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HomeMy WebLinkAboutCounty of Trinity1 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (MOU) is entered into the 29th day of April 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 El 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 2 the transfer within 60 days of said LOS ALTOS HILLS 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 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 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 3 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. 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 Attn: Carl Cahill, City Manager 26379 Fremont Road Los Altos Hills, CA 94022 County of Trinity Attn: Richard Tippett, DOT Director PO Box 2490 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.