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HomeMy WebLinkAbout23-21RESOLUTION 23-21 A RESOLUTION OF THE CITY COUNCIL OF THE TOWN OF LOS ALTOS HILLS TO EXECUTE MEMORANDUMS OF UNDERSTANDING WITH THE COUNTY OF MARIPOSA, THE CITY OF WILLOWS AND THE COUNTY OF TRINITY FOR THE PURCHASE OF 4,323,712 IN RULE 20A WORK CREDITS FOR THE AMOUNT OF $2,012,240 WHEREAS, On June 20, 2019, the Town of Los Altos Hills (Town) adopted a resolution to form an underground utility district in the area around the El Monte Fire Station; and WHEREAS, electric utilities collect and annually allocate credits to communities to convert overhead electric facilities to underground electric facilities, which are commonly referred to as Rule 20A credits; and WHEREAS, Pacific Gas and Electric Company (PG&E) allocates Rule 20A work credits to the Town annually, and the Town has accumulated a total of 304,871 in such credits as of February 28, 2021 and has identified the El Monte Fire Station Undergrounding Project as an eligible Rule 20A undergrounding project; and WHEREAS, for many years, PG&E's Rule 20A credit program has allowed agencies to trade or sell unencumbered Rule 20A credits to other agencies based on a mutually agreeable rate of exchange and an agreement between the agencies for the trade or sale of such credits; and WHEREAS, the Town previously notified and has engaged in discussions with PG&E since the underground utility district was formed in June 2019 regarding the acquisition and transfer of Rule 20A work credits from other jurisdictions with the intent of applying the transferred credits to the El Monte Fire Station Undergrounding Project; and WHEREAS, the CPUC is scheduled to consider a proposed order in Rulemaking 17-05-010, a part of which would determine whether to modify the current practice of allowing agencies to sell, transfer or assign unencumbered Rule 20A credits, at its May 6, 2021 meeting; and WHEREAS, the Town has negotiated a Memorandum of Understanding (MOU) with the County of Mariposa, attached hereto as Exhibit A, to purchase 2,992,327 Rule 20A work credits at a rate of $0.45 for each work credit, subject to approval by PG&E of the transfer of credits; and WHEREAS, the Town has negotiated a MOU with the City of Willows, attached hereto as Exhibit B, to purchase 859,915 Rule 20A work credits at a rate of $0.50 for each work credit, subject to approval by PG&E of the transfer of credits; and WHEREAS, the Town has negotiated MOU with the County of Trinity, attached hereto as Exhibit C, to purchase 471,470 Rule 20A work credits at a rate of $0.50 for each work credit, subject to approval by PG&E of the transfer of credits. NOW, THEREFORE, the City Council of the Town of Los Altos Hills does hereby RESOLVE to approve the Memorandums of Understanding (MOUS) with the County of Mariposa, the City Resolution 23-21 1 Page 1 of Willows and the County of Trinity, attached hereto and incorporated herein as Exhibits A, B and C, for the purchase of 4,323,712 Rule 20A work credits for the total amount of $2,012,240. BE IT FURTHER RESOLVED that the Mayor is hereby authorized to execute the MOU in substantially the same form as Exhibits A, B and C, and any other related documents on behalf of the City, subject to approval as to form by the City Attorney. The above and foregoing Resolution was passed and adopted by the City Council of the Town of Los Altos Hills at a special meeting held on the 28th day of April 2021 by the following vote: AYES: Tyson, Mok, Schmidt, Swan NOES: None ABSTAIN: None RECUSE: Tankha ABSENT: None BY: George Tyson, Vice Mayor ATTEST: re/ ;/ // - - M I Resolution 23-21 Page 2 Exhibit A MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ("MOU") is entered into as of April , 2021, by and between the County of Mariposa ("County") and the Town of Los Altos Hills ("Los Altos Hills"). Los Altos Hills and County are sometimes individually referred to herein as "Party" and collectively as "Parties." RECITALS A. Electric utilities collect and annually allocate funds to communities to convert overhead electric facilities to underground electric facilities ("Rule 20A Credits"). The amount of said credits allocated by Pacific Gas and Electric Company ("PG&E") to the County is hereafter referred to as the "County Allocation." B. Los Altos Hills has identified a qualifying project for which it would utilize available Rule 20A Credits ("Project"). C. Los Altos Hills desires to purchase a portion of the County Allocation to use in connection with their Project and County desires to transfer a portion of the County Allocation to enable the Rule 20A Credits to be used for their intended purpose of undergrounding electric facilities. The portion of said credits is valued at $2,992,327 and is hereafter referred to as the "Undergrounding Allocation." AGREEMENT NOW, THEREFORE, the parties hereto agree as follows: 1. County agrees to transfer and assign its rights and interest in the Undergrounding Allocation to Los Altos Hills and Los Altos Hills agrees to purchase the Undergrounding Allocation in accordance with the terms of this MOU. County agrees to reserve, and subject to Los Altos Hills's option, transfer and assign its rights and interest in additional Undergrounding Allocation credits that may be available beyond those initially identified in this Agreement (the "Option Allocation") to Los Altos Hills and agrees that Los Altos Hills may, but is not required to, execute its option to purchase the Option Allocation credits in accordance with the terms of this MOU. 2. This MOU shall be subject to the approval of the Parties and shall become effective on the date when both such approvals have been obtained (the "Effective Date"). 3. Los Altos Hills shall purchase the Undergrounding Allocation, and may purchase Option Allocation credits, at a purchase price of $0.45 per $1.00 of County Allocation Credits. 4. Within one (1) business day of the Effective Date, Los Altos Hills shall furnish funds in the amount of $1,346,547 ("Purchase Price") for the purchase of the Undergrounding Resolution 23-21 Page 3 Allocation credits valued at $2,992,327. The Purchase. Price shall be deposited into an interest-bearing escrow account ("Escrow") to be opened by County, with interest accruing to County. Subject to the provisions of this Agreement, the Purchase Price shall constitute full consideration for the transfer and assignment of the foregoing Undergrounding Allocation credits. 5. Within one (1) business day of the Purchase Price being deposited in Escrow, County shall deliver a written request to PG&E, with a copy to Los Altos Hills, making a formal request to transfer and assign the Undergrounding Allocation to and for the benefit of Los Altos Hills. County shall cooperate in good faith with Los Altos Hills to provide any additional documentation or information that is reasonably requested by PG&E to complete the transfer. In the event that PG&E is unable to complete, or does not approve, the transfer, County shall provide written notice to Los Altos Hills as soon as practical thereafter of PG&E's written notification to County that PG&E will not complete the transfer. Within ten (10) business days of County's notice, the Escrow Agent shall return/pay the Purchase Price to Los Altos Hills from Escrow. 6. County shall not make or be permitted to make a draw on any amount of the Purchase Price from Escrow until after PG&E has approved and completed the transfer of credits for use in Los Altos Hills' qualifying Project. In addition, in .the event that PG&E changes or rescinds such approval, or that any ruling, order, or action from the California Public Utilities Commission (CPUC) applies to overrule or restrict PG&E's completion of the transfer or the transfer of credits generally such that Los Altos Hills is not able to utilize the credits for the qualifying Project it identified, County shall return any Purchase Price funds drawn from Escrow to Los Altos Hills within ten (10) business days of the date of the CPUC ruling, order or action. Any Purchase Price funds remaining in Escrow at such time shall also be returned to Los Altos Hills. 7. Los Altos Hills acknowledges and agrees that it has conducted its own investigation as to the applicability and transferability of the County Allocation subject to this MOU for use in the Project and that County has not made any representation or warranty to Los Altos Hills with respect to same. The actual use of the County Allocation by Los Altos Hills shall be subject to the rules and procedures adopted by PG&E, the California Public Utilities Commission and such other conditions or requirements as are set forth in the Public Utilities Code. Notwithstanding this section 7, the Parties agree that in the event that Los Altos Hills is not able to utilize the credits for the qualifying Project due to any determination by PG&E or the CPUC, the refund provisions set forth in Sections 5 and 6 shall continue to apply. 8. Each Party shall hold harmless, defend, and indemnify the other Party and its governing body, officers, employees, and agents from and against any and all liability, loss, damage, expense and costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with the failure to comply with any of the Resolution 23-21 Page 4 obligations in this MOU, except such loss or damage caused by the sole negligence or willful misconduct of the other Party. 9. Disputes between the Parties in connection with any matter relating to the terms or provisions of this MOU shall first be considered jointly by the City Manager of Los Altos Hills and the County Administrative Officer for County. Prior to taking any judicial action to interpret or enforce provisions of this MOU, the Parties agree to first submit the matter to a mediator, to be mutually agreed upon by the Parties hereto, in concert with a representative of each Party. Each, Party shall pay one-half of the cost of the mediator. However, pending resolution, the existence of any dispute will not absolve either Party of the responsibility for timely performance of its agreed upon obligations to the other. 10. Each Party agrees to timely prepare accurate and complete financial and performance records relating to the transactions contemplated hereunder, and to maintain and preserve said records for at least three (3) years from the date of final payment under this MOU, except that if any litigation, claim, negotiation, audit or other action is pending, the records shall be retained until completion and resolution of all issues arising therefrom. Pursuant to California Government Code Section 8546.7, all records, documents, conditions and activities of either Party, related to the services provided hereunder, shall be subject to the examination and audit of the California State Auditor and other duly authorized agents of the State of California for a period of three (3) years after final payment under this MOU. Each Party hereby agrees to make such recards available during normal business hours for inspection, audit and reproduction by any duly authorized agents of the State of California or the federal government. Each Party further agrees to allow interviews of any of its employees who might reasonably have information related to such records by any duly authorized agents of the State of California or the federal government. All examinations and audits conducted under this section shall be strictly confined to those matters connected with the performance of this MOU, including the costs of administering this MOU. 11. In the event that either Party is in breach of its obligations as set forth in this MOU, then the non -defaulting Party shall have the right to terminate this MOU on ten (10) business day's written notice to the defaulting Party unless the default is cured within the notice period. Upon termination for breach, the non -defaulting Party may exercise any right or remedy which it may have under applicable law. If Los Altos Hills has made a payment . for the Purchase Price and/or an Option Price to Escrow, and the associated credits have not been transferred at the time this MOU is terminated, the funds in Escrow shall be returned to Los Altos Hills within ten (10) business days of the termination. 12. All notices to be given pursuant to this MOU shall be delivered in person, by U.S. Mail, or by commercial overnight delivery to the address of the Party and shall be effective Resolution 23-21 Page 5 upon receipt. All notices shall be sent and addressed to the representative of the Party as set forth below. Notice may further be given by electronic means, provided, however, that such notice shall not be deemed effective unless it is acknowledged in writing by the recipient of such notice. Town of Los Altos Hills County of Mariposa Attn: Carl Cahill, City Manager Attn: Dallin Kimble 26379 Fremont Road 5100 Bullion Street Los Altos Hills, CA 94022 Post Office Box 784 Mariposa, CA 95338 13. County and Los Altos Hills are independent contractors with respect to each other. This MOU is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture, or any other similar association. Nothing in this MOU shall be construed to create an employment relationship between County and any employee of Los Altos Hills or between Los Altos Hills and any employee of County. Each Party shall be solely responsible for the acts or omissions of its officers, agents, employees, and subcontractors. 14. This MOU shall constitute the entire agreement between the Parties relating to the subject matter of this MOU, and shall supersede any previous agreements, promises, representations, understanding and negotiation, whether oral or written, concerning the same subject matter. 15. This MOU shall be governed and construed in accordance with laws of the State of California. 16. Each Party shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 17. A waiver by either Party of any breach of any term, covenant, or conditions contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 18. The terms of this MOU shall be.construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the MOU or any other rule of construction which might otherwise apply. No addition to, or alteration of, the terms of this MOU shall be valid unless made in writing and signed by the Parties. Resolution 23-21 Page 6 19. If any term or portion of this MOU is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this MOU shall continue in full force and effect. 20. In the event of any dispute or legal action arising under this MOU, the prevailing Party shall not be entitled to attorney's fees. 21. This MOU may be executed by electronic means and in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereby have executed this MOU as of the Effective Date. CITY OF LOS ALTOS HILLS George Tyson Vice Mayor APPROVED AS TO FORM: Steve Mattas City Attorney COUNTY OF MARIPOSA Marshall Long, Chair Mariposa County Board of Supervisors APPROVED AS TO FORM: Steven W. Dahlem County Counsel Resolution 23-21 Page 7 Exhibit B MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ("MOU") is entered into as of April , 2021, by and between the City of Willows ("Willows") and the Town of Los Altos Hills ("Los Altos Hills"). Los Altos Hills and the Willows are sometimes individually referred to herein as "Party" and collectively as "Parties." RECITALS A. Electric utilities collect and annually allocate funds to communities to convert overhead electric facilities to underground electric facilities ("Rule 20A Work Credits"). The amount of said credits allocated by Pacific Gas and Electric Company ("PG&E") to Willows is hereafter referred to as the "Willows Allocation." B. Los Altos Hills has identified a qualifying project for which it would utilize available Rule 20A Work Credits ("Project"). C. Los Altos Hills desires to purchase the entire Willows Allocation to use in connection with their Project and Willows desires to transfer their entire Allocation to enable the Rule 20A Credits to be used for their intended purpose of undergrounding electric facilities. The Willows Allocation balance stands at 859,915 credits as of February 28, 2021 and is hereafter referred to as the "Undergrounding Allocation." AGREEMENT NOW, THEREFORE, the Parties hereto agree as follows: 1. Willows agrees to transfer and assign its rights and interest in the Undergrounding Allocation to Los Altos Hills and Los Altos Hills agrees to purchase the Undergrounding Allocation in accordance with the terms of this MOU. 2. This MOU shall be subject to the approval of the Parties and shall become effective on the date when both such approvals have been obtained (the "Effective Date"). 3. Los Altos Hills shall purchase the Undergrounding Allocation at a purchase price of $0.50 per Rule 20A Work Credit. 4. Within one (1) business day of the Effective Date, Los Altos Hills shall furnish funds in the amount of $429,957.50 ("Purchase Price") for the purchase of the Undergrounding Resolution 23-21 Page 8 Allocation of 859,915 Rule 20A Work Credits. The Purchase Price shall be deposited into an interest-bearing escrow account ("Escrow") to be opened by Willows, with interest accruing to Willows. Subject to the provisions of this Agreement, the Purchase Price shall constitute full consideration for the transfer and assignment of the foregoing Undergrounding Allocation credits. 5. Within one (1) business day of the Purchase Price being deposited in Escrow, Willows shall deliver a written request to PG&E, with a copy to Los Altos Hills, making a formal request to transfer and assign the Undergrounding Allocation to and for the benefit of Los Altos Hills. Willows shall cooperate in good faith with Los Altos Hills to provide any additional documentation or information that is reasonably requested by PG&E to complete the transfer. In the event that PG&E is unable to complete, or does not approve, the transfer, Willows shall provide written notice to Los Altos Hills as soon as practical thereafter of PG&E's written notification to Willows that PG&E will not complete the transfer. Within ten (10) business days of Willows' notice, the Escrow Agent shall return/pay the Purchase Price to Los Altos Hills from Escrow. 6. Willows shall not make or be permitted to make a draw on any amount of the Purchase Price from Escrow until after PG&E has approved and completed the transfer of credits and Los Altos Hills is able to utilize the credits for the qualifying Project it has identified. In addition, in the event that any ruling, order, or action from the California Public Utilities Commission (CPUC) applies to overrule or restrict PG&E's completion of the transfer or the transfer of credits generally such that Los Altos Hills is not able to utilize the credits for the qualifying Project it identified, Willows shall return any Purchase Price funds drawn from Escrow to Los Altos Hills within ten (10) business days of the date of the CPUC ruling, order or action. Any Purchase Price funds remaining in Escrow at such time shall also be returned to Los Altos Hills. 7. Los Altos Hills acknowledges and agrees that it has conducted its own investigation as to the applicability and transferability of Willows Allocation subject to this MOU for use in the Project and that Willows has not made any representation or warranty to Los Altos Hills with respect to same. The actual use of the Willows Allocation by Los Altos Hills shall be subject to the rules and procedures adopted by PG&E, the California Public Utilities Commission and such other conditions or requirements as are set forth in the Public Utilities Code. Notwithstanding this section 7, the Parties agree that in the event that Los Altos Hills is not able to utilize the credits for the qualifying Project due to any determination by PG&E or the CPUC, the refund provisions set forth in Sections 5 and 6 shall continue to apply. Resolution 23-21 Page 9 8. Each Party shall hold harmless, defend, and indemnify the other Party and its governing body, officers, employees, and agents from and against any and all liability, loss, damage, expense and costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with the failure to comply with any of the obligations in this MOU, except such loss or damage caused by the sole negligence or willful misconduct of the other Party. 9. Disputes between the Parties in connection with any matter relating to the terms or provisions of this MOU shall first be considered jointly by the City Manager of Los Altos Hills and the City Manager for Willows. Prior to taking any judicial action to interpret or enforce provisions of this MOU, the Parties agree to first submit the matter to a mediator, to be mutually agreed upon by the Parties hereto, in concert with a representative of each Party. Each Party shall pay one-half of the cost of the mediator. However, pending resolution, the existence of any dispute will not absolve either Party of the responsibility for timely performance of its agreed upon obligations to the other. 10. Each Party agrees to timely prepare accurate and 'complete financial and performance records relating to the transactions contemplated hereunder, and to maintain and preserve said records for at least three (3) years from the date of final payment under this MOU, except that if any litigation, claim, negotiation, audit or other action is pending, the records shall be retained until completion and resolution of all issues arising therefrom. Pursuant to California Government Code Section 8546.7, all records, documents, conditions and activities of either Party, related to the services provided hereunder, shall be subject to the examination and audit of the California State Auditor and other duly authorized agents of the State of California for a period of three (3) years after final payment under this MOU. Each Party hereby agrees to make such records available during normal business hours for inspection, audit and reproduction by any duly authorized agents of the State of California or the federal government. Each Party further agrees to allow interviews of.any of its employees who might reasonably have information related to such records by any duly authorized agents of the State of California or the federal government. All examinations and audits conducted under this section shall be strictly confined to those matters connected with the performance of this MOU, including the costs of administering this MOU. 11. In the event that either Party is in breach of its obligations as set forth in this MOU, then the non -defaulting Party shall have the right to terminate this MOU on ten (10) business day's written notice to the defaulting Party unless the default is cured within the notice Resolution 23-21 Page 10 period. Upon termination for breach, the non -defaulting Party may exercise any right or remedy which it may have under applicable law. If Los Altos Hills has made a payment for the Purchase Price and/or an Option Price to Escrow, and the associated Rule 20A Work Credits have not been transferred at the time this MOU is terminated, the funds in Escrow shall be returned to Los Altos Hills within ten (10) business days of the termination. 12. All notices to be given pursuant to this MOU shall be delivered in person, by U.S. Mail, or by commercial overnight delivery to the address of the Party and shall be effective upon receipt. All notices shall be sent and addressed to -the representative of the Party as set forth below. Notice may further be given by electronic means, provided, however, that such notice shall not be deemed effective unless it is acknowledged in writing by the recipient of such notice. Town of Los Altos Hills City of Willows Attn: Carl Cahill, City Manager Attn: Wayne Peabody, Interim City Manager 26379 Fremont Road 201 North Lassen Street Los Altos Hills, CA 94022 Willows, CA 95988 13. Willows and Los Altos Hills are independent contractors with respect to each other. This MOU is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture, or any other similar association. Nothing in this MOU shall be construed to create an employment relationship between Willows and any employee of Los Altos Hills or between Los Altos Hills and any employee of Willows. Each Party shall be solely responsible for the acts or omissions of its officers, agents, employees, and subcontractors. 14. This MOU shall constitute the entire agreement between the Parties relating to the subject matter of this MOU, and shall supersede any previous agreements, promises, representations, understanding and negotiation, whether oral or written, concerning the same subject matter. 15. This MOU shall be governed and construed in accordance with laws of the State of California. Resolution 23-21 Page ll 16. Each Party shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 17. A waiver by either Party of any breach of any term, covenant, or conditions contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 18. The terms of this MOU shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the MOU or any other rule of construction which might otherwise apply. No addition to, or alteration of, the terms of this MOU shall be valid unless made in writing and signed by the Parties. 19. If any term or portion of this MOU is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this MOU shall continue in full force and effect. 20. In the event of any dispute or legal action arising under this MOU, the prevailing Party shall not be entitled to attorney's fees. 21. This MOU may be executed by electronic means and in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Resolution 23-21 Page 12 IN WITNESS WHEREOF, the Parties hereby have executed this MOU as of the Effective Date. TOWN OF LOS ALTOS HILLS George Tyson Vice Mayor APPROVED AS TO FORM: Steve Mattas City Attorney CITY OF WILLOWS Larry Domenighini Mayor APPROVED AS TO FORM: David Ritchie City Attorney Resolution 23-21 Page 13 Exhibit C MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (MOU) is entered into the _th day of May 2021 (Effective Date), by and between the County of Trinity (COUNTY) and the Town of Los Altos Hills (LOS ALTOS HILLS). COUNTY and LOS ALTOS HILLS are sometimes individually referred to herein as "Party" and collectively as "Parties". RECITALS A. Electric Utilities collect and annually allocate credits to communities to convert overhead electric facilities to underground electric facilities. (These credits are commonly referred to as Rule 20A Work Credits). The amount of said credits allocated by Pacific Gas and Electric Company (PG&E) to the County of Trinity is hereafter referred to as the "County Allocation". B. LOS ALTOS HILLS hereby represents that it is eligible to use Rule 20A Credits and has the EI Monte Fire Station and Moody Road Underground Project (Project) planned which can utilize Rule 20A Credits. C. On April 28, 2021, the LOS ALTOS HILLS City Council authorized the LOS ALTOS HILLS City Manager to enter into this MOU with the COUNTY to receive the transfer of COUNTY Rule' 20A Credits, and provide for an option to purchase additional County Rule 20A Credits. D. On May 4, 2021, the COUNTY Board of Supervisors authorized the COUNTY Administrator to enter into this MOU with LOS ALTOS HILLS for the transfer of COUNTY Rule 20A Credits to LOS ALTOS HILLS, and to option additional COUNTY Rule 20A Credits to LOS ALTOS HILLS. AGREEMENT NOW, THEREFORE, the Parties hereto agree as follows: COUNTY agrees to transfer and assign, for use by LOS ALTOS HILLS, its rights and interests in up to $471,470 of the County's Allocation, and LOS ALTOS HILLS agrees to acquire, for consideration, all or a portion of the County's Allocation in accordance with the terms of this MOU. This MOU shall be subject to the approval of LOS ALTOS HILLS and COUNTY and shall become effective on the date when both such approvals have been obtained (Effective Date). 1. COUNTY agrees to make an initial transfer to LOS ALTOS HILLS of $471,470 of the County's Allocation at a purchase amount of $235,735. In addition, the COUNTY agrees to provide LOS ALTOS HILLS with an option to transfer additional portions of the County's Allocation at a cost of $0.50 (Fifty Cents) for every $1.00 (One Dollar) of County's Allocation (hereinafter referred to as "Option"). LOS ALTOS HILLS's Option to purchase any additional COUNTY Rule 20A Credits shall expire on June 30, 2022 or upon action by the California Public Utilities Commission restricting such transfers, whichever occurs first. Should LOS ALTOS HILLS choose to exercise its Option, it shall notify the COUNTY in writing, and the parties shall enter into another MOU and complete Resolution 23-21 Page 14 the transfer within 60 days of said LOS ALTOSMLLS notification to the COUNTY. 2. Within 1 business days of the Effective Date, LOS ALTOS HILLS shall furnish funds in the amount of $235,735 (Acquisition Price) for the initial transfer. The Acquisition Price shall be deposited into an interest-bearing escrow account ("Escrow") to be opened by COUNTY, with interest accruing to COUNTY. Subject to the provisions of this Agreement, the Acquisition Price shall constitute full consideration for the transfer and assignment of the County Allocation transferred pursuant to this MOU. 3. Within 1 business days of the Acquisition Price being deposited in Escrow, COUNTY shall deliver a written request to PG&E, with a copy to LOS ALTOS HILLS, making a formal request to transfer and assign $471,470 of the County Allocation to and for the benefit of LOS ALTOS HILLS. COUNTY shall cooperate in good faith with LOS ALTOS HILLS to provide any additional documentation or information that is reasonably requested by PG&E to complete the transfer. In the event that PG&E does not approve or is unable to complete the transfer, COUNTY shall provide written notice to LOS ALTOS HILLS as soon as practical thereafter of PG&E's written notification to COUNTY that PG&E will not complete the transfer. Within ten (10) business days of COUNTY's notice, the Escrow Agent shall return/pay the Acquisition Price to LOS ALTOS HILLS from Escrow. 4. COUNTY shall not make or be permitted to make a draw on any amount of the Acquisition Price from Escrow until after PG&E has approved and completed the transfer of credits and LOS ALTOS HILLS is able to utilize the credits for the qualifying Project it has identified. In addition, in the event that any ruling, order,,or action from the California Public Utilities Commission (CPUC) applies to overrule or restrict PG&E's completion of the transfer or the transfer of credits generally such that LOS ALTOS HILLS is not able to utilize the credits for the qualifying Project it identified, COUNTY shall return any Acquisition Price funds drawn from Escrow to LOS ALTOS HILLS within ten (10) business days of the date of the CPUC ruling, order or action. Any Acquisition Price funds remaining in Escrow at such time shall also be returned to LOS ALTOS HILLS. 5. LOS ALTOS HILLS acknowledges and agrees that it has conducted its own investigation as to the applicability and transferability of the County Allocation for use by LOS ALTOS HILLS and that COUNTY has not made any representation or warranty to LOS ALTOS HILLS with respect to same. The actual use of the CountyAllocation by LOS.ALTOS HILLS shall be subject to the rules and procedures adopted by PG&E, the California Public Utilities Commission, and such other conditions or requirements as are set forth in the Public Utilities Code. Notwithstanding this section 5, the Parties agree that in the event that Los Altos Hills is not able to utilize the credits for the qualifying Project due to any determination by PG&E or the CPUC, the refund provisions set forth in Sections 3 and 4 shall continue to apply. 6. In the event that either Party is in breach of its obligations as set forth in this MOU, then the non -defaulting Party shall have the right to terminate this MOU on ten (10) business days' written notice to the defaulting Party unless the default is cured within the notice period. Upon termination for breach, the non -defaulting party may exercise any right or remedy which it may have under applicable law. If LOS ALTOS HILLS has made a payment for the Acquisition Price to Resolution 23-21 Page 15 Escrow, and the associated credits have not been transferred at the time this MOU is terminated, the funds in Escrow shall be returned to LOS ALTOS H)LLS within ten (10) business days of the termination. 7. All notices to be given pursuant to this MOU shall be delivered in person, by U.S. mail, or by commercial overnight delivery and shall be effective upon receipt. All notices shall be sent and addressed to the representative of the Party that signs this MOU on behalf of the Party. Town of Los Altos Hills County of Trinity Attn: Carl Cahill, City Manager Attn: Richard Tippett, DOT Director 26379 Fremont Road PO Box 2490 Los Altos Hills, CA 94022 31301 State Hwy 3 Weaverville, CA 96093 8. This MOU shall be governed and construed in accordance with the laws of the State of California, and any action brought relating to this MOU shall be adjudicated in a court of competent jurisdiction in the County of Marin. 9. Each party shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 10. A waiver by either party of any breach of any term, covenant, or conditions contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 11. The terms of this MOU shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the MOU or any other rule of construction which might otherwise apply. 12. If any term or portion of this MOU is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this MOU shall continue in; full force and effect. 13. In the event of any dispute or legal action arising under this MOU, the prevailing Party shall not be entitled to attorney's fees. 14. This MOU may be executed by electronic means in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Resolution 23-21 Page 16 IN WITNESS WHEREOF, COUNTY and LOS ALTOS HILLS have executed this Memorandum of Understanding effective on the date and year first hereinabove set forth. TOWN OF LOS ALTOS HILLS George Tyson Vice Mayor ATTEST: Deborah Padovan City Clerk APPROVED AS TO FORM: Steve Mattas City Attorney COUNTY OF TRINITY Jeremy Brown Chairman — Board of Supervisors ATTEST: Richard Kuhns, Psy. D, Clerk of the Board of Supervisors APPROVED AS TO FORM: Margaret E. Long County Counsel Resolution 23-21 Page 17