouse gas reduction goals for the state. Specifically, the Act requires that all load serving entities, including Community Choice Aggregators (CCAs) enter into long-term renewable energy contracts with energy delivery to begin by the 2021 – 2024 compliance period (Compliance Period 4). In order to meet this requirement, California Choice Energy Authority (CalChoice), on behalf of San Jacinto Power (SJP) and its other member agencies, issued a Request for Proposals for Renewable Energy Projects in December 2018. CalChoice received over 100 proposals. CalChoice held a workshop with CalChoice and other member agencies to review and short -list proposals based on cost, location, and portfolio diversity. Several wind, solar, biowaste, and small hydro-electric projects were short-listed. CalChoice and its legal and technical team have negotiated and finalized commercial and contract terms on behalf of its member agencies with Terra-Gen, LLC for its Tehachapi Plains Wind project. The Tehachapi Plains Wind project is a 28.2 MW project located in southern Kern County, with a commercial delivery date of January 2021. SJP will receive approximately 14% of the wind project’s generation. As a condition of the contract, Tehachapi Plains Wind, LLC recognizes and accepts the secured deposit account in the name of SJP as credit and collateral, and no other security or credit backing by the city or CalChoice will be required. With the execution of this contract, which fulfills approximately 22% of SJP’s long-term requirement, SJP will have contracted for a total of 40% of its state mandated obligation for Compliance Period 4. As such, staff will be returning in upcoming m onths with additional contract approval requests. 3.A.5 Packet Pg. 24 FISCAL IMPACT: $672,079 annually for twelve years beginning in fiscal year 2021. There will be sufficient revenues generated to cover operating expenses, including power procurement, and to fund reserves to provide financial and rate stability to the program. ATTACHMENTS: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted 3.A.5 Packet Pg. 25 SELLER DRAFT 24 NOVEMBER 2019 POWER PURCHASE AND SALE AGREEMENT COVER SHEET Seller: Tehachapi Plains Wind, LLC Buyer: California Choice Energy Authority, a California joint powers authority, on behalf of City of San Jacinto, a California municipal corporation d/b/a San Jacinto Power] [[PPA Buyers: • • California Choice Energy Authority, a California joint powers authority, on behalf of City of San Jacinto, a California municipal corporation d/b/a San Jacinto Power - (20%)]] Description of Facility: “Facility” means a 28.8 MW wind-powered electric generating facility comprised of three sub-projects: a 14.4 MW wind sub-project interconnecting to SCE’s Windhub Substation, a 7.2 wind sub-project interconnecting to SCE’s Puff 12 kV distribution circuit, and a 7.2 MW wind sub-project interconnecting to SCE’s Keene 12kV distribution circuit, all as further described in Exhibit A Guaranteed Commercial Operation Date: January 1, 2021 [Note: to be confirmed] Milestones: [Note: to be provided] Identify Milestone Date for Completion Evidence of Site Control Documentation of Conditional Use Permit if required: 3.A.5.a Packet Pg. 26 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Identify Milestone Date for Completion CEQA [ ] Cat Ex, [ ]Neg Dec, [ ]Mitigated Neg Dec, [x]EIR Seller’s receipt of Phase I and Phase II Interconnection study results for Seller’s Interconnection Facilities Executed Interconnection Agreements Financial Close Expected Construction Start Date Initial Synchronization Network Upgrades completed (evidenced by delivery of permission to parallel letter from the PTO) Expected Commercial Operation Date January 1, 2021 Delivery Term: Twelve (12) Contract Years Delivery Term Expected Energy: Contract Year Expected Energy (MWh) 1 – 12 Contract Price: Contract Year Contract Price ($/MWh) 1 – 12 Product: Buyer’s Share of: x Energy x Green Attributes (if Renewable Energy Credit, please check the applicable box below): x Portfolio Content Category 1 o Portfolio Content Category 2 o Portfolio Content Category 3 3.A.5.a Packet Pg. 27 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy x Capacity Attributes Deliverability: o Energy Only Status x Full Capacity Deliverability Status a) If Full Capacity Deliverability Status is selected, provide the Expected FCDS Date: Commercial Operation Date Scheduling Coordinator: Seller/Seller Third-Party Development Security: Performance Security: Damage Payment: [Signatures on following page.] 3.A.5.a Packet Pg. 28 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy SELLER DRAFT 24 NOVEMBER 2019 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the Effective Date. SELLER By: Name: Gustavo E. Luna Title: Sr. Vice President BUYER By: By: Acknowledged: City of San Jacinto, a California municipal corporation d/b/a San Jacinto Power. CITY OF SAN JACINTO By: Name: Title: ]1 1 For City of San Jacinto (“SJ”), . 3.A.5.a Packet Pg. 29 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy TABLE OF CONTENTS Page i ARTICLE 1 DEFINITIONS ................................................................................................. 1 1.1 Contract Definitions. .............................................................................................. 1 1.2 Rules of Interpretation. ......................................................................................... 17 ARTICLE 2 TERM; CONDITIONS PRECEDENT .......................................................... 18 2.1 Contract Term. ...................................................................................................... 18 2.2 Conditions Precedent ............................................................................................ 19 2.3 Progress Reports ................................................................................................... 20 2.4 Remedial Action Plan ........................................................................................... 20 ARTICLE 3 PURCHASE AND SALE ............................................................................... 20 3.1 Sale of Product. .................................................................................................... 20 3.2 Sale of Green Attributes. ...................................................................................... 20 3.3 Compensation. ...................................................................................................... 21 3.4 Imbalance Energy. ................................................................................................ 21 3.5 Ownership of Renewable Energy Incentives. ...................................................... 21 3.6 Future Environmental Attributes. ......................................................................... 22 3.7 Test Energy.. ......................................................................................................... 22 3.8 Capacity Attributes. .............................................................................................. 22 3.9 Resource Adequacy Failure .................................................................................. 23 3.10 CEC Certification and Verification. ..................................................................... 23 3.11 Eligibility. ............................................................................................................. 23 3.12 California Renewables Portfolio Standard. .......................................................... 23 3.13 Compliance Expenditure Cap. .............................................................................. 24 ARTICLE 4 OBLIGATIONS AND DELIVERIES ........................................................... 25 4.1 Delivery. ............................................................................................................... 25 4.2 Title and Risk of Loss. .......................................................................................... 25 4.3 Scheduling Coordinator Responsibilities. ............................................................ 25 4.4 Forecasting. .......................................................................................................... 26 4.5 Reserved ............................................................................................................... 26 4.6 Reduction in Delivery Obligation. ....................................................................... 26 4.7 Expected Energy and Guaranteed Energy Production. ........................................ 27 4.8 WREGIS ............................................................................................................... 28 ARTICLE 5 TAXES ........................................................................................................... 29 5.1 Allocation of Taxes and Charges. ........................................................................ 29 5.2 Cooperation. ......................................................................................................... 29 ARTICLE 6 MAINTENANCE OF THE FACILITY ......................................................... 30 6.1 Maintenance of the Facility. ................................................................................. 30 3.A.5.a Packet Pg. 30 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy ii 6.2 Maintenance of Health and Safety. ...................................................................... 30 6.3 Shared Facilities ................................................................................................... 30 ARTICLE 7 METERING ................................................................................................... 30 7.1 Metering. .............................................................................................................. 30 7.2 Meter Verification. ............................................................................................... 30 ARTICLE 8 INVOICING AND PAYMENT; CREDIT .................................................... 31 8.1 Invoicing. .............................................................................................................. 31 8.2 Payment. ............................................................................................................... 31 8.3 Books and Records. .............................................................................................. 31 8.4 Payment Adjustments; Billing Errors. .................................................................. 31 8.5 Billing Disputes. ................................................................................................... 32 8.6 Netting of Payments. ............................................................................................ 32 8.7 Seller’s Development Security. ............................................................................ 32 8.8 Seller’s Performance Security. ............................................................................. 33 8.9 First Priority Security Interest in Cash or Cash Equivalent Collateral ................. 33 8.10 Buyer’s Financial Statements ............................................................................... 34 8.11 Buyer Creditworthiness ........................................................................................ 34 ARTICLE 9 NOTICES ....................................................................................................... 38 9.1 Addresses for the Delivery of Notices .................................................................. 38 9.2 Acceptable Means of Delivering Notice .............................................................. 38 ARTICLE 10 FORCE MAJEURE ........................................................................................ 38 10.1 Definition .............................................................................................................. 38 10.2 No Liability If a Force Majeure Event Occurs ..................................................... 39 10.3 Notice ................................................................................................................... 39 10.4 Termination Following Force Majeure Event ...................................................... 39 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION ................................................ 40 11.1 Events of Default .................................................................................................. 40 11.2 Remedies; Declaration of Early Termination Date. ............................................. 42 11.3 Termination Payment ........................................................................................... 42 11.4 Notice of Payment of Termination Payment or Damage Payment ...................... 43 11.5 Disputes With Respect to Termination Payment or Damage Payment ................ 43 11.6 Rights And Remedies Are Cumulative ................................................................ 43 11.7 Mitigation ............................................................................................................. 43 ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES .............................................................................................. 43 12.1 No Consequential Damages. ................................................................................ 43 12.2 Waiver and Exclusion of Other Damages. ........................................................... 43 ARTICLE 13 REPRESENTATIONS AND WARRANTIES .............................................. 44 3.A.5.a Packet Pg. 31 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy iii 13.1 Seller’s Representations and Warranties. ............................................................. 44 13.2 Buyer’s Representations and Warranties .............................................................. 45 13.3 General Covenants ................................................................................................ 46 ARTICLE 14 ASSIGNMENT .............................................................................................. 47 14.1 General Prohibition on Assignments .................................................................... 47 14.2 Permitted Assignment by Seller ........................................................................... 47 14.3 Permitted Assignment by Buyer ........................................................................... 47 ARTICLE 15 LENDER ACCOMMODATIONS ................................................................. 48 15.1 Granting of Lender Interest .................................................................................. 48 15.2 Rights of Lender ................................................................................................... 48 15.3 Cure Rights of Lender .......................................................................................... 49 ARTICLE 16 DISPUTE RESOLUTION .............................................................................. 49 16.1 Governing Law. .................................................................................................... 49 16.2 Dispute Resolution. .............................................................................................. 49 16.3 Attorneys’ Fees. .................................................................................................... 49 ARTICLE 17 INDEMNIFICATION .................................................................................... 49 17.1 Indemnification. .................................................................................................... 49 17.2 Claims. .................................................................................................................. 50 ARTICLE 18 INSURANCE ................................................................................................. 50 18.1 Insurance ............................................................................................................... 50 ARTICLE 19 CONFIDENTIAL INFORMATION .............................................................. 52 19.1 Definition of Confidential Information ................................................................ 52 19.2 Duty to Maintain Confidentiality ......................................................................... 52 19.3 Irreparable Injury; Remedies ................................................................................ 52 19.4 Disclosure to Lender ............................................................................................. 52 19.5 Public Statements ................................................................................................. 52 ARTICLE 20 MISCELLANEOUS ....................................................................................... 52 20.1 Entire Agreement; Integration; Exhibits .............................................................. 52 20.2 Amendments ......................................................................................................... 53 20.3 No Waiver ............................................................................................................ 53 20.4 No Agency, Partnership, Joint Venture or Lease ................................................. 53 20.5 Severability ........................................................................................................... 53 20.6 Mobile-Sierra ........................................................................................................ 53 20.7 Counterparts ......................................................................................................... 53 20.8 Facsimile or Electronic Delivery .......................................................................... 54 20.9 Binding Effect ...................................................................................................... 54 20.10 No Recourse to Members of Buyer ...................................................................... 54 3.A.5.a Packet Pg. 32 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy iv 20.11 Lockbox Account ................................................................................................. 54 20.12 Change in Electric Market Design ....................................................................... 54 Exhibits: Exhibit A Description of the Facility Exhibit B Facility Construction and Commercial Operation Exhibit C Reserved Exhibit D Notices Exhibit E Reserved Exhibit F Guaranteed Energy Production Damages Calculation Exhibit G Progress Reporting Form Exhibit H Reserved Exhibit I-1 Form of Commercial Operation Date Certificate Exhibit I-2 Form of Installed Capacity Certificate Exhibit J Form of Construction Start Certificate Exhibit K Form of Letter of Credit Exhibit L Form of Replacement RA Notice 3.A.5.a Packet Pg. 33 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy POWER PURCHASE AND SALE AGREEMENT This Power Purchase and Sale Agreement (“Agreement”) is entered into as of December [__], 2019 (the “Effective Date”), between Seller and Buyer (each also referred to as a “Party” and collectively as the “Parties”). RECITALS WHEREAS, Seller intends to develop, design, construct, own, and operate the Facility in the location identified in Exhibit A; and WHEREAS, Seller desires to sell, and Buyer desires to purchase, on the terms and conditions set forth in this Agreement, Buyer’s Share of all Energy generated by the Facility, all Green Attributes related to the generation of such Energy, and Buyer’s Share of all Capacity Attributes; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the following: ARTICLE 1 DEFINITIONS 1.1 Contract Definitions. The following terms, when used herein with initial capitalization, shall have the meanings set forth below: “AC” means alternating current. “Accepted Compliance Costs” has the meaning set forth in Section 3.13. “Adjusted Energy Production” has the meaning set forth in Exhibit F. “Affiliate” means, with respect to any Person, each Person that directly or indirectly controls, is controlled by, or is under common control with such designated Person. For purposes of this definition and the definition of “Permitted Transferee”, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person. “Agreement” has the meaning set forth in the Preamble and includes any exhibits, schedules and any written supplements hereto, the Cover Sheet, and any designated collateral, credit support or similar arrangement between the Parties. “Available Capacity” means the capacity from the Facility, expressed in whole MWs, that is available to generate Energy. 3.A.5.a Packet Pg. 34 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 2 “Bankrupt” means with respect to any entity, such entity that (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law, (b) has any such petition filed or commenced against it which remains unstayed or undismissed for a period of ninety (90) days, (c) makes an assignment or any general arrangement for the benefit of creditors, (d) otherwise becomes bankrupt or insolvent (however evidenced), (e) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (f) is generally unable to pay its debts as they fall due. “Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday in California. A Business Day begins at 8:00 a.m. and ends at 5:00 p.m. local time for the Party sending a Notice, or payment, or performing a specified action. “Buyer” has the meaning set forth on the Cover Sheet. “Buyer Default” means a failure of Buyer to perform its material obligations hereunder. [“Buyer Lockbox Arrangement” has the meaning set forth in Section 8.11. “Buyer’s Security Interest” has the meaning set forth in Section 8.9. “Buyer’s Share” mean City of San Jacinto: fourteen percent (14%)] “Buyer’s WREGIS Account” has the meaning set forth in Section 4.8(a). “CAISO” means the California Independent System Operator Corporation or any successor entity performing similar functions. “CAISO Approved Meters” means one or more CAISO approved revenue quality meter or meters, CAISO approved data processing gateways or remote intelligence gateways, telemetering equipment and data acquisition services sufficient for monitoring, recording and reporting, in real time, all Energy produced by the Facility net of Electrical Losses and Station Use. “CAISO Costs” means the debits, costs, penalties and interest that are directly assigned by the CAISO to the CAISO Resource IDs for the Facility for, or attributable to, Scheduling or deliveries from the Facility under this Agreement in each applicable Settlement Interval. 2 3.A.5.a Packet Pg. 35 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 3 “CAISO Grid” has the same meaning as “CAISO Controlled Grid” as defined in the CAISO Tariff. “CAISO Operating Order” means the “operating order” defined in Section 37.2.1.1 of the CAISO Tariff. “CAISO Resource IDs” means the numbers or names assigned by the CAISO to the CAISO Approved Meters. “CAISO Revenues” means the credits and other payments incurred or received by Seller, as the Facility’s Scheduling Coordinator, as a result of Scheduling or energy from the Facility delivered by Seller to any CAISO administered market, including costs and revenues associated with CAISO dispatches, for each applicable Settlement Interval. “CAISO Tariff” means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC. “California Renewables Portfolio Standard” or “RPS” means the renewable energy program and policies established by California State Senate Bills 1038 (2002), 1078 (2002), 107 (2008), X-1 2 (2011), 350 (2015), and 100 (2018) as codified in, inter alia, California Public Utilities Code Sections 399.11 through 399.31 and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time. “Capacity Attribute” means any current or future defined characteristic, certificate, tag, credit, or accounting construct associated with the amount of power that the Facility can generate and deliver to the CAISO Grid at a particular moment and that can be purchased and sold under CAISO market rules, including Resource Adequacy Benefits. “Capacity Damages” has the meaning set forth in Exhibit B. “CEC” means the California Energy Commission or its successor agency. “CEC Certification and Verification” means that the CEC has certified (or, with respect to periods before the Facility has commenced commercial operation (as such term is defined by and according to the CEC), that the CEC has pre-certified) that the Facility is an Eligible Renewable Energy Resource for purposes of the California Renewables Portfolio Standard and that all Energy generated by the Facility qualifies as generation from an Eligible Renewable Energy Resource. “Change of Control” means any circumstance in which Ultimate Parent ceases to own, directly or indirectly through one or more intermediate entities, more than fifty percent (50%) of the outstanding equity interests in Seller; provided that in calculating ownership percentages for all purposes of the foregoing: (a) any ownership interest in Seller held by Ultimate Parent indirectly through one or more intermediate entities shall not be counted towards Ultimate Parent’s ownership interest in 3.A.5.a Packet Pg. 36 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 4 Seller unless Ultimate Parent directly or indirectly owns more than fifty percent (50%) of the outstanding equity interests in each such intermediate entity; and (b) ownership interests in Seller owned directly or indirectly by any Lender (including any tax equity provider) shall be excluded from the total outstanding equity interests in Seller. “Commercial Operation” has the meaning set forth in Exhibit B. “Commercial Operation Date” has the meaning set forth in Exhibit B. “Commercial Operation Delay Damages” “Compliance Actions” has the meaning set forth in Section 3.13. “Compliance Expenditure Cap” has the meaning set forth in Section 3.13. “Confidential Information” has the meaning set forth in Section 19.1. “Construction Start” has the meaning set forth in Exhibit B. “Construction Start Date” has the meaning set forth in Exhibit B. “Contract Price” has the meaning set forth on the Cover Sheet. “Contract Term” has the meaning set forth in Section 2.1. “Contract Year” means a period of twelve (12) consecutive months. The first Contract Year shall commence on the Commercial Operation Date and each subsequent Contract Year shall commence on the anniversary of the Commercial Operation Date. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace the Agreement; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with terminating the Agreement. “Cover Sheet” means the cover sheet to this Agreement, completed by Seller and incorporated into this Agreement. “CPUC” means the California Public Utilities Commission, or successor entity. “Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply. 3.A.5.a Packet Pg. 37 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 5 “Curtailed Energy” means the amount of Energy expressed in MWh that the Facility would have produced and delivered to the Delivery Points for sale hereunder, but that is not produced by the Facility and delivered to the Delivery Points during a Curtailment Period, which amount shall be equal to Buyer’s Share of the result of the equation provided by Seller to reasonably calculate the potential generation of the Facility as a function of Available Capacity, wind speed, and wind direction and using relevant Facility availability, weather and other pertinent data for the period of time during the Curtailment Period less the amount of Metered Energy delivered to the Delivery Points during the Curtailment Period; provided that, if the Metered Energy is greater than the calculation of potential generation, then the Curtailed Energy shall be zero (0) MWh. “Curtailment Order” means any of the following: (a) CAISO orders, directs, alerts, or provides notice to a Party, including a CAISO Operating Order, to curtail deliveries of Energy from the Facility for the following reasons: (i) any System Emergency, or (ii) any warning of an anticipated System Emergency, or warning of an imminent condition or situation, which jeopardizes CAISO’s electric system integrity or the integrity of other systems to which CAISO is connected; (b) a curtailment ordered by the Participating Transmission Owner or distribution operator (if interconnected to distribution or sub-transmission system) for reasons including, but not limited to, (i) any situation that affects normal function of the electric system including, but not limited to, any abnormal condition that requires action to prevent circumstances such as equipment damage, loss of load, or abnormal voltage conditions, or (ii) any warning, forecast or anticipation of conditions or situations that jeopardize the Participating Transmission Owner’s electric system integrity or the integrity of other systems to which the Participating Transmission Owner is connected; (c) a curtailment ordered by CAISO or the Participating Transmission Owner due to scheduled or unscheduled maintenance on the Participating Transmission Owner’s transmission facilities that prevents (i) Buyer from receiving or (ii) Seller from delivering Energy to the Delivery Points; or (d) a curtailment in accordance with Seller’s obligations under its Interconnection Agreements with the Participating Transmission Owner or distribution operator; provided, however, that Buyer may not issue any Curtailment Order or any other instruction to curtail or reduce deliveries or output associated with Energy, Scheduled Energy or Metered Energy. “Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation from the Facility pursuant to a Curtailment Order. “Daily Delay Damages” 3.A.5.a Packet Pg. 38 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 6 “Damage Payment” “Day-Ahead LMP” has the meaning set forth in the CAISO Tariff. “Day-Ahead Market” has the meaning set forth in the CAISO Tariff. “Day-Ahead Schedule” has the meaning set forth in the CAISO Tariff. “Deemed Delivered Energy” means the amount of Energy expressed in MWh that the Facility would have produced and delivered to the Delivery Points for sale hereunder, but that is not produced by the Facility and delivered to the Delivery Points during a Market Curtailment Period, which amount shall be equal to Buyer’s Share of the result of the equation provided by Seller to reasonably calculate the potential generation of the Facility as a function of Available Capacity, wind speed, and wind direction and using relevant Facility availability, weather and other pertinent data for the period of time during the Market Curtailment Period less the amount of Metered Energy delivered to the Delivery Points during the Market Curtailment Period; provided that, if the Metered Energy is greater than the calculation of potential generation, then the Deemed Delivered Energy shall be zero (0). “Defaulting Party” has the meaning set forth in Section 11.1(a). “Deficient Month” has the meaning set forth in Section 4.8(e). “Delivery Points” means the PNodes designated by the CAISO for the Facility. “Delivery Term” shall mean the period of twelve (12) Contract Years beginning on the Commercial Operation Date, unless terminated earlier in accordance with the terms and conditions of this Agreement. “Development Cure Period” has the meaning set forth in Exhibit B. “Development Security” “Early Termination Date” has the meaning set forth in Section 11.2. “Economic Bid” has the meaning set forth in the CAISO Tariff. “Effective Date” has the meaning set forth on the Preamble. “Effective FCDS Date” means the date identified in Seller’s Notice to Buyer (along with a Full Capacity Deliverability Status Finding from CAISO) as the date that the Facility has attained Full Capacity Deliverability Status. “EIRP Forecast” means the final forecast of the Energy to be produced by the Facility prepared by the CAISO in accordance with the Eligible Intermittent Resources Protocol. 3.A.5.a Packet Pg. 39 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 7 “Electrical Losses” means all transmission or transformation losses between each portion of the Facility and the applicable Delivery Point corresponding to such portion of the Facility. “Eligible Intermittent Resources Protocol” has the meaning set forth in the CAISO Tariff. “Eligible Renewable Energy Resource” has the meaning set forth in California Public Utilities Code Section 399.12(e) and California Public Resources Code Section 25741(a), as either code provision is amended or supplemented from time to time. “Energy” means electrical energy, measured in MWh. “Event of Default” has the meaning set forth in Section 11.1. “Expected Energy” has the meaning set forth in Section 4.7. “Expected FCDS Date” means the date set forth in the deliverability Section of the Cover Sheet which is the date the Facility is expected to achieve Full Capacity Deliverability Status. “Facility” has the meaning set forth on the Cover Sheet. “FERC” means the Federal Energy Regulatory Commission or any successor government agency. “Financial Close” means Seller and/or one of its Affiliates has obtained debt and/or equity financing commitments from one or more Lenders sufficient to construct the Facility, including such financing commitments from Seller’s owner(s). “Force Majeure Event” has the meaning set forth in Section 10.1. “Forced Facility Outage” means an unexpected failure of one or more components of the Facility or any outage on the Transmission System that prevents Seller from making power available at one or more of the Delivery Points and that is not the result of a Force Majeure Event. “Forward Certificate Transfers” has the meaning set forth in Section 4.8(a). “Full Capacity Deliverability Status” has the meaning set forth in the CAISO Tariff. “Full Capacity Deliverability Status Finding” means a written confirmation from the CAISO that the Facility is eligible for Full Capacity Deliverability Status. “Future Environmental Attributes” shall mean any and all emissions, air quality or other environmental attributes (other than Green Attributes or Renewable Energy Incentives) under the RPS regulations and/or under any and all other international, federal, regional, state or other law, rule, regulation, bylaw, treaty or other intergovernmental compact, decision, administrative decision, program (including any voluntary compliance or membership program), competitive market or business method (including all credits, certificates, benefits, and emission measurements, reductions, offsets and allowances related thereto) that are attributable, now, or in 3.A.5.a Packet Pg. 40 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 8 the future, to the generation of electrical energy by the Facility. Future Environmental Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) Production Tax Credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the Facility for compliance with local, state, or federal operating and/or air quality permits. “Gains” means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner. Factors used in determining the economic benefit to a Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non- Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlement prices for comparable transactions at liquid trading hubs (e.g., NP-15), all of which should be calculated for the remaining Contract Term, and includes the value of Green Attributes and Capacity Attributes. “Governmental Authority” means any federal, state, provincial, local or municipal government, any political subdivision thereof or any other governmental, congressional or parliamentary, regulatory, or judicial instrumentality, authority, body, agency, department, bureau, or entity with authority to bind a Party at law, including CAISO; provided, however, that “Governmental Authority” shall not in any event include any Party. “Green Attributes” means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the generation from the Facility, and its displacement of conventional energy generation. Green Attributes include but are not limited to Renewable Energy Credits, as well as: (1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere; (3) the reporting rights to these avoided emissions, such as Green Tag Reporting Rights. Green Tags are accumulated on a MWh basis and one Green Tag represents the Green Attributes associated with one (1) MWh of Energy generated by the Facility. Green Attributes do not include (i) any energy, capacity, reliability or other power attributes from the Facility, (ii) production tax credits associated with the construction or operation of the Facility and other financial incentives in the form of credits, reductions, or allowances associated with the Facility that are applicable to a state or federal income taxation obligation, (iii) fuel-related subsidies or “tipping fees” that may be paid to Seller to accept certain fuels, or local subsidies received by the generator for the destruction of particular preexisting pollutants or the promotion of local environmental benefits, or (iv) emission reduction credits encumbered or used by the 3.A.5.a Packet Pg. 41 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 9 Facility for compliance with local, state, or federal operating and/or air quality permits. If the Facility is a biomass or landfill gas facility and Seller receives any tradable Green Attributes based on the greenhouse gas reduction benefits or other emission offsets attributed to its fuel usage, it shall provide Buyer with sufficient Green Attributes to ensure that there are zero net emissions associated with the production of electricity from the Facility. “Green Tag Reporting Rights” means the right of a purchaser of renewable energy to report ownership of accumulated “green tags” in compliance with and to the extent permitted by applicable Law and include, without limitation, rights under Section 1605(b) of the Energy Policy Act of 1992, and any present or future federal, state or local certification program or emissions trading program, including pursuant to the WREGIS Operating Rules. “Guaranteed Capacity” means twenty-eight and four-tenths (28.8) MW AC capacity measured at the Delivery Points. “Guaranteed Commercial Operation Date” has the meaning set forth in Exhibit B. “Guaranteed Construction Start Date” has the meaning set forth in Exhibit B. “Guaranteed Energy Production” “Imbalance Energy” means the amount of Energy, in any given Settlement Period or Settlement Interval, by which the amount of Metered Energy deviates from the amount of Scheduled Energy. “Indemnified Party” has the meaning set forth in Section 17.1. “Indemnifying Party” has the meaning set forth in Section 17.1. “Initial Synchronization” means the initial delivery of Energy from the Facility to a Delivery Point. “Installed Capacity” means the actual installed nameplate generating capacity of the Facility less expected Electrical Losses and Station Use, but not to exceed the Guaranteed Capacity, as evidenced by a certificate provided by Seller to Buyer and substantially in the form attached as Exhibit I-2 hereto. [Note: to be updated] [Note: to be discussed] “Interim Deliverability Status” has the meaning set forth in CAISO Tariff. “Inter-SC Trade” or “IST” has the meaning set forth in CAISO Tariff. “Interconnection Agreements” means the interconnection agreements entered into by Seller or its Affiliates pursuant to which the Facility will be interconnected with the Transmission System, and pursuant to which Seller’s Interconnection Facilities and any other Interconnection Facilities will be constructed, operated and maintained during the Contract Term. 3.A.5.a Packet Pg. 42 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 10 “Interconnection Facilities” means the interconnection facilities, control and protective devices and metering facilities required to connect the Facility with the Transmission System in accordance with the Interconnection Agreements. “Intercreditor and Collateral Agency Agreement” means that certain Intercreditor and Collateral Agency Agreement, dated as of [SJ: January 22, 2018, by and among River City Bank, as Collateral Agent, the Secured Creditors, and Member] ]. [Note: credit provisions under review] “Interest Rate” has the meaning set forth in Section 8.2. [“Joint Powers Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500 et seq.). “Joint Powers Agreement” means that certain Joint Powers Agreement dated August 12, 2012, as amended, under which Buyer is organized as a Joint Powers Authority in accordance with the Joint Powers Act.]3 “Law” means any applicable law, statute, rule, regulation, decision, writ, order, decree or judgment, permit or any interpretation thereof, promulgated or issued by a Governmental Authority. “Lender” means, collectively, any Person (i) providing senior or subordinated construction, interim, back leverage or long-term debt, equity or tax equity financing or refinancing for or in connection with the development, construction, purchase, installation or operation of the Facility, whether that financing or refinancing takes the form of private debt, equity, public debt or any other form (including financing or refinancing provided to a member or other direct or indirect owner of Seller), including any equity or tax equity investor directly or indirectly providing financing or refinancing for the Facility or purchasing equity ownership interests of Seller and/or its Affiliates, and any trustee or agent acting on their behalf, (ii) providing interest rate or commodity protection under an agreement hedging or otherwise mitigating the cost of any of the foregoing obligations and/or (iii) participating in a lease financing (including a sale leaseback or leveraged leasing structure) with respect to the Facility. “Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least A- with an outlook designation of “stable” from S&P or A3 with an outlook designation of “stable” from Moody’s, in a form substantially similar to the letter of credit set forth in Exhibit K. 3 For California Choice Energy Authority only. 3.A.5.a Packet Pg. 43 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 11 “Local Capacity Area Resources” has the meaning set forth in the CAISO Tariff. “Locational Marginal Price” or “LMP” has the meaning set forth in CAISO Tariff. “Lockbox Account” has the meaning set forth in the Security Agreement. “Losses” means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of this Agreement for the remaining Contract Term, determined in a commercially reasonable manner. Factors used in determining economic loss to a Party may include, without limitation, reference to information supplied by one or more third parties, which shall exclude Affiliates of the Non-Defaulting Party, including without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets, comparable transactions, forward price curves based on economic analysis of the relevant markets, settlement prices for comparable transactions at liquid trading hubs (e.g., NYMEX), all of which should be calculated for the remaining Contract Term and must include the value of Green Attributes, Capacity Attributes, and Renewable Energy Incentives. “Lost Output” has the meaning set forth in Exhibit F. “Market Curtailment Period” means the period of time, as measured using current Settlement Intervals, during which Seller reduces generation from the Facility during a Settlement Period or Settlement Interval in which there is a Negative LMP. “Master File” has the meaning set forth in the CAISO Tariff. [“Member” means City of San Jacinto “Member Lockbox Arrangement” has the meaning set forth in Section 8.11. “Member Performance Security” means cash or Letter of Credit in a commercially reasonable amount, as agreed by the Parties.]4 [Note: credit provisions under review] “Metered Energy” means Buyer’s Share of Energy generated by the Facility expressed in MWh, as recorded by the CAISO Approved Meters and net of all Electrical Losses and Station Use. “Milestones” means the development activities for significant permitting, interconnection, financing and construction milestones set forth in the Cover Sheet. “Moody’s” means Moody’s Investors Service, Inc., or its successor. “MW” means megawatts measured in alternating current. “MWh” means megawatt-hour measured in alternating current. 4 SJ only. 3.A.5.a Packet Pg. 44 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 12 “Negative LMP” means, in any Settlement Period or Settlement Interval, whether in the Day-Ahead Market or Real-Time Market, the LMP is equal to or less than zero dollars per MWh ($0/MWh). “Net Qualifying Capacity” or “NQC” has the meaning set forth in the CAISO Tariff. “Network Upgrades” has the meaning set forth in CAISO Tariff. “Non-Defaulting Party” has the meaning set forth in Section 11.2. “Notice” shall, unless otherwise specified in the Agreement, mean written communications by a Party to be delivered by hand delivery, United States mail, overnight courier service, facsimile or electronic messaging (e-mail). “Participating Transmission Owner” or “PTO” means an entity that owns, operates and maintains transmission or distribution lines and associated facilities and/or has entitlements to use certain transmission or distribution lines and associated facilities where the Facility is interconnected. For purposes of this Agreement, the Participating Transmission Owner is Southern California Edison Company (“SCE”). “Party” has the meaning set forth in the Preamble. “Performance Measurement Period” has the meaning set forth in Section 4.7. “Performance Security” “Permitted Transferee” means an entity that has, or is controlled by another Person that has, all of the following: (a) A tangible net worth of not less than or a Credit Rating of at least BBB- from S&P, BBB- from Fitch, or Baa3 from Moody’s; and (b) At least two (2) years of experience in the ownership and operations of power generation facilities similar to the Facility, or has retained a third-party with such experience to operate the Facility. “Person” means any individual, sole proprietorship, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, incorporated organization, institution, public benefit corporation, unincorporated organization, government entity or other entity. “PNode” has the meaning set forth in the CAISO Tariff. “Portfolio Content Category” means PCC1, PCC2 or PCC3, as applicable. “Portfolio Content Category 1” or “PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource 3.A.5.a Packet Pg. 45 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 13 consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(1), as may be amended from time to time or as further defined or supplemented by Law. “Portfolio Content Category 2” or “PCC2” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(2), as may be amended from time to time or as further defined or supplemented by Law. “Portfolio Content Category 3” or “PCC3” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in California Public Utilities Code Section 399.16(b)(3), as may be amended from time to time or as further defined or supplemented by Law. “Product” means (i) Metered Energy, (ii) Green Attributes corresponding to the Metered Energy, and (iii) Buyer’s Share of Capacity Attributes. “Production Tax Credit” or “PTC” means the production tax credit for wind-powered electric generating facilities described in Section 45 of the Internal Revenue Code of 1986, as it may be amended or supplemented from time to time. “Progress Report” means a progress report including the items set forth in Exhibit G. “Prudent Operating Practice” means the practices, methods and standards of professional care, skill and diligence engaged in or approved by a significant portion of the electric power industry for facilities of similar size, type, and design, that, in the exercise of reasonable judgment, in light of the facts known at the time, would have been expected to accomplish results consistent with Law, reliability, safety, environmental protection, applicable codes, and standards of economy and expedition. Prudent Operating Practices are not necessarily defined as the optimal standard practice method or act to the exclusion of others, but rather refer to a range of actions reasonable under the circumstances. “Qualified Assignee” means any Person that has (or will contract with a Person that has) competent experience in the operation and maintenance of similar electrical generation systems and is financially capable of performing Seller’s obligations (considering such Person’s own financial wherewithal and that of such Person’s credit support) under this Agreement. “Qualifying Capacity” has the meaning set forth in the CAISO Tariff. “RA Deficiency Amount” means the liquidated damages payment that Seller shall pay to Buyer for an applicable RA Shortfall Month as calculated in accordance with Section 3.9(b) “RA Guarantee Date” 3.A.5.a Packet Pg. 46 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 14 “RA Shortfall Month” means the applicable calendar month within the RA Shortfall Period for purposes of calculating an RA Deficiency Amount under Section 3.9(b). “RA Shortfall Period” means the period of consecutive calendar months that starts with the calendar month in which the RA Guarantee Date occurs and concludes on the earlier of (i) the second calendar month following the calendar month in which the Effective FCDS Date occurs and (ii) the end of the Delivery Term. “RA Showing” means the Resource Adequacy Requirements compliance or advisory showings (or similar or successor showings) that Buyer is required to make to the CPUC (and, to the extent authorized by the CPUC, to CAISO), pursuant to the Resource Adequacy Rulings, to CAISO pursuant to the CAISO Tariff, or to any Governmental Authority having jurisdiction. “Real-Time Market” has the meaning set forth in the CAISO Tariff. “Remedial Action Plan” has the meaning in Section 2.4. “Renewable Energy Credit” has the meaning set forth in California Public Utilities Code Section 399.12(h), as may be amended from time to time or as further defined or supplemented by Law. “Renewable Energy Incentives” means: (a) all federal, state, or local Tax credits or other Tax benefits associated with the construction, ownership, or production of electricity from the Facility (including credits under Sections 38, 45, 46 and 48 of the Internal Revenue Code of 1986, as amended); (b) any federal, state, or local grants, subsidies or other like benefits relating in any way to the Facility, including a cash grant available under Section 1603 of Division B of the American Recovery and Reinvestment Act of 2009, in lieu of federal Tax credits or any similar or substitute payment available under subsequently enacted federal legislation; and (c) any other form of incentive relating in any way to the Facility that are not a Green Attribute or a Future Environmental Attribute. “Replacement RA” means Resource Adequacy Benefits, if any, equivalent to those that would have been provided by the Facility with respect to the applicable month in which a RA Deficiency Amount is due to Buyer, and located within the SP 15 EZ Gen Hub and, to the extent that the Facility would have qualified as a Local Capacity Area Resource for such month, described as a Local Capacity Area Resource. “Resource Adequacy Benefits” means the rights and privileges attached to the Facility that satisfy any entity’s resource adequacy obligations, as those obligations are set forth in CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-06-064, 06-07-031 and any subsequent CPUC ruling or decision and shall include any local, zonal or otherwise locational attributes associated with the Facility. “Resource Adequacy Requirements” or “RAR” means the resource adequacy requirements applicable to Buyer pursuant to the Resource Adequacy Rulings, CAISO pursuant to the CAISO Tariff, or by any other Governmental Authority having jurisdiction. 3.A.5.a Packet Pg. 47 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 15 “Resource Adequacy Rulings” means CPUC Decisions 04-01-050, 04-10-035, 05-10-042, 06-04-040, 06-06-064, 06-07-031 06-07-031, 07-06-029, 08-06-031, 09-06-028, 10-06-036, 11-06-022, 12-06-025, 13-06-024 and any other existing or subsequent ruling or decision, or any other resource adequacy laws, rules or regulations enacted, adopted or promulgated by any applicable Governmental Authority, however described, as such decisions, rulings, laws, rules or regulations may be amended or modified from time-to-time throughout the Delivery Term. “S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.) or its successor. “Schedule” means the actions of Seller, Buyer and/or their designated representatives, or Scheduling Coordinators, including each Party’s Transmission Providers, if applicable, of notifying, requesting and confirming to each other and the CAISO the quantity and type of Product to be delivered on any given day or days at a specified Delivery Point. “Scheduling Infrastructure and Business Rules” or “SIBR” has the meaning set forth in the CAISO Tariff. “Scheduled Energy” means Buyer’s Share of the Energy scheduled by Seller that clears the applicable CAISO market. “Scheduling Coordinator” or “SC” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO Tariff, as amended from time to time. “Security Agreement” means the Security Agreement, dated as of [SJ: January 22, 2018][ between Member and Collateral Agent, as collateral agent for the benefit of the Secured Creditors, or any successor agreement generally available to Member’s creditors.6 [Note: credit provisions under review] “Self-Schedule” has the meaning set forth in the CAISO Tariff. “Seller” has the meaning set forth on the Cover Sheet. “Seller’s Security Interest” has the meaning set forth in Section 8.12. “Seller’s WREGIS Account” has the meaning set forth in Section 4.8(a). “Settlement Amount” means the Non-Defaulting Party’s Costs and Losses, on the one hand, netted against its Gains, on the other. If the Non-Defaulting Party’s Costs and Losses exceed its Gains, then the Settlement Amount shall be an amount owing to the Non-Defaulting Party. If 5 6 For SJ . 3.A.5.a Packet Pg. 48 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 16 the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount shall be zero dollars ($0). The Settlement Amount does not include consequential, incidental, punitive, exemplary or indirect or business interruption damages. “Settlement Interval” has the meaning set forth in the CAISO Tariff. “Settlement Period” has the meaning set forth in the CAISO Tariff, which as of the Effective Date is the period beginning at the start of the hour and ending at the end of the hour. “Settlement Point” means [INSERT APPLICABLE PNODE AT WINDHUB]. “Site” means the real property on which the Facility is or will be located, as further described in Exhibit A, and as shall be updated by Seller at the time Seller provides an executed Construction Start Date Certificate to Buyer, in substantially the form of the Form of Construction Start Date Certificate in Exhibit J. “Site Control” means that, for the Contract Term, Seller (or, prior to the Delivery Term, its Affiliate): (a) owns or has the option to purchase the Site; (b) is the lessee or has the option to lease the Site; or (c) is the holder of an easement or an option for an easement, right-of-way grant, or similar instrument with respect to the Site. “Station Use” means: (a) The Energy produced by the Facility that is used within the Facility to power the lights, motors, control systems and other electrical loads that are necessary for operation of the Facility; and (b) The Energy produced by the Facility that is consumed within the Facility’s electric energy distribution system as losses. “System Emergency” means any condition that: (a) requires, as determined and declared by CAISO or the PTO, automatic or immediate action to (i) prevent or limit harm to or loss of life or property, (ii) prevent loss of transmission facilities or generation supply in the immediate vicinity of the Facility, or (iii) to preserve Transmission System reliability, and (b) directly affects the ability of any Party to perform under any term or condition in this Agreement, in whole or in part. “Tax” or “Taxes” means all U.S. federal, state and local and any foreign taxes, levies, assessments, surcharges, duties and other fees and charges of any nature imposed by a Governmental Authority, whether currently in effect or adopted during the Contract Term, including ad valorem, excise, franchise, gross receipts, import/export, license, property, sales and use, stamp, transfer, payroll, unemployment, income, and any and all items of withholding, deficiency, penalty, additions, interest or assessment related thereto. “Termination Payment” has the meaning set forth in Section 11.3. “Terminated Transaction” has the meaning set forth in Section 11.2. 3.A.5.a Packet Pg. 49 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 17 “Test Energy” means the Metered Energy delivered (a) commencing on the later of (i) the first date that the CAISO informs Seller in writing that Seller may deliver Energy from the Facility to the CAISO and (ii) the first date that the PTO informs Seller in writing that Seller has conditional or temporary permission to parallel and (b) ending upon the occurrence of the Commercial Operation Date. “Transmission Provider” means any entity or entities transmitting or transporting the Product on behalf of Seller or Buyer to or from the Delivery Points. “Transmission System” means the transmission facilities operated by the CAISO, now or hereafter in existence, which provide energy transmission service downstream from the Delivery Points. “Ultimate Parent” means Terra-Gen, LLC, which as of the Effective Date directly or indirectly owns more than fifty percent (50%) of the outstanding equity interests in Seller. “Variable Energy Resource” or “VER” has the meaning set forth in the CAISO Tariff. “WECC” means the Western Electricity Coordinating Council or its successor. “WREGIS” means the Western Renewable Energy Generation Information System or any successor renewable energy tracking program. “WREGIS Certificate Deficit” has the meaning set forth in Section 4.8(e). “WREGIS Certificates” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules and are designated as eligible for complying with the California Renewables Portfolio Standard. “WREGIS Operating Rules” means those operating rules and requirements adopted by WREGIS as of December 2010, as subsequently amended, supplemented or replaced (in whole or in part) from time to time. 1.2 Rules of Interpretation. In this Agreement, except as expressly stated otherwise or unless the context otherwise requires: (a) headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement; (b) words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders; (c) the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified; 3.A.5.a Packet Pg. 50 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 18 (e) a reference to a document or agreement, including this Agreement shall mean such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement; (f) a reference to a Person includes that Person’s successors and permitted assigns; (g) the term “including” means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the word or provision in respect of which such examples are provided; (h) references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; (i) in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term; (j) references to any amount of money shall mean a reference to the amount in United States Dollars; (k) the expression “and/or” when used as a conjunction shall connote “any or all of”; (l) words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and (m) each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. ARTICLE 2 TERM; CONDITIONS PRECEDENT 2.1 Contract Term. (a) The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until the conclusion of the Delivery Term, subject to any early termination provisions and any contract term extension provisions set forth herein (“Contract Term”). 3.A.5.a Packet Pg. 51 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 19 (b) Applicable provisions of this Agreement shall continue in effect after termination, including early termination, to the extent necessary to enforce or complete the duties, obligations or responsibilities of the Parties arising prior to termination. The confidentiality obligations of the Parties under Article 19 shall remain in full force and effect for two (2) years following the termination of this Agreement, and all indemnity and audit rights shall remain in full force and effect for one (1) year following the termination of this Agreement. 2.2 Conditions Precedent. The Delivery Term shall not commence until Seller completes to Buyer’s reasonable satisfaction each of the following conditions: (a) Seller shall have delivered to Buyer a completion certificate from a licensed professional engineer substantially in the form of Exhibit I-1; (b) A Participating Generator Agreement and a Meter Service Agreement between Seller and CAISO shall have been executed and delivered and be in full force and effect, and a copy of each such agreement delivered to Buyer; (c) Interconnection Agreements between Seller or its Affiliates and the PTO for the Facility shall have been executed and delivered and be in full force and effect and a copy of the Interconnection Agreements delivered to Buyer; (d) All applicable regulatory authorizations, approvals and permits for the operation of the Facility have been obtained and all conditions thereof have been satisfied and shall be in full force and effect; (e) Seller has received the requisite pre-certification of the CEC Certification and Verification; (f) Seller (with the reasonable participation of Buyer) shall have completed all applicable WREGIS registration requirements, including the completion and submittal of all applicable registration forms and supporting documentation, which may include applicable interconnection agreements, informational surveys related to the Facility, QRE service agreements, and other appropriate documentation required to effect Facility registration with WREGIS and to enable Renewable Energy Credit transfers related to the Facility within the WREGIS system or have completed any other requirements relating to the Facility and required prior to the Commercial Operation Date to enable Buyer to fulfill its RPS requirements; (g) Seller has delivered and maintained the Development Security with Buyer, if Seller elects to maintain its Development Security with Buyer in order to satisfy its Performance Security requirements hereunder; provided, that Seller may, instead of maintaining the Development Security, provide a form of Performance Security which differs from the form of Development Security up to and no later than ten (10) days following the Commercial Operation Date; and (h) Seller has paid Buyer for all Daily Delay Damages and Commercial Operation Delay Damages owing under this Agreement, if any. 3.A.5.a Packet Pg. 52 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 20 2.3 Progress Reports. The Parties agree time is of the essence in regard to the Agreement. Within fifteen (15) days after the close of (i) each calendar quarter from the first calendar quarter following the Effective Date until the Construction Start Date, and (ii) each calendar month from the first calendar month following the Construction Start Date until the Commercial Operation Date, Seller shall provide to Buyer a Progress Report and agree to regularly scheduled meetings between representatives of Buyer and Seller to review such monthly reports and discuss Seller’s construction progress. The form of the Progress Report is set forth in Exhibit G. Seller shall also provide Buyer with any reasonable requested documentation (subject to confidentiality restrictions) directly related to the achievement of Milestones within ten (10) Business Days of receipt of such request by Seller. 2.4 Remedial Action Plan. If Seller misses three (3) or more Milestones, or misses any one (1) by more than ninety (90) days, except to the extent due to Force Majeure or Buyer Default, Seller shall submit to Buyer, within ten (10) Business Days of such missed Milestone completion date (or the ninetieth (90th) day after the missed Milestone completion date, as applicable), a remedial action plan (“Remedial Action Plan”), which will describe in detail any delays (actual or anticipated) beyond the scheduled Milestone dates, including the cause of the delay (e.g., governmental approvals, financing, property acquisition, design activities, equipment procurement, project construction, interconnection, or any other factor), Seller’s detailed description of its proposed course of action to achieve the missed Milestones and all subsequent Milestones by the Guaranteed Commercial Operation Date; provided, that delivery of any Remedial Action Plan shall not relieve Seller of its obligation to provide Remedial Action Plans with respect to any subsequent Milestones and to achieve the Guaranteed Commercial Operation Date in accordance with the terms of this Agreement. If the missed Milestone(s) is not the Guaranteed Construction Start Date or the Guaranteed Commercial Operation Date, and so long as Seller complies with its obligations under this Section 2.4, then Seller shall not be considered in default of its obligations under this Agreement as a result of missing such Milestone(s). ARTICLE 3 PURCHASE AND SALE 3.1 Sale of Product. Subject to the terms and conditions of this Agreement, during the Delivery Term Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller at the applicable prices identified in Section 3.3, all of the Product produced by or associated with the Facility. At its sole discretion, Buyer may during the Delivery Term re-sell or use for another purpose all or a portion of the Product, provided that such resale or use for another purpose will not relieve Buyer of any of its obligations under this Agreement. Subject to Sections 3.3 and 4.1, Buyer has no obligation to purchase from Seller any Product that is not or cannot be delivered to a Delivery Point as a result of any circumstance, including, an outage of the Facility, a Force Majeure Event, Negative LMPs, or a Curtailment Order. 3.2 Sale of Green Attributes. During the Delivery Term, Seller shall sell and deliver to Buyer, and Buyer shall purchase and receive from Seller, all of the Green Attributes, attributable to the Metered Energy produced by the Facility. 3.A.5.a Packet Pg. 53 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 21 3.3 Compensation. (a) During the Delivery Term, Buyer shall pay Seller the following amounts for each MWh of Metered Energy during a Contract Year of the amount of Expected Energy for such Contract Year: (i) (ii) Intentionally omitted. (b) During the Delivery Term, Buyer shall pay Seller the following amounts for each MWh of Metered Energy (i) For each MWh of Metered Energy in each Settlement Interval, zero dollars per MWh ($0/MWh); and (ii) Intentionally omitted. (c) If during any Settlement Interval, Seller generates Product amounts in excess of Buyer’s Share of the Installed Capacity, then the price applicable to all such excess MWh in such Settlement Interval shall be zero dollars per MWh ($0/MWh). (d) During the Delivery Term, Seller shall receive no compensation from Buyer for Curtailed Energy or Metered Energy that is delivered in violation of a Curtailment Order. 3.4 Imbalance Energy. Seller shall use commercially reasonable efforts to deliver the Scheduled Energy. Buyer and Seller recognize that in any given Settlement Period the amount of Metered Energy may deviate from the amount of Scheduled Energy and that to the extent there are such deviations, and costs or revenues from such imbalances shall be solely for the account of Seller. 3.5 Ownership of Renewable Energy Incentives. Seller shall have all right, title and interest in and to all Renewable Energy Incentives. Buyer acknowledges that any Renewable Energy Incentives belong to Seller. If any Renewable Energy Incentives, or values representing the same, are initially credited or paid to Buyer, Buyer shall cause such Renewable Energy Incentives or values relating to same to be assigned or transferred to Seller without delay. Buyer shall reasonably cooperate with Seller, at Seller’s sole expense, in Seller’s efforts to meet the requirements for any certification, registration, or reporting program relating to Renewable Energy Incentives. 3.A.5.a Packet Pg. 54 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 22 3.6 Future Environmental Attributes. (a) The Parties acknowledge and agree that as of the Effective Date, environmental attributes sold under this Agreement are restricted to Green Attributes associated with Metered Energy; however, Future Environmental Attributes may be created by a Governmental Authority through Laws enacted after the Effective Date. Subject to the final sentence of this Section 3.6(a), in such event, Buyer shall bear all costs associated with the transfer, qualification, verification, registration and ongoing compliance for Buyer’s Share of such Future Environmental Attributes, but there shall be no increase in the Contract Price. Upon Seller’s receipt of Notice from Buyer of Buyer’s intent to claim Buyer’s Share of such Future Environmental Attributes, the Parties shall determine the necessary actions and additional costs associated with such Future Environmental Attributes. Seller shall have no obligation to alter the Facility or the operation of the Facility unless the Parties have agreed on all necessary terms and conditions relating to such alteration or change in operation and Buyer has agreed to reimburse Seller for all costs associated with such alteration or change in operation. (b) If Buyer elects to receive Buyer’s Share of Future Environmental Attributes pursuant to Section 3.6(a), the Parties agree to negotiate in good faith with respect to the development of further agreements and documentation necessary to effectuate the transfer of such Future Environmental Attributes, including agreement with respect to (i) appropriate transfer, delivery and risk of loss mechanisms, and (ii) appropriate allocation of any additional costs, as set forth above; provided, that the Parties acknowledge and agree that such terms are not intended to alter the other material terms of this Agreement. 3.7 Test Energy. Prior to the Commercial Operation Date, Buyer will have no obligation to purchase and Seller will have the right to sell all or any portion of the Product, including any Test Energy, to one or more third parties and retain all resulting revenue. 3.8 Capacity Attributes. Seller shall request Full Capacity Deliverability Status in the CAISO generator interconnection process. Seller shall be responsible for the cost and installation of any Network Upgrades associated with obtaining such Full Capacity Deliverability Status. (a) Throughout the Delivery Term, subject to Section 3.13, Seller grants, pledges, assigns and otherwise commits to Buyer all of Buyer’s Share of the Capacity Attributes from the Facility. (b) Throughout the Delivery Term, Seller shall use commercially reasonable efforts to maintain eligibility for Full Capacity Deliverability Status or Interim Deliverability Status for the Facility from the CAISO and shall perform all actions necessary to ensure that the Facility qualifies to provide Resource Adequacy Benefits to Seller. (c) Throughout the Delivery Term, Seller hereby covenants and agrees to transfer all Buyer’s Share of Resource Adequacy Benefits to Buyer. (d) For the duration of the Delivery Term, Seller shall take all commercially reasonable actions, including complying with all applicable registration and reporting requirements, and execute any and all documents or instruments necessary to enable Buyer to use all of the Capacity Attributes committed by Seller to Buyer pursuant to this Agreement. 3.A.5.a Packet Pg. 55 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 23 3.9 Resource Adequacy Failure. (a) RA Deficiency Determination. Notwithstanding Seller’s obligations set forth in Section 4.3 or anything to the contrary herein, the Parties acknowledge and agree that if Seller is unable to obtain the deliverability type selected on the Cover Sheet by the RA Guarantee Date, then Seller shall pay to Buyer the RA Deficiency Amount for each RA Shortfall Month as liquidated damages due to Buyer for the Capacity Attributes that Seller failed to convey to Buyer. (b) RA Deficiency Amount Calculation. Commencing on the Commercial Operation Date, for each RA Shortfall Month, Seller shall pay to Buyer an amount (the “RA Deficiency Amount”) equal to the product of (i) the difference, expressed in kW, of the Qualifying Capacity of the Facility for such month, minus the Net Qualifying Capacity of the Facility for such month, provided that Seller may, as an alternative to paying RA Deficiency Amounts, provide Replacement RA in the amount of (X) the Qualifying Capacity of the Facility with respect to such month, minus (Y) the Net Qualifying Capacity of the Facility with respect to such month, provided that any Replacement RA capacity is communicated by Seller to Buyer with Replacement RA product information in a written notice substantially in the form of Exhibit L at least 50 Business Days before the applicable CPUC operating month for the purpose of monthly RA reporting. 3.10 CEC Certification and Verification. Subject to Section 3.13, Seller shall take all necessary steps including, but not limited to, making or supporting timely filings with the CEC to obtain and maintain CEC Certification and Verification for the Facility throughout the Delivery Term, including compliance with all applicable requirements for certified facilities set forth in the RPS Eligibility Guidebook, Ninth Edition (or its successor). Seller must promptly notify Buyer and the CEC of any changes to the information included in Seller’s application for CEC Certification and Verification for the Facility. 3.11 Eligibility. Seller, and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement that: (i) the Facility qualifies and is certified by the CEC as an Eligible Renewable Energy Resource as such term is defined in Public Utilities Code Section 399.12 or Section 399.16; and (ii) the Facility’s output delivered to Buyer qualifies under the requirements of the California Renewables Portfolio Standard. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially reasonable efforts to comply with such change in law. The term “commercially reasonable efforts” as used in this Section 3.11 means efforts consistent with and subject to Section 3.13. 3.12 California Renewables Portfolio Standard. Seller and, if applicable, its successors, represents and warrants that throughout the Delivery Term of this Agreement the renewable energy credits transferred to Buyer conform to the definition and attributes required for compliance with the California Renewables Portfolio Standard, as set forth in California Public Utilities Commission Decision 08-08-028, and as may be modified by subsequent decision of the California Public Utilities Commission or by subsequent legislation. To the extent a change in law occurs after execution of this Agreement that causes this representation and warranty to be materially false or misleading, it shall not be an Event of Default if Seller has used commercially 3.A.5.a Packet Pg. 56 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 24 reasonable efforts to comply with such change in law. Subject to Section 3.13, Seller shall also take all other actions necessary to ensure that the Energy produced from the Facility is tracked for purposes of satisfying the California Renewables Portfolio Standard requirements, as may be amended or supplemented by the CPUC or CEC from time to time. 3.13 Compliance Expenditure Cap. If Seller establishes to Buyer’s reasonable satisfaction that a change in Laws occurring after the Effective Date has increased Seller’s cost above the cost that could reasonably have been contemplated as of the Effective Date to take all actions to comply with Seller’s obligations under the Agreement with respect to obtaining, maintaining, conveying or effectuating Buyer’s use of (as applicable), the items listed in Sections 3.13(a), (b) and (c), then the Parties agree that the maximum amount of costs and expenses Seller shall be required to bear during the Delivery Term shall be capped at (“Compliance Expenditure Cap”): (a) CEC Certification and Verification; (b) Green Attributes; and (c) Capacity Attributes. Any actions required for Seller to comply with its obligations set forth in the first paragraph above, the cost of which will be included in the Compliance Expenditure Cap, shall be referred to collectively as the “Compliance Actions.” If Seller reasonably anticipates the need to incur out-of-pocket expenses in excess of the Compliance Expenditure Cap in order to take any Compliance Action Seller shall provide Notice to Buyer of such anticipated out-of-pocket expenses. Buyer will have sixty (60) days to evaluate such Notice (during which time period Seller is not obligated to take any Compliance Actions described in the Notice) and shall, within such time, either (1) agree to reimburse Seller for all or some portion of the costs that exceed the Compliance Expenditure Cap (such Buyer-agreed upon costs, the “Accepted Compliance Costs”), or (2) waive Seller’s obligation to take such Compliance Actions, or any part thereof for which Buyer has not agreed to reimburse Seller. If Buyer does not respond to a Notice given by Seller under this Section 3.13 within sixty (60) days after Buyer’s receipt of same, Buyer shall be deemed to have waived its rights to require Seller to take the Compliance Actions that are the subject of the Notice, and Seller shall have no further obligation to take, and no liability for any failure to take, these Compliance Actions for the remainder of the Term. If Buyer agrees to reimburse Seller for the Accepted Compliance Costs, then Seller shall take such Compliance Actions covered by the Accepted Compliance Costs as agreed upon by the Parties and Buyer shall reimburse Seller for Seller’s actual costs to effect the Compliance Actions, not to exceed the Accepted Compliance Costs, within sixty (60) days from the time that Buyer receives an invoice and documentation of such costs from Seller. 3.A.5.a Packet Pg. 57 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 25 ARTICLE 4 OBLIGATIONS AND DELIVERIES 4.1 Delivery. (a) Energy. The Energy generated by the Facility shall be scheduled with the CAISO by Seller (or Seller’s designated Scheduling Coordinator). (b) Green Attributes. Seller hereby provides and conveys all Green Attributes associated with the Metered Energy as part of the Product being delivered. Seller represents and warrants that Seller holds the rights to Buyer’s Share of all Green Attributes from the Facility, and Seller agrees to convey and hereby conveys Buyer’s Share of all such Green Attributes to Buyer as included in the delivery of the Product from the Facility. 4.2 Title and Risk of Loss. (a) Energy. Title to and risk of loss related to the Metered Energy shall pass and transfer from Seller to Buyer at the Delivery Points. (b) Green Attributes. Title to and risk of loss related to the Green Attributes associated with the Metered Energy shall pass and transfer from Seller to Buyer upon the transfer of such Green Attributes in accordance with WREGIS. 4.3 Scheduling Coordinator Responsibilities. (a) Seller to be Scheduling Coordinator. During the Delivery Term Seller shall be its own Scheduling Coordinator or designate a qualified third party to provide Scheduling Coordinator services with the CAISO to Schedule and deliver the Product to the Delivery Points. Each Party shall perform all scheduling and transmission activities in compliance with (i) the CAISO Tariff, (ii) WECC scheduling practices, and (iii) Prudent Operating Practice. The Parties agree to communicate and cooperate as necessary in order to address any scheduling or settlement issues as they may arise, and to work together in good faith to resolve them in a manner consistent with the terms of the Agreement. (b) CAISO Market Participation. During the Delivery Term Seller, as the party responsible for all Scheduling Coordinator activities and Imbalance Energy risk with respect to the Facility, shall have the right, but not the obligation, at Seller’s sole discretion to submit Economic Bids or Self-Schedules into the Day-Ahead Market or the Real-Time Market based on the VER forecast, its equivalent or any successor, provided by the CAISO; or other forecast as developed by Seller, so long as such Day-Ahead Market or Real-Time Market participation is conducted in accordance with this Agreement and the CAISO Tariff, including any requirements to remain in the VER program, its equivalent or any successor. (c) CAISO Costs and Revenues. Seller shall be responsible for all CAISO Costs and shall be entitled to all CAISO Revenues (including credits and other payments) as the Scheduling Coordinator for the Facility; provided, that, any net costs or charges assessed by the CAISO which are due to a Buyer Default shall be Buyer’s responsibility. The Parties agree that any Availability Incentive Payments are for the benefit of the Seller and for Seller’s account and 3.A.5.a Packet Pg. 58 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 26 that any Non-Availability Charges or other CAISO charges associated with the Facility not providing sufficient Resource Adequacy capacity are the responsibility of the Seller and for Seller’s account. In addition, if during the Delivery Term the CAISO implements or has implemented any sanction or penalty related to scheduling, outage reporting, or generator operation, the cost of such sanctions or penalties arising from the scheduling, outage reporting, or generator operation of the Facility shall be the Seller’s responsibility. (d) Future Changes to Scheduling Protocols. During the Delivery Term, the Parties agree to discuss in good faith requested changes by either Party to the CAISO scheduling procedures set forth in this Agreement, including the possibility of incorporating Inter-SC Trades in the Day-Ahead Market. 4.4 Forecasting. Seller shall provide the Available Capacity forecasts described below. Seller’s Available Capacity forecasts shall include availability for the Facility. Seller shall use commercially reasonable efforts to forecast the Available Capacity of the Facility accurately and to transmit such information in a format reasonably acceptable to Buyer (or Buyer’s designee). (a) Annual Forecast of Available Capacity. No less than forty-five (45) days before (i) the first day of the first Contract Year of the Delivery Term and (ii) the beginning of each calendar year for every subsequent Contract Year during the Delivery Term, Seller shall provide a non-binding forecast of each month’s average-day expected Metered Energy, by hour, for the following calendar year in a form reasonably acceptable to Buyer. (b) Monthly Forecast of Available Capacity. No less than thirty (30) days before the beginning of Commercial Operation, and thereafter ten (10) Business Days before the beginning of each month during the Delivery Term, Seller shall provide to Buyer and Buyer’s designee (if applicable) a non-binding forecast of the hourly Available Capacity for each day of the following month in a form reasonably acceptable to Buyer. 4.5 Reserved. 4.6 Reduction in Delivery Obligation. For the avoidance of doubt, and in no way limiting Section 3.1 or Exhibit F: (a) Facility Maintenance. Seller shall be permitted to reduce deliveries of Product during any period of scheduled maintenance on the Facility previously agreed to between Buyer and Seller. (b) Forced Facility Outage. Seller shall be permitted to reduce deliveries of Product during any Forced Facility Outage. Seller shall provide Buyer with Notice and expected duration (if known) of any Forced Facility Outage. (c) System Emergencies and other Interconnection Events. Seller shall be permitted to reduce deliveries of Product during any period of System Emergency, or upon Notice of a Curtailment Order, or pursuant to the terms of this Agreement, the Interconnection Agreements or applicable tariff. 3.A.5.a Packet Pg. 59 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 27 (d) Force Majeure Event. Seller shall be permitted to reduce deliveries of Product during any Force Majeure Event. (e) Buyer Default. Seller shall be permitted to reduce deliveries of Product during any period in which there is a Buyer Default. (f) Negative LMP. Seller shall be permitted, but not obligated, in its sole discretion to reduce deliveries of Product during any period in which there is a Negative LMP. (g) Health and Safety. Seller shall be permitted to reduce deliveries of Product as necessary to maintain health and safety pursuant to Section 6.2. 4.7 Expected Energy and Guaranteed Energy Production. The quantity of Energy (with associated Product) that Seller expects to be able to deliver to Buyer during each Contract Year is set forth on the Cover Sheet (“Expected Energy”). During the Delivery Term, Seller shall be required to deliver to Buyer no less than the Guaranteed Energy Production (as defined below) in any period of two (2) consecutive Contract Years during the Delivery Term (“Performance Measurement Period”). “Guaranteed Energy Production” means an amount of Product, as measured in MWh, equal to one-hundred fifty percent (150%) of the Expected Energy. Seller shall be excused from achieving the Guaranteed Energy Production during any Performance Measurement Period only to the extent of any Force Majeure Events, Buyer’s failure to perform, Market Curtailment Periods, and Curtailment Orders. For purposes of determining whether Seller has achieved the Guaranteed Energy Production, Seller shall be deemed to have delivered to Buyer the Product in the amount equal to the sum of: (a) Adjusted Energy Production during such Performance Measurement Period; plus (b) the amount of Energy during such Performance Measurement Period with respect to which Seller has already paid liquidated damages in accordance with Exhibit F. If Seller fails to achieve the Guaranteed Energy Production amount in any Performance Measurement Period, Seller shall pay Buyer damages calculated in accordance with Exhibit F; provided that Seller may, as an alternative, provide Replacement Product (as defined in Exhibit F) delivered to the PNode corresponding the electric generating facility producing such Replacement Product within ninety (90) days after the conclusion of the applicable Performance Measurement Period, provided that such deliveries do not impose additional costs upon Buyer. On a day ahead basis, Seller shall provide a notice via e-mail to Buyer at [INSERT EMAIL] (or such other Buyer email address as Buyer may provide to Seller from time to time) identifying the electric generating facility(ies) that will provide Replacement Product for the following day and the volume of Replacement Product to be provided by each such facility, which may be expressed as a percentage of the applicable facility’s output. Buyer will pay Seller for all such Replacement Product provided pursuant to this Section 4.7 at the rates specified for Metered Energy in Section 3.3(a) [if delivered from the Facility, and if not delivered from the Facility, the price shall be , where (x) “Index” means the CAISO LMP applicable to the energy delivered by the electric generating facility providing the Replacement Product, and (y) Seller, or the Scheduling Coordinator for the electric generating facility providing the Replacement Product, will receive compensation directly from the CAISO for energy associated with the Replacement Product that is scheduled to the CAISO in real-time on Buyer’s behalf, and the Parties acknowledge and agree that Seller is entitled to retain all such CAISO compensation as full payment for the Index component of the price for Replacement Product delivered from an electric generating Facility other than the Facility]. [Note: Parties to discuss deliveries of Replacement 3.A.5.a Packet Pg. 60 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 28 Product from the Facility.] 4.8 WREGIS. Seller shall, at its sole expense, but subject to Section 3.13, take all actions and execute all documents or instruments necessary to ensure that all WREGIS Certificates associated with all Renewable Energy Credits corresponding to all Metered Energy are issued and tracked for purposes of satisfying the requirements of the California Renewables Portfolio Standard and transferred in a timely manner to Buyer for Buyer’s sole benefit. Seller shall transfer the Renewable Energy Credits to Buyer. Seller shall comply with all Laws, including the WREGIS Operating Rules, regarding the certification and transfer of such WREGIS Certificates to Buyer and Buyer shall be given sole title to all such WREGIS Certificates. Seller shall be deemed to have satisfied the warranty in Section 4.8(g), provided that Seller fulfills its obligations under Sections 4.8(a) through (g) below. In addition: (a) Prior to the Commercial Operation Date, Seller shall register the Facility with WREGIS and establish an account with WREGIS (“Seller’s WREGIS Account”), which Seller shall maintain until the end of the Delivery Term. Seller shall transfer the WREGIS Certificates using “Forward Certificate Transfers” (as described in the WREGIS Operating Rules) from Seller’s WREGIS Account to the WREGIS account(s) of Buyer or the account(s) of a designee that Buyer identifies by Notice to Seller (“Buyer’s WREGIS Account”). Seller shall be responsible for all expenses associated with registering the Facility with WREGIS, establishing and maintaining Seller’s WREGIS Account, paying WREGIS Certificate issuance and transfer fees, and transferring WREGIS Certificates from Seller’s WREGIS Account to Buyer’s WREGIS Account. (b) Seller shall cause Forward Certificate Transfers to occur on a monthly basis in accordance with the certification procedure established by the WREGIS Operating Rules. Since WREGIS Certificates will only be created for whole MWh amounts of Energy generated, any fractional MWh amounts (i.e., kWh) will be carried forward until sufficient generation is accumulated for the creation of a WREGIS Certificate. (c) Seller shall, at its sole expense, ensure that the WREGIS Certificates for a given calendar month correspond with the Metered Energy for such calendar month as evidenced by the Facility’s metered data. (d) Due to the ninety (90) day delay in the creation of WREGIS Certificates relative to the timing of invoice payment under Section 8.2, Buyer shall make an invoice payment for a given month in accordance with Section 8.2 before the WREGIS Certificates for such month are formally transferred to Buyer in accordance with the WREGIS Operating Rules and this Section 4.8. Notwithstanding this delay, Buyer shall have all right and title to all such WREGIS Certificates upon payment to Seller in accordance with Section 8.2. (e) A “WREGIS Certificate Deficit” means any deficit or shortfall in WREGIS Certificates delivered to Buyer for a calendar month as compared to the Metered Energy for the same calendar month (“Deficient Month”). If any WREGIS Certificate Deficit is caused, or the result of any action or inaction by Seller, then the amount of Metered Energy in the Deficient Month shall be reduced by three times the amount of the WREGIS Certificate Deficit for purposes of calculating Buyer’s payment to Seller under Article 8 and the Guaranteed Energy Production 3.A.5.a Packet Pg. 61 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 29 for the applicable Performance Measurement Period; provided, however, that such adjustment shall not apply to the extent that Seller provides Replacement Product (as defined in Exhibit F) delivered to SP 15 or NP 15 EZ Gen Hub within ninety (90) days of the Deficient Month (i) upon a schedule reasonably acceptable to Buyer and (ii) provided that such deliveries do not impose additional costs upon Buyer. Without limiting Seller’s obligations under this Section 4.8, if a WREGIS Certificate Deficit is caused solely by an error or omission of WREGIS, the Parties shall cooperate in good faith to cause WREGIS to correct its error or omission. (f) If WREGIS changes the WREGIS Operating Rules after the Effective Date or applies the WREGIS Operating Rules in a manner inconsistent with this Section 4.8 after the Effective Date, the Parties promptly shall modify this Section 4.8 as reasonably required to cause and enable Seller to transfer to Buyer’s WREGIS Account a quantity of WREGIS Certificates for each given calendar month that corresponds to the Metered Energy in the same calendar month. (g) Seller warrants that all necessary steps to allow the Renewable Energy Credits transferred to Buyer to be tracked in WREGIS will be taken prior to the first delivery under the contract. ARTICLE 5 TAXES 5.1 Allocation of Taxes and Charges. Seller shall pay or cause to be paid all Taxes on or with respect to the Facility or on or with respect to the sale and making available of Product to Buyer, that are imposed on Product prior to the Delivery Points. Buyer shall pay or cause to be paid all Taxes on or with respect to the delivery to and purchase by Buyer of Product that are imposed on Product at and from the Delivery Points (other than withholding or other Taxes imposed on Seller’s income, revenue, receipts or employees). If a Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party shall promptly pay the Taxes due and then seek and receive reimbursement from the other for such Taxes. In the event any sale of Product hereunder is exempt from or not subject to any particular Tax, Buyer shall provide Seller with all necessary documentation within thirty (30) days after the Effective Date to evidence such exemption or exclusion. If Buyer does not provide such documentation, then Buyer shall indemnify, defend, and hold Seller harmless from any liability with respect to Taxes from which Buyer claims it is exempt. 5.2 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and administer this Agreement in accordance with the intent of the Parties to minimize all Taxes, so long as no Party is materially adversely affected by such efforts. The Parties shall cooperate to minimize Tax exposure; provided, however, that neither Party shall be obligated to incur any financial or operational burden to reduce Taxes for which the other Party is responsible hereunder without receiving due compensation therefor from the other Party. All Energy delivered by Seller to Buyer hereunder shall be a sale made at wholesale, with Buyer reselling such Energy. 3.A.5.a Packet Pg. 62 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 30 ARTICLE 6 MAINTENANCE OF THE FACILITY 6.1 Maintenance of the Facility. Seller shall comply with Law and Prudent Operating Practice relating to the operation and maintenance of the Facility and the generation and sale of Product. 6.2 Maintenance of Health and Safety. Seller shall take reasonable safety precautions with respect to the operation, maintenance, repair and replacement of the Facility. If Seller becomes aware of any circumstances relating to the Facility that create an imminent risk of damage or injury to any Person or any Person’s property, Seller shall take prompt, reasonable action to prevent such damage or injury and shall give Buyer’s emergency contact identified on Exhibit D Notice of such condition. Such action may include disconnecting and removing all or a portion of the Facility, or suspending the supply of Energy to Buyer. 6.3 Shared Facilities. The Parties acknowledge and agree that certain of the Interconnection Facilities, and Seller’s rights and obligations under the Interconnection Agreements, may be subject to certain shared facilities and/or co-tenancy agreements to be entered into among Seller, the Participating Transmission Owner, Seller’s Affiliates, and/or third parties pursuant to which certain Interconnection Facilities may be subject to joint ownership and shared maintenance and operation arrangements; provided that such agreements (i) shall permit Seller to perform or satisfy, and shall not purport to limit, its obligations hereunder and (ii) provide for separate metering of the Facility. ARTICLE 7 METERING 7.1 Metering. Seller shall measure the amount of Metered Energy produced by the Facility using CAISO Approved Meters, using a CAISO-approved methodology. Subject to meeting any applicable CAISO requirements, such meters may be installed on the low voltage side or high voltage side of the Facility’s transformers and maintained at Seller’s cost. The meters shall be kept under seal, such seals to be broken only when the meters are to be tested, adjusted, modified or relocated. In the event that Seller breaks a seal, Seller shall notify Buyer as soon as practicable. In addition, Seller hereby agrees to provide all meter data to Buyer in a form reasonably acceptable to Buyer, and consents to Buyer obtaining from CAISO the CAISO meter data applicable to the Facility and all inspection, testing and calibration data and reports. Seller and Buyer, or Seller’s Scheduling Coordinator, shall cooperate to allow both Parties to retrieve the meter reads from the CAISO Operational Meter Analysis and Reporting (OMAR) web and/or directly from the CAISO meters at the Facility. 7.2 Meter Verification. Annually, if Seller has reason to believe there may be a meter malfunction, or upon Buyer’s reasonable request, Seller shall test the meters. The tests shall be conducted by independent third parties qualified to conduct such tests. Buyer shall be notified seven (7) days in advance of such tests and have a right to be present during such tests. If a meter is inaccurate it shall be promptly repaired or replaced. If a meter is inaccurate by more than one percent (1%) and it is not known when the meter inaccuracy commenced (if such evidence exists such date will be used to adjust prior invoices), then the invoices covering the period of time since 3.A.5.a Packet Pg. 63 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 31 the last meter test shall be adjusted for the amount of the inaccuracy on the assumption that the inaccuracy persisted during one-half of such period. ARTICLE 8 INVOICING AND PAYMENT; CREDIT 8.1 Invoicing. Seller shall deliver an invoice to Buyer for Product after each monthly billing period. Each invoice shall provide Buyer (a) records of metered data, CAISO metering and transaction data sufficient to document and verify the generation of Product by the Facility for any Settlement Interval during the preceding month, including the amount of Product in MWh delivered during the prior billing period as set forth in CAISO T+12 settlement statements, the amount of Product in MWh produced by the facility as read by the CAISO Approved Meters, deviations between the Scheduled Energy and the Metered Energy, and the applicable LMP prices at the Settlement Point for each Settlement Interval, the Contract Price applicable to such Product, the calculation of Deemed Delivered Energy, and the amount of Replacement Product or Replacement RA delivered during the preceding month; (b) access to any records, including invoices or settlement data from the CAISO, necessary to verify the accuracy of any amount; and (c) be in a format reasonably specified by Buyer, covering the services provided in the preceding month determined in accordance with the applicable provisions of this Agreement. 8.2 Payment. Buyer shall make payment to Seller for Product by wire transfer or ACH payment to the bank account provided on each monthly invoice. Buyer shall pay undisputed invoice amounts by the twenty-third (23rd) day of the month following the month in which the invoice was provided by Seller. If such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. Payments made after the due date will be considered late and will bear interest on the unpaid balance. If the amount due is not paid on or before the due date or if any other payment that is due and owing from one party to another is not paid on or before its applicable due date, a late payment charge shall be applied to the unpaid balance and shall be added to the next billing statement. Such late payment charge shall be calculated based on an annual Interest Rate equal to the prime rate published on the date of the invoice in The Wall Street Journal (or, if The Wall Street Journal is not published on that day, the next succeeding date of publication), plus two percent (2%) (the “Interest Rate”). If the due date occurs on a day that is not a Business Day, the late payment charge shall begin to accrue on the next succeeding Business Day. 8.3 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years or as otherwise required by Law. Either Party, upon fifteen (15) days written Notice to the other Party, shall be granted reasonable access to the accounting books and records within the possession or control of the other Party pertaining to all invoices generated pursuant to this Agreement. 8.4 Payment Adjustments; Billing Errors. Payment adjustments shall be made if Buyer or Seller discovers there have been good faith inaccuracies in invoicing that are not otherwise disputed under Section 8.5, an adjustment to an amount previously invoiced or paid is required due to a correction of data by the CAISO, or there is determined to have been a meter inaccuracy sufficient to require a payment adjustment. If the required adjustment is in favor of 3.A.5.a Packet Pg. 64 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 32 Buyer, Buyer’s monthly payment shall be credited in an amount equal to the adjustment. If the required adjustment is in favor of Seller, Seller shall add the adjustment amount to Buyer’s next monthly invoice. Adjustments in favor of either Buyer or Seller shall bear interest, until settled in full, in accordance with Section 8.2, accruing from the date on which the non-erring Party received Notice thereof. 8.5 Billing Disputes. A Party may, in good faith, dispute the correctness of any invoice 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, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due. 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 shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within two (2) Business Days of such resolution along with interest accrued at the Interest Rate from and including the original due date to but excluding the date paid. Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from subsequent payments, with interest accrued at the Interest Rate from and including the date of such overpayment to but excluding the date repaid or deducted by the Party receiving such overpayment. Any dispute with respect to an invoice is waived if the other Party is not notified in accordance with this Section 8.5 within twelve (12) months after the invoice is rendered or subsequently adjusted, except to the extent any misinformation was from a third party not affiliated with any Party and such third party corrects its information after the twelve-month period. If an invoice is not rendered within twelve (12) months after the close of the month during which performance occurred, the right to payment for such performance is waived. 8.6 Netting of Payments. The Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other on the same date through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period under this Agreement or otherwise arising out of this Agreement, including any related damages calculated pursuant to Exhibits B and F, interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it. 8.7 Seller’s Development Security. Upon the earlier of (i) Seller’s delivery of the Performance Security, or (ii) sixty (60) days after termination of this Agreement, Buyer shall return the Development Security to Seller, less the amounts drawn in accordance with this Agreement. If the Development Security is a Letter of Credit and the issuer of such Letter of Credit (i) fails to maintain its Credit Rating, (ii) indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the Commercial Operation Date, or (iii) fails to honor Buyer’s properly documented request to 3.A.5.a Packet Pg. 65 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 33 draw on such Letter of Credit by such issuer, Seller shall have five (5) Business Days to either post cash or deliver a substitute Letter of Credit that meets the requirements set forth in the definition of Development Security. 8.8 Seller’s Performance Security. To secure its obligations under this Agreement, Seller shall deliver Performance Security to Buyer on or before the Commercial Operation Date. Seller shall maintain the Performance Security in full force and effect until the following have occurred: (A) the Delivery Term has expired or terminated early; and (B) all payment obligations of the Seller arising under this Agreement, including compensation for penalties, Damage Payment, indemnification payments or other damages are paid in full (whether directly or indirectly such as through set-off or netting). Following the occurrence of both events, Buyer shall promptly return to Seller the unused portion of the Performance Security. If the Performance Security is a Letter of Credit and the issuer of such Letter of Credit (i) fails to maintain the minimum Credit Rating set forth in the definition of Letter of Credit, (ii) indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the Commercial Operation Date, or (iii) fails to honor Buyer’s properly documented request to draw on such Letter of Credit by such issuer, Seller shall have five (5) Business Days to either post cash or deliver a substitute Letter of Credit that meets the requirements set forth in the definition of Performance Security. 8.9 Buyer’s First Priority Security Interest in Cash or Cash Equivalent Collateral. To secure its obligations under this Agreement, and until released as provided herein, Seller hereby grants to Buyer a present and continuing first-priority security interest (“Buyer’s Security Interest”) in, and lien on (and right to net against), and assignment of the Development Security, Performance Security, any other cash collateral and cash equivalent collateral posted pursuant to Sections 8.7 and 8.8 and any and all interest thereon or proceeds resulting therefrom or from the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of Buyer, and Seller agrees to take all action as Buyer reasonably requires in order to perfect Buyer’s Security Interest in, and lien on (and right to net against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof. Upon or any time after the occurrence of an Event of Default caused by Seller, an Early Termination Date resulting from an Event of Default caused by Seller, or an occasion provided for in this Agreement where Buyer is authorized to retain all or a portion of the Development Security or Performance Security, Buyer may do any one or more of the following (in each case subject to the final sentence of this Section 8.9): (a) Exercise any of its rights and remedies with respect to the Development Security and Performance Security, including any such rights and remedies under law then in effect; (b) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Buyer as Development Security or Performance Security; and (c) Liquidate all Development Security or Performance Security (as applicable) then held by or for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or right of purchase or redemption by Seller. Buyer shall apply the proceeds of the collateral realized upon the exercise of any such rights or 3.A.5.a Packet Pg. 66 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 34 remedies to reduce Seller’s obligations under this Agreement (Seller remains liable for any amounts owing to Buyer after such application), subject to Buyer’s obligation to return any surplus proceeds remaining after these obligations are satisfied in full. 8.10 Buyer’s Financial Statements. No later than two hundred seventy (270) days after the end of each fiscal year, at Seller’s request Buyer will provide Seller a copy of Buyer’s audited financial statements for the preceding fiscal year, if such financial statements are not on the internet at [ ]. Buyer’s financial statements shall have been prepared in accordance with GAAP. 8.11 Buyer Credit Support.[Note: credit provisions under review] (a) [To secure Buyer’s obligations under this Agreement, Seller shall have the right to execute a Joinder, which shall allow Seller to become a “PPA Provider” and “Secured Creditor” under the Intercreditor and Collateral Agency Agreement for so long as Buyer is subject to the Security Agreement and Lockbox Account (or any successor arrangement generally available to Buyer’s creditors and permitted under Section 8.11(b)(iii)) (the current arrangement and any successor arrangement generally available to Buyer’s creditors is the “Buyer Lockbox Arrangement”); provided, however, that if Buyer provides Buyer Performance Security, then so long as Buyer is not in default under any of this Agreement, the Intercreditor and Collateral Agency Agreement, or the Security Agreement, Buyer may, at the direction of its City[Town]7 Council, request the dissolution of the Buyer Lockbox Arrangement and Seller hereby agrees that (x) its security interest under the Buyer Lockbox Arrangement shall terminate, without further action, effective upon the termination of the security interests of all other PPA Providers under the Buyer Lockbox Arrangement and (y) if requested by Buyer, Seller would promptly execute a written termination statement confirming such termination in accordance with the Buyer Lockbox Arrangement. (b) Under the Buyer Lockbox Arrangement: (i) Buyer shall provide notice to Seller of the termination of all security interests under the Security Agreement. (ii) Buyer further agrees it will not create any additional security interests (i) under the Security Agreement on terms more favorable than those currently offered to Seller, or (ii) under any arrangement similar to the Security Agreement that is generally available to Buyer’s creditors unless Seller is offered the right to participate in such arrangement on terms no less favorable than those offered to the other participants. (iii) In addition, so long as Buyer is not in default under any of this Agreement, the Intercreditor and Collateral Agency Agreement or the Security Agreement, Buyer may request the dissolution of the current Buyer Lockbox Arrangement in order to enter into a substantially similar successor Buyer Lockbox Arrangement and, provided that Seller is allowed to become a PPA Provider (or its equivalent) and Secured Creditor (or its equivalent) under the successor Buyer Lockbox Arrangement, Seller hereby agrees that (x) its security interest under the Security Agreement shall terminate, without further action, effective upon 7 3.A.5.a Packet Pg. 67 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 35 the termination of the security interests of all other PPA Providers under the Security Agreement and the grant of a security interest under the successor Buyer Lockbox Arrangement, and (y) if requested by Buyer, Seller would promptly execute a written termination statement confirming such termination in accordance with Section 7.12 of the Security Agreement. (c) If Buyer provides Buyer Performance Security, then Buyer shall maintain the Buyer Performance Security in full force and effect until the following have occurred: (i) the Delivery Term has expired or terminated early; and (ii) all payment obligations of Buyer arising under this Agreement, including compensation for penalties, Termination Payment, indemnification payments or other damages are paid in full (whether directly or indirectly such as through set-off or netting). Following the occurrence of both events, Seller shall promptly return to Buyer the unused portion of the Buyer Performance Security. If the Buyer Performance Security is a Letter of Credit and the issuer of such Letter of Credit (i) fails to maintain the minimum Credit Rating set forth in the definition of Letter of Credit, (ii) indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the time that Seller is required to return the Buyer Performance Security, or (iii) fails to honor Seller’s properly documented request to draw on such Letter of Credit by such issuer, Buyer shall have five (5) Business Days to either post cash or deliver a substitute Letter of Credit that meets the requirements set forth in this Agreement.]8 (a) [To secure Buyer’s obligations under this Agreement, Seller shall have the right to execute a Joinder, which shall allow Seller to become a “PPA Provider” and “Secured Creditor” under the Intercreditor and Collateral Agency Agreement for so long as Member is subject to the Security Agreement and Lockbox Account (or any successor arrangement generally available to Member’s creditors and permitted under Section 8.11(b)(iii)) (the current arrangement and any successor arrangement generally available to Buyer’s creditors is the “Member Lockbox Arrangement”); provided, however, that if Member provides Member Performance Security, then so long as Buyer (or Member, as applicable) is not in default under this Agreement and Member is not in default under any of the Intercreditor and Collateral Agency Agreement or the Security Agreement, Buyer may, at the direction of its Member’s City Council, request the dissolution of the Member Lockbox Arrangement and Seller hereby agrees that (x) its security interest under the Member Lockbox Arrangement shall terminate, without further action, effective upon the termination of the security interests of all other PPA Providers under the Member Lockbox Arrangement and (y) if requested by Buyer or Member, Seller would promptly execute a written termination statement confirming such termination in accordance with the Member Lockbox Arrangement. (b) Under the Member Lockbox Arrangement: (i) Buyer shall cause Member to provide notice to Seller of the termination of all security interests under the Security Agreement. (ii) Buyer further agrees it will cause Member to not create any additional security interests (i) under the Security Agreement on terms more favorable than 8 . 3.A.5.a Packet Pg. 68 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 36 those currently offered to Seller, or (ii) under any arrangement similar to the Security Agreement that is generally available to Member’s creditors unless Seller is offered the right to participate in such arrangement on terms no less favorable than those offered to the other participants. (iii) In addition, so long as Buyer (or Member, as applicable) is not in default under this Agreement and Member is not in default under any of the Intercreditor and Collateral Agency Agreement or the Security Agreement, Buyer may request the dissolution of the current Member Lockbox Arrangement in order to permit Member to enter into a substantially similar successor Member Lockbox Arrangement and, provided that Seller is allowed to become a PPA Provider (or its equivalent) and Secured Creditor (or its equivalent) under the successor Member Lockbox Arrangement, Seller hereby agrees that (x) its security interest under the Security Agreement shall terminate, without further action, effective upon the termination of the security interests of all other PPA Providers under the Security Agreement and the grant of a security interest under the successor Member Lockbox Arrangement, and (y) if requested by Buyer, Seller would promptly execute a written termination statement confirming such termination in accordance with Section 7.12 of the Security Agreement. (c) If Buyer causes Member to provide Member Performance Security, then Buyer shall maintain, or cause Member to maintain, the Member Performance Security in full force and effect until the following have occurred: (i) the Delivery Term has expired or terminated early; and (ii) all payment obligations of Buyer arising under this Agreement, including compensation for penalties, Termination Payment, indemnification payments or other damages are paid in full (whether directly or indirectly such as through set-off or netting). Following the occurrence of both events, Seller shall promptly return to Buyer the unused portion of the Member Performance Security. If the Member Performance Security is a Letter of Credit and the issuer of such Letter of Credit (i) fails to maintain the minimum Credit Rating set forth in the definition of Letter of Credit, (ii) indicates its intent not to renew such Letter of Credit and such Letter of Credit expires prior to the time that Seller is required to return the Member Performance Security, or (iii) fails to honor Seller’s properly documented request to draw on such Letter of Credit by such issuer, Buyer shall have five (5) Business Days to either post, or cause Member to post, cash or deliver, or cause Member to deliver, a substitute Letter of Credit that meets the requirements set forth in this Agreement.]9 8.12 Seller’s First Priority Security Interest in Cash or Cash Equivalent Collateral. To secure its obligations under this Agreement, and until released as provided herein, Buyer hereby grants to Seller a present and continuing first-priority security interest (“Seller’s Security Interest”) in, and lien on (and right to net against), and assignment of the [Buyer Performance Security][Member Performance Security], any other cash collateral and cash equivalent collateral posted pursuant to Section 8.11 and any and all interest thereon or proceeds resulting therefrom or from the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of Seller, and Buyer agrees to take, and cause Member to take, all action as Seller reasonably requires in order to perfect Seller’s Security Interest in, and lien on (and right to net against), such collateral 9 For SJ,. 3.A.5.a Packet Pg. 69 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 37 and any and all proceeds resulting therefrom or from the liquidation thereof. Upon or any time after the occurrence of an Event of Default caused by Buyer, an Early Termination Date resulting from an Event of Default caused by Buyer, or an occasion provided for in this Agreement where Seller is authorized to retain all or a portion of the [Buyer Performance Security][Member Performance Security], Seller may do any one or more of the following (in each case subject to the final sentence of this Section 8.12): (d) Exercise any of its rights and remedies with respect to the [Buyer Performance Security][Member Performance Security], including any such rights and remedies under law then in effect; (e) Draw on any outstanding Letter of Credit issued for its benefit and retain any cash held by Seller as [Buyer Performance Security][Member Performance Security]; and (f) Liquidate all [Buyer Performance Security][Member Performance Security] then held by or for the benefit of Seller free from any claim or right of any nature whatsoever of Buyer, including any equity or right of purchase or redemption by Buyer. Seller shall apply the proceeds of the collateral realized upon the exercise of any such rights or remedies to reduce Buyer’s obligations under this Agreement (Buyer remains liable for any amounts owing to Seller after such application), subject to Seller’s obligation to return any surplus proceeds remaining after these obligations are satisfied in full. 8.13 No Additional Credit Support. [Note: credit provisions under review] [This Agreement sets forth the entirety of the agreement of the Parties regarding credit, collateral and adequate assurances. Except as expressly set forth herein, neither Party 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 will have reasonable grounds for insecurity with respect to the creditworthiness of a Party that is complying with the relevant provisions of this Agreement; 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.]10 [This Agreement sets forth the entirety of the agreement of the Parties regarding credit, collateral and adequate assurances. Except as expressly set forth herein, neither Party 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 will have reasonable grounds for insecurity with respect to the creditworthiness of a Party or Member that is complying with the relevant provisions of this Agreement; 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.]11 10 . 11 For SJ , 3.A.5.a Packet Pg. 70 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 38 ARTICLE 9 NOTICES 9.1 Addresses for the Delivery of Notices. Any Notice required, permitted, or contemplated hereunder shall be in writing, shall be addressed to the Party to be notified at the address set forth in Exhibit D or at such other address or addresses as a Party may designate for itself from time to time by Notice hereunder. 9.2 Acceptable Means of Delivering Notice. Each Notice required, permitted, or contemplated hereunder shall be deemed to have been validly served, given or delivered as follows: (a) if sent by United States mail with proper first class postage prepaid, three (3) Business Days following the date of the postmark on the envelope in which such Notice was deposited in the United States mail; (b) if sent by a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement with such carrier made for the payment of such fees, the next Business Day after the same is delivered by the sending Party to such carrier; (c) if sent by electronic communication (including electronic mail, facsimile, or other electronic means) and if concurrently with the transmittal of such electronic communication the sending Party provides a copy of such electronic Notice by hand delivery or express courier, at the time indicated by the time stamp upon delivery; or (d) if delivered in person, upon receipt by the receiving Party. Notwithstanding the foregoing, Notices of outages or other scheduling or dispatch information or requests, may be sent by electronic communication and shall be considered delivered upon successful completion of such transmission. ARTICLE 10 FORCE MAJEURE 10.1 Definition. (a) “Force Majeure Event” means any act or event that delays or prevents a Party from timely performing all or a portion of its obligations under this Agreement or from complying with all or a portion of the conditions under this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided by and is beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance, or noncompliance. (b) Without limiting the generality of the foregoing, so long as the following events, despite the exercise of reasonable efforts, cannot be avoided by, and are beyond the reasonable control (whether direct or indirect) of and without the fault or negligence of the Party relying thereon as justification for such delay, nonperformance or noncompliance, a Force Majeure Event may include an act of God or the elements, such as flooding, lightning, hurricanes, tornadoes, or ice storms; explosion; fire; volcanic eruption; flood; epidemic; landslide; mudslide; sabotage; terrorism; earthquake; or other cataclysmic events; an act of public enemy; war; blockade; civil insurrection; riot; civil disturbance; or strikes or other labor difficulties caused or suffered by a Party or any third party except as set forth below. (c) Notwithstanding the foregoing, the term “Force Majeure Event” does not include (i) economic conditions that render a Party’s performance of this Agreement at the 3.A.5.a Packet Pg. 71 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 39 Contract Price unprofitable or otherwise uneconomic (including Buyer’s ability to buy electric energy at a lower price, or Seller’s ability to sell Energy generated by the Facility at a higher price, than the Contract Price); (ii) Seller’s inability to obtain permits or approvals of any type for the construction, operation, or maintenance of the Facility, except to the extent such inability is caused by a Force Majeure Event; (iii) the inability of a Party to make payments when due under this Agreement, unless the cause of such inability is an event that would otherwise constitute a Force Majeure Event as described above that disables physical or electronic facilities necessary to transfer funds to the payee Party; (iv) a Curtailment Period, except to the extent such Curtailment Period is caused by a Force Majeure Event; (v) Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Facility except to the extent such inability is caused by a Force Majeure Event; (vi) a strike, work stoppage or labor dispute limited only to any one or more of Seller, Seller’s Affiliates, Seller’s contractors, their subcontractors thereof or any other third party employed by Seller to work on the Facility; (vii) any equipment failure except if such equipment failure is caused by a Force Majeure Event; or (viii) Seller’s inability to achieve Construction Start of the Facility following the Guaranteed Construction Start Date or achieve Commercial Operation following the Guaranteed Commercial Operation Date; it being understood and agreed, for the avoidance of doubt, that the occurrence of a Force Majeure Event may give rise to a Development Cure Period. 10.2 No Liability If a Force Majeure Event Occurs. Neither Seller nor Buyer shall be liable to the other Party in the event it is prevented from performing its obligations hereunder in whole or in part due to a Force Majeure Event. The Party rendered unable to fulfill any obligation by reason of a Force Majeure Event shall take reasonable actions necessary to remove such inability with due speed and diligence. Nothing herein shall be construed as permitting that Party to continue to fail to perform after said cause has been removed. The obligation to use due speed and diligence shall not be interpreted to require resolution of labor disputes by acceding to demands of the opposition when such course is inadvisable in the discretion of the Party having such difficulty. Neither Party shall be considered in breach or default of this Agreement if and to the extent that any failure or delay in the Party’s performance of one or more of its obligations hereunder is caused by a Force Majeure Event. The occurrence and continuation of a Force Majeure Event shall not suspend or excuse the obligation of a Party to make any payments due hereunder. 10.3 Notice. In the event of any delay or nonperformance resulting from a Force Majeure Event, the Party suffering the Force Majeure Event shall (a) as soon as practicable, notify the other Party in writing of the nature, cause, estimated date of commencement thereof, and the anticipated extent of any delay or interruption in performance, and (b) notify the other Party in writing of the cessation or termination of such Force Majeure Event, all as known or estimated in good faith by the affected Party; provided, however, that a Party’s failure to give timely Notice shall not affect such Party’s ability to assert that a Force Majeure Event has occurred unless the delay in giving Notice materially prejudices the other Party. 10.4 Termination Following Force Majeure Event. 3.A.5.a Packet Pg. 72 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 40 ARTICLE 11 DEFAULTS; REMEDIES; TERMINATION 11.1 Events of Default. An “Event of Default” shall mean, (a) with respect to a Party (the “Defaulting Party”) that is subject to the Event of Default the occurrence of any of the following: (i) the failure by such Party to make, when due, any payment required pursuant to this Agreement and such failure is not remedied within five (5) Business Days after Notice thereof; (ii) any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated, and such default is not remedied within thirty (30) days after Notice thereof; (iii) the failure by such Party to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default) and such failure is not remedied within thirty (30) days after Notice thereof; (iv) such Party becomes Bankrupt; (v) such Party assigns this Agreement or any of its rights hereunder other than in compliance with Section 14.2 or 14.3, as applicable; or (vi) such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of Law or pursuant to an agreement reasonably satisfactory to the other Party. (b) with respect to Seller as the Defaulting Party, the occurrence of any of the following: (i) if at any time, Seller delivers or attempts to deliver to the Delivery Points for sale under this Agreement Energy that was not generated by the Facility, except for Replacement Product; (ii) (iii) 3.A.5.a Packet Pg. 73 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 41 (iv) failure by Seller to satisfy the collateral requirements pursuant to Sections 8.7 or 8.8, including the failure to replenish the Development Security or Performance Security amount in accordance with this Agreement in the event Buyer draws against either for any reason other than to satisfy a Damage Payment; (v) with respect to any outstanding Letter of Credit provided for the benefit of Buyer that is not then required under this Agreement to be canceled or returned, the failure by Seller to provide for the benefit of Buyer either (1) cash, or (2) a substitute Letter of Credit from a different issuer meeting the criteria set forth in the definition of Letter of Credit, in each case, in the amount required hereunder within five (5) Business Days after Seller receives Notice of the occurrence of any of the following events: (A) the issuer of the outstanding Letter of Credit shall fail to maintain a Credit Rating of at least BBB by S&P or Baa2 by Moody’s; (B) the issuer of such Letter of Credit becomes Bankrupt; (C) the issuer of the outstanding Letter of Credit shall fail to comply with or perform its obligations under such Letter of Credit and such failure shall be continuing after the lapse of any applicable grace period permitted under such Letter of Credit; (D) the issuer of the outstanding Letter of Credit shall fail to honor a properly documented request to draw on such Letter of Credit; (E) the issuer of the outstanding Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or challenge the validity of, such Letter of Credit; (F) such Letter of Credit fails or ceases to be in full force and effect at any time; or (G) Seller shall fail to renew or cause the renewal of each outstanding Letter of Credit on a timely basis as provided in the relevant Letter of Credit and as provided in accordance with this Agreement, and in no event less than sixty (60) days prior to the expiration of the outstanding Letter of Credit. (c) with respect to Buyer as the Defaulting Party, the occurrence of any of the following: (i) failure by Buyer to satisfy the collateral requirements pursuant to Section 8.11, including the failure to [replenish the Buyer Development Security amount][cause Member to replenish the Member Performance Security amount] in accordance with this Agreement in the event Seller draws against it. 3.A.5.a Packet Pg. 74 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 42 11.2 Remedies; Declaration of Early Termination Date . If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (“Non- Defaulting Party”) shall have the following rights: (a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”) that terminates this Agreement (the “Terminated Transaction”) and ends the Delivery Term effective as of the Early Termination Date; (b) to accelerate all amounts owing between the Parties, and to collect as liquidated damages (i) the Damage Payment (in the case of an Event of Default by Seller) or (ii) the Termination Payment calculated in accordance with Section 11.3 below (in the case of an Event of Default by Buyer); (c) to withhold any payments due to the Defaulting Party under this Agreement; (d) to suspend performance; and (e) to exercise any other right or remedy available at law or in equity, including specific performance or injunctive relief, except to the extent such remedies are expressly limited under this Agreement; provided, that payment by the Defaulting Party of the Damage Payment or Termination Payment, as applicable, shall constitute liquidated damages and the Non-Defaulting Party’s sole and exclusive remedy for any Terminated Transaction and the Event of Default related thereto. 11.3 Termination Payment. The Termination Payment (“Termination Payment”) for a Terminated Transaction shall be the aggregate of all Settlement Amounts plus any or all other amounts due to or from the Non-Defaulting Party netted into a single amount. If the Non- Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the net Settlement Amount shall be zero. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages; provided, however, that any lost Capacity Attributes and Green Attributes shall be deemed direct damages covered by this Agreement. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (a) the actual damages that the Non-Defaulting Party would incur in connection with a Terminated Transaction would be difficult or impossible to predict with certainty, (b) the Termination Payment or Damage Payment, as applicable, is a reasonable and appropriate approximation of such damages, and (c) the Termination Payment or Damage Payment, as applicable, is the exclusive remedy of the Non-Defaulting Party in connection with a Terminated Transaction but shall not otherwise act to limit any of the Non-Defaulting Party’s 3.A.5.a Packet Pg. 75 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 43 rights or remedies if the Non-Defaulting Party does not elect a Terminated Transaction as its remedy for an Event of Default by the Defaulting Party. 11.4 Notice of Payment of Termination Payment or Damage Payment. As soon as practicable after a Terminated Transaction, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Termination Payment or Damage Payment, as applicable, and whether the Termination Payment or Damage Payment, as applicable, is due to or from the Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the sources for such calculation. The Termination Payment or Damage Payment, as applicable, shall be made to or from the Non-Defaulting Party, as applicable, within ten (10) Business Days after such Notice is effective. 11.5 Disputes With Respect to Termination Payment or Damage Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment or Damage Payment, in whole or in part, the Defaulting Party shall, within five (5) Business Days of receipt of the Non-Defaulting Party’s calculation of the Termination Payment or Damage Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding the Termination Payment or Damage Payment shall be determined in accordance with Article 16. 11.6 Rights And Remedies Are Cumulative. Except where liquidated damages are provided as the exclusive remedy, the rights and remedies of a Party pursuant to this Article 11 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement. 11.7 Mitigation. Any Non-Defaulting Party shall be obligated to mitigate its Costs, Losses and damages resulting from any Event of Default of the other Party under this Agreement. ARTICLE 12 LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTIES. 12.1 No Consequential Damages. EXCEPT TO THE EXTENT PART OF AN EXPRESS REMEDY, INDEMNITY PROVISION, OR MEASURE OF DAMAGES HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ITS INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, BY STATUTE, IN TORT OR CONTRACT, OR OTHERWISE. 12.2 Waiver and Exclusion of Other Damages. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. ALL LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PERTAINING TO SELLER’S LIMITATION OF LIABILITY AND THE PARTIES’ WAIVER OF 3.A.5.a Packet Pg. 76 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 44 CONSEQUENTIAL DAMAGES, SHALL APPLY EVEN IF THE REMEDIES FOR BREACH OF WARRANTY PROVIDED IN THIS AGREEMENT ARE DEEMED TO “FAIL OF THEIR ESSENTIAL PURPOSE” OR ARE OTHERWISE HELD TO BE INVALID OR UNENFORCEABLE. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS AND EXCLUSIVE REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES ONLY. THE VALUE OF ANY TAX BENEFITS, DETERMINED ON AN AFTER-TAX BASIS, LOST DUE TO BUYER’S DEFAULT (WHICH SELLER HAS NOT BEEN ABLE TO MITIGATE AFTER USE OF REASONABLE EFFORTS) AND AMOUNTS DUE IN CONNECTION WITH THE RECAPTURE OF ANY RENEWABLE ENERGY INCENTIVES, IF ANY, SHALL BE DEEMED TO BE DIRECT DAMAGES. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, INCLUDING UNDER SECTIONS 3.9, 4.7, 11.2 AND 11.3, AND AS PROVIDED IN EXHIBIT B AND EXHIBIT F, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT, AND THAT THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE ANTICIPATED HARM OR LOSS. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. THE PARTIES HEREBY WAIVE ANY RIGHT TO CONTEST SUCH PAYMENTS AS AN UNREASONABLE PENALTY. THE PARTIES ACKNOWLEDGE AND AGREE THAT MONEY DAMAGES AND THE EXPRESS REMEDIES PROVIDED FOR HEREIN ARE AN ADEQUATE REMEDY FOR THE BREACH BY THE OTHER OF THE TERMS OF THIS AGREEMENT, AND EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO SPECIFIC PERFORMANCE WITH RESPECT TO ANY OBLIGATION OF THE OTHER PARTY UNDER THIS AGREEMENT. ARTICLE 13 REPRESENTATIONS AND WARRANTIES; AUTHORITY 13.1 Seller’s Representations and Warranties. As of the Effective Date, Seller represents and warrants as follows: (a) Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, and is qualified to conduct business in 3.A.5.a Packet Pg. 77 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 45 each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of Seller. (b) Seller has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Seller’s performance under this Agreement. The execution, delivery and performance of this Agreement by Seller has been duly authorized by all necessary corporate action on the part of Seller and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Seller or any other party to any other agreement with Seller. (c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Seller with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Seller, subject to any permits that have not yet been obtained by Seller, the documents of formation of Seller or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Seller is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Seller. This Agreement is a legal, valid and binding obligation of Seller enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) The Facility is located in the State of California. 13.2 Buyer’s Representations and Warranties. As of the Effective Date, Buyer represents and warrants as follows: (a) [Buyer is a joint powers authority and a validly existing community choice aggregator, duly organized, validly existing and in good standing under the laws of the State of California and the rules, regulations and orders of the California Public Utilities Commission, and is qualified to conduct business in each jurisdiction of the Joint Powers Agreement members. All persons making up the governing body of Buyer are the elected or appointed incumbents in their positions and hold their positions in good standing in accordance with the Joint Powers Agreement and other Law.]12 [Note: to be discussed] (b) Buyer has the power and authority to enter into and perform this Agreement and is not prohibited from entering into this Agreement or discharging and performing all covenants and obligations on its part to be performed under and pursuant to this Agreement, except where such failure does not have a material adverse effect on Buyer’s performance under this Agreement. The execution, delivery and performance of this Agreement by Buyer has been duly authorized by all necessary action on the part of Buyer and does not and will not require the consent 12 For California Choice Energy Authority only. 3.A.5.a Packet Pg. 78 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 46 of any trustee or holder of any indebtedness or other obligation of Buyer or any other party to any other agreement with Buyer. (c) The execution and delivery of this Agreement, consummation of the transactions contemplated herein, and fulfillment of and compliance by Buyer with the provisions of this Agreement will not conflict with or constitute a breach of or a default under any Law presently in effect having applicability to Buyer, including but not limited to community choice aggregation, the Joint Powers Act, competitive bidding, public notice, open meetings, election, referendum, or prior appropriation requirements, the documents of formation of Buyer or any outstanding trust indenture, deed of trust, mortgage, loan agreement or other evidence of indebtedness or any other agreement or instrument to which Buyer is a party or by which any of its property is bound. (d) This Agreement has been duly executed and delivered by Buyer. This Agreement is a legal, valid and binding obligation of Buyer enforceable in accordance with its terms, except as limited by laws of general applicability limiting the enforcement of creditors’ rights or by the exercise of judicial discretion in accordance with general principles of equity. (e) Buyer warrants and covenants that with respect to its contractual obligations under this Agreement, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (1) suit, (2) jurisdiction of court, (3) relief by way of injunction, order for specific performance or recovery of property, (4) attachment of assets, or (5) execution or enforcement of any judgment. (f) Buyer is a “local public entity” as defined in Section 900.4 of the Government Code of the State of California. (g) Buyer cannot assert sovereign immunity as a defense to the enforcement of its obligations under this Agreement. 13.3 General Covenants. Each Party covenants that commencing on the Effective Date and continuing throughout the Contract Term: (a) It shall continue to be duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and to be qualified to conduct business in each jurisdiction where the failure to so qualify would have a material adverse effect on its business or financial condition; (b) It shall maintain (or obtain from time to time as required) all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; and (c) It shall perform its obligations under this Agreement in compliance with all terms and conditions in its governing documents and any contracts to which it is a party and in material compliance with any Law. 3.A.5.a Packet Pg. 79 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 47 ARTICLE 14 ASSIGNMENT 14.1 General Prohibition on Assignments. Except as provided below and in Article 15, neither Seller nor Buyer may voluntarily assign its rights nor delegate its duties under this Agreement, or any part of such rights or duties, without the written consent of the other Party, 14.2 Permitted Assignment; Change of Control of Seller. 14.3 Permitted Assignment; Change of Control of Buyer. [Buyer may assign its interest in this Agreement to [City of San Jacinto][] without Seller’s consent, provided that (i) [][City of San Jacinto][ ] and this Agreement are still subject to a Member Lockbox Arrangement for the benefit of Seller in accordance with Section 8.11 or (ii) [][City of San Jacinto][] has provided other performance assurance reasonably acceptable to Seller.]13 ; provided, further, that in each such case, no fewer than fifteen (15) Business Days before such assignment Buyer (x) notifies Seller of such assignment and (y) provides to Seller a written agreement signed by the Person to which Buyer wishes to assign its interests stating that such Person agrees to assume all of Buyer’s obligations and liabilities under this Agreement and under any consent to assignment and other documents previously entered into by Seller as 13 For SJ only. 3.A.5.a Packet Pg. 80 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 48 described in Section 15.2(b). Any assignment by Buyer, its successors or assigns under this Section 14.3 shall be of no force and effect unless and until such Notice and agreement by the assignee have been received and accepted by Seller. [Note: Buyer assignment rights to be discussed] ARTICLE 15 LENDER ACCOMMODATIONS 15.1 Granting of Lender Interest. Notwithstanding anything to the contrary in Section 14.2 or Section 14.3, either Party may, without the consent of the other Party, grant an interest (by way of collateral assignment, or as security, beneficially or otherwise) in its rights and/or obligations under this Agreement to any Lender. Each Party’s obligations under this Agreement shall continue in their entirety in full force and effect. Promptly after granting such interest, the granting Party shall notify the other Party in writing of the name, address, and telephone and facsimile numbers of any Lender to which the granting Party’s interest under this Agreement has been assigned. Such Notice shall include the names of the Lenders to whom all written and telephonic communications may be addressed. After giving the other Party such initial Notice, the granting Party shall promptly give the other Party Notice of any change in the information provided in the initial Notice or any revised Notice. Without limiting the foregoing, Buyer agrees and acknowledges that Seller may elect to finance all or any portion of the Facility or the Interconnection Facilities (1) utilizing tax equity investment, or (2) on a portfolio or other aggregated basis, which may include cross-collateralization or similar arrangements. 15.2 Rights of Lender. If a Party grants an interest under this Agreement as permitted by Section 15.1, the following provisions shall apply: (a) Lender shall have the right, but not the obligation, to perform any act required to be performed by the granting Party under this Agreement to prevent or cure a default by the granting Party in accordance with Section 11.2 and such act performed by Lender shall be as effective to prevent or cure a default as if done by the granting Party. (b) The other Party shall cooperate with the granting Party or any Lender, to execute or arrange for the delivery of certificates, consents, opinions, estoppels, direct agreements, amendments and other documents reasonably requested by the granting Party or Lender in order to consummate any financing or refinancing and shall enter into reasonable agreements with such Lender that provide that Buyer recognizes the Lender’s security interest and such other provisions as may be reasonably requested by Seller or any such Lender; provided, however, that all costs and expenses (including reasonable attorney’s fees) incurred by Buyer in connection therewith shall be borne by Seller. (c) Each Party agrees that no Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement on the part of the granting Party or shall have any obligation or liability to the other Party with respect to this Agreement except to the extent any Lender has expressly assumed the obligations of the granting Party hereunder; provided that the non-granting Party shall nevertheless be entitled to exercise all of its rights hereunder in the event that the granting Party or Lender fails to perform the granting Party’s obligations under this Agreement. 3.A.5.a Packet Pg. 81 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 49 15.3 Cure Rights of Lender. The non-granting Party shall provide Notice of the occurrence of any Event of Default described in Section 11.1 or 11.2 hereof to any Lender, and such Party shall accept a cure performed by any Lender and shall negotiate in good faith with any Lender as to the cure period(s) that will be allowed for any Lender to cure any granting Party Event of Default hereunder. The non-granting Party shall accept a cure performed by any Lender so long as the cure is accomplished within the applicable cure period so agreed to between the non-granting Party and any Lender. Notwithstanding any such action by any Lender, the granting Party shall not be released and discharged from and shall remain liable for any and all obligations to the non- granting Party arising or accruing hereunder. The cure rights of Lender may be documented in the certificates, consents, opinions, estoppels, direct agreements, amendments and other documents reasonably requested by the granting Party pursuant to Section 15.2(b). ARTICLE 16 DISPUTE RESOLUTION 16.1 Governing Law. This agreement and the rights and duties of the Parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of California, without regard to principles of conflicts of Law. To the extent enforceable at such time, each Party waives its respective right to any jury trial with respect to any litigation arising under or in connection with this agreement. 16.2 Dispute Resolution. In the event of any dispute arising under this Agreement, within ten (10) days following the receipt of a written Notice from either Party identifying such dispute, the Parties shall meet, negotiate and attempt, in good faith, to resolve the dispute quickly, informally and inexpensively. If the Parties are unable to resolve a dispute arising hereunder within the earlier of either thirty (30) days of initiating such discussions, or within forty (40) days after Notice of the dispute, either Party may seek any and all remedies available to it at Law or in equity, subject to the limitations set forth in this Agreement. 16.3 Attorneys’ Fees. In any proceeding brought to enforce this Agreement or because of the breach by any Party of any covenant or condition herein contained, the prevailing Party shall be entitled to reasonable attorneys’ fees (including reasonably allocated fees of in-house counsel) in addition to court costs and any and all other costs recoverable in said action. ARTICLE 17 INDEMNIFICATION 17.1 Indemnification. (a) Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its Affiliates, directors, officers, employees and agents (collectively, the “Indemnified Party”) from and against all claims, demands, losses, liabilities, penalties, and expenses (including reasonable attorneys’ fees) for personal injury or death to Persons and damage to the property of any third party to the extent arising out of, resulting from, or caused by the negligent or willful misconduct of the Indemnifying Party, its Affiliates, its directors, officers, employees, or agents. 3.A.5.a Packet Pg. 82 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 50 (b) Nothing in this Section 17.1 shall enlarge or relieve Seller or Buyer of any liability to the other for any breach of this Agreement. Neither Party shall be indemnified for its damages resulting from its sole negligence, intentional acts or willful misconduct. These indemnity provisions shall not be construed to relieve any insurer of its obligation to pay claims consistent with the provisions of a valid insurance policy. 17.2 Claims. Promptly after receipt by a Party of any claim or Notice of the commencement of any action, administrative, or legal proceeding, or investigation as to which the indemnity provided for in this Article 17 may apply, the Indemnified Party shall notify the Indemnifying Party in writing of such fact. The Indemnifying Party shall assume the defense thereof with counsel designated by such Party and satisfactory to the Indemnified Party, provided, however, that if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the Indemnifying Party, the Indemnified Party shall have the right to select and be represented by separate counsel, at the Indemnifying Party’s expense, unless a liability insurer is willing to pay such costs. If the Indemnifying Party fails to assume the defense of a claim meriting indemnification, the Indemnified Party may at the expense of the Indemnifying Party contest, settle, or pay such claim, provided that settlement or full payment of any such claim may be made only following consent of the Indemnifying Party or, absent such consent, written opinion of the Indemnified Party’s counsel that such claim is meritorious or warrants settlement. Except as otherwise provided in this Article 17, in the event that a Party is obligated to indemnify and hold the other Party and its successors and assigns harmless under this Article 17, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s damages net of any insurance proceeds received by the Indemnified Party following a reasonable effort by the Indemnified Party to obtain such insurance proceeds. ARTICLE 18 INSURANCE 18.1 Insurance. (a) General Liability. Seller shall maintain, or cause to be maintained at its sole expense, (i) commercial general liability insurance, including products and completed operations and personal injury insurance, in a minimum amount of One Million Dollars ($1,000,000) per occurrence, and an annual aggregate of not less than Two Million Dollars ($2,000,000), endorsed to provide contractual liability in said amount, specifically covering Seller’s obligations under this Agreement and naming Buyer as an additional insured; and (ii) an umbrella insurance policy in a minimum limit of liability of Five Million Dollars ($5,000,000) Defense costs shall be provided as an additional benefit and not included within the limits of liability. Such insurance shall contain standard cross-liability and severability of interest provisions. (b) Employer’s Liability Insurance. Employers’ Liability insurance shall not be less than One Million Dollars ($1,000,000.00) for injury or death occurring as a result of each accident. With regard to bodily injury by disease, the One Million Dollar ($1,000,000) policy limit will apply to each employee. 3.A.5.a Packet Pg. 83 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 51 (c) Workers Compensation Insurance. Seller, if it has employees, shall also maintain at all times during the Contract Term workers’ compensation and employers’ liability insurance coverage in accordance with applicable requirements of Law. (d) Business Auto Insurance. Seller shall maintain at all times during the Contract Term business auto insurance for bodily injury and property damage with limits of One Million Dollars ($1,000,000) per occurrence. Such insurance shall cover liability arising out of Seller’s use of all owned (if any), non-owned and hired vehicles, including trailers or semi-trailers in the performance of the Agreement. (e) Construction All-Risk Insurance. Seller shall maintain or cause to be maintained during the construction of the Facility prior to the Commercial Operation Date, construction all-risk form property insurance covering the Facility during such construction periods, and naming the Seller (and Lender if any) as the loss payee. (f) Subcontractor Insurance. Seller shall require all of its subcontractors to carry: (i) comprehensive general liability insurance with a combined single limit of coverage not less than One Million Dollars ($1,000,000); (ii) workers’ compensation insurance and employers’ liability coverage in accordance with applicable requirements of Law; and (iii) business auto insurance for bodily injury and property damage with limits of one million dollars ($1,000,000) per occurrence. All subcontractors shall name Seller as an additional insured to insurance carried pursuant to clauses (f)(i) and (f)(iii). All subcontractors shall provide a primary endorsement and a waiver of subrogation to Seller for the required coverage pursuant to this Section 18.1(f). (g) Evidence of Insurance. Within ten (10) days after execution of the Agreement and upon annual renewal thereafter, Seller shall deliver to Buyer certificates of insurance evidencing such coverage. These certificates shall specify that Buyer shall be given at least thirty (30) days prior Notice by Seller in the event of any material modification, cancellation or termination of coverage. Such insurance shall be primary coverage without right of contribution from any insurance of Buyer. Any other insurance maintained by Seller is for the exclusive benefit of Seller and shall not in any manner inure to the benefit of Buyer. Seller shall also comply with all insurance requirements by any renewable energy or other incentive program administrator or any other applicable authority. (h) Failure to Comply with Insurance Requirements. If Seller fails to comply with any of the provisions of this Article 18, Seller, among other things and without restricting Buyer’s remedies under the Law or otherwise, shall, at its own cost and expense, act as an insurer and provide insurance in accordance with the terms and conditions above. With respect to the required general liability, umbrella liability and commercial automobile liability insurance, Seller shall provide a current, full and complete defense to Buyer, its subsidiaries and Affiliates, and their respective officers, directors, shareholders, agents, employees, assigns, and successors in interest, in response to a third-party claim in the same manner that an insurer would have, had the insurance been maintained in accordance with the terms and conditions set forth above. In addition, alleged violations of the provisions of this Article 18 means that Seller has the initial burden of proof regarding any legal justification for refusing or withholding coverage and Seller shall face the same liability and damages as an insurer for wrongfully refusing or withholding coverage in accordance with the laws of California. 3.A.5.a Packet Pg. 84 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 52 ARTICLE 19 CONFIDENTIAL INFORMATION 19.1 Definition of Confidential Information. The following constitutes “Confidential Information,” whether oral or written which is delivered by Seller to Buyer or by Buyer to Seller including: (a) proposals and negotiations until this Agreement is approved and executed by the Buyer, and (b) information that either Seller or Buyer stamps or otherwise identifies as “confidential” or “proprietary” before disclosing it to the other. Confidential Information does not include (i) information that was publicly available at the time of the disclosure, other than as a result of a disclosure in breach of this Agreement; (ii) information that becomes publicly available through no fault of the recipient after the time of the delivery; (iii) information that was rightfully in the possession of the recipient (without confidential or proprietary restriction) at the time of delivery or that becomes available to the recipient from a source not subject to any restriction against disclosing such information to the recipient; and (iv) information that the recipient independently developed without a violation of this Agreement. 19.2 Duty to Maintain Confidentiality. Confidential Information will retain its character as Confidential Information but may be disclosed by the recipient if and to the extent such disclosure is required (a) to be made by any requirements of Law, (b) pursuant to an order of a court or (c) in order to enforce this Agreement. The originator or generator of Confidential Information may use such information for its own uses and purposes, including the public disclosure of such information at its own discretion. 19.3 Irreparable Injury; Remedies. Buyer and Seller each agree that disclosing Confidential Information of the other in violation of the terms of this Article 19 may cause irreparable harm, and that the harmed Party may seek any and all remedies available to it at Law or in equity, including injunctive relief and/or notwithstanding Section 12.2, consequential damages. 19.4 Disclosure to Lender. Notwithstanding anything to the contrary in this Article 19, Confidential Information may be disclosed by Seller to any potential Lender or any of its agents, consultants or trustees so long as the Person to whom Confidential Information is disclosed agrees in writing to be bound by the confidentiality provisions of this Article 19 to the same extent as if it were a Party. 19.5 Public Statements. Neither Party shall issue (or cause its Affiliates to issue) a press release regarding the transactions contemplated by this Agreement unless both Parties have agreed upon the contents of any such public statement. ARTICLE 20 MISCELLANEOUS 20.1 Entire Agreement; Integration; Exhibits. This Agreement, together with the Cover Sheet and Exhibits attached hereto constitutes the entire agreement and understanding between Seller and Buyer with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits attached hereto are integral parts hereof and are made a part of this Agreement by 3.A.5.a Packet Pg. 85 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 53 reference. The headings used herein are for convenience and reference purposes only. In the event of a conflict between the provisions of this Agreement and those of the Cover Sheet or any Exhibit, the provisions of first the Cover Sheet, and then this Agreement shall prevail, and such Exhibit shall be corrected accordingly. This Agreement shall be considered for all purposes as prepared through the joint efforts of the Parties and shall not be construed against one Party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof. 20.2 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Buyer; provided, that, for the avoidance of doubt, this Agreement may not be amended by electronic mail communications. 20.3 No Waiver. Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default. 20.4 No Agency, Partnership, Joint Venture or Lease. Seller and the agents and employees of Seller shall, in the performance of this Agreement, act in an independent capacity and not as officers or employees or agents of Buyer. Under this Agreement, Seller and Buyer intend to act as energy seller and energy purchaser, respectively, and do not intend to be treated as, and shall not act as, partners in, co-venturers in or lessor/lessee with respect to the Facility or any business related to the Facility. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement). 20.5 Severability. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, the Parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. The Parties shall, however, use their best endeavors to agree on the replacement of the void, illegal or unenforceable provision(s) with legally acceptable clauses which correspond as closely as possible to the sense and purpose of the affected provision and this Agreement as a whole. 20.6 Mobile-Sierra. Notwithstanding any other provision of this Agreement, neither Party shall seek, nor shall they support any third party seeking, to prospectively or retroactively revise the rates, terms or conditions of service of this Agreement through application or complaint to FERC pursuant to the provisions of Section 205, 206 or 306 of the Federal Power Act, or any other provisions of the Federal Power Act, absent prior written agreement of the Parties. Further, absent the prior written agreement in writing by both Parties, the standard of review for changes to the rates, terms or conditions of service of this Agreement proposed by a Party shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956). Changes proposed by a non-Party or FERC acting sua sponte shall be subject to the most stringent standard permissible under applicable law. 20.7 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument and each of which shall be deemed an original. 3.A.5.a Packet Pg. 86 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 54 20.8 Facsimile or Electronic Delivery. This Agreement may be duly executed and delivered by a Party by execution and facsimile or electronic format (including portable document format (.pdf)) delivery of the signature page of a counterpart to the other Party, and, if delivery is made by facsimile or other electronic format, the executing Party shall promptly deliver, via overnight delivery, a complete original counterpart that it has executed to the other Party, but this Agreement shall be binding on and enforceable against the executing Party whether or not it delivers such original counterpart. 20.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. 20.10 [No Recourse to Members of Buyer. Buyer 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.) pursuant to its Joint Powers Agreement and is a public entity separate from its constituent members. Buyer shall solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Seller shall have no rights and shall not make any claims, take any actions or assert any remedies against any of Buyer’s constituent members, or the employees, directors, officers, consultants or advisors or Buyer or its constituent members, in connection with this Agreement.]14 [Note: to be discussed – this conflicts with Section 20.11] 20.11 Lockbox Account. [Note: credit provisions under review] 15 [For so long as the Member Lockbox Arrangement exists, Buyer’s obligations to make payments with respect to this Agreement are to be made solely from the Member Lockbox Account, as set forth in the applicable Member Security Agreement. For so long as either (a) the Member Lockbox Arrangement exists or (b) Member has provided and continues to maintain Member Performance Security for the benefit of Seller, obligations to make payments under the Agreement do not constitute any kind of indebtedness of Member or create any kind of lien on, or security interest in, any property or revenues of Member, except as set forth in the Member Lockbox Arrangement or Member Performance Security, as applicable.]16 20.12 Change in Electric Market Design. If a change in the CAISO Tariff renders this Agreement or any provisions hereof incapable of being performed or administered, then any Party may request that Buyer and Seller enter into negotiations to make the minimum changes to this 14 For California Choice Energy Authority only. 15 16 For SJ, . 3.A.5.a Packet Pg. 87 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy 55 Agreement necessary to make this Agreement capable of being performed and administered, while attempting to preserve to the maximum extent possible the benefits, burdens, and obligations set forth in this Agreement as of the Effective Date. Upon delivery of such a request, Buyer and Seller shall engage in such negotiations in good faith. If Buyer and Seller are unable, within sixty (60) days after delivery of such request, to agree upon changes to this Agreement or to resolve issues relating to changes to this Agreement, then any Party may submit issues pertaining to changes to this Agreement to the dispute resolution process set forth in Article 16. Notwithstanding the foregoing, (i) a change in cost shall not in and of itself be deemed to render this Agreement or any of the provisions hereof incapable of being performed or administered, or constitute, or form the basis of, a Force Majeure Event, and (ii) all of unaffected provisions of this Agreement shall remain in full force and effect during any period of such negotiation or dispute resolution. 3.A.5.a Packet Pg. 88 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit A - 1 EXHIBIT A DESCRIPTION OF THE FACILITY Site Name: Site includes all or some of the following APNs: County: Kern Guaranteed Capacity: 28.8 MW Interconnection Points: 14.4 MW wind sub-project: SCE’s Windhub Substation 7.2 wind sub-project: SCE’s Puff 12 kV distribution circuit 7.2 MW wind sub-project: SCE’s Keene 12kV distribution circuit P-node/Delivery Points: For each sub-project, the PNode assigned to such sub-project by the CAISO Additional Information:. 3.A.5.a Packet Pg. 89 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit B-1 EXHIBIT B FACILITY CONSTRUCTION AND COMMERCIAL OPERATION [UNDER REVIEW] 1. Construction of the Facility. a. Seller shall cause construction to begin on the Facility by the Expected Construction Start Date, (as such date may be extended by the Development Cure Period, the “Guaranteed Construction Start Date”). “Construction Start” will occur upon Seller’s acquisition of all applicable regulatory authorizations, approvals and permits for the commencement of construction of the Generating Facility, and execution of an engineering, procurement, and construction contract and issuance thereunder of a notice to proceed that authorizes the contractor to mobilize to Site and begin physical construction (including, at a minimum, excavation for foundations or the installation or erection of improvements) at the Site. The date of Construction Start will be evidenced by and subject to Seller’s delivery to Buyer of a certificate substantially in the form attached as Exhibit J hereto, and the date certified therein shall be the “Construction Start Date”. b. If Construction Start is not achieved by the Guaranteed Construction Start Date, Seller shall pay Daily Delay Damages to Buyer on account of such delay. Daily Delay Damages shall be payable for each day for which Construction Start has not begun by the Guaranteed Construction Start Date. Daily Delay Damages shall be payable to Buyer by Seller until the earlier of (i) Seller reaches Construction Start of the Facility, or (ii) Daily Delay Damages have become payable for one hundred twenty (120) days. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Daily Delay Damages, if any, accrued during the prior month and, within ten (10) Business Days following Seller’s receipt of such invoice, Seller shall pay Buyer the amount of the Daily Delay Damages set forth in such invoice. Daily Delay Damages shall be refundable to Seller pursuant to Section 2(b) of this Exhibit B. The Parties agree that Buyer’s receipt of Daily Delay Damages shall be Buyer’s sole and exclusive remedy for the delay in achieving the Construction Start Date on or before the Guaranteed Construction Start Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to receive a Damage Payment upon exercise of Buyer’s rights pursuant to Section 11.2. 2. Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and (ii) Seller has confirmed to Buyer in writing that Commercial Operation has been achieved. The “Commercial Operation Date” shall be the later of (x) [the Expected Commercial Operation Date] or (y) the date on which Commercial Operation is achieved. [Note: early COD to be discussed] a. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development 3.A.5.a Packet Pg. 90 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit B-2 Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. b. If Seller achieves Commercial Operation by the Guaranteed Commercial Operation Date, all Daily Delay Damages paid by Seller shall be refunded to Seller. Seller shall include the request for refund of the Daily Delay Damages with the first invoice to Buyer after Commercial Operation. c. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Seller shall pay Commercial Operation Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date. Commercial Operation Delay Damages shall be payable to Buyer by Seller until the Commercial Operation Date. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued during the prior month. The Parties agree that Buyer’s receipt of Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for the first [sixty (60)] days of delay in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 11.1 and (y) not limit Buyer’s right to receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section 11.2. 3. Termination for Failure to Achieve Commercial Operation. 4. Extension of the Guaranteed Dates. The Guaranteed Construction Start Date and the Guaranteed Commercial Operation Date shall be automatically extended on a day-for-day basis (the “Development Cure Period”) for the duration of the following delays: 3.A.5.a Packet Pg. 91 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit B-3 Upon request from Buyer, Seller shall provide documentation demonstrating to Buyer’s reasonable satisfaction that the delays described above did not result from Seller’s actions or failure to take commercially reasonable actions. 5. Failure to Reach Guaranteed Capacity. If, at Commercial Operation, the Installed Capacity is less than the Guaranteed Capacity, n the event that the Installed Capacity is still less than the Guaranteed Capacity as of such date, Seller shall pay “Capacity Damages” to Buyer, 6. Buyer’s Right to Draw on Development Security. If Seller fails to timely pay any Daily Delay Damages or Commercial Operation Delay Damages, Buyer may draw upon the Development Security to satisfy Seller’s payment obligation thereof, and Seller shall replenish the Development Security to its full amount within five (5) Business Days after such draw. 3.A.5.a Packet Pg. 92 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit C - 1 EXHIBIT C RESERVED 3.A.5.a Packet Pg. 93 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit D - 1 EXHIBIT D NOTICES TEHACHAPI PLAINS WIND, LLC (“Seller”) ______________________ (“Buyer”) All Notices: Terra-Gen, LLC 11455 El Camino Real, Suite 160 San Diego, CA 92130 With a copy to: Jeff.Cast@terra-gen.com <jcast@terra-gen.com> All Notices: Street: City: Attn: Phone: Facsimile: Email: Reference Numbers: Duns: Federal Tax ID Number: Reference Numbers: Duns: Federal Tax ID Number: Invoices: Attn: Phone: Facsimile: E-mail: Invoices: Attn: Phone: Facsimile: E-mail: Scheduling: TG Operations Center at 661-822-2440 or 661-822-2441 Scheduling: Attn: Phone: Facsimile: Email: Confirmations: Attn: Phone: Facsimile: Email: Confirmations: Attn: Phone: Facsimile: Email: Payments: Attn: Phone: Facsimile: E-mail: Payments: Attn: Phone: Facsimile: E-mail: Wire Transfer: BNK: ABA: ACCT: Wire Transfer: BNK: ABA: ACCT: 3.A.5.a Packet Pg. 94 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit D - 2 TEHACHAPI PLAINS WIND, LLC (“Seller”) ______________________ (“Buyer”) With additional Notices of an Event of Default to: Attn: Phone: Facsimile: E-mail: With additional Notices of an Event of Default to: Attn: Phone: Facsimile: E-mail: Emergency Contact: Attn: Operations 24/7 Desk Phone: 661-822-2440 or 661-822-2441 Facsimile: 661-822-240 Email: Emergency Contact: Attn: Phone: Facsimile: Email: 3.A.5.a Packet Pg. 95 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit E - 1 EXHIBIT E RESERVED 3.A.5.a Packet Pg. 96 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit F - 1 EXHIBIT F GUARANTEED ENERGY PRODUCTION DAMAGES CALCULATION In accordance with Section 4.7, if Seller fails to achieve the Guaranteed Energy Production during any Performance Measurement Period, a liquidated damages payment shall be due from Seller to Buyer, calculated as follows: [(A – B) * (C – D)] where: A = the Guaranteed Energy Production amount for the Performance Measurement Period, in MWh B = the Adjusted Energy Production amount for the Performance Measurement Period, in MWh C = Replacement price for the Performance Measurement Period, in $/MWh, which is the sum of (a) the simple average of the Integrated Forward Market hourly price for all the hours in the Performance Measurement Period, as published by the CAISO, for the SP 15 Existing Zone Generation Trading Hub (as defined in the CAISO Tariff), D = the Contract Price for the Performance Measurement Period, in $/MWh No payment shall be due if the calculation of (A - B) or (C - D) yields a negative number. Within sixty (60) days after each Performance Measurement Period, Buyer will send Seller Notice of the amount of damages owing, if any, which shall be payable to Buyer before the later of (a) thirty (30) days of such Notice and (b) ninety (90) days after each Performance Measurement Period, provided that the amount of damages owing shall be adjusted to account for Replacement Product, if any, delivered after each applicable Performance Measurement Period. Additional Definitions: “Adjusted Energy Production” shall mean the sum of the following: Metered Energy + Deemed Delivered Energy + Lost Output + Replacement Product. “Lost Output” means the sum of electric energy in MWh that would have been generated and delivered for sale hereunder, but was not, on account of Force Majeure Event, Buyer Default, or Curtailment Order. The additional MWh shall be calculated using Buyer’s Share of the equation provided by Seller to reflect the potential generation of the Facility as a function of Available Capacity, wind speed, and wind direction and using relevant Facility availability, weather and other pertinent data for the period of time during the period in which the Force Majeure Event, Buyer Default, or Curtailment Order occurred. 3.A.5.a Packet Pg. 97 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit F - 2 “Replacement Green Attributes” means Renewable Energy Credits of the same Portfolio Content Category (i.e., PCC1) as the Product and of the same timeframe for retirement as the Renewable Energy Credits that would have been generated by the Facility during the Performance Measurement Period for which the Replacement Green Attributes are being provided. “Replacement Energy” means energy produced by the Facility or a facility other than the Facility that, at the time delivered to Buyer, qualifies under Public Utilities Code 399.16(b)(1), and has Green Attributes that have the same or comparable value, including with respect to the timeframe for retirement of such Green Attributes, if any, as the Green Attributes that would have been generated by the Facility during the Contract Year for which the Replacement Energy is being provided. “Replacement Product” means (a) Replacement Energy, and (b) all Replacement Green Attributes. 3.A.5.a Packet Pg. 98 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit G-1 EXHIBIT G PROGRESS REPORTING FORM Each Progress Report must include the following items: 1. Executive Summary. 2. Facility description. 3. Site plan of the Facility. 4. Description of any planned changes to the Facility or the site. 5. Gantt chart schedule showing progress on achieving each of the Milestones. 6. Summary of activities during the previous calendar month, including any OSHA labor hour reports. 7. Forecast of activities scheduled for the current calendar quarter. 8. Written description about the progress relative to Seller’s Milestones, including whether Seller has met or is on target to meet the Milestones. 9. List of issues that could potentially affect Seller’s Milestones. 10. A status report of start-up activities including a forecast of activities ongoing and after start-up, a report on Facility performance including performance projections for the next twelve (12) months. 11. Progress and schedule of all agreements, contracts, permits, approvals, technical studies, financing agreements and major equipment purchase orders showing the start dates, completion dates, and completion percentages. 12. Pictures, in sufficient quantity and of appropriate detail, in order to document construction and startup progress of the Facility, the interconnection into the Transmission System and all other interconnection utility services. 13. Any other documentation reasonably requested by Buyer. 3.A.5.a Packet Pg. 99 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit H - 1 EXHIBIT H RESERVED 3.A.5.a Packet Pg. 100 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit I-1 - 1 EXHIBIT I-1 FORM OF COMMERCIAL OPERATION DATE CERTIFICATE [NOTE: TO BE UPDATED] This certification (“Certification”) of Commercial Operation is delivered by _______[licensed professional engineer] (“Engineer”) to [Buyer] (“Buyer”) in accordance with the terms of that certain Power Purchase and Sale Agreement dated _______ (“Agreement”) by and between [Seller] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement. Engineer hereby certifies and represents to Buyer the following: (1) Seller has installed equipment with a nameplate capacity of no less than [eighty-five percent (85%)] of the Guaranteed Capacity. (2) Authorization to parallel the Facility was obtained by the Participating Transmission Provider, [Name of Participating Transmission Owner as appropriate] on___[DATE]____ (3) The Participating Transmission Provider or Distribution Provider has provided documentation supporting full unrestricted release for Commercial Operation by [Name of Participating Transmission Owner as appropriate] on _______[DATE]_____. (4) The CAISO has provided notification supporting Commercial Operation, in accordance with the CAISO tariff on _______[DATE]_____. EXECUTED by [LICENSED PROFESSIONAL ENGINEER] this ________ day of _____________, 20__. [LICENSED PROFESSIONAL ENGINEER] By: Its: Date: 3.A.5.a Packet Pg. 101 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit I-2 - 1 EXHIBIT I-2 FORM OF INSTALLED CAPACITY CERTIFICATE [NOTE: TO BE UPDATED] This certification (“Certification”) of Installed Capacity is delivered by [licensed professional engineer] (“Engineer”) to [Buyer] (“Buyer”) in accordance with the terms of that certain Power Purchase and Sale Agreement dated __________ (“Agreement”) by and between [SELLER ENTITY] and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement. The aggregate nameplate capacity of the installed generating units comprising the Facility, less expected Station Use and Electrical Losses prior to the Delivery Points, is __MW AC (“Installed Capacity”). EXECUTED by [LICENSED PROFESSIONAL ENGINEER] this ________ day of _____________, 20__. [LICENSED PROFESSIONAL ENGINEER] By: Its: Date: 3.A.5.a Packet Pg. 102 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit J - 1 EXHIBIT J FORM OF CONSTRUCTION START DATE CERTIFICATE This certification (“Certification”) of the Construction Start Date is delivered by [SELLER ENTITY] (“Seller”) to [Buyer] (“Buyer”) in accordance with the terms of that certain Power Purchase and Sale Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Certification but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement. Seller hereby certifies and represents to Buyer the following: (1) the EPC Contract related to the Facility was executed on __________; (2) the Limited Notice to Proceed with the construction of the Facility was issued on ______________ (attached); (3) the Construction Start Date has occurred; (4) the precise Site on which the Facility is located is, which must be within a one-mile radius of the boundaries of the previously identified Site: ___________________________________ (such description shall amend the description of the Site in Exhibit A). IN WITNESS WHEREOF, the undersigned has executed this Certification on behalf of Seller as of the ___ day of ________. [SELLER ENTITY] By: Its: Date: 3.A.5.a Packet Pg. 103 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit K - 1 EXHIBIT K FORM OF LETTER OF CREDIT [UNDER REVIEW] [Issuing Bank Letterhead and Address] IRREVOCABLE STANDBY LETTER OF CREDIT NO. [XXXXXXX] Date: Bank Ref.: Amount: US$[XXXXXXXX] Expiry Date: Beneficiary: [ ] [Address] [ ] Ladies and Gentlemen: By the order of __________ (“Applicant”), we, [insert bank name and address] (“Issuer”) hereby issue our Irrevocable Standby Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) in favor of [ ] (“Beneficiary”), [ ], for an amount not to exceed the aggregate sum of U.S. $[XXXXXX] (United States Dollars [XXXXX] and 00/100), pursuant to that certain Power Purchase and Sale Agreement dated as of ______ and as amended (the “Agreement”) between Applicant and Beneficiary. This Letter of Credit shall become effective immediately and shall expire on __________ __, 201_. Funds under this Letter of Credit are available to you against your draft(s) drawn on us at sight, referencing thereon our Letter of Credit No. [XXXXXXX] accompanied by your dated statement purportedly signed by your duly authorized representative, in the form attached hereto as Exhibit A, containing one of the two alternative paragraphs set forth in paragraph 2 therein. We hereby agree with the Beneficiary that all drafts drawn under and in compliance with the terms 3.A.5.a Packet Pg. 104 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit K - 2 of this Letter of Credit, that such drafts will be duly honored upon presentation to the drawee at [insert bank address]. Payment shall be made by Issuer in U.S. dollars with Issuer’s own immediately available funds. Partial draws are permitted under this Letter of Credit. It is a condition of this Letter of Credit that it shall be deemed automatically extended without an amendment for a one year period beginning on the present expiry date hereof and upon each anniversary for such date, unless at least one hundred twenty (120) days prior to any such expiry date we have sent to you written notice by overnight courier service that we elect not to extend this Letter of Credit, in which case it will expire on its the date specified in such notice. No presentation made under this Letter of Credit after such expiry date will be honored. Notwithstanding any reference in this Letter of Credit to any other documents, instruments or agreements, this Letter of Credit contains the entire agreement between Beneficiary and Issuer relating to the obligations of Issuer hereunder. This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision) International Chamber of Commerce Publication No. 600 (the “UCP”), except to the extent that the terms hereof are inconsistent with the provisions of the UCP, including but not limited to Articles 14(b) and 36 of the UCP, in which case the terms of this Letter of Credit shall govern. In the event of an act of God, riot, civil commotion, insurrection, war or any other cause beyond Issuer’s control (as defined in Article 36 of the UCP) that interrupts Issuer’s business and causes the place for presentation of the Letter of Credit to be closed for business on the last day for presentation, the expiry date of the Letter of Credit will be automatically extended without amendment to a date thirty (30) calendar days after the place for presentation reopens for business. Please address all correspondence regarding this Letter of Credit to the attention of the Letter of Credit Department at [insert bank address information], referring specifically to Issuer’s Letter of Credit No. [XXXXXXX]. For telephone assistance, please contact Issuer’s Standby Letter of Credit Department at [XXX-XXX-XXXX] and have this Letter of Credit available. [Bank Name] ___________________________ [Insert officer name] [Insert officer title] 3.A.5.a Packet Pg. 105 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit K - 3 (DRAW REQUEST SHOULD BE ON BENEFICIARY’S LETTERHEAD) Drawing Certificate [Insert Bank Name and Address] Ladies and Gentlemen: The undersigned, a duly authorized representative of [ ], [ ], as beneficiary (the “Beneficiary”) of the Irrevocable Letter of Credit No. [XXXXXXX] (the “Letter of Credit”) issued by [insert bank name] (the “Bank”) by order of __________ (the “Applicant”), hereby certifies to the Bank as follows: 1. Applicant and Beneficiary are party to that certain Power Purchase and Sale Agreement dated as of ___________, 20__ (the “Agreement”). 2. Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________ because a [Buyer][Seller] Event of Default (as such term is defined in the Agreement) has occurred. or Beneficiary is making a drawing under this Letter of Credit in the amount of U.S. $___________, which equals the full available amount under the Letter of Credit, because Applicant is required to maintain the Letter of Credit in force and effect beyond the expiration date of the Letter of Credit but has failed to provide Beneficiary with a replacement Letter of Credit or other acceptable instrument within thirty (30) days prior to such expiration date. 3. The undersigned is a duly authorized representative of [ ] and is authorized to execute and deliver this Drawing Certificate on behalf of Beneficiary. You are hereby directed to make payment of the requested amount to [ ] by wire transfer in immediately available funds to the following account: [Specify account information] [ ] ______________________________ Name and Title of Authorized Representative Date___________________________ 3.A.5.a Packet Pg. 106 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit L - 1 EXHIBIT L FORM OF REPLACEMENT RA NOTICE This Replacement RA Notice (this “Notice”) is delivered by [SELLER ENTITY] (“Seller”) to [Buyer] (“Buyer”) in accordance with the terms of that certain Power Purchase and Sale Agreement dated __________ (“Agreement”) by and between Seller and Buyer. All capitalized terms used in this Notice but not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement. Pursuant to Section 3.9(b) of the Agreement, Seller hereby provides the below Replacement RA product information: 3.A.5.a Packet Pg. 107 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy Exhibit L - 2 [SELLER ENTITY] By: Its: Date: 3.A.5.a Packet Pg. 108 Attachment: Long-Term Renewable Energy Contract - Tehachapi Plains Wind, LLC - 12-03-19 - Redacted (Long-Term Renewable Energy December 3, 2019 TO: City Council REQUESTED BY: Travis Randel, Community Development Director APPROVED BY: Robert A. Johnson, City Manager SUBJECT: Approval of the 2019 California Building Standards Code and 2019 California Fire Code RECOMMENDATION: 1. That the City Council approve the second reading and adoption of Ordinance 19-19 approving the 2019 California Building Standards and 2019 Fire Code updates. AN ORDINANCE OF THE CITY OF SAN JACINTO AMENDING AND ADDING CERTAIN SECTIONS AND SUBSECTIONS IN CHAPTERS 8.16 AND 15.04 OF THE MUNICIPAL CODE OF THE CITY OF SAN JACINTO, CALIFORNIA PERTAINING TO THE CONSTRUCTION AND MAINTENANCE OF BUILDINGS AND ADOPTING BY REFERENCE THE 2019 EDITION OF THE CALIFORNIA BUILDING STANDARDS CODE, KNOWN AS THE CALIFORNIA CODE OF REGULATIONS, TITLE 24, INCLUDING THE 2019 CALIFORNIA BUILDING CODE (INCORPORATING AND AMENDING THE 2018 INTERNATIONAL BUILDING CODE), THE 2019 CALIFORNIA FIRE CODE (INCORPORATING AND AMENDING THE 2018 INTERNATIONAL FIRE CODE), THE 2019 CALIFORNIA ELECTRICAL CODE (INCORPORATING AND AMENDING THE 2017 NATIONAL ELECTRICAL CODE), THE 2019 CALIFORNIA MECHANICAL CODE (INCORPORATING AND AMENDING THE 2018 UNIFORM MECHANICAL CODE), THE 2019 CALIFORNIA PLUMBING CODE (INCORPORATING AND AMENDING THE 2018 UNIFORM PLUMBING CODE), THE 2019 CALIFORNIA ADMINISTRATIVE CODE, THE 2019 ENERGY CODE, THE 2019 REFERENCED STANDARDS CODE, THE 2019 CALIFORNIA GREEN BUILDING STANDARDS CODE, THE 1997 UNIFORM ADMINISTRATIVE CODE, AND THE 2018 UNIFORM SWIMMING POOL, SPA AND HOT TUB CODE, TOGETHER WITH CERTAIN ADDITIONS, INSERTIONS, DELETIONS AND CHANGES THERETO. 4.1 Packet Pg. 109 BACKGROUND: On November 19, 2019, the City Council introduced and approved the first reading of Ordinance 19-19 for the adoption of the 2019 California Building Standards and 2019 Fire Code Updates. Pursuant to Government Code 6066, a public notice is required to be posted once a week for two successive weeks prior to adoption. A public notice was published November 23, 2019 and November 28, 2019. DISCUSSION: In January 2017, the City adopted the 2016 California Building Standards Code, which includes the 2016 California Building Code and the 2016 California Fire Code. The 2019 California Building Standards was published by the Commission on or before July 1, 2019, and will be applicable to all occupancies in the State beginning January 1, 2020. However, local agencies may amend the California Building Standards Code provided the amendments are supported by express findings showing that the amendments are “reasonably necessar y because of local climatic, geological or topographical conditions.” (Health & Saf. Code, §§ 18941.5, 17958.7.) The proposed amendments specific to San Jacinto include a requirement for a building permit for any fence that is in excess of 18 inches in h eight. In addition, due to the severe winds in 2007, block walls shall be constructed to withstand winds of up to 100 MPH. For our region, the design standard is normally set at 70 MPH. Additionally, staff is proposing modifications in order to provide for plan check fees that are representative of the City’s costs to provide such services. Also, an amendment is proposed in order to maintain the City’s requirements for erosion control landscaping on manufactured slopes. Finally, an amendment was added to require building permits for concrete flatwork, and to require permits for accessory buildings/structures. The amendments to the Fire Code, contained in chapter 8.16 of the Municipal Code, have been prepared by Riverside County Fire. The Fire Department has included a separate memorandum setting forth additional justifications, findings, and explanations for the changes to the Fire Code. FISCAL IMPACT: When fully implemented, the accompanying Ordinance will have a positive fiscal impact, in that it will enable the City to recover the costs associated with enforcement of the various city codes and regulations. ATTACHMENTS: Ordinance 19-19 Ordinance 19-19 - Exhibit "1" - Fire Code Ordinance 19-19 - Exhibit "A" - Fire Code Justifications 4.1 Packet Pg. 110 STATE OF CALIFORNIA ) ORDINANCE NO. 19-19 COUNTY OF RIVERSIDE ) ss CITY OF SAN JACINTO ) AN ORDINANCE OF THE CITY OF SAN JACINTO AMENDING AND ADDING CERTAIN SECTIONS AND SUBSECTIONS IN CHAPTERS 8.16 AND 15.04 OF THE MUNICIPAL CODE OF THE CITY OF SAN JACINTO, CALIFORNIA PERTAINING TO THE CONSTRUCTION AND MAINTENANCE OF BUILDINGS AND ADOPTING BY REFERENCE THE 2019 EDITION OF THE CALIFORNIA BUILDING STANDARDS CODE, KNOWN AS THE CALIFORNIA C ODE OF REGULATIONS, TITLE 24, INCLUDING THE 2019 CALIFORNIA BUILDING CODE, (INCORPORATING AND AMENDING THE 2018 INTERNATIONAL BUILDING CODE), THE 2019 CALIFORNIA FIRE CODE (INCORPORATING AND AMENDING THE 2018 INTERNATIONAL FIRE CODE), THE 2019 CALIFORNIA E LECTRICAL CODE (INCORPORATING AND AMENDING THE 2017 NATIONAL ELECTRICAL CODE), THE 2019 CALIFORNIA MECHANICAL CODE (INCORPORATING AND AMENDING THE 2018 UNIFORM MECHANICAL CODE), THE 2019 CALIFORNIA PLUMBING CODE (INCORPORATING AND AMENDING THE 2018 UNIFORM PLUMBING CODE), THE 2019 CALIFORNIA RESIDENTIAL CODE (INCORPORATING AND AMENDING THE 2018 INTERNATIONAL RESIDENTIAL CODE), THE 2019 CALIFORNIA ADMINISTRATIVE CODE, THE 2019 CALIFORNIA ENERGY CODE, THE 2019 CALIFORNIA REFERENCED STANDARDS CODE AND THE 2016 CALIFORNIA GREEN BUILDING STANDARDS CODE, THE 1997 UNIFORM ADMINISTRATIVE CODE, AND THE 2018 UNIFORM SWIMMING POOL, SPA AND HOT TUB CODE TOGETHER WITH CERTAIN ADDITIONS, INSERTIONS, DELETIONS AND CHANGES THERETO WHEREAS, pursuant to California Government Code Section 50022.1 et seq. the City of San Jacinto (“City”) may adopt by reference the California Building Standards Code, 2019 Edition as provided in Title 24 of the California Code of Regulations; and WHEREAS, the California Building Standards Commission (“Commission”) recently adopted new amendments to the California Building Standards Code; and WHEREAS, California Health & Safety Code, Sections 17958.5 and 18941.5 authorize cities and counties to modify the California Building Standards Code b y WHEREAS, the City Council finds that the proposed amendments to the 2019 California Building Standards Code set forth in this ordinance are more restrictive than the standards adopted by the California Building Standards Commission, would decrease the potential incidence of property damage, injury and death due to fires and earthquakes, 4.1.a Packet Pg. 111 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) and are reasonable and necessary to mitigate local climatic, geologic or topographical conditions; and WHEREAS, the City held a public hearing on November 19, 2019 and December 3, 2019 at which time all interested persons had the opportunity to appear and be heard on the matter of adopting the California Building Standards Code and other uniform codes as amended herein; and WHEREAS, the City published notice of the aforementioned public hearing pursuant to California Government Code Section 6066 ; and WHEREAS, any and all other legal prerequisites relating to the adoption of this Ordinance have occurred. THE CITY COUNCIL OF THE CITY OF SAN JACINTO DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Findings. To the extent that the following changes and modifications to the 2019 California Building Standards Code are deemed more restrictive than the standards contained in the 2019 California Building Standards Code, thus requiring that findings be made pertaining to local conditions to justify such modifications, the City Council hereby finds and determines that the following changes and modifications are reasonably necessary due to local climatic, geological and topographical conditions, and adopt s the findings provided below to support the modifications to the 2019 California Building Standards Code. A. Amendments to Chapter 1, section 105.2, item 2 of the 2019 Edition of the California Building Code and Section 2-1.2.1(2) of the 1997 Uniform Administrative Code are reasonably necessary due to the following local climactic condition. The City of San Jacinto has sustained serious property damage due to extremely high Santa Ana winds, including sustained winds at over 100 miles per hour, thus necessitating the review and approval of building plans and permits for fences over eighteen inches (18”), rather than for only those fences over six feet (6’) or seven (7’) feet as required in the 2019 Edition of the California Building Code and the 1997 Uniform Administrative Code. B. Amendments to Chapter 1, section 105.2, items 1 and 6 of the 2019 edition of the California Building Code and Section 106.1 of the 1997 Uniform Administrative Code are reasonably necessary due to the following local climatic condition. The City of San Jacinto experiences extremely hot temperatures, especially the summer, which affect concrete curing and other similar processes. C. Amendments to the 2019 California Fire Code are reasonably necessary due to the climatic, topographical, and geological 4.1.a Packet Pg. 112 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) conditions described in Exhibit A attached hereto and incorporated herein by this reference. D. All other changes to the Codes referenced herein are hereby found, declared and determined by the City Council to be primarily procedural and non-substantive, and therefore to be equivalent for the purposes intended by the original Codes. Section 2. Chapter 8.16 of the San Jacinto Municipal Code is hereby amended to read in full as set forth in Exhibit “1” attached hereto. Section 3. Section 15.04.010 of the San Jacinto Municipal Code is hereby amended in its entirety to read as follows: “15.04.010 1997 Uniform Administrative Code adopted— Modifications. The Uniform Administrative Code, 1997 Edition, including all appendices, tables and indices thereto is adopted as part of the Building Code of the city of San Jacinto (copies of which are on file in the office of the City Clerk) with the following modifications: A. Section 301.2.1, paragraph (2) is amended to read as follows: Fences not over eighteen inches (18”) shall not need a building permit’. B. Section 304.3 is amended to read as follows: Plan Review Fees: When a plan or other data are required to be submitted by Section 302.2, a plan review fee shall be paid at the time of submitting plans and specifications for review. Said plan review fee for buildings or structures shall be 65% of the established building permit fee. The plan review fees for electrical, mechanical and plumbing work shall be equal to 25% of the total permit fee for each. The plan review fee for grading work shall be 35% of the grading permit fee. The plan review fee for energy shall be 15% of the building permit fee. The plan review fee for public and private improvements shall be as established by City Council resolution. Where plans are incomplete or changed so as to require an additional plan review and additional plan review fee shall be charged at the established rate.” 4.1.a Packet Pg. 113 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Section 4. Section 15.04.020 of the San Jacinto Municipal Code is hereby amended in its entirety to read as follows: “15.04.020 2019 Building Code adopted—Modifications. The California Building Code, 2019 Edition, including Chapter 1 and all appendices, tables and indices thereto (copies of which are on file in the office of the city clerk), is hereby adopted as part of the Building Code of the city of San Jacinto with the following modifications: A. Chapter 1, section 105.2, Item 2 is amended to read as follows: ‘Fences not over eighteen inches (18”) shall not need a building permit.’ B. Chapter 1, section 105.2, Item 1 is amended to read as follows: ‘One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, provided the floor area is not greater than 120 square feet (11 m2). However, a permit is required for any concrete flat work associated with the structures.’ C. Chapter 1, section 105.2, Item 5 is amended to read as follows: ‘Water tanks supported directly on grade if the capacity does not exceed 5,000 gallons (18,925 L) and the ratio of height to diameter or width does not exceed 2:1 and any associated concrete flat work.’ D. Section 109.1 is amended to add the following language: ‘When a plan or other data are required to be submitted by Section 107, a plan review fee shall be paid at the time of submitting plans and specifications for review. Said plan review f ee for buildings or structures shall be 65% of the established building permit fee. The plan review fees for electrical, mechanical and plumbing work shall be equal to 25% of the total permit fee for each. The plan review fee for grading work shall be 35% of the grading permit fee. The plan review fee for energy shall be 15% of the building permit fee. The plan review fee for public and private improvements shall be as established by City Council resolution. Where plans are incomplete or changed so as to require an additional plan review and additional plan review fee shall be charged at the established rate.’ 4.1.a Packet Pg. 114 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) E. Appendix J (Grading), Section J110.3 is hereby added to read as follows: ‘J110.3Slopes. The faces of cut and fill slopes shall be prepared and maintained to control erosion and provide stability. Where cut slopes are not subject to erosion due to erosion-resistant character of materials, such production may be omitted. Unless otherwise recommended in the approved soil engineering or engineering geology report, cut and fill slopes shall be planted in accordance with this Section. The protection for the slopes shall be installed as soon as practicable and prior to calling for final permit approval.’ A. General Requirements. Cut slopes equal to or greater than 5 feet in vertical height and fill slopes equal to or greater than 3 feet in vertical height shall be planted with grass or ground cover to protect the slope from erosion and instability. Other slopes as deemed necessary by the Building Official shall also be planted. B. Slopes exceeding 15 feet in vertical height shall be planted with shrubs, spaced at not more than 10 feet on center; or trees, spaced not to exceed 20 feet on center; or a combination of shrubs and trees at equivalent spacings, in addition to the grass or ground cover. The plants selected and planting patterns may be varied upon the recommendation of a landscape architect or a slope control specialist with approval of the Building Official. If a species other than those from the recommended list of plants is selected, a written statement shall be submitted by a landscape architect or slope control specialist certifying the plants suitable for erosion control and slope stability. This statement must accompany the grading plan at the time of submittal. C. Landscape and Irrigation Plan Requirements: 1. Landscape Plans shall be submitted for all slopes required to be planted. The landscape plan may be incorporated as part of the grading plan unless, in the opinion of the Building Official the plan becomes too obscured to be effective. A landscape plan shall include: a. A slope planting schedule that provides common and scientific names and specifications of all plants, number and size of each tree and scrub and the spacing of plants. b. The location of the planting. c. Details of the irrigation system. Landscape plans involving more than four structures shall be prepared 4.1.a Packet Pg. 115 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) and signed by a landscape architect. This plan shall include the details necessary to complete the project including scope of work, materials to be used (seed mixtures, plant species listed by size quantity, fertilizer used and rate of application), construction methods, maintenance and time table for project completion. 2. Except where approved by the Building Official slopes required to be planted shall be provided with an approved system of irrigation designed to cover all portions of the slopes and shall be of e the extent of work proposed. Specifications for devices, size and type of pipe, flow rates and precipitation rates are to be shown on the landscape plan. An approved backflow prevention device shall be installed in each irrigation system which conforms to Chapter 10 of the Uniform Plumbing Code. If the planting requirements specified in the subsection above are waived by the Building Official, the requirements specified in this subsection may be waived. D. Planting Method. Planting shall commence as soon as slopes are completed on any portion of the site and shall provide for rapid short term coverage of the slope as well as long term permanent coverage. Minimum requirements shall include: 1. Planting holes shall be excavated twice as wide as the diameter and 2 inches less than the depth of the root ball of the plant. The planting holes shall be backfilled with a mixture of native soil, slowly decomposing organic matter and an appropriate fertilizer. 2. Each tree shall be staked in order to anchor the root system and to support the trunk in an upright position. Stake material shall be of adequate dimension and length to support the tree. Ties used for tying the tree to the stake shall have a broad surface to minimize rubbing or girdling and have some elasticity. In lieu of stakes a three wire tie-down system may be used. 3. Ground cover is to be spaced in such a manner that 100% coverage of the planted slope will be achieved in as short a time as possible. Spacing of ground cover shall not exceed 12 inches O.C. unless acceptable supporting horticultural evidence recommending greater spacing is furnished to the Building Official. 4.1.a Packet Pg. 116 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) E. Waiver of Planting Requirements. Waiver of the Planting and irrigation requirements may be approved by the Building Official if found to be unreasonable or unnecessary for one of the following reasons: 1. The erosion resistant character of material composing the slopes make planting unnecessary. 2. The unavailability of water making irrigation either impossible or impractical. 3. Slope heights are less than those requiring planting by Section 3, paragraph (H) 1.1. F. Planting Maintenance. All vegetation planted for erosion control shall be maintained in a healthy, vigorous condition. Maintenance of planted slopes shall include watering, weeding and restoration of any plants. Slopes that are affected by the future swimming pools or any other building must be properly replanted upon the completion of subsequent projects. G. Bonding. A bond for all projects involving more than four structures shall be filed with the City by the developer at the time that the landscaping plan is approved. H. Final Planting Inspection. A final planting inspection shall be required for all building sites requiring planting. For building sites not requiring a performance bond, the final planting inspection shall be approved prior to the building permit final inspection. Any required irrigation system and all planting shall be installed at the time of the final planting inspection. A functional test of the irrigation system may be required. For building sites requiring a performance bond, slope certification required by the next subsection shall be approved prior to the building permit final inspection. The final planting inspection shall be performed at the end of the one-year bond period. I. Slope Verification. A site inspection shall be performed by the responsible landscape architect to assure compliance with the approved plans and to perform a functional test of the sprinkler system. Said landscape architect shall verify in writing to the Building Official that the soils, additives, and amendments, weed control, planting of the slopes and the installation of the irrigation system comply to the approved plans and to all the provisions of this section. Verification to contain a statement as to the grow stock vitality. J. Landscape and Irrigation Plan/Plan-Checking Fee. Before accepting a set of plans and specification for checking, the Community Development Department shall collect a plan checking fee. The 4.1.a Packet Pg. 117 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) amount of the plan checking fee for the landscape and irrigation plan shall be as set forth by City Council resolution. K. Landscaping Permit Fees. A fee for each landscaping permit shall be paid to the Community Development Department as set forth by City council resolution.’ Section 5. Section 15.04.030 of the San Jacinto Municipal Code is hereby amended in its entirety to read as follows: “15.04.030 2019 Mechanical Code adopted—Modifications. The California Mechanical Code, 2019 Edition, and including Chapter 1 and all appendices, tables and indices thereto (copies of which are on file in the office of the city clerk), is adopted as the Mechanical Code of the city of San Jacinto.” Section 6. Section 15.04.035 of the San Jacinto Municipal Code is hereby added to read as follows: “15.04.035 2019 Residential Code adopted—Modifications. The California Residential Code, 2019 Edition, and including Chapter 1 and all appendices, tables and indices thereto (copies of which are on file in the office of the city clerk), is adopted as the Residential Code of the city of San Jacinto.” Section 7. Section 15.04.040 of the San Jacinto Municipal Code is hereby amended in its entirety to read as follows: “15.04.040 2019 Plumbing Code adopted—Modifications. The California Plumbing Code, 2019 Edition, and including Chapter 1 and all appendices, tables and indices thereto (copies of which are on file in the office of the city clerk), is adopted as the Plumbing Code of the city of San Jacinto.” Section 8. Section 15.04.045 of the San Jacinto Municipal Code is hereby added to read as follows: “15.04.045 2019 Green Building Standards Code adopted— Modifications. The California Green Building Standards Code, 2019 Edition, and including all appendices, tables and indices but excepting any voluntary provisions thereto (copies of which are on file in the office of the city clerk), is adopted as the Green Building Standards Code of the city of San Jacinto.” 4.1.a Packet Pg. 118 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Section 9. Section 15.04.055 of the San Jacinto Municipal Code is hereby added to read as follows: “15.04.055 2019 Administrative Code adopted—Modifications. The California Administrative Code, 2019 Edition, and including all appendices, tables and indices but excepting any voluntary provisions thereto (copies of which are on file in the office of the city clerk), is adopted as the Administrative Code of the city of San Jacinto.” Section 10. Section 15.04.065 of the San Jacinto Municipal Code is hereby added to read as follows: “15.04.065 2019 Energy Code adopted—Modifications. The California Energy Code, 2019 Edition, and including all appendices, tables and indices but excepting any voluntary provisions thereto (copies of which are on file in the Office of the City Clerk), is adopted as the Energy Code of the City of San Jacinto.” Section 11. Section 15.04.070 of the San Jacinto Municipal Code is hereby added to read as follows: “15.04.070 Uniform Swimming Pool, Spa and Hot Tub Code adopted. The Uniform Swimming Pool. Spa and Hot Tub Code, 2018 Edition, and all appendices, tables and indices thereto (copies of which are on file in the office of the city clerk), is adopted as the Uniform Swimming Pool, Spa and Hot Tub Code of the city of San Jacinto.” Section 12. Section 15.04.075 of the San Jacinto Municipal Code is hereby added to read as follows: “15.04.075 2019 Referenced Standards Code adopted—Modifications. The California Referenced Standards Code, 2019 Edition, and including all appendices, tables and indices but excepting any voluntary provisions thereto (copies of which are on file in the office of the city clerk), is adopted as the Referenced Standards Code of the city of San Jacinto.” Section 13. Section 15.04.080 of the San Jacinto Municipal Code is hereby amended in its entirety to read as follows: “15.04.080 2019 Electrical Code adopted—Modifications. The California Electrical Code, 2019 Edition, and including Article 89 and all appendices, tables and indices thereto (copies of which are on file in the 4.1.a Packet Pg. 119 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) office of the city clerk), is adopted as the Electrical Code of the city of San Jacinto.” Section 14. Section 15.04.120 of the San Jacinto Municipal Code is hereby amended in its entirety to read as follows: “15.04.120 Violation—Penalty. A. Penalties. It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building or structure or cause or permit the same to be done in violation of this code. B. Violation of the provisions of this chapter or the 2019 Building Code is deemed to be a misdemeanor punishable by a fine or by imprisonment, or by both fine and imprisonment. A person is guilty of a separate offense each day during which he commits, continues or permits a violation of this chapter or the 2019 Building Code. C. Violations of this chapter is declared to be a public nuisance, and the city attorney may institute necessary legal procedures for the abatement, removal or enjoinment thereof in the manner provided by law, or may take such other steps as he or she deems necessary to accommodate these ends. The application of any penalty shall not be held to prevent the enforced removal of prohibited conditions.” Section 15. CEQA. The City Council finds that this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 16. Severability. Should any provision, section, paragraph, sentence or word of this chapter be determined or declared invalid by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of this chapter shall remain in full force and effect. Section 17. Publication. The City Clerk shall certify as to the adoption of this Ordinance and shall cause a summary thereof to be published within fifteen (15) days of the adoption and shall post a Certified copy of this Ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933. 4.1.a Packet Pg. 120 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Section 18. Effective Date. This ordinance shall take effect and be in full force upon the 30th day from and after its second reading. INTRODUCED at a regular meeting of the City Council of the City of San Jacinto held on the 19th day of November 2019. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the 3rd Day of December 2019 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: CITY OF SAN JACINTO: ___________________________ Russell Utz, Mayor ATTEST: _________________________ Angela Walton, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER LLP __________________________ Michael J. Maurer, City Attorney 4.1.a Packet Pg. 121 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) CERTIFICATION State of California ) County of Riverside) ss City of San Jacinto) I, Angela Walton, duly appointed City Clerk of the City of San Jacinto, do hereby certify that the foregoing Ordinance No. 19-19 was introduced at a regular meeting of the City Council of the City of San Jacinto on the 19th day of November 2019. Ordinance No. 19-19 was passed, approved, and adopted by the City Council of the City of San Jacinto, California, at a regular meeting of the City Council held on the 3rd day of December 2019 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: WITNESS MY HAND AND OFFICIAL SEAL of the City of San Jacinto the 3rd day of December 2019. _____________________________ Angela Walton, City Clerk City of San Jacinto 4.1.a Packet Pg. 122 Attachment: Ordinance 19-19 (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 1 Chapter 8.16 FIRE CODE Sections: 8.16.010 Findings and adoption of the California Fire Code. 8.16.020 Amendments to the California Fire Code 8.16.030 Appendices to the California Fire Code 8.16.040 Effective Date 8.16.010 Findings. FINDINGS. The City of San Jacinto finds the following: I. Climatic Conditions: A. The City of San Jacinto located in Riverside County is located in Southern California and covers a vast and varied geographic area. The base climate in western Riverside County consists of semi- arid Mediterranean weather patterns. Eastern Riverside County is a desert area with Mohave Desert temperatures and weather patterns. Those two primary areas are divided by the San Bernardino Mountain Range. Both areas outside of the mountain terrain annually experience extended periods of high temperatures with little or no precipitation. Hot, dry winds, which may reach speeds of 70 M.P.H. or greater, are common to the area. Examples are: Santa Ana/ Foehn winds, afternoon surface-heating generated winds, and prevailing desert winds. These climatic conditions cause extreme drying of vegeta tion and common building materials. Frequent periods of drought and low humidity add to the fire danger. This predisposes the area to large destructive fires (conflagration) which necessitates rapid identification, locating and extinguishment of all fires in the smallest stage possible. In addition to directly damaging or destroying buildings, these fires are also prone to disrupt utility services throughout the County. Obstacles generated by a strong wind, such as fallen trees, street lights and utility poles, will greatly impact the response time to reach an incident scene. During these winds, the inability to use aerial type firefighting apparatus would further decrease our ability to stop fires in large buildings and place rescue personnel at increased risk of injury. B. Although Riverside County and the City of San Jacinto occasionally experiences periods of significant drought, the City of San Jacinto can also experience periods of substantial rainfall. Annual rainfall varying from three (3) inches in Blythe to over thirty three (33) inches in Pine Cove. When Riverside County does experience heavy rain, or rain over a period of days or weeks, many areas of the County, including the City of San Jacinto, are subject to flooding. Runoff from rain drains either naturally into rivers, washes, and creeks or into flood control facilities. Flash flooding is also a common problem. Flash flooding is typically associated with short duration, high intensity precipitation events often associated with summer thunderstorms. Such events can occur even during a drought. 4.1.b Packet Pg. 123 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 2 C. Water demand in densely populated Southern California far exceeds the quantity supplied by natural precipitation; and although the population continues to grow, the already-taxed water supply does not. California is projected to increase in population by nearly 10 million over the next quarter of a century with 50 percent of that growth centered in Southern California. Due to storage capacities and consumption, and a limited amount of rainfall future water allocation is not fully dependable. This necessitates the need for additional and on-site fire protection features. It would also leave tall buildings vulnerable to uncontrolled fires due to a lack of available water and an inability to pump sufficient quantities of available water to floors in a fire. D. These dry climatic conditions and winds contribute to the rapid spread of even small fires originating in high-density housing or vegetation. These fires spread very quickly and create a need for increased levels of fire protection. The added protection of fire sprinkler systems and other fire protection features such as identification and notification will supplement normal fire department response by providing immediate protection for the building occupants and by containing and controlling the fire spread to the area of origin. Fire sprinkler systems will also reduce the use of water for firefighting by as much as 50 to 75 percent. II. Topographical conditions A. Natural: The topographical conditions of Riverside County varies from three hundred (300) feet below sea-level, flat desert communities, to mountains over ten thousand (10,000) feet in Alpine-like areas of the San Bernardino Mountain Range. In between these areas, developable slopes of 25 p ercent and greater generally occur throughout the foothills. Riverside County extends from Orange County to the State of Arizona and is mixed with congested urban areas, rural lands and wild lands. A large number of sensitive habitats for various animal species and vegetation consist within large open space areas between major urban centers that impact building and structure location, which impedes emergency access and response. This variety in regions contributes to an increased emergency response time, wh ich necessitates cooperation between local agencies. B. Traffic and circulation congestion is an artificially created, obstructive topographical condition, which is common throughout Riverside County, including within the City of San Jacinto. C. These topographical conditions combine to create a situation, which places fire department response time to fire occurrences at risk, and makes it necessary to provide automatic on-site fire-extinguishing systems and other protection measures to protect occupants and property. III. Geological Conditions 4.1.b Packet Pg. 124 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 3 Located within Riverside County are several known active and potentially active earthquake faults, including the San Andreas, San Jacinto, and Elsinore Fault. In the event of an earthquake, the location of the epicenter as well as the time of day and season of the year would have a profound effect on the number of deaths and casualties, as well as property damage. The major form of direct damage from most earthquakes is damage to construction. Bridges are particularly vulnerable to collapse, and dam failure may generate major downstream flooding. Buildings vary in susceptibility, dependent upon construction and the types of soils on which they are built. Earthquakes destroy power and telephone lines; gas, sewer, or water mains; which, in tum, may set off fires and/or hinder firefighting or rescue efforts. The hazard of earthquakes varies from place to place, dependent upon the regional and local geology. Ground shaking may occur in areas 65 miles or more from the epicenter (the point on the ground surface above the focus). Ground shaking can change the mechanical properties of some fine grained, saturated soils, where upon they liquefy and act as a fluid (liquefaction). A. Previous earthquakes in Southern California have been accompanied by disruption of traffic flow and fires. A severe seismic event has the potential to negatively impact any rescue or fire suppression activities because it is likely to create obstacles similar to those indicated under the high wind section above. With the probability of strong aftershocks there exists a need to provide increased protection for anyone on upper floors of buildings. B. Road circulation features located throughout the County also make amendments reasonably necessary. Located through the County are major roadways, highways and flood control channels that create barriers and slow response times. Hills, slopes, street and storm drain design accompanies with occasional heavy rainfall, causes roadway flooding and landslides and at times may make an emergency access route impassable. There are areas in Riverside County that naturally have extended emergency response times that exceed the 5 minute goal. California Health and Safety Code Sections 17958.7 and 18941.5 require that the modification or change be expressly marked and identified as to which each finding refers. Therefore, the City Council finds that the following table sets forth the 2019 California Fire Code sections that have been modified and the associated local climatic, geological and/or topographical conditions described above supporting the modification. 4.1.b Packet Pg. 125 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 4 2019 CODE SECTION TITLE/SUBJECT FINDINGS I, II, III 101.4 Severability Administrative 102.5 Application of the residential code I, II & III 103.4 and 103.4.1 Liability Administrative 104.1.1 Authority of the Fire Chief and Fire Department Administrative 104.12 Authority of the Fire Chief to close hazardous fire areas Administrative 106.2 Fees Administrative 106.6 Cost Recovery Administrative 109.1 Board of Appeals established Administrative 110.4 Violation and Penalties Administrative 202 Fire Chief Administrative 308.1.6.3 Sky Lanterns I, II & III 503.2.1 Dimensions Administrative 503.2.2 Authority Administrative 503.6.1 Automatic opener Administrative 503.7 Loading areas and passenger drop-offs Administrative 507.5.7 Fire hydrant size and outlets I & III 507.5.8 Fire hydrant street marker I, II & III 508.1, 508.1.1, 508.1.3, 508.1.6, 508.1.8 Fire command center I, II & III 509.2.1 Minimum clearances I & III 605.10.1.2 Manual operation II & III 903.2 Where required (automatic sprinkler systems) I, II & III 903.3.5.3 Hydraulically calculated systems I & II 3204.2.1 Minimum requirements for client leased or occupant Administrative 4904.3 High Fire Hazard Severity Zone Maps Administrative App Ch. B, Table B105.2 Buildings other than one- or two-family dwellings I, II & III App Ch. C, C103.1 Fire hydrant location I, II & III PURPOSE. The purpose of this ordinance is to adopt the 2019 California Fire Code, California Code of Regulations, Title 24, Part 9, as amended, to govern the safeguarding of life and property from fire, explosion hazards and hazardous conditions and to regulate the issuance of permits and collection of fees. AUTHORITY. This ordinance is adopted pursuant to Health and Safety Code Sections 17958, 17958.5, 17958.7, and 18941.5 which allow a city to adopt modifications or changes to the California Fire Code that are reasonably necessary because of local climatic, geological and topographical conditions. 4.1.b Packet Pg. 126 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 5 8.16.020 ADOPTION AND AMENDMENTS TO CALIFORNIA FIRE CODE. APPLICATION AND ADOPTION OF THE CALIFORNIA FIRE CODE. Except as stated in this Section or as amended below in Section 5 of this ordinance, all of the provisions and appendices of the 2019 California Fire Code, inclusive of all of the inclusions and exclusions set for in each chapter’s matrix, are hereby adopted and shall apply to the City of San Jacinto. In addition, the following provisions that are excluded in the 2019 California Fire Code are hereby adopted - Chapter 1, Division II of the California Fire Code is hereby adopted, except that Section 103.2 and 109.3 are not adopted, and Chapters 3, 25, and Sections 403.12, 503, 510.2, and 1103.2 are adopted. 1. DEPARTMENT OF FIRE PREVENTION a. Section 101.4 of the California Fire Code is deleted in its entirety and replaced with the following: 101.4 Severability. If any provision, clause, sentence or paragraph of this ordinance or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are hereby declared to be severable. b. Section 102.5 of the California Fire Code is amended as follows: 102.5 Application of residential code. Where structures are designed and constructed in accordance with the California Residential Code, the provisions of this code shall apply as follows: 1. Construction and design provisions of this code pertaining to the exterior of the structure shall apply including, but not limited to, premises identification, fire apparatus access and water supplies. Where interior or exterior systems or devices are installed, construction permits required by Section 105.7 of this code shall apply. 2. Administrative, operational and maintenance provisions of this code shall apply. 3. Automatic fire sprinkler system requirements of this code shall apply to detached accessory buildings 3,600 square feet or greater in accordance with Section 903.2. The provisions contained in Section 903.2.18 of the California Fire Code or Section R309.6 of the California Residential Code may be used for the design of the automatic fire sprinkler system for detached private garages. c. Sections 103.4 and 103.4.1 of the California Fire Code are deleted in their entirety and replaced with the following: 4.1.b Packet Pg. 127 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 6 103.4 Liability. Any liability against Riverside County or the City of San Jacinto or any officer or employee for damages resulting from the discharge of their duties shall be as provided by law. 2. GENERAL AUTHORITY AND RESPONSIBILITIES. a. A new Section 104.1.1 is added to Section 104.1 of the California Fire Code to read as follows: 104.1.1 Authority of the Fire Chief and Fire Department. 1. The Fire Chief is authorized and directed to enforce all applicable State fire laws and provisions of this ordinance and to perform such duties as directed by the City Council. 2. The Fire Chief is authorized to administer, interpret and enforce this ordinance. Under the Fire Chief’s direction, the Riverside County Fire Department is authorized to enforce ordinances of the City of San Jacinto pertaining to the following: 2.1. The prevention of fires. 2.2. The suppression or extinguishment of dangerous or hazardous fires. 2.3. The storage, use and handling of hazardous materials. 2.4. The installation and maintenance of automatic, manual and other private fire alarm systems and fire extinguishing equipment. 2.5. The maintenance and regulation of fire escapes. 2.6. The maintenance of fire protection and the elimination of fire hazards on land, in buildings, structures and other property, including those under construction. 2.7. The maintenance of means of egress. 2.8. The investigation of the cause, origin and circumstances of fire and unauthorized releases of hazardous materials. 3. The following persons are hereby authorized to interpret and enforce the provisions of this ordinance and to make arrests and issue citations as authorized by law: 3.1. The Unit Chief, Peace Officers and Public Officers of the California Department of Forestry and Fire Protection. 3.2. The Fire Chief, Peace Officers and Public Officers of the Riverside County Fire Department. 3.3. The Riverside County Sheriff and any deputy sheriff. 3.4. The Police Chief and any police officer of any city served by the Riverside County Fire Department. 3.5. Officers of the California Highway Patrol. 3.6. Code Officers of the City of San Jacinto Code Enforcement Department. 3.7. Peace Officers of the California Department of Parks and Recreation. 3.8. The law enforcement officer of the Federal Bureau of Land Management. 4.1.b Packet Pg. 128 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 7 b. A new Section 104.12 is added to Section 104 of the California Fire Co de to read as follows: 104.12 Authority of the Fire Chief to close hazardous fire areas. Except upon National Forest Land, the Fire Chief is authorized to determine and announce the closure of any hazardous fire area or portion thereof. Any closure by the Fire Chief for a period of more than fifteen (15) calendar days must be approved by the Riverside County Board of Supervisors and/or the City Council within fifteen (15) calendar days of the Fire Chief’s original order of closure. Upon such closure, no person shall go in or be upon any hazardous fire area, except upon the public roadways and inhabited areas. During such closure, the Fire Chief shall erect and maintain at all entrances to the closed area sufficient signs giving notice of closure. This section shall not prohibit residents or owners of private property within any closed area, or their invitees, from going in or being upon their lands. This section shall not apply to any entry, in the course of duty, by a peace officer, duly authorized public officer or fire department personnel. For the purpose of this section, “hazardous fire area” shall mean public or private land that is covered with grass, grain, brush or forest and situated in a location that makes suppression difficult resulting in great damage. Such areas are designated on Hazardous Fire Area maps filed with the office of th e Fire Chief. 3. FEES a. Section 106.2 of the California Fire Code is deleted in its entirety and replaced with the following: 106.2 Schedule of permit fees. Fees for services and permits shall be as set forth in the City of San Jacinto fee schedule. b. A new Section 106.6 is added to Section 106 of the California Fire Code to read as follows: 106.6 Cost recovery. Fire suppression, investigation, rescue or emergency medical costs are recoverable in accordance with Health and Safety Code Sections 13009 and 13009.1, as may be amended from time to time. Additionally, any person who negligently, intentionally or in violation of law causes an emergency response, including, but not limited to, a traffic accident, spill of toxic or flammable fluids or chemicals is liable for the costs of securing such emergency, including those costs pursuant to Government Code Section 53150, et seq, as may be amended from time to time. Any expense incurred by the Riverside County Fire Department for securing such emergency shall constitute a debt of such person and shall be collectable by Riverside County in the same manner as in the case of an obligation under contract, express or implied. 4. BOARD OF APPEALS 4.1.b Packet Pg. 129 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 8 a. Section 109.1 of the California Fire Code is deleted in its entirety and replaced with the following: 109.1 Board of appeals established. The Board of Appeals shall be the City Manager. If he or she determines an outside board is needed, he or she shall designate an outside hearing officer to hear the appeal. The Fire Chief shall be notified of any appeal and the Fire Chief or designee shall be in attendance at the appeal hearing. Depending on the subject of the appeal, specialized expertise may be solicited, at the expense of the applicant, for the purpose of providing inpu t to the Appeals Board. 5. VIOLATIONS. a. Section 110.4 of the California Fire Code is deleted in its entirety and replaced with the following: 110.4 Violation and penalties. It shall be unlawful for any person, firm, corporation or association of persons to violate any provision of this ordinance, or to violate the provisions of any permit granted pursuant to this code or ordinance. Punishments and penalties for violations shall be in accordance with the City of San Jacinto ordinances, fee schedule and Health and Safety Code Sections 17995 through 17995.5. 6. DEFINITIONS. a. Section 202, definition of “Fire Chief” in the California Fire Code is deleted in its entirety and replaced with the following: FIRE CHIEF. The Fire Chief of Riverside County or the Fire Chief’s designee. 7. OPEN FLAMES. a. Section 308.1.6.3 of the California Fire Code is deleted in its entirety and replaced with the following: 308.1.6.3 Sky lanterns or similar devices. A person shall not release or cause to be released a sky lantern or similar device. 8. FIRE APPARATUS ACCESS ROADS. a. Section 503.2.1 of the California Fire Code is deleted in its entirety and replaced with the following: 503.2.1 Dimensions. Fire apparatus access roads shall have an unobstructed width of not less than 24 feet (7315 mm), exclusive of shoulders, except for approved security gates in accordance with Section 503.6, and an unobstructed vertical clearance of not less than 13 feet 6 inches (4115 mm). For additional requirements or 4.1.b Packet Pg. 130 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 9 alternatives see Riverside County Fire Department Standards and Policies , as may be amended from time to time. b. Section 503.2.2 of the California Fire Code is deleted in its entirety and replaced with the following: 503.2.2 Authority. The Fire Code Official shall be the only authority authorized to designate fire apparatus access roads and fire lanes and to modify the minimum fire lane access widths for fire or rescue operations. c. A new Section 503.6.1 is added to Section 503.6 of the California Fire Code to read as follows: 503.6.1 Automatic opener. New motorized gates shall be provided with means to be automatically opened remotely by emergency vehicle in accordance with Riverside County Fire Department standards and Policies, as may be amended from time to time. Exception: Gates serving individual one- and two-family dwelling parcels. d. A new Section 503.7 is added to Section 503 of the California Fire Code to read as follows: 503.7 Loading areas and passenger drop-off areas. On private properties, where fire apparatus access roads are utilized for loading or unloading or utilized for passenger drop-off or pick-up, an additional eight (8) feet of width shall be added to the minimum required width for the fire apparatus access road. 9. FIRE PROTECTION WATER SUPPLIES a. A new Section 507.5.7 is added to Section 507 of the California Fire Code to read as follows: 507.5.7 Fire hydrant size and outlets . As determined by the Fire Code Official, fire hydrant sizes and outlets shall be based on the following: 1. Residential Standard – one (1) four (4) inch outlet and one (1) two and half (2 ½) inch outlet. 2. Super Hydrant Standard – one (1) four (4) inch outlet and two (2) two and one half (2 ½) inch outlet. 3. Super Hydrant Enhanced – two (2) four (4) inch outlet and one (1) two and one half (2 ½) inch outlet. b. A new Section 507.5.8 is added to Section 507 of the California Fire Code to read as follows: 4.1.b Packet Pg. 131 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 10 507.5.8 Fire hydrant street marker. Fire hydrant locations shall be visually indicated in accordance with Riverside County Fire Department Technical Policy 06-11, as may be amended from time to time. Any hydrant marker damaged or removed during the course of street construction or repair shall be immediately replaced by the contractor, developer or person responsible for removal or damage. 10. FIRE COMMAND CENTER a. Section 508.1 of the California Fire Code is deleted in its entirety and replaced with the following: 508.1 General. Where required by other sections of this code and in all buildings classified as high-rise buildings by the 2019 California Building Code, in buildings greater than 300,000 square feet in area and in Group I -2 occupancies having occupied floors located more than 75 feet above the lowest level of fire department vehicle access, a Fire Command Center for fire department operations shall be provided and comply with Sections 508.1.1 through 508.1.8. b. Section 508.1.1 of the California Fire Code is deleted in its entirety and replaced with the following: 508.1.1 Location and access. The Fire Command Center shall be located adjacent to the main lobby and shall be accessible from fire department vehicular access or as approved by the fire code official. The room shall have direct access from the building exterior at the lowest level of fire department access. c. Section 508.1.3 of the California Fire Code is amended to add the following: Exception: A Fire Command Center solely required because a building is greater than 300,000 square feet in area shall be a minimum of 96 square feet (9 m2) with a minimum dimension of 8 feet (2438mm). d. Section 508.1.6 of the California Fire Code is amended to add the following: Exception: A Fire Command Center solely required because a building is greater than 300,000 square feet in area shall comply with NFPA 72 and contain the features set forth in Section 508.1.6 subsections 5, 8, 10, 12, 13 and 14. The features set forth in Section 508.1.6 subsections 1, 2, 3, 4, 6, 7, 9, 11, 15, 16, 17, 18 and 19 shall be required when such building contains systems or functions related to these features. e. A new Section 508.1.8 is added to Section 508 of the California Fire Code to read as follows: 4.1.b Packet Pg. 132 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 11 508.1.8 Fire command center identification. The Fire Command Center shall be identified by a permanent easily visible sign stating “Fire Dept. Command Center,” located on the door to the Fire Command Center. 11. FIRE PROTECTION AND UTILITY EQUIPMENT IDENTIFICATION AND LOCATION a. Section 509.2.1 of the California Fire Code is amended to add the following: 509.2.1 Minimum clearances. A 3-foot (914 mm) clear space shall be maintained around the circumference of exterior fire protection system control valves, or any other exterior fire protection system component that may require immediate access, except as otherwise required or approved. 12. MECHANICAL REFRIGERATION. a. Section 605.10.1.2 of the California Fire Code is deleted in its entirety and replaced with the following: 605.10.1.2 Manual operation. When required by the fire code official, automatic crossover valves shall be capable of manual operation. The manual valves shall be located in an approved location immediately outside of the machinery room in a secure metal box or equivalent and marked as Emergency Controls. 13. AUTOMATIC SPRINKLER SYSTEMS. a. Section 903.2 of the California Fire Code is deleted in its entirety and replaced with the following: 903.2 Where required. In all new buildings and structures which are 3,600 square feet or greater, an approved automatic sprinkler system shall be provided regardless of occupancy classification. Where the Sections 903.2.1 – 903.2.20 of the California Fire Code require more restrictive requirements than those listed below, the mo re restrictive requirement shall take precedence. Exception: Unless required elsewhere in this code or the 2019 California Building Code, automatic fire sprinkler systems shall not be required for the following: 1. Detached Group U occupancies used for agricultural purposes constructed in accordance with the California Building Code 2. Detached non-combustible equestrian arena shade canopies that are open on all sides and used for riding only - no commercial, assembly or storage uses. 3. Detached fabric or non-combustible shade structures that are open on all sides and used to shade playground equipment, temporary storage of vehicles and dining areas with no cooking. 4. Where determined by the Fire Chief that no major life safety hazard exists, and the fuel load does not pose a significant threat to firefighter safety or to other structures or property, automatic fire sprinklers may be exempted. 4.1.b Packet Pg. 133 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 12 One- and two-family dwellings shall have an automatic fire sprinkler system regardless of square footage in accordance with the California Residential Code. Fire sprinkler systems shall be installed in mobilehomes, manufactured homes and multifamily manufactured homes with two dwelling units in accordance with Title 25 of the California Code of Regulations. The following exceptions in the California Fire Code shall not be allowed: i. Exception in Section 903.2.3 ii. Exception 2 in Section 903.2.11.3 b. A new Section 903.3.5.3 is added to Section 903 of the California Fire Code to read as follows: 903.3.5.3 Hydraulically calculated systems . The design of hydraulically calculated fire sprinkler systems shall not exceed 90% of the water supply capacity. 14. DESIGNATION OF HIGH-PILED STORAGE AREAS. a. A new Section is added to Section 3204.2 of the California Fire Code to read as follows: 3204.2.1 Minimum requirements for client leased or occupant owned warehouses. Designs of an automatic sprinkler system for client leased or occupant owned buildings containing high pile storage shall be based on the requirements of NFPA 13. The responsible fire protection engineer shall perform a survey of the building to determine commodity classification, storage configuration, building height and other information related to the development of an appropriate sprinkler system design. The fire protection engineer shall also make reasonable efforts to meet with the building owner or operator to understand seasonal or customer related fluctuations to the stored commodities, storage height, and configuration. The sprinkler design shall be based on the most demanding requirements determined through the onsite survey and discussions with the building owner or operator. The technical report shall describe the basis for determining the commodity and sprinkler design selection, how the commodities will be isolated or separated, and include references to the design document(s). If a specific fire test is used as the basis of design, a copy of the fire test report shall be provided at the time of plan review. 15. FIRE HAZARD SEVERITY ZONES. a. A new Section 4904.3 is added to Section 4904 of the California Fire Code to read as follows: 4904.3 High Fire Hazard Severity Zone Maps. In accordance with Government Code Sections 51175 through 51189, Very High Fire Hazard Severity Zones are 4.1.b Packet Pg. 134 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 13 designated as shown on a map titled Very High Fire Hazard Severity Zones, dated December 24, 2009 and retained on file at the office of the Fire Chief, which supersedes other maps previously adopted designating high fire hazard areas. 4.1.b Packet Pg. 135 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “1” 14 8.16.030 APPENDICES TO CALIFORNIA FIRE CODE. 1. APPENDIX B. 1. Table B105.2 of the California Fire Code is amended as follows: TABLE B105.2 REQUIRED FIRE-FLOW FOR BUILDINGS OTHER THAN ONE- AND TWO-FAMILY DWELLINGS, GROUP R-3 AND R-4 BUILDINGS AND TOWNHOUSES AUTOMATIC SPRINKLER SYSTEM (Design Standard) MINIMUM FIRE-FLOW (gallons per minute) FLOW DURATION (hours) No automatic sprinkler system Value in Table B105.1(2) Duration in Table B105.1(2) Section 903.3.1.1 of the California Fire Code 50% of the value in Table B105.1(2)a Duration in Table B105.1(2) at the reduced flow rate Section 903.3.1.2 of the California Fire Code 50% of the value in Table B105.1(2)b Duration in Table B105.1(2) at the reduced flow rate For SI: 1 gallon per minute = 3.785 L/m. a. The reduced fire-flow shall be not less than 1,000 gallons per minute. b. The reduced fire-flow shall be not less than 1,500 gallons per minute. 2. APPENDIX C. 1. Section C103.1 of the California Fire Code is deleted in its entirety and replaced with the following: C103.1 Hydrant spacing. Fire apparatus access roads and public streets providing required access to buildings in accordance with Section 503 of the International Fire Code shall be provided with one or more fire hydrants, as determined by Section C102.1. W here more than one fire hydrant is required, the distance between required fire hydrants shall be in accordance with Sections C103.2 and C103.3. Fire hydrants shall be provided at street intersections. 4.1.b Packet Pg. 136 Attachment: Ordinance 19-19 - Exhibit "1" - Fire Code (Approval of the 2019 California Building Standards Code and 2019 California Fire Code) Ordinance 19-19 Exhibit “A” Fire Code Justifications 1 San Jacinto Municipal Code Chapter 8.16 Local Amendment Justification/Statement of Reason Building Standards Law allows local amendments in accordance with the following: For purposes of this subdivision, a city or county may make reasonably necessary modifications to the requirements, adopted pursuant to Health and Safety Code Section 17958, 17958.5, 17958.7, and 18941.5, contained in the provisions of the code and regulations on the basis of local conditions. Chapter 1 – Scope and Administration: Section 101.4: This section is carried over from the existing Ordinance No. 8.16 this section resolves any conflict with the fire code provisions. Riverside County maintains its own severability clause and does not adopt the fire code text. Section 102.5: This section is carried over from the existing Ordinance No. 8.16 the scope and application of the fire code needs to be expanded to apply to the fire sprinkler systems for accessory structures constructed under the 2019 California Residential Code (CRC) which are now permitted to exceed 3,000 square feet in area. This existing modification maintains the applicability of the 2019 California Fire Code (CFC) Section 903.2 amendment to those accessory structures greater than or equal to 3,600 square feet in area. This has no change in intent for San Jacinto Municipal Code Chapter 8.16 and maintains the protection offered. Section 103.4: This section is carried over from the existing Ordinance No. 8.16 to resolve any conflict between state law and the fire code provisions. Section 104.1.1: This section is carried over from the existing Ordinance No. 8.16. It is imperative that enforcement capability be disseminated to other law enforcement entities within the Riverside County area because of its vast topography and diversity. This gives the Riverside County Fire Department greater enforcement capabilities due to the presence of these other agencies across the County of Riverside. Section 104.12: This section is carried over from the existing Ordinance No. 8.16 and grants authority to the Fire Chief, in cooperation with the Board of Supervisors, to close hazardous fire areas. Section 106.2: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16 and relocated to the fees section of the fire code. This amendment is necessary to identify that fees are in accordance with the City of San Jacinto Ordinances and fee schedules. Section 106.6: This section is carried over from the previous Ordinance No. 8.16 and relocated to the fees section of the fire code. This section is maintained in accordance with Health and Safety Code 13009 and 13009.1, and Government Code 53150, et seq. for cost recovery. 4.1.c Packet Pg. 137 Attachment: Ordinance 19-19 - Exhibit "A" - Fire Code Justifications (Approval of the 2019 California Building Standards Code and 2019 Ordinance 19-19 Exhibit “A” Fire Code Justifications 2 Section 109.1: This section is carried over from the existing Ordinance No. 8.16 to identify the board of appeals and additional criteria for clarification and implementation. The existing modifications to this section are consistent with Health and Safety Code 17920.5 where no board of appeals exists. This section provides for the ability to create a Board of Appeals as needed. Section 110.4: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16 and relocated to this section to resolve any conflict with the fire code provisions. San Jacinto Municipal Code Chapter 8.16 requires punishments and penalties for violations to be in accordance with the Municipal Code and Health and Safety Code Sections 17995 through 17995.5. Chapter 2 – Definitions: Fire Chief: This definition is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This definition was added to designate that this term means the Fire Chief of Riverside County whenever the wording appears in the California Fire Co de or this Ordinance. This is to distinguish obligatory authority to the Fire Chief or any of the designated representatives for fire prevention measures and declarations in enforcing this Ordinance Chapter 3 General Requirements Section 308.1.6.3: This section is carried over from previous San Jacinto Municipal Code Chapter 8.16.6. This section is amended to prohibit sky lanterns and similar devices. The California State Fire Marshal's office issued Information Bulletin 12-005 indicating that there is a serious fire and safety hazard associated with sky lanterns, which include the potential to start an unintended fire on or off the property from which they are released. They are known to travel significant distances from the point of release. The Nationa l Association of State Fire Marshals Resolution 2013-3 recommends imposing State level bans on their sale and use. Multiple fires have been reported to be linked to the use of sky lanterns including, but not limited to, a recycling plant fire in Smethwick, England which caused approx. $9M in damage and a wildfire in Shell Beach on the mountain above Pirates Code in San Luis Obispo County, CA. This is similar to the existing amendment by Orange County Fire Authority. Chapter 5 – Fire Service Features Section 503.2.1: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This correlation of the fire code is necessary for minimum fire apparatus access widths for firefighter operations and consistency throughout the cou nty. This modification does not supersede City road standards where the City standards are more restrictive. This modification has no change in regulatory effect. 4.1.c Packet Pg. 138 Attachment: Ordinance 19-19 - Exhibit "A" - Fire Code Justifications (Approval of the 2019 California Building Standards Code and 2019 Ordinance 19-19 Exhibit “A” Fire Code Justifications 3 Section 503.2.2: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This section is enhanced to specify who has authority to designate Fire Lanes/Fire Apparatus Access Roads and modify minimum widths. Section 503.6.1: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This section provides fire department and other emergency responders more rapid access to facilities with motorized gates. Underwriters Laboratory (UL) “determined that fires today are more dangerous and pose more risks than in the past. Fire propagation is faster, and time to flashover, escape times and collapse times are all shorter” (UL Fire Safety Journal Issue 1). Placing our first responders on scene sooner or without disruption will provide for greater occupant and firefighter safety, and assist in property protection and medical emergencies. Section 503.7: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This section provides additional width for apparatus access roads where utilized for loading/unloading or passenger drop off/pick up to prevent interference with operational access needs. Section 507.5.7: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This section provides for the size and quantities of outl ets for residential standard, super hydrant standard, and super hydrant enhanced fire hydrants and that they shall be required as determined by the Fire Code Official. Section 507.5.8: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. The section provides direct reference to Riverside County Fire Department Technical Policy 06-11 for specific requirements for the installation of blue reflective markers for fire hydrants. Section 508.1, 508.1.3, and 508.1.6: These sections are carried over from the previous San Jacinto Municipal Code Chapter 8.16 . These sections have been amended to require fire command centers for structures larger than 300,000 square feet in size. To put into context, the Fire Command Center would be triggered when the buildings are approximately 2.5 times the typical Costco Warehouse store and approximately two times the size of a typical Walmart Supercenter. Large structures of this size pose numerous challenges to emergency responders due to the large amounts of fuel loads from the storage, manufacturing and/or processing of flammable/combustible commodities and other processes within the building. Challenges include wide distribution of smoke throughout the structure, difficulty for firefighters to locate and reach the fire and difficulty in search and evacuation of the public, employees and firefighters. These structures typically require numerous fire protection, early suppression and detection systems that may include, but are not limited to, fire pumps, multiple fire sprinkler systems, advanced fire alarm systems, smoke control systems, and refrigeration gas detection system(s). During a fire, the incident commander must have the ability to readily identify the status of the various suppression and detection systems and have access to other building information details that may include, but are not limited to, building floor plans, high - pile/rack storage details, smoke control/ventilation systems, fire sprinkler zoning details, mechanical refrigeration equipment and piping details, and hazardous materials data 4.1.c Packet Pg. 139 Attachment: Ordinance 19-19 - Exhibit "A" - Fire Code Justifications (Approval of the 2019 California Building Standards Code and 2019 Ordinance 19-19 Exhibit “A” Fire Code Justifications 4 sheets along with quantities and storage/use locations. A fire command center provides a centralized location for the incident commander to review details about the building and the incident and to effectively coordinate emergency responders and suppression activities with increased efficiency and speed. The Riverside County Fire Department has experienced several incidents in buildings with and without Fire Command Centers. Incident Commanders found that having detailed information on built in fire protection systems and controls, building schematics and hazardous materials storage plans were vital towards mitigating the event. When this information was not available, firefighting personnel were forced to operate upon assumptions and much less information. In addition, this increased efficiency and speed results in facilities returning to operation more expeditiously after incidents or false alarms thereby reducing loss of revenue for the business. Section 508.1.1 and 508.1.8: These sections are carried over from the previous San Jacinto Municipal Code Chapter 8.16 to identify the approved location of the fire command center and to indicate signage requirements for the entrance door. Section 509.2.1: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This section encompasses other exterior fire protection water supply appliances such as Fire Department connections, and other exterior fire pro tection system control valves, or any other exterior fire protection system component that may require immediate access. Section 605.10.1.2: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This section specifies the location of manual crossover valves when manual operation is required by the Fire Code Official. The amendment specifies that the manual valves shall be located in an approved location immediately outside of the machinery room, in a secure metal box or equivalent and marked as Emergency Controls. This is to ensure that the valves are in readily accessible location(s) for access during an emergency. Section 903.2: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16 with modification. Modifications have been made to provide certain exemptions including, but not limited to, agricultural and greenhouse Group U structures constructed in accordance with the California Building Code and specific shade structures. The existing amendment provides a base square footage requirement for all new commercial, industrial, and residential occupancies other than one - and two-family dwellings. Though the amendment includes a reference to the requirement f or one- and two-family dwellings, the authority for residential fire sprinkler requirements for these occupancies resides in Title 24, Part 2.5 [2019 California Residential Code]. Automatic sprinkler systems have been successfully used to protect indust rial and commercial buildings and their occupants for more than 100 years. Historically the place which has offered the least amount of fire protection to occupants was and still is their own home. This was brought to light in 1973 by the Report of the N ational Commission 4.1.c Packet Pg. 140 Attachment: Ordinance 19-19 - Exhibit "A" - Fire Code Justifications (Approval of the 2019 California Building Standards Code and 2019 Ordinance 19-19 Exhibit “A” Fire Code Justifications 5 on Fire Prevention and Control, America Burning. At the time of the report approximately 8,000 people died in structure fires every year in the United States. Nine out of ten of those victims died in their home. However, the U.S. Fire Administration report “Fire in the United States 2004 –2013 17th edition” reflects that nonresidential fire losses are costly. “National estimates of nonresidential building fires and losses, from 2004 to 2013, annually accounted for only 7 percent of fires, 2 percent of deaths, and 8 percent of injuries. These proper ties, however, accounted for a disproportionately large annual dollar loss, 21 percent. Trends in nonresidential buildings showed a 14 percent decrease in fires, a 9 percent increase in deaths, a 7 percent increase in injuries, and a 10 percent decrease in dollar loss from 2004 to 2013.” The same report concluded “…that, overall, the fire problem in the U.S. continues to improve. Ten-year fire loss rates are down. It is likely that several factors continue to contribute to these trends:…” which includes; "fire sprinklers, which quickly combat incipient fires, especially in nonresidential and multifamily buildings, and fire codes, which have been strengthened.” Furthermore, the report reflects that the nonresidential building category includes industrial and commercial properties, institutions (such as hospitals, nursing homes and prisons), educational establishments (from preschool through university), mobile properties, and storage properties. On average, about 89 percent of nonresidential structure fires, 88 percent of deaths, 91 percent of injuries, and 92 percent of dollar losses reported to National Fire Incident Reporting System from 2004 to 2013 occurred in nonresidential buildings. Aside from firefighter and explosion fatalities, there has never bee n a multiple loss of life in a fully sprinklered building due to fire or smoke. All fire protection features have a reliability factor. Walls and shafts can be breached by means of poke -throughs and building alterations. Exit doors can be blocked or locked. The California Residential Code is requiring that all one and two family dwellings be protected by sprinklers. It is still imperative, based on the geographical, topographical, climatic diversity of Riverside County, to continue to protect all structures greater than 3,600 sq. ft. by fire sprinklers, to ensure faster fire suppression/control to those occupancies that would not normally be required to be protected which would exhaust a number resources including water which climatically is so precious to our environment as a whole. It will provide for less run off into ground water due to suppression activities and less pollutants into the environment. It will reduce the risk of a structure fire extending outside of the structure and potentially igniting a wildland fire. Mobile homes are a part of the American landscape. In 2007 alone, more than 95,000 manufactured homes were shipped nationwide. Manufactured housing also accounts for approximately 10 percent of the single-family structures in the United States. The National Fire Protection Association reports in 2007-2011, 11,400 structure fires per year were reported in manufactured homes, with associated losses of; 206 civilian deaths, 434 civilian injuries, and $179 million in direct damage pe r year nationally. Despite the fact that we drive by them, respond to medical calls in them, and sometimes live in them, we 4.1.c Packet Pg. 141 Attachment: Ordinance 19-19 - Exhibit "A" - Fire Code Justifications (Approval of the 2019 California Building Standards Code and 2019 Ordinance 19-19 Exhibit “A” Fire Code Justifications 6 often overlook mobile homes when it comes to training and pre -fire planning. However, as the deaths of two firefighters in Craigsville, West Virginia, showed, mobile homes can pose significant, and sometimes deadly, challenges. The burning mobile home is a less - than-stable platform, making search and possible rescue of occupants even more dangerous. The exterior walls are not as structurally sound when compared with those of most site-built homes. The narrow halls complicate search. The roof burns through more quickly than a typical residential roof and is not safe for firefighters. Mobile home fires can quickly grow out of control, because there's not as much wallboard and drywall, and there are fewer walls to keep the fire from spreading. If the first-due engine pulls up and the mobile home is burning from end to end, the firefighting strategy has already been decided. The fire must be knocked down in order to move in. If the home is in a mobile home park, again, protecting exposures is vital. Radiant heat can ignite the homes nearby. Fire sprinklers can prevent the flashover from occurring and in many cases put the fire out and save valuable resources in the process, such as water, personnel, and environmental cleanup, limited displacement into County shelter(s), and less inconvenience to the family. The mobile home, because of its construction, requires fast water. The record for automatic fire sprinklers is based on the simple fact that there has never been a multiple death of building occupants from a fire developing in a building protected by an automatic fire sprinkler system properly installed and maintained in accord ance with nationally recognized standards (NFPA 13, 13D, 13R, and NFPA 25). AWWA Research Foundation has published the following report: Impact of Fire Flow on Distribution System Water Quality, Design, and Operation. This report concludes the following: “Water-efficient fire suppression technologies exist that use less water than conventional standards. In particular, the universal application of automatic sprinkler systems provides the most proven method for reducing loss of life and property due t o fire, while at the same time providing faster response to the fire and requiring significantly less water than conventional fire-fighting techniques. It is recommended that the universal application of automatic fire sprinklers be adopted by local jurisdictions.” Consider the benefits: a single firefighter using a normal 1 -1/2” fire hose can be applying between 175-400 gallons of water per minute when attempting to extinguish a fire. On the other hand, a single fire sprinkler will be flowing only 18 - to 40- gallons of water per minute. This means that over a 5-minute period, the following quantities of water are used: Fire-fighter with 1-1/2” hose: 175 gpm x 5 minutes = 875 gallons of water 400 gpm x 5 minutes = 2,000 gallons of water Fire sprinkler system: 18 gpm x 5 minutes = 90 gallons of water 40 gpm x 5 minutes = 200 gallons of water 4.1.c Packet Pg. 142 Attachment: Ordinance 19-19 - Exhibit "A" - Fire Code Justifications (Approval of the 2019 California Building Standards Code and 2019 Ordinance 19-19 Exhibit “A” Fire Code Justifications 7 Section 903.3.5.3: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. The section limits all hydraulically calculated fire sprinkler systems to not exceed 90% of the water supply capacity. The 10% buffer in the hydraulic calculation is a common engineering business practice that gives some flexibility to account for system water pressures that may decrease as additional demands are placed on the water system from additional construction or as the system ages. Section 3204.2.1: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. By requiring client leased or occupant owned warehouses to have a technical report completed by a fire protection engineer, it will minimize problems concerning commodity and sprinkler protection. By having an engineer complete a technical report for the proposed or existing building it will provide greater certainty that adequate protection for the commodities that are proposed will be sufficient. By not having adequate sprinkler protection, it could be detrimental to the building and could also cause loss of life in the event of a fire. Geographically this can be a significant problem due to the seismic activity that Riverside County experiences. The Engineer can assess the adequate protection for the correct commodity classifications, ensure the correct seismic provisions are in place for the type of system to be installed, and provide a professional assurance to a very volatile type of occupancy. It takes a vast number of resources to extinguish a fire of this type. By adding this requirement, it will ensure an added level of safety. Modifications have been made to p rovide clarification that certain reference documents are not required. Section 4904.3: This section is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This section is required under State Law, Section 51178.5. The date of the State adopted and recommended Very High Fire Hazard Severity Zone map has been modified. Table B105.2 of Appendix B: This amendment is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This allows the fire department to still have adequate fire flow mitigation with sprinkler protection and not jeopardize main distribution systems by inadequately under sizing them and have costly upgrades for future projects. With the geographical diversity that the County has it is important that this requirement be added to ensure adequate water in the event of a fire. Section C103.1 of Appendix C: This provision is carried over from the previous San Jacinto Municipal Code Chapter 8.16. This provision is to clarify the additional location of fire hydrants to be at intersections. This requirement has been standard policy within Riverside County. 4.1.c Packet Pg. 143 Attachment: Ordinance 19-19 - Exhibit "A" - Fire Code Justifications (Approval of the 2019 California Building Standards Code and 2019 December 3, 2019 TO: City Council REQUESTED BY: Tom Prill, Deputy City Manager APPROVED BY: Robert A. Johnson, City Manager SUBJECT: Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc. RECOMMENDATION: Staff recommends that the City Council: 1. Conduct a public hearing as required by Section 147(f) of the Internal Revenue Code of 1986 to receive comments relating to the issuance by the California Enterprise Development Authority (the “Authority”) of not to exceed $15,000,000 of the Authority’s Revenue Obligations (the “Obligations”) for the benefit of San Jacinto Valley Academy, Inc., a California nonprofit public benefit corporation (the “Borrower”); 2. Adopt a resolution approving an Associate Membership Agreement between the City of San Jacinto and the Authority; and 3. Adopt a resolution approving the issuance of the Obligations by the Authority to finance and refinance the Facilities (defined below) for the benefit of the Borrower. BACKGROUND: The Authority. The Authority is a joint powers authority (JPA) established by the California Association for Local Economic Development (CALED), whose purpose is to issue tax-exempt and taxable conduit revenue bonds to fund commercial and industrial development projects within member jurisdictions. Federal and state laws provide the ability for cities and counties to join together under cooperative agreements to form joint powers authorities to issue tax-exempt and taxable bonds to fund projects that provide a public benefit and serve the needs of residents within the jurisdictions of the participating members. Cities and counties in California utilize joint powers authorities primarily for economies of scale, to access specialized transaction knowledge and resources, and to avoid using valuable local staff time on these types of transactions. The Authority is a joint powers authority created by the cities of Selma, Lancaster and Eureka. There are approximately 200 cities and counties who are associate members of the Authority. The Authority’s activities are dedicated to providing economic development assistance to member jurisdictions as an extension of the economic development assistance provided by CALED to its members. The JPA Agreement permits any other local agency in California to join the Authority as an “Associate Member.” The Authority’s Board of Directors has requested that the City become an Associate Member of the Authority. Associate membership in the Authority will assist the City, 4.2 Packet Pg. 144 as well as for-profit and nonprofit organizations located within the City, in financing industrial and commercial development projects and other public purpose projects within the City. The Authority’s Associate Members enjoy nearly all the benefits of regular membership without the concomitant duties or obligations. Associate Members have ample opportunity to provide input on proposed or existing programs. Further, Associate Members are not restricted or inhibited in any way with respect to their independent ability to finance any project in any manner they deem appropriate, which may or may not involve or include the Authority. Once the City becomes an Associate Member of the Authority, the City will be eligible to participate in the Authority’s programs. The Borrower. The Borrower and the Authority have requested that the City conduct a Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”) hearing and approve a resolution in accordance with Internal Revenue Code Section 147(f) authorizing the issuance of tax -exempt obligations by the Authority in an amount not to exceed $15,000,000. A TEFRA hearing is required by the Internal Revenue Code before tax -exempt debt can be issued for the benefit of a private nonprofit corporation. The hearing gives the public an opportunity to comment on the u se of tax-exempt funds by the Borrower. The proceeds of the Obligations will be used to finance the costs of the acquisition, construction, development, installation, equipping and furnishing of approximately 90,000 square feet of educational facilities, and related and ancillary facilities, for up to 1,800 students in kindergarten through 12th grade, located at 480 N San Jacinto Ave, San Jacinto, California 92583 and at an approximately 6.73 acre parcel located adjacent to the south thereof (collectively, the “Facilities”). The proceeds of the Obligations will also be used to pay certain expenses incurred in connection with the issuance of the Obligations. The Borrower is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986 (the “Code”) and owns and operates a charter school (and will own and operate the Facilities when constructed) in connection with its charitable public benefit purposes. The Facilities will further the Borrower’s mission of developing self-motivated lifelong learners utilizing student-centered inquiry methods in a school wide inquiry environment, which includes international mindedness and rigorous assessments. The Borrower commenced operations in 1997 with 67 students in grades K-8. In 2005, the Borrower began adding high school grades, starting with 9th grade and adding one grade per year. In 2008, the Borrower purchased an approximately 19-acre campus with twenty-one classrooms, arranged in a rectangle to provide a feeling of unity, equality, and communi ty between elementary, middle, and high schools, and has grown to serving approximately 1,471 students in academic year 2019-20. In 2018, the Borrower purchased an approximately 6.73 acre property adjacent to its current campus, which would allow the Borrower to expand its campus to serve up to 1,800 students. The Borrower’s schools have full accreditation from Western Association of Schools and Colleges (WASC), and its teachers are fully credentialed. In 2009, the Borrower was officially authorized as an International Baccalaureate World School, providing the IB Diploma Program. The IB program provides high school Juniors and Seniors with preparation and academic readiness for college/universities. 4.2 Packet Pg. 145 The issuance of the Obligations as tax-exempt will reduce financing costs and debt service costs for the Borrower. In order to satisfy the requirements for the obligations to be issued as tax - exempt, an applicable elected representative which is also a member of the Authority is required to conduct the TEFRA hearing and approve the issuance of the tax-exempt obligations in accordance with Section147(f) of the Code. The City Council of the City of San Jacinto constitutes an applicable elected representative under Section 147(f) of the Code. A public notice of today’s public hearing was published on behalf of the City at least seven days prior to the hearing in the Press Enterprise newspaper by the law firm of Kutak Rock LLP. FISCAL IMPACT: There is no fiscal impact to the City. The adoption of the resolution approving the financing and refinancing of the Facilities and the issuance of the Obligations complies with the requirements of Section 147(f) of the Internal Revenue Code of 1986. The City does not bear any responsibility for the tax-exempt status of the interest on the Obligations, the debt service on the Obligations or any other matter related to the Obligations. The approval of the Obligations to finance and refinance the Facilities is not subject to compliance with the California Environmental Quality Act (California Public Resources Code, Section 21100, et seq.). ATTACHMENTS: Agreement - CEDA Associate Membership - SJVA TEFRA PH PH Notice - SJVA TEFRA PH Resolution 3786 Resolution 3785 4.2 Packet Pg. 146 4845-7933-4568.1 ASSOCIATE MEMBERSHIP AGREEMENT by and between the CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY and the CITY OF SAN JACINTO, CALIFORNIA THIS ASSOCIATE MEMBERSHIP AGREEMENT (this “Associate Membership Agreement”), dated as of December 3, 2019 by and between CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY (the “Authority”) and the CITY OF SAN JACINTO, CALIFORNIA, a municipal corporation, duly organized and existing under the laws of the State of California (the “City”); WITNESSETH: WHEREAS, the Cities of Selma, Lancaster and Eureka (individually, a “Member” and collectively, the “Members”), have entered into a Joint Powers Agreement, dated as of June 1, 2006 (the “Agreement”), establishing the Authority and prescribing its purposes and powers; and WHEREAS, the Agreement designates the Executive Committee of the Board of Directors and the President of the California Association for Local Economic Development as the initial Board of Directors of the Authority; and WHEREAS, the Authority has been formed for the purpose, among others, to assist for profit and nonprofit corporations and other entities to obtain financing for projects and purposes serving the public interest; and WHEREAS, the Agreement permits any other local agency in the State of California to join the Authority as an associate member (an “Associate Member”); and WHEREAS, the City desires to become an Associate Member of the Authority; and WHEREAS, Council of the City has adopted a resolution approving the Associate Membership Agreement and the execution and delivery thereof; and WHEREAS, the Board of Directors of the Authority has determined that the City should become an Associate Member of the Authority; NOW, THEREFORE, in consideration of the above premises and of the mutual promises herein contained, the Authority and the City do hereby agree as follows: Section 1. Associate Member Status. The City is hereby made an Associate Member of the Authority for all purposes of the Agreement and the Bylaws 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 the City and the Authority, the City shall be and remain an Associate Member of the Authority. 4.2.a Packet Pg. 147 Attachment: Agreement - CEDA Associate Membership - SJVA TEFRA PH (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, 2 4845-7933-4568.1 Section 2. Restrictions and Rights of Associate Members. The City shall not have the right, as an Associate Member of the Authority, to vote on any action taken by the Board of Directors or by the Voting Members of the Authority. Section 3. Effect of Prior Authority Actions. The City hereby agrees to be subject to and bound by the Agreement and the Bylaws; provided, however, that the Authority agrees that the City will not be bound by any amendment to the Bylaws that in any way either increases the City’s responsibilities or potential liability under this Agreement or diminishes the City’s rights under this Agreement. Section 4. No Obligations of Associate Members. The debts, liabilities and obligations of the Authority shall not be the debts, liabilities and obligations of the City. Section 5. Execution of the Agreement. Execution of this Associate Membership Agreement shall satisfy the requirements of the Agreement and Article XII of the Bylaws of the Authority for participation by the City in all programs and other undertakings of the Authority. 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. CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY By: Gurbax Sahota, Chair of the Board of Directors Attest: Michelle Stephens, Assistant Secretary CITY OF SAN JACINTO, CALIFORNIA By: Russell Utz, Mayor Attest: Angela N. Walton, City Clerk 4.2.a Packet Pg. 148 Attachment: Agreement - CEDA Associate Membership - SJVA TEFRA PH (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, NOTICE OF PUBLIC HEARING WITH RESPECT TO THE ISSUANCE OF TAX-EXEMPT REVENUE OBLIGATIONS BY THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY FOR THE PURPOSE OF FINANCING AND REFINANCING THE COST OF ACQUIRING, CONSTRUCTING, DEVELOPING, INSTALLING, EQUIPPING AND FURNISHING OF EDUCATIONAL FACILITIES FOR THE BENEFIT OF SAN JACINTO VALLEY ACADEMY, INC. AND/OR A RELATED ENTITY NOTICE IS HEREBY GIVEN that at 6:30 p.m., or as soon thereafter as the matter may be heard, on December 3, 2019 at the San Jacinto Community Center, located at 625 S. Pico Avenue, San Jacinto, California 92583, the City Council of the City of San Jacinto (the “City Council”) will conduct a public hearing (the “Public Hearing”) at which the City Council will hear and consider information concerning the issuance, from time to time, pursuant to a plan of finance, of one or more series of tax-exempt revenue obligations by the California Enterprise Development Authority (the “Issuer”) in an aggregate principal amount not to exceed Fifteen Million Dollars ($15,000,000) (the “Obligations”) for the benefit of San Jacinto Valley Academy, Inc., a nonprofit public benefit corporation, duly organized and existing under the laws of the State of California (the “State”), and/or a related entity (the “Borrower”). The Issuer will loan the proceeds of the Obligations to the Borrower pursuant to one or more loan agreements (collectively, the “Loan Agreements”). The proceeds of the Obligations loaned to the Borrower will be applied to (a) finance and refinance the costs of the acquisition, construction, development, installation, equipping and furnishing of approximately 90,000 square feet of educational facilities and related and ancillary facilities for up to 1,800 students in Kindergarten through 12th grade, located at 480 N San Jacinto Ave, San Jacinto, California 92583 and at an approximately 6.73 acre parcel located adjacent to the south thereof (collectively, the “Facilities”), (b) funding a reserve fund, a repair and replacement fund, and capitalized interest with respect to the Obligations, if necessary; and (c) paying certain expenses incurred in connection with the issuance of the Obligations, including any applicable credit enhancement costs for the Obligations. The Borrower is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”). The Facilities will be owned by the Borrower or by one or more limited liability companies whose sole member is the Borrower, and leased and operated by Borrower or a related or successor entity as public charter school facilities supporting the Borrower’s mission of developing self-motivated lifelong learners utilizing student-centered inquiry methods in a school wide inquiry environment which includes international mindedness and rigorous assessments. The Obligations will be paid entirely from repayments by the Borrower under the Loan Agreements. Neither the faith and credit nor the taxing power of the City of San Jacinto (the “City”), the State, or any other political corporation, subdivision or agency of the State is pledged to the payment of the principal of, premium, if any, or interest on, the Obligations, nor shall the City, the State or any other political corporation, subdivision or agency of the State be liable or obligated to pay the principal of, premium, if any, or interest on, the Obligations. The Public Hearing is intended to comply with the public approval requirements of Section 147(f) of the Code. Those wishing to comment on the proposed financing and the nature and location of the Facilities may either appear in person at the public hearing or submit written comments, which must be received by the City prior to the hearing. Written comments should be sent to the City Clerk, City of San Jacinto, 595 S. San Jacinto Avenue, San Jacinto, California 92583. 4.2.b Packet Pg. 149 Attachment: PH Notice - SJVA TEFRA PH (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) STATE OF CALIFORNIA ) RESOLUTION NO. 3786 COUNTY OF RIVERSIDE ) ss. CITY OF SAN JACINTO ) RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO APPROVING THE ISSUANCE BY CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY OF NOT TO EXCEED $15,000,000 AGGREGATE PRINCIPAL AMOUNT OF THE AUTHORITY'S REVENUE OBLIGATIONS FOR THE BENEFIT OF SAN JACINTO VALLEY ACADEMY, INC. FOR THE PURPOSE OF FINANCING THE COST OF ACQUISITION, CONSTRUCTION, DEVELOPMENT, INSTALLATION, EQUIPPING AND FURNISHING OF EDUCATIONAL FACILITIES AND RELATED AND ANCILLARY FACILITIES WHEREAS, San Jacinto Valley Academy, Inc., a nonprofit public benefit corporation duly organized and existing under the laws of the State of California , and/or a related or successor entity (the “Borrower”) has requested that the California Enterprise Development Authority (the “Authority”) issue tax-exempt and/or taxable revenue obligations in an amount not to exceed $15,000,000 (the “Obligations”), for and on behalf of the Borrower, pursuant to the provisions of Chapter 5 of Division 7 of Title 1 of the Government Code of the State (commencing with Section 6500) (the “Act”), to (a) finance and refinance the costs of the acquisition, construction, development, installation, equipping and furnishing of approximately 90,000 square feet of educational facilities and related and ancillary facilities for up to 1,800 students in kindergarten through 12th grade, located at 480 N San Jacinto Ave, San Jacinto, California 92583 and at an approximately 6.73 acre parcel located adjacent to the south thereof (collectively, the “Facilities”), (b) funding a reserve fund, a repair and replacement fund, and capitalized interest with respect to the Obligations, if necessary; and (c) paying certain expenses incurred in connection with the issuance of the Obligations, including any applicable credit enhancement costs for the Obligations; and WHEREAS, the Borrower owns and operates the Facilities as an educational institution for students in kindergarten through 12th grade; and WHEREAS, the City of San Jacinto (the “City”) is an Associate Member of the Authority and is eligible to participate in the Authority’s financing programs; and WHEREAS, the issuance of the Obligations shall be subject to the approval of and execution by the Authority of all financing documents relating thereto to which the Authority is a party; and WHEREAS, the Facilities are located within the territorial limits of City; and WHEREAS, the interest on the Obligations may qualify for tax exemption under Section 103 of the Internal Revenue Code of 1986, as amended (the “Code”) only if the Obligations are approved in accordance with Section 147(f) of the Code; and 4.2.c Packet Pg. 150 Attachment: Resolution 3786 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) WHEREAS, the City Council of the City (the “City Council”) is the elected legislative body of the City and is the applicable elected representative required to approve the issue within the meaning of Section 147(f) of the Code; and WHEREAS, the Borrower and the Authority have requested the City Council to approve the issuance of the Obligations in order to satisfy the public approval requirements of Section 147(f) of the Code; and WHEREAS, it is intended that this Resolution shall comply with the public approval requirements of Section 147(f) of the Code; provided, however, that this Resolution is neither intended to nor shall it constitute an approval by the City Council of the Facilities for any other purpose; and WHEREAS, a public hearing was held by the City Council on this 3rd day of December, 2019, at the meeting which commenced at the hour of 6:30 p.m., at the San Jacinto Community Center, 625 S. Pico Ave, San Jacinto, California 92583, following a duly published notice thereof in a newspaper of general circulation in the City of San Jacinto, on November 26, 2019, and all persons desiring to be heard have been heard; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Jacinto, as follows: Section 1. The City Council hereby finds and determines that all of the recitals are true and correct. Section 2. The City Council hereby approves the issuance of the Obligations by the Authority, from time to time, pursuant to a plan of finance, which Obligations may be tax-exempt and/or taxable as approved by the Authority in its resolution, in an amount not to exceed $15,000,000 to finance and refinance the costs of the Facilities. This resolution shall constitute “host” approval of the issuance of the Obligations within the meaning of Section 147(f) of the Code and shall constitute the approval of the issuance of the Obligations within the meaning of the Act; provided, however, that this Resolution shall not constitute an approval by the City Council of the Facilities for any other purpose. The City shall not bear any responsibility for the tax-exempt status of the interest on the Obligations, the payment of the principal of or interest on the Obligations or any other matter related to the Obligations. The City does not have any responsibility for the debt and is not pledging any assets as security for the debt. Section 3. All actions heretofore taken by the officers, employees and agents of the City with respect to the approval of the Obligations are hereby approved, confirmed and ratified, and the officers and employees of the City and their authorized deputies and agents are hereby authorized and directed, jointly and severally, to execute and deliver any and all certificates and documents which they or bond counsel may deem necessary or advisable in order to consummate the Obligations and otherwise to effectuate the purposes of this Resolution. Section 4. The adoption of this Resolution shall not obligate the City or any department thereof to (i) provide any financing for the Facilities; (ii) approve any application 4.2.c Packet Pg. 151 Attachment: Resolution 3786 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) or request for or take any other action in connection with any planning approval, permit or other action necessary for the acquisition, construction, rehabilitation or operation of the Facilities; or (iii) make any contribution or advance any funds whatsoever to the Authority. Section 5. This Resolution shall take effect from and after its adoption. Section 6. The City Clerk of the City of San Jacinto shall certify the adoption of this resolution, and thenceforth and thereafter the same shall be in full force and effect. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council meeting on the 3rd day of December 2019, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: CITY OF SAN JACINTO: ______________________________ Russell Utz, Mayor ATTEST: ___________________________________ Angela Walton, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER, LLP ___________________________________ Michael J. Maurer, City Attorney 4.2.c Packet Pg. 152 Attachment: Resolution 3786 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss CITY OF SAN JACINTO) CERTIFICATION I, Angela Walton, duly appointed City Clerk of the City of San Jacinto, do hereby certify that the foregoing Resolution No. 3786 was duly passed, approved and adopted at a regular meeting of the City Council of the City of San Jacinto on the 3rd day of December 2019, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: WITNESS MY HAND AND OFFICIAL SEAL this 3rd day of December 2019. _________________________ Angela Walton, City Clerk City of San Jacinto 4.2.c Packet Pg. 153 Attachment: Resolution 3786 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) 4812-9283-9592.1 STATE OF CALIFORNIA ) RESOLUTION NO. 3785 COUNTY OF RIVERSIDE ) ss. CITY OF SAN JACINTO ) RESOLUTION NO. _____ RESOLUTION APPROVING ASSOCIATE MEMBERSHIP BY THE CITY OF SAN JACINTO IN THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY AND THE EXECUTION OF AN ASSOCIATE MEMBERSHIP AGREEMENT RELATING TO ASSOCIATE MEMBERSHIP OF THE CITY IN THE AUTHORITY WHEREAS, the City of San Jacinto, California (the “City”) is a municipal corporation, duly organized and existing under the Constitution and the laws of the State of California; and WHEREAS, the City, upon authorization of the City Council (the “City Coucil”), may pursuant to Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, commencing with Section 6500 (the “JPA Law”) enter into a joint exercise of powers agreement with one or more other public agencies pursuant to which such contracting parties may jointly exercise any power common to them; and WHEREAS, the Cities of Selma, Lancaster and Eureka have entered into a Joint Powers Agreement, dated as of June 1, 2006 (the “Agreement”), establishing the California Enterprise Development Authority (the “Authority”) and prescribing its purposes and powers; and WHEREAS, in furtherance of the City’s economic development efforts, the City desires to become an associate member of the Authority; and WHEREAS, under the JPA Law and the Agreement, the Authority is a public entity separate and apart from the parties to the Agreement and the debts, liabilities and obligations of the Authority will not be the debts, liabilities or obligations of the City or the other members of the Authority; and WHEREAS, the form of associate membership agreement (the “Associate Membership Agreement”) between the City and the Authority has been filed with the City, and the members of the City Council, with the aid of the City’s staff, have reviewed the Associate Membership Agreement; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Jacinto, hereby finds, determines and declares as follows: Section 1. Associate Membership in the Authority. The City Council hereby approves associate membership by the City in the Authority. Section 2. AApproval of Associate Membership Agreement. The City Council hereby approves the form of, and authorizes the Mayor, the City Manager or any designee Formatted: Font: 12 pt Formatted: Font: (Default) Arial 4.2.d Packet Pg. 154 Attachment: Resolution 3785 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) 2 4812-9283-9592.1 of such officers, to execute the Associate Membership Agreement and authorizes the City Clerk to attest to such signature, in substantially the form on file with the City Clerk, together with any changes therein deemed advisable by the official signing the Associate Membership Agreement. Section 4.2.d Packet Pg. 155 Attachment: Resolution 3785 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) 2 4812-9283-9592.1 Section 3. Official Action. The Mayor, the City Manger, the City Clerk and other officers and officials of the City, are hereby authorized and directed to take all actions and do all things necessary with respect to associate membership in the Authority including but not limited to the execution and delivery of any and all agreements, certificates, instruments and other documents which are necessary to effectuate the purposes of this Resolution. Section 4. Effective Date. This Resolution shall take effect upon its adoption by the City Council. Formatted: Font: (Default) Arial 4.2.d Packet Pg. 156 Attachment: Resolution 3785 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) 2 4812-9283-9592.1 RESOLVED FURTHER, the City Clerk of the City of San Jacinto shall certify the adoption of this Rresolution, and thenceforth and thereafter the same shall be in full force and effect. ***** PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council on the this 3rd day of December, 2019, by the following vote: AYES: NOEAYSS: ABSTAIN: ABSENT: CITY OF SAN JACINTO: Russell Utz, Mayor of the City of San Jacinto ATTEST: Angela N. Walton, City Clerk City Clerk Formatted: Centered Formatted: Font: Not Bold Formatted: Font: (Default) Arial Formatted: Font: (Default) Arial Formatted: Font: (Default) Arial, Bold Formatted: Font: (Default) Arial Formatted: Font: (Default) Arial, Bold Formatted: Font: (Default) Arial Formatted: Font: (Default) Arial Formatted: Font: (Default) Arial, Bold Formatted: Font: (Default) Arial Formatted: Font: (Default) Arial, Bold Formatted: Font: (Default) Arial Formatted: Font: (Default) Arial 4.2.d Packet Pg. 157 Attachment: Resolution 3785 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) 2 4812-9283-9592.1 CERTIFICATE OF THE CITY CLERK I, Angela N. Walton, City Clerk of the City of San Jacinto, hereby certify that the foregoing is a full, true and correct copy of a resolution duly adopted at the meeting of the City Council of the City of San Jacinto duly and regularly held in San Jacinto, California, on December 3, 2019, of which meeting all of the members of said City Council had due notice. I further certify that I have carefully compared the foregoing copy with the original minutes of said meeting on file and of record in my office; that said copy is a full, true and correct copy of the original resolution adopted at said meeting and entered in said minutes; and that said resolution has not been amended, modified, rescinded or revoked in any manner since the date of its adoption, and the same is now in full force and effect. IN WITNESS WHEREOF, I have executed this certificate and affixed the seal of the City of San Jacinto hereto this 3rd day of December, 2019. ____________________________________ Angela N. Walton, City Clerk STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss CITY OF SAN JACINTO) CERTIFICATION I, Angela Walton, duly appointed City Clerk of the City of San Jacinto, do hereby certify that the foregoing Resolution No. 3785 was duly passed, approved and adopted at a regular meeting of the City Council of the City of San Jacinto on the 3rd day of December 2019, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: WITNESS MY HAND AND OFFICIAL SEAL the 3rd day of December 2019. _________________________ Angela Walton, City Clerk City of San Jacinto Formatted: Font: (Default) Arial Formatted: Centered Formatted: Centered, Indent: First line: 0", Space After: 0 pt Formatted: Centered Formatted: Centered, Widow/Orphan control, Hyphenate, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers, Tab stops: Not at -0.5" Formatted: Font: Arial, 12 pt Formatted: Superscript Formatted: Font: Arial, 12 pt Formatted: Font: Arial, 12 pt Formatted: Font: Arial, 12 pt, Superscript Formatted: Font: Arial, 12 pt 4.2.d Packet Pg. 158 Attachment: Resolution 3785 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) 2 4812-9283-9592.1 4.2.d Packet Pg. 159 Attachment: Resolution 3785 (Conduct TEFRA Hearing for Benefit of San Jacinto Valley Academy, Inc.) December 3, 2019 TO: City Council REQUESTED BY: Travis Randel, Community Development Director APPROVED BY: Robert A. Johnson, City Manager SUBJECT: CDBG Application Submittal RECOMMENDATION: That the City Council authorize the City Manager to submit an application to the Riverside County Economic Development Agency (EDA) for a two (2) year Community Development Block Grant (CDBG) allocation for a Street Pavement and Sidewalk Improvement Project. DISCUSSION: The County of Riverside (County) receives Community Development Block Grant (CDBG) funds as a qualified urban county under the U.S. Department of Housing and Urban Development’s (HUD) CDBG Program. The County, through the EDA, distributes the CDBG funds through its Urban County Program to Cooperating Cities like the City of San Jacinto. The CDBG Program brings federal dollars to local communities for the purpose of assisting low and moderate income residents through public services, infrastructure improvements, economic development programs, and the elimination of slums and blight. Funds are allocated through a complex formula based in part on total population, and the total number of low and moderate- income households within each participating city. To be eligible for CDBG funding, a program or project must meet at least one of the three national objectives:  Activities benefitting low and moderate income persons/households  Activities which aid in the prevention or elimination of slums or blight  Activities designated to meet community needs having a particular urgency As a Cooperating City, our programs and/or projects must also meet the eligibility requirements of the EDA’s CDBG Program:  Serve persons or communities within the County’s Urban County area  Be an eligible activity under CDBG regulations  Meet a National Objective of the CDBG program The CDBG Program allows for funding of public services, public facilities, and economic development programs, but limits some projects, such as public services to 15% of the total allocation. Alternatively, the program allows local agencies to utilize 100% of the allocation for public facilities projects at the discretion of the local governing board. 5.1 Packet Pg. 160 In the past, the City split its CDBG allocation between public service programs, public facilities projects and code enforcement. Funds were used to address inadequate curb, gutter and sidewalk; streets requiring pavement rehabilitation and provided for targeted code enforcement, all located within the downtown census tracts. Most recently, the City submitted a multi-year application for Program Years 2017-18, 2018-19 and 2019-20 to concentrate funds for the San Jacinto Public Library Parking Improvement Project, which is currently underway. Staff recommends that the City submit a multi-year application to the EDA requesting a two (2) year allocation totaling the amount of approximately $554,800 for a Street Pavement and Sidewalk Improvement Project. As in prior years, matching funds will be required. The matching funds will be provided through Measure “A” Gas Tax and/or SB1 Funds. The application submitted for a Street Pavement and Sidewalk Improvement Project will consist of pavement grinding and overlay, installation of asphalt and base, striping, ADA accessibility improvements, new sidewalk installation, curb and gutter, and concrete work of the following streets: N. Jordan Ave., Artesia St., N. Algona Ave., N. Alessandro Ave., N. Mistletoe Ave., Alpha Ct., Beta Ct., Cypress Ave., Peppertree Way, N. Vernon Ave. and E. Peach St. The streets and area selected for the project meet the stringent requirements necessary for the funds to be awarded. FISCAL IMPACT: The cost of this project is estimated at $670,000, covering engineering, construction and other soft costs. The CDBG allocation towards this project will total approximately $554,800 and the remaining cost of the project will consist of matching funds from Measure “A” Gas Tax Funds and/or SB1 Funds totaling $115,200. This project is not expected to have any impact on the General Fund. ATTACHMENTS: CDBG Project Map 5.1 Packet Pg. 161 1ST 2NDMEAD VERNONARTESIAN JORDANPEACH MISTLETOECAMINO LOS BANOSALESSANDROCYPRESS ALGONACASTLEALPHA PENSTEMONPEPPER TREEBETA HONEYSUCKLEARTESIAN 2ND PEACH O Street Pavem ent and Sidewalk Improvem ent Project Lege nd City Boundary AssparC lp SJ Block Group Boundaries ED A Low-Mod 2010 Census Tract ED A Low-Mod 2010 Block Groups Proposed Street Improvement Project Areas Tract 043600BlkGrp 1 Tract 043509BlkGrp 1 5.1.a Packet Pg. 162 Attachment: CDBG Project Map (CDBG Application Submittal) December 3, 2019 TO: City Council REQUESTED BY: Michelle Holmes, Director of Finance APPROVED BY: Robert A. Johnson, City Manager SUBJECT: SB 998 Policy on Discontinuation of Water Service RECOMMENDATION: 1. Staff recommends that the City Council approve the introduction and first reading of Ordinance 19-20, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA, AMENDING CHAPTERS 13.04 AND 13.08 OF TITLE 13 OF THE SAN JACINTO MUNICIPAL CODE, REGARDING TERMINATION OF WATER SERVICE, PAYMENT OF WATER RATES AND CHARGES, AND ADOPTION OF POLICIES THEREFOR, 2. Adopt Resolution 3783, adopting a policy on the discontinuation of water service. BACKGROUND: Senate Bill 998 (SB 998), authored by Senator Dodd and signed by then Governor Jerry Brown on September 28, 2018, added Chapter 6 to Division 104, Part 12 of the Health and Safety Code, to be known as the Water Shutoff Protection Act. SB 998 categorizes the City’s Water Utility as an Urban and Community Water System (more than 200 connections), and as such places certain restrictions and requirements on the City’s utility related to delinquent shutoffs, noticing requirements, alternative payment arrangements, appeals, landlord-tenant situations, and requires the City Council to adopt a discontinuation of service policy (the policy) for residential service addressing these matters. DISCUSSION: SB 998 encompasses a variety of issues surrounding the discontinuation of service for non- payment. Following are the most significant items included in the proposed policy. Discontinuation of Water Service for Nonpayment. Currently, the City’s Municipal Code establishes the due date of a bill as fifteen (15) days after the bill is issued. Discontinuance of water service for nonpayment occurs approximately twenty- five (25) days after a bill becomes delinquent. SB 998 prohibits the City from discontinuing service until a bill is delinquent for more than sixty (60) days. If no change is made to the bill due date, this would add an additional thirty-five (35) days that an account could remain delinquent and continuing to consume water before the City is allowed to discontinue service. 5.2 Packet Pg. 163 To remain compliant with SB 998 and reduce the City’s exposure to uncollectible, delinquent balances, staff proposes that the City Council change the due date of utility bills to seven (7) days after the bill is issued. The effect of this would be to advance the due date and start the delinquency calculation eight (8) days sooner. Our current fifteen-day due date structure allows those in our community who receive income on the third of the month the ability to pay by the due date to avoid penalties. To avoid impacting the community in advancing the bill due date, staff proposes to allow a “grace period” before assessing penalties. Although a bill would be due somewhere around the 22nd, instead of the 3rd of the following month, penalties would continue to be assessed on the 4th. Alternative Payment Arrangements The policy is required to establish alternative payment arrangements and outline the process for customers to request them. The City has the ability to determine which types of arrangements will be considered, and the maximum time that each type will be granted. The only customers that have a right to these arrangements are those qualifying under three criteria for Special Medical and Financial Needs. Under these circumstances, staff proposes the following types of arrangements and timeframes:  Extensions – temporary deferrals of an amount due for a maximum length of three months  Amortizations – a schedule of payments of the same amount to be paid at specified intervals for a maximum of six months  Alternative Payment Schedules – other arrangements for lump sum payments or payments made more or less frequently than the City’s normal payment schedule for a maximum of six months For customers not meeting the criteria of Special Medical and Financial Needs, staff would only consider arrangements in extreme circumstances, due to the legislation already providing the sixty-day delinquency period. The legislation also provides an option of permanent bill reductions, but staff has not proposed this alternative, as any permanent reductions would need to be funded by an alternative source, such as the general fund. Appeals process SB 998 also requires the policy to establish procedures under which a customer can contest or appeal the amount of their bill. The policy proposes the following related to these requirements:  Customers must initiate a complaint or request an investigation within five (5) days of receiving their bill.  A review of the complaint or investigation will occur by a manager of the City. 5.2 Packet Pg. 164  In the event of an adverse determination, the customer can appeal the decision to the City Council by filing a written notice of appeal with the City Clerk within ten (10) business days of the City’s mailing of a determination.  The decision of the City Council would be final. Occupant/Tenant Requirements  For individually metered services, the City is required to mail a notice to the occupants at least ten (10) days in advance of the proposed disconnection if the account was established by an owner, manager or operator of the dwelling, or if the mailing address is different than the service location.  If water is furnished through a master meter, the City will make a good faith effort to inform the residents by placing a door hanger at least fifteen (15) days in advance of disconnection. This is already a standard practice of the City.  The City will attempt to make contact by telephone at least seven (7) days in advance of disconnection. The City currently sends a “courtesy” automated call, which will now become mandatory.  The City will continue its current practice of posting a door hanger forty-eight (48) hours in advance of disconnection, which will now be required to include a copy of the disconnection policy. FISCAL IMPACT: The City expects an increase in uncollectible debt due to the implementation of this policy, given the inability to discontinue service for an increased time period and being required to grant additional alternative payment arrangements. The annual bad debt write-off in FY 2018-19 was approximately $19,000. ATTACHMENTS: Resolution 3783 Exhibit A Ord No 19-20 Resolution 3783 5.2 Packet Pg. 165 24438.00000\31918070.1 POLICY ON DISCONTINUATION OF RESIDENTIAL WATER SERVICE Adopted by Resolution 3783 of the City Council of the City of San Jacinto on December 3, 2019, and Effective on February 1, 2020. 5.2.a Packet Pg. 166 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) 24438.00000\31918070.1 1. Application of Policy. This Policy on Discontinuation of Residential Water Service (this “Policy”) is adopted pursuant to Section 13.08.090 of the San Jacinto Municipal Code. This Policy shall apply to all City accounts for residential water service, but shall not apply to any accounts for non -residential service. To the extent this Policy conflicts with Chapters 13.04 or 13.08 of the Municipal Code, or any other rules, regulations, or policies of the City, or this Policy shall control. 2. Contact Information. For questions or assistance regarding your water bill, the City’s Customer Service staff can be reached at (951) 537-6386. Customers may also visit the City’s Customer Service desk in person Monday through Thursday, from 8:00 a.m. to 5:00 p.m., except on City holidays. 3. Billing Procedures. Water service charges are payable to the City once every month or at such other frequency as determined by the City Council from time to time. All bills for water service are due and payable seven (7) days after mailing or e-mailing by the City. Any bills not paid within such period are considered delinquent. 4. Discontinuation of Water Service for Nonpayment. If a bill is delinquent for at least sixty (60) days, the City may discontinue water service to the service address. 4.1 Written Notice to Customer. The City will provide a mailed notice to the customer of record at least fifteen (15) days before discontinuation of water service. The notice will contain: (a) the name and address of the customer; (b) the amount of the delinquency; (c) the date by which payment or payment arrangements must be made to avoid discontinuation of service; (d) the procedure by which the customer may initiate a complaint or request an investigation or appeal concerning service or charges; (e) a description of the procedure by which the customer may request an alternative payment arrangement, which may include an extension, amortization, or alternative payment schedule; (f) the procedure for the customer to obtain information on financial assistance, if applicable; and (g) the telephone number where the customer may request a payment arrangement or receive additional information from the City. 4.2 Written Notice to Occupants or Tenants. (a) If the City furnishes individually metered service to a single-family dwelling, multi-unit residential structure, mobile home park, or farm labor camp and the 5.2.a Packet Pg. 167 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) 24438.00000\31918070.1 owner, manager, or operator of the dwelling, structure, or park is the customer of record, or if the customer of record’s mailing address is not the same as the service address, the City will also send a notice to the occupants living at the service address at least ten (10) days before discontinuation of water service. The notice will be addressed to “Occupant,” will contain the information required in Section 4.1 above, and will inform the residential occupants that they have the right to become customers of the City without being required to pay the amount due on the delinquent account. Terms and conditions for occupants to become customers of the City are provided in Section 8 below. (b) If the City furnishes water through a master meter in a multi-unit residential structure, mobile home park, or permanent residen tial structures in a labor camp and the owner, manager, or operator of the dwelling, structure, or park is the customer of record, the City will make a good faith effort to inform the occupants, by means of written notice posted on the door of each residential unit at least fifteen (15) days prior to termination, that the account is in arrears and the service will be terminated on a date specified in the notice. If it is not reasonable or practicable to post the notice on the door of each unit, the City will post two (2) copies of the notice in each accessible common area and at each point of access to the structure or structures. The notice will inform the residential occupants that they have the right to become customers of the City without being required to pay the amount due on the delin quent account. The notice will also specify what the occupants are required to do in order to prevent termination of, or to reestablish service; the estimated monthly cost of service; the title, address, and telephone number of a representative of the Cit y who can assist the occupants in continuing service; and the address or telephone number of a qualified legal services project that has been recommended by the local county bar association. Terms and conditions for occupants to become customers of the Ci ty are provided in Section 8 below. 4.3 In-Person or Telephonic Notice. The City will also make a reasonable, good faith effort to contact the customer of record or adult person living at the service address in person or by telephone at least seven (7) days before discontinuation of service. 4.4 Posting of Notice at Service Address. If the City is unable to make contact with the customer or an adult person living at the service address in person or by telephone, the City will make a good faith effort to leave a notice of imminent discontinuation of residential service and a copy of this Policy in a conspicuous place at the service address. The notice and copy of this Policy will be left at the residence at least forty-eight (48) hours before discontinuation of service. The notice will include: (a) the name and address of the customer; (b) the amount of the delinquency; (c) the date by which payment or payment arrangements must be made to avoid discontinuation of service; 5.2.a Packet Pg. 168 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) 24438.00000\31918070.1 (d) the procedure for the customer to obtain information on financial assistance, if applicable; and (e) the telephone number where the customer may request a payment arrangement or receive additional information from the City. 4.5 Circumstances Under Which Service Will Not Be Discontinued. The City will not discontinue residential water service for nonpayment under the following circumstances: (a) During an investigation by the City of a customer dispute or complaint under Section 5.1 below; (b) During the pendency of an appeal to the City Council under Section 5.3 below; or (c) During the period of time in which a customer’s payment is subject to a City-approved extension, amortization, or alternative payment schedule under Section 6 below, and the customer remains in compliance with the approved payment arrangement. 4.6 Circumstances Under Which Service Through a Master Meter Will Not Be Discontinued. If the City furnishes water through a master meter in a multi -unit residential structure, mobile home park, or permanent residen tial structures in a labor camp and the owner, manager, or operator of the dwelling, structure, or park is the customer of record, the City will not discontinue residential water service for nonpayment under the following circumstances: (a) When the customer’s indebtedness is owed to another public agency, or when the obligation represented by the delinquent account or indebtedness was incurred with any public agency other than the City’s water utility; (b) If a delinquent account relates to another property owned, managed, or operated by the customer; (c) If a public health or building officer certifies that termination would result in a significant threat to the health or safety of the residential occupants or the public. 5.2.a Packet Pg. 169 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) 24438.00000\31918070.1 4.7 Special Medical and Financial Circumstances Under Which Under Which Services Will Not Be Discontinued. (a) The City will not discontinue water service if all of the following conditions are met: (i) The customer, or a tenant of the customer, submits to the City the certification of a licensed primary care provider that discontinuation of water service will be life threatening to, or pose a serious threat to the health and safety of, a resident of the premises where residential service is provided; (ii) The customer demonstrates that he or she is financially unable to pay for residential service within the City’s normal billing cycle. The customer is deemed financially unable to pay during the normal billing cycle if: (a) any member of the customer’s household is a current recipient of CalWORKs, CalFresh, general assistance, Medi-Cal, Supplemental Security Income/State Supplementary Payment Program, or California Special Supplemental Nutrition Program for Women, Infants, and Children, or (b) the customer declares under penalty of perjury that the household’s annual income is less than 200 percent of the federal poverty level; and (iii) The customer is willing to enter into an alternative payment arrangement, including an extension, amortization, or alternative payment schedule, with respect to the delinquent charges. (b) For any customers who meet all of the above conditions, the City shall offer the customer one of the following options, to be selected by the City in its discretion: (1) an extension of the payment period; (2) amortization of the unpaid balance; or (3) an alternative payment schedule. The City’s Finance Director will select the most appropriate payment arrangement, taking into consideration the information and documentation provided by the customer, as well as the City’s payment needs. Any payment arrangement entered into pursuant to this Section will be subject to the terms, conditions, and remedies, in Section 6. (c) The customer is responsible for demonstrating that the conditions in subsection (a) have been met. Upon receipt of documentation from the customer, the City will review the documentation within seven (7) days and: (1) notify the customer of the alternative payment arrangement selected by the City and request the customer’s signed assent to participate in that alternative arrangement; (2) request additional information from the customer; 5.2.a Packet Pg. 170 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) 24438.00000\31918070.1 or (3) notify the customer that he or she does not meet the conditions in subsection (a). 4.8 Time of Discontinuation of Service. The City will not discontinue water service due to nonpayment on a Saturday, Sunday, legal holiday, or at any time during which the City’s office is not open to the public. 4.9 Restoration of Service. Customers whose water service has been discontinued may contact the City by telephone or in person regarding restoration of service. Restoration shall be subject to payment of: (a) any past-due amounts, including applicable interest or penalties; (b) any reconnection fees, subject to the limitations in Section 7.1, if applicable; (c) and a security deposit, if required by the City. 5. Procedures to Contest or Appeal a Bill. 5.1 Time to Initiate Complaint or Request an Investigation. A customer may initiate a complaint or request an investigation regarding the amount of a bill within five (5) days of receiving a disputed bill. For purposes of this Section 5.1 only, a bill shall be deemed received by a customer five (5) days after ma iling and immediately upon e- mailing. 5.2 Review by City. A timely complaint or request for investigation shall be reviewed by a manager of the City, who shall provide a written determination to the customer. The review will include consideration of whether the customer may receive an extension, amortization, or alternative payment schedule under Section 6. 5.3 Appeal to City Council. Any customer whose timely complaint or request for an investigation pursuant to this Section 5 has resulted in an adverse determination may appeal the determination to the City Council by filing a written notice of appeal with the City Clerk within ten (10) business days of the City’s mailing of its determination. Upon receiving the notice of appeal, the City Clerk will set the matter to be heard at an upcoming City Council meeting and mail the customer written notice of the time and place of the hearing at least ten (10) days before the meeting. The decision of the City Council shall be final. 6. Extensions and Other Alternative Payment Arrangements. 6.1 Time to Request an Extension or Other Alternative Payment Arrangement. If a customer is unable to pay a bill during the normal payment period, the customer may request an extension or other alternative payment arrangem ent described in this Section 6. If a customer submits his or her request within thirteen (13) days after mailing of a written notice of discontinuation of service by the City, the request will be reviewed by a manager of the City. City decisions regarding extensions and other alternative payment arrangements are final and are not subject to appeal to the City Council. 6.2 Extension. If approved by the City, a customer’s payment of his or her unpaid balance may be temporarily extended for a period not to exceed three (3) 5.2.a Packet Pg. 171 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) 24438.00000\31918070.1 months after the balance was originally due. The City’s Finance Director shall determine, in his or her discretion, how long an extension shall be provided to the customer. The customer shall pay the full unpaid balance by the date set by the City and must remain current on all water service charges accruing during any subsequent billing periods. The extended payment date will be set forth in writing and provided to the customer. 6.3 Amortization. If approved by the City, a customer’s payment of his or her unpaid balance may be amortized over a period not to exceed six (6) months, as determined by the City’s Finance Director in his or her discretion. If amortization is approved, the unpaid balance will be divided by t he number of months in the amortization period, and that amount will be added to the customer’s monthly bills for water service until fully paid. During the amortization period, the customer must remain current on all water service charges accruing during any subsequent billing periods. The amortization schedule and amounts due will be set forth in writing and provided to the customer. 6.4 Alternative Payment Schedule. If approved by the City, a customer may pay his or her unpaid balance pursuant to an alternative payment schedule that will not exceed six (6) months, as determined by the City’s Finance Director in his or her discretion. If approved, the alternative payment schedule may allow pe riodic lump-sum payments that do not coincide with the City’s established payment date or may provide for payments made more or less frequently than the City’s regular payment date. During the period of the alternative payment schedule, the customer must remain current on all water service charges accruing during any subsequent billing periods. The alternative payment schedule and amounts due will be set forth in writing and provided to the customer. 6.5 Failure To Comply. The City may discontinue water service if a customer who has been granted a payment arrangement under this Section 6 fails to comply with the payment arrangement and the original bill subject to the payment arrangement is at least sixty (60) days delinquent. The City will post a final notice of intent to disconnect service in a prominent and conspicuous location at the service address at least five (5) business days before discontinuation of service. The final notice will not entitle the customer to any investigation or review by the City. 7. Specific Programs for Low -Income Customers. 7.1 Reconnection Fee Limits. For residential customers who demonstrate to the City a household income below 200 percent of the federal poverty line, the City will limit any reconnection fees during normal operating hours to fifty dollars ($50), and during non-operational hours to one hundred fifty dollars ($150). The limits will only apply if the City’s reconnection fees actually exceed these amounts. These limits are subject to an annual adjustment for changes in the Bureau of Labor Statistics’ Consumer Price Index for All Urban Consumers (CPI-U) beginning January 1, 2021. 5.2.a Packet Pg. 172 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) 24438.00000\31918070.1 7.2 Qualifications. The City will deem a residential customer to have a household income below 200 percent of the federal poverty line if: (a) any member of the household is a current recipient of CalWORKs, CalFresh, general assistance, Medi - Cal, Supplemental Security Income/State Supplementary Payment Program, or California Special Supplemental Nutrition Program for Women, Infants, and Children, or (b) the customer declares under penalty of perjury that the household’s annual income is less than 200 percent of the federal poverty level. 8. Procedures for Occupants or Tenants to Become Customers of the City. 8.1 Agreement to City Terms and Conditions of Service. The City will make service available to the actual residential occupants if each occupant agrees to the terms and conditions of service and meets the requirements of the City’s rules and regulations. Notwithstanding, if one or more of the occupants are willing and able to assume responsibility for the subsequent charges to the account to the satisfaction of the City, or if there is a physical means, legally available to the City, of selectively discontinuing service to those occupants who have not met the requirements of the City’s rules and regulations, the City shall make service available to the occupants who have met those requirements. 8.2 Verification of Tenancy. In the case of a detached single-family dwelling, in order for the amount due on the delinquent account to be waived, an occupant who becomes a customer shall verify that the delinquent account customer of record is or was the landlord, manager, or agent of the dwelling. Verification may include, but is not limited to, a lease or rental agreement, rent receipts, a government document indicating that the occupant is renting the property, or information disclosed pursuant to Section 1962 of the Civil Code, at the discretion of the City. 8.3 Methods of Establishing Credit. If prior service for a period of time is a condition for establishing credit with the City, residence and proof of prompt payment of rent for that period of time is a satisfactory equivalent. 8.4 Deductions from Rental Payment. Pursuant to Government Code Section 60371(d), any occupant who becomes a customer of the City pursuant to this Section 8 and whose periodic payments, such as rental payments, include charges for residential water service, where those charges are not separately stated, may deduct from the periodic payment each payment period all reasonable charges paid to the City for those services during the preceding payment period. 9. Third Party Notification Service for Seniors and Dependent Adults. The City will make available, to residential customers who are 65 years or older, or who are dependent adults (as defined in Welfare and Institutions Code Section 15610(b)(1)), a third-party notification service whereby the City will attempt to notify a person designated by the customer to receive notification when the customer’s account is past - due and subject to termination. The notification will include information on what is required to prevent termination of service. The City will mail the notification to the designated third party at least ten (10) days before termination of service. To 5.2.a Packet Pg. 173 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) 24438.00000\31918070.1 participate, the customer must submit a request for third -party notification on a form provided by the City, and must include the written consent of the designated third party. The notification service does not obligate the third party to pay any overdue charges, nor shall it prevent or delay termination of service. 10. Language for Certain Written Notices. All written notices under Section 4 and Section 6.6 of this Policy shall be provided in English, Spanish, Chinese, Tagalog, Vietnamese, Korean, and any other language spoken by ten percent (10%) or more people within the City’s service area. 11. Other Remedies. In addition to discontinuation of water service, the City may pursue any other remedies available in law or equity for nonpayment of water service charges, including, but not limited to: securing delinquent amounts by filing liens on real property, filing a claim or legal action, or referring the unpaid amount to collections. In the event a legal action is decided in favor of the City, the City shall be entitled to the payment of all costs and expenses, including attorneys’ fees and accumulated interest. 12. Discontinuation of Water Service for Other Customer Violations. The City reserves the right to discontinue water service for any violations of City ordinances, rules, or regulations other than nonpayment. 13. Decisions by City Staff. Any decision which may be taken by the City’s Finance Director under this Policy may be taken by his or her designee. 5.2.a Packet Pg. 174 Attachment: Resolution 3783 Exhibit A (SB 998 Policy on Discontinuation of Water Service) STATE OF CALIFORNIA ) ORDINANCE NO. 19-20 COUNTY OF RIVERSIDE ) CITY OF SAN JACINTO ) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA, AMENDING CHAPTERS 13.04 AND 13.08 OF TITLE 13 OF THE SAN JACINTO MUNICIPAL CODE, REGARDING TERMINATION OF WATER SERVICE, PAYMENT OF WATER RATES AND CHARGES, AND ADOPTION OF POLICIES THEREOF WHEREAS, the City San Jacinto, California (“City”) is a municipal corporation, duly organized under the California Constitution and laws of the State of California; and WHEREAS, the City is a public water system that supplies water to residential, commercial, and industrial customers throughout the City’s jurisdiction; and WHEREAS, in 2018, the California Legislature adopted Senate Bill 998 (“SB 998”) which adopted new and expanded protections regarding discontinuation of water service for nonpayment and related matters; and WHEREAS, the City Council desires to amend the Chapters 13.04 and 13.08 of the San Jacinto Municipal Code to ensure consistency with the requirements of SB 998. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Recitals. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. Amendments to Chapters 13.04 and 13.08. A. Section 13.04.050 of the San Jacinto Municipal Code is hereby amended to read as follows: 13.04.050 Grounds for termination of service—Fees for reestablishment. On failure to comply with the rules and regulations established as a condition to the use of water or failure to pay water rates and charges, meter charges or meter rent or any charge or penalty imposed, in the time and manner specified, or in case of unlawful use or willful waste of water, the water may be shut off until payment of the amount due is made or the abuse is discontinued. In any such event the water shall not be turned on again until an additional charge is paid in such amount as may be fixed by resolution of the city council from time to time for reestablishing service. The fee for reestablishing service at times other than usual business hours shall 5.2.b Packet Pg. 175 Attachment: Ord No 19-20 (SB 998 Policy on Discontinuation of Water Service) be fixed at a greater amount than for usual bu siness hours reestablishment. For purposes of this chapter the usual business hours of the city will be those hours as specified in the resolutions or ordinances pertaining to personnel rules and regulations. To the extent required by law, the city will limit charges for reestablishing service for qualified low-income residential customers. B. Section 13.08.050 of the San Jacinto Municipal Code is hereby amended to read as follows: 13.08.050 Security deposits. A. Any consumer requesting water to be furnished on premises shall, before connection is made or service commenced, pay to the city a security deposit in an amount set by resolution of the city council. The deposit shall secure the following obligations, but in priority of the order mentioned so that all the amount due of a higher priority obligation shall be satisfied in full from the deposit before any portion of the deposit may be applied toward the next in priority: sewer charges of Eastern Municipal Water District this city has agreed to collect, city sewer and water service charges and penalties, any other charge due the city by the consumer. The deposit shall be repaid to the consumer when service is for any cause discontinued, less deduction of any charge or penalty then payable by the consumer. Upon approval of the city manager or his or her designee, any property owner requesting water to be furnished may have the deposit waived as long as they have had no delinquencies within the previous twelve (12) month period and no prior delinquent tenants at that location. B. If a tenant requests to become a city water customer after receiving a notice of termination of water service due to nonpayment by the property owner or landlord, and the tenant agrees to all other requirements of becoming a city water customer, the deposit may be waived by showing proof of residence and prompt payment of rent at the service location for the previous twelve (12) month period. C. The order of priority for which all deposits shall be subject shall apply to all existing deposits held by the city as well as those hereafter received, effective thirty (30) days after adoption of the ordinance codified in this chapter. The increased amounts of deposits required hereby shall apply only to deposits required after the effective date of the ordinance codified in this chapter. C. Section 13.08.080 of the San Jacinto Municipal Code is hereby amended to read as follows: 13.08.080 Time of payment—Discontinuance for nonpayment. 5.2.b Packet Pg. 176 Attachment: Ord No 19-20 (SB 998 Policy on Discontinuation of Water Service) All charges and compensations for water shall be due and payable seven (7) days after mailing. Additional notice shall be provided as required by state law or city rules and regulations. If payment is not made within sixty (60) days of the due date, service may be discontinued. Charges for reconnection shall be as set forth by resolution of the city council, except to the extent required by law for certain low-income customers. D. Section 13.08.090 is hereby added to the San Jacinto Municipal Code to read as follows: 13.08.090 Policy for discontinuation of residential water service. The city council may, by resolution or motion, adopt a policy for discontinuation of residential water service. Such policy may include, but may not be limited to, provisions concerning billing procedures, discontinuation of service, notification procedures, restoration of service, procedures to contest or appeal a water bill, extensions or other alternative payment arrangements, protections available to qualified low-income customers, procedures for becoming a customer of the city under specified circumstances, and related matters. To the extent a policy adopted pursuant to this section conflicts with any provisions of this chapter or chapter 13.04, the policy shall control. SECTION 6. CEQA. The City Council has determined that the proposed ordinance is not a “project” as defined by the California Environmental Quality Act (CEQA) Guidelines Section 15378. SECTION 7. Severability. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The city council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. SECTION 8. Certification. The City Clerk of the City of San Jacinto shall certify to the adoption of this Ordinance. SECTION 9. Effective Date. This Ordinance shall become effective on the 31st day following its adoption, or on February 1, 2020, whichever is later. SECTION 10. Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published once within 15 days of adoption in a newspaper of general circulation printed and published within the City of San Jacinto, and shall post a certified copy of this Ordinance, including the vote for and against the same, in the Office of the City Clerk in accordance with Government Code § 36933. 5.2.b Packet Pg. 177 Attachment: Ord No 19-20 (SB 998 Policy on Discontinuation of Water Service) Introduced at a regular meeting of the City Council on the 3rd day of December 2019. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the 17th day of December 2019, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: CITY OF SAN JACINTO: _______________________ Russell Utz, Mayor ATTEST: ____________________________ Angela Walton, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER LLP ____________________________ Michael J. Maurer, City Attorney 5.2.b Packet Pg. 178 Attachment: Ord No 19-20 (SB 998 Policy on Discontinuation of Water Service) STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss CITY OF SAN JACINTO) CERTIFICATION I, Angela Walton, duly appointed City Clerk of the City of San Jacinto, do hereby certify that the foregoing Ordinance No. 19-20 was introduced at a regular meeting of the City Council of the City of San Jacinto on the 3 rd day of December 2019. Ordinance No. 19- 20 was duly passed, approved, and adopted by the City Council of the City of San Jacinto, California, at a regular meeting of the City Council held on the 17th day of December 2019 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: WITNESS MY HAND AND OFFICIAL SEAL of the City of San Jacinto the 17th day of December, 2019. _________________________ Angela Walton, City Clerk City of San Jacinto 5.2.b Packet Pg. 179 Attachment: Ord No 19-20 (SB 998 Policy on Discontinuation of Water Service) STATE OF CALIFORNIA ) RESOLUTION NO. 3783 COUNTY OF RIVERSIDE ) ss. CITY OF SAN JACINTO ) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO ADOPTING A POLICY ON DISCONTINUATION OF WATER SERVICE WHEREAS, California Health and Safety Code Section 116906 requires each urban and community water system, including the City of San Jacinto (“City”), to have a written policy on discontinuation of residential service for nonpayment available in English, the languages listed in Section 1632 of the Civil Code, and any other language spoken by at least 10 percent of the people residing in the City’s service area, and such written policy must address specified subjects required by law; and WHEREAS, pursuant to Section 13.08.090 of the San Jacinto Municipal Code, the City Council may, by resolution or motion, adopt a policy for discontinuation of residential water service, and such policy may include, but may not be limited to, provisions concerning billing procedures, discontinuation of service, notification procedures, restoration of service, procedures to contest or appeal a water bill, extensions or other alternative payment arrangements, protections available to qualified low-income customers, procedures for becoming a customer of the City under specified circumstances, and related matters; and WHEREAS, the City Council desires to adopt the Policy for Discontinuation of Residential Water Service attached to this Resolution as Exhibit A. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JACINTO RESOLVES AS FOLLOWS: Section 1. The City Council of the City hereby adopts the attached Policy for Discontinuation of Residential Water Service (“Policy”). As provided in Section 13.08.090 of the San Jacinto Municipal Code, to the extent any prov ision of the Policy conflicts with any provisions of Chapter 13.04 or 13.08 of the Municipal Code, the Policy shall control. Section 2. This Resolution shall become effective on February 1, 2020. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the 3rd day of December 2019, by the following vote: 5.2.c Packet Pg. 180 Attachment: Resolution 3783 (SB 998 Policy on Discontinuation of Water Service) AYES: NAYS: ABSTAIN: ABSENT: CITY OF SAN JACINTO: __________________________ Russell Utz, Mayor ATTEST: ______________________________ Angela Walton, City Clerk APPROVED AS TO FORM: BEST BEST & KRIEGER, LLP ______________________________ Michael J. Maurer, City Attorney 5.2.c Packet Pg. 181 Attachment: Resolution 3783 (SB 998 Policy on Discontinuation of Water Service) 3 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss CITY OF SAN JACINTO) CERTIFICATION I, Angela Walton, duly appointed City Clerk of the City of San Jacinto , do hereby certify that the foregoing Resolution No. 3783 was duly passed, approved and adopted at a regular meeting of the City Council of the City of San Jacinto the 3 rd day of December, 2019 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: WITNESS MY HAND AND OFFICIAL SEAL of the City of San Jacinto the 3 rd day of December, 2019. _________________________ Angela Walton, City Clerk City of San Jacinto 5.2.c Packet Pg. 182 Attachment: Resolution 3783 (SB 998 Policy on Discontinuation of Water Service) Exhibit A EXHIBIT “A” TO RESOLUTION NO. 3783 POLICY ON DISCONTINUATION OF RESIDENTIAL WATER SERVICE 5.2.c Packet Pg. 183 Attachment: Resolution 3783 (SB 998 Policy on Discontinuation of Water Service) x m Ue c 'vy a m Ln m Z :3 ° .a m W O C L N 7, E w L (Li.3 lu ui 41 O L 41 {� w L ,C � •LYy Q A 'a E O � E *- SCL W cu Cr 0 a) U z + �NL� F- 0 M w 2 a. 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